Hassankutty v. District Collector, Kozhikode

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE** **FRIDAY, THE 7TH NOVEMBER 2008 / 16TH KARTHIKA 1930** **WP(C).No. 5758 of 2006(I)** **-----------------------------------** **PETITIONER:** - **-------------------** **HASSANKUTTY, S/O.KUNHU HAJI, PUTHIYAPARAMBATH HOUSE, P.O.PERUMANNA, PERUMANNA AMSOM,DESOM, KOZHIKODE - 26.** **BY ADV. SRI.K.MOHANAKANNAN, ADV. SMT.PRAVITHA A.R.** ## **RESPONDENTS:** - **-----------------------** ## **1. THE DISTRICT COLLECTOR, KOZHIKODE.** **2. THE SPECIAL TAHSILDAR (LA) KOZHIKODE.** **3. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM.** **4. THE CHIEF ENGINEER, P.W.D.(ROADS AND BUILDINGS), KOZHIKODE,.** **5. THE LAND REVENUE COMMISSIONER, THIRUVANANTHAPURAM.** ## ***ADDL.R6 IMPLEADED:** - ***6. A. BEERANKOYA, S/O. MAMMIKUTTY, AGED 60 YEARS, ARANGALI HOUSE, PANTHEERANKAVU (P.O), PUTHOOR MADAM, KOZHIKODE.** ***IS IMPLEADED AS ADDL.6TH RESPONDENT BY ORDER DTD. 21/05/08 IN I.A. 4686/2007.** ## **W.P.(C). NO.5758/2006-I:** ## ****ADDL. RESPONDENTS 7 TO 9 IMPLEADED:** - ****7. THE EXECUTIVE ENGINEER, PWD, CIVIL STATION, KOZHIKODE.** - ****8. THE ASSISTANT EXECUTIVE ENGINEER, P.W.D., CIVIL STATION, KOZHIKODE.** - ****9. MR. KAROLI GOPALAN, S/O. KARUNAKARAN NAIR, VELLAYIKODE.P.O., PERUMANNA, KOZHIKODE DISTRICT.** - ****# ( CORRECTED)** **** ADDL. RESPONDENT 7 AND 8 IS IMPLEADED AS PER ORDER DTD. 29/08/08 IN I.A. 11354/08 AND ADDL. R9 IMPLEADED AS PER ORDER DTD. 29/08/08 UPON ORAL APPLICATION BY THE PETITIONER.** ## ****# THE NAME OF THE ADDL. 9TH RESPONDENT IS CORRECTED AS** **KAROLI KARUNAKARAN NAIR, S/O. KAROLI GOPALAN NAIR, PERUMANNA, VELLAYIKODE (P.O), KOZHIKODE,** **AS PER ORDER DATED 02/09/2008 IN I.A. NO. 11513/08.** ## *****ADDL. RESPONDENTS 10 TO 12 IMPLEADED:** - *****10. K.E. KUNJU HAJI, S/O. MOHAMMED HAJI, MUNDOTTU HOUSE, PERUMANA.P.O., KOZHIKODE TALUK, KOZHIKODE -19.** - *****11. K.E. MOHAMMED, S/O. K.E. KUNHI HAJI, PUTHUKUDY HOUSE, VELLAYIKODE.P.O., KOZHIKODE -19.** - *****12. P.V. SULAIKHA, W/O. K.E. MOHAMMED, PUTHUKUDY HOUSE, VELLAYIKODE.P.O., KOZHIKODE-19.** *****IMPLEADED AS PER ORDER DTD. 02/09/2008 IN I.A. 11515/2008.** **R1 TO R5, R7 & R8 BY GOVT. PLEADER SRI. BASANT BALAJI, ADDL. R6 BY ADV. SRI.A.N.RAJAN BABU, ADV. SMT.K.SUNITHA VINOD, ADDL. R.10 TO R.12 BY ADV. SMT.M.A.ZOHRA.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C). NO.5758/2006-I:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** ## **EXT.P.1: COPY OF THE NOTICE PUBLISHED IN THE MATHRUBHUMI DAILY DTD. 17/02/2006.** ## **EXT.P.2: COPY OF THE PLAN SHOWING THE ORIGINAL PROPOSAL OF THE ROAD.** **EXT.P.3: COPY OF THE G.O. (RT).NO.668/2005/PWD DTD. 11/07/2005.** **EXT.P.4: COPY OF THE NOTICE ISSUED BY THE LAND REVENUE COMMISSIONER TO THE DISTRICT COLLECTOR DTD. 16/01/2006.** ## **EXT.P.5: COPY OF THE INVITATION CARD OF PWD INVITING THE INAUGURAL FUNCTION OF STARTING THE WORK OF BYE-PASS ROAD.** **EXT.P.6: COPY OF THE LETTER DTD. 19/02/2004 ISSUED BY THE ASST. ENGINEER, PWD, KOZHIKODE SOUTH TO THE SECRETARY, PERUMANNA PANCHAYATH.** **EXT.P.7: COPY OF THE LETTER DTD. 16/01/2006 ISSUED BY THE PETITIONER TO THE LAND REVENUE COMMISSIONER.** **EXT.P.8: COPY OF THE PROCEEDINGS UNDER SEC. 9(2) OF THE LAND ACQUISITION ACT.** ## **EXT.P.9: COPY OF THE LETTER DTD. 30/10/06 ISSUED BY THE PETITIONER TO THE LAND ACQUISITION TAHSILDAR, KOZHIKODE.** **EXT.P.10: COPY OF THE LETTER DTD. 21/05/07 ISSUED BY THE PRESIDENT, PERUMANNA GRAMA PANCHAYAT TO THE EXECUTIVE ENGINEER, PWD, ROADS DIVISION, KOZHIKODE.** **EXT.P.10.A: COPY OF THE OBJECTION GIVEN BY THE PETITIONERS BEFORE THE R.2. ON 22/02/2006.** **EXT.P.10.B: COPY OF THE PROCEEDINGS OF THE AUCTION NOTIFICATION ISSUED BY THE R.8.** **EXT.P.11: COPY OF THE CONSENT LETTER GIVEN BY THE PETITIONER AND SOME OTHERS TO THE PERUMANNA GRAMA PANCHAYATH.** **EXT.P.12: COPY OF THE LETTER SENT BY THE SUPERINTENDING ENGINEER TO THE CHIEF ENGINEER, PWD (ROADS & BRIDGES), TRIVANDRUM DTD. 18/01/08.** **EXT.P.13: COPY OF THE NOTICE DTD. 15/04/08 ISSUED BY THE R.2. UNDER RULE 15 (3) OF THE LAND ACQUISITION ACT.** **EXT.P.14: COPY OF THE NOTICE NO. 1046/05/PWD DTD. 22/11/2005 ISSUED BY THE R.4.** **EXT.P.15: COPY OF THE PROCEEDINGS OF THE LAND REVENUE COMMISSIONER NO. LR/C4/1550/2006 DTD. 04/02/06.** ## **W.P.(C). NO.5758/2006-I:** **EXT.P.16: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE R.7 DTD. 25/08/2008.** ## **EXT.P.16.A: COPY OF THE ACKNOWLEDGEMENT RECEIPT.** ## **EXT.P.17: COPY OF THE PUBLIC AUCTION NOTICE ISSUED BY THE R.8 ON 30/07/2008.** **EXT.P.18: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER AND HIS FATHER, BROTHER & SISTER.** ## **RESPONDENTS' ANNEXURES:** **ANNEXURE A: GO (RT).NO.1046/05/PWD DTD. 22/11/05.** **ANNEXURE B: PROCEEDING NO. LR.C4-1550/06 DTD. 04/02/06 OF LAND REVENUE COMMISSIONER.** ## **//TRUE COPY//** ## **P.S. TO JUDGE.** **prv.** ## **PIUS C. KURIAKOSE,J.** **- - - - - - - - - - - - - - - - - - - - - - - - -** W.P.(C) No.5758 of 2006 **- - - - - - - - - - - - - - - - - - - - - - - - -** Dated: 7[th] November, 2008 ## **JUDGMENT** As instituted originally, the prayers in the Writ Petition was to quash Ext.P1 combined notification under Section 4(1) read with Section 17(4) of the Land Acquisition Act and for a writ of certiorari quashing Ext.P3 order by which the Government accorded administrative sanction for invoking the urgency provisions under the Land Acquisition Act and for a declaration that enquiry under Section 5A cannot be dispensed with as per Ext.P1. According to the petitioner, he is the owner of property to an extent of 1.38 acres comprising Survey No.79/4, R.S.No.75/9 of Kunnamangalam amsom Perumanna desom of Kozhikode Taluk. The 2[nd] respondent, the Land Acquisition Officer has published Ext.P1 notification proposing to acquire 17.10 cents of land for the public purpose of constructing a bye-pass road for Mankavu-Kanniparamba road. The 2[nd] respondent is dispensed with enquiry under Section 5A on the ground of emergency. What exactly is the emergency is not stated in the notification. The dispensation of the enquiry under Section 5A is without any application of mind. The right of representation and hearing contemplated under Section 5A of the Act is a very valuable right statutorily given to land owners and that right has been taken W.P.C.No.5758/06 - 2 - away lightly. According to the petitioner, there is no emergency as contemplated under Section 17(1) and much less any extreme urgency as contemplated by Section 17(4) in this case and therefore dispensation of enquiry under Section 5A is not at all warranted. 2. A counter affidavit was submitted by the 4[th] respondent, the requisitioning authority. It is stated therein that the very meaning of bye-pass road is to bye-pass a congested town. MankavuKanniparamba road is an important inter district road connecting Kozhikode District and Malappuram District. Consequent on the opening of Kavanakkallu bridge, the traffic intensity through this road has increased very high. A very important town 'Perumanna' is situated on this road which is very narrow and congested having so many numbers of shops and other commercial buildings (56 nos. of buildings of single and multi-storied with more than 200 shops). The present width of the road at this town is only 6 metres with a carriage way width of 3.60 metres. Most of the time, it is possible to have only one way traffic. This causes recurring traffic jams and loss of time is a permanent feature. Hence providing a bye-pass road within a shortest period at this town is only a lasting solution to this problem. The Government accorded sanction for acquisition of land by invoking emergency provisions considering the emergency. It is contended W.P.C.No.5758/06 - 3 - that bye-pass has been proposed with a view to avoid acquisition of built up portions (cluster of buildings). Any widening of the existing road through the Perumanna town will involve acquisition of large number of shops and other commercial buildings. This is why the normal practice of providing bye-pass involving less acquisition costs and minimum retrenchments of larger number of shopkeepers has been resorted to. It is contended that Ext.P2 produced along with the Writ Petition is not the approved alignment. Ext.P2 is only a free hand sketch prepared without any detailed study. The approved alignment was prepared after detailed survey and after considering the acquisition charge and construction cost involved, and was moved for approval only on 11.3.2005 from the Division Office and the alignment was approved on 11.4.2005 by the Chief Engineer, Public Works Department (Roads & Bridges), Trivandrum who is the competent authority for approval. There is only one approved alignment for this bye-pass and the approved alignment starting beyond the Perumanna town and ends at the end point of town connecting to the existing bus stand for maximum public utility. Also where there is sufficient width for the existing road. It is further stated that Government have accorded sanction for acquisition of 0.34 hector land as per the approved alignment vide G.O.(Rt) W.P.C.No.5758/06 - 4 - No.668/05/PWD dated 11.7.2005 and proposal for land acquisition was submitted to the District Collector by the Executive Engineer on 24.10.2005. During field verification with survey records by the Special Tahsildar, it was informed that some survey numbers are missing and some survey numbers are more as per the approved alignment. Based on this a modified Government Order was issued by the Government vide G.O.No.1046/05/PWD dated 22.11.2005 for acquiring 0.490 hectors of land after including missing survey numbers of the approved department. Both the Government Orders are for acquiring the land as per the approved alignment. As directed by the Court, the Government Pleader vide memo dated 28.5.2008 produced copy of G.O.(Rt)No.1046/05/PWD dated 22.11.2005 and Proceedings No.LR.C4 1550/06 dated 4.2.2006 of the Land Revenue Commissioner according sanction for invocation of the emergency provisions of the Land Acquisition Act for dispensation of enquiry under Section 5A of the Act. The petitioner would file copies of the above Government Order and the order of the Land Revenue Commissioner as Exts.P14 and P15 along with petition for amendment, I.A.No.6921 of 2008. That amendment petition was allowed and the prayer for quashing the order of the Land Revenue Commissioner was also incorporated in the Writ Petition. The W.P.C.No.5758/06 - 5 - following are the additional prayers introduced in the Writ Petition: A(a) To issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Exts.P13, P14 and P15 and quash the same. A(b) To issue an appropriate writ, order or direction declaring that the entire proceedings evidenced by Exts.P1, P3, P14 and P15 are vitiated by violation of statutory provisions and also tainted with malafides. 3. The Land Revenue Commissioner has filed a counter affidavit on 29.9.08 justifying his order. He has stated in the counter affidavit that the Executive Engineer, P.W.D., Roads Division, Kozhikode has intimated that the sole aim for constructing bye-pass at Perumanna is to avoid congestion in the Perumanna Town. The bye-pass is proposed with a view to avoid acquisition of built up portion (cluster of buildings) which may cause high value for land acquisition. Any widening of existing road through the Perumanna town will involve acquisition of large number of shops and other commercial buildings. There will be considerable opposition from the tenants to widening of the existing road. In the petition filed by the Perumanna bye-pass Action Committee before the Land Revenue Commissioner, the Committee Chairman pointed out that the need and urgency to improve such a road to avoid the traffic problems and repeated W.P.C.No.5758/06 - 6 - accidents. The Executive Engineer, P.W.D (Roads Division), Kozhikode who is the requisition authority submitted the requisition and the Government Order before the District Collector to obtain urgency sanction from the Commissioner. On the basis of the above records, the requisition and alignment sketch furnished by the requisition authority and on the recommendation from the District Collector, the Land Revenue Commissioner as per Ext.P25 dated 4.2.2006 had accorded sanction for invoking urgency clause under Section 17(4) of the Land Acquisition Act. The Land Revenue Commissioner records that the opinion of the requisition authority was that the land is urgently required for forming the bye-pass road in MankavuKanniparamba road at Perumanna Bazar for reducing the traffic congestion of Perumanna Bazaar and taking into consideration of the Government Order in which the Government accorded permission to invoke urgency clause, the requisition and the recommendation of the District Collector that the land is inevitably essential for the widening of Mankavu-Kanniparamba road for the interest of the public and therefore, the land have to be acquired and handed over to the P.W.D. authorities. The Land Revenue Commissioner examined the proposal and convinced that the land is urgently required for the byepass road and accordingly exercised the power under Sub-section (4) W.P.C.No.5758/06 - 7 - of Section 17 of the Land Acquisition Act and ordered that the provision for hearing of objection under Section 5A need not be conducted. The Commissioner further points out that the Executive Engineer, P.W.D.(Roads Division), Kozhikode had intimated that the construction of the bye-pass is proposed to avoid widening of the existing narrow road and the widening of the present MankavuKanniparamba road will cause heavy financial burden to the Government towards compensation because such an acquisition will lead to the destruction of huge buildings and commercial establishments. Moreover, the same will affect the livelihood of the traders and labourers and this may lead to social problems. 4. Mr.Beerankoya who is said to be the Chairman of Perumanna Bye-pass Action Committee filed an application for getting himself impleaded as additional 6[th] respondent in the Writ Petition and he was impleaded. In the affidavit justifying the acquisition it is stated that the Perumanna town is the administrative centre of Perumanna Grama Panchayat. The P.W.D. and other adjacent roads therein are very narrow with curves which resulted the vehicular traffic to get congested. It was a long cherished wish of the public in the locality to have the said bye-pass road. By the earnest attempt of the local M.L.A. Sri.U.C.Raman as also the repeated representations under his W.P.C.No.5758/06 - 8 - leadership and the demand of the Action Committee, the Government was impressed with the urgent need of a bye-pass road and necessary budgetary provision was also provided with an amount of Rs.90,00,000/- earmarked for the said work with administrative sanction. The work has to be started immediately by acquiring the required land. If the enquiry contemplated under Section 5A is followed, it will be a time consuming process as per the Scheme of the Act and unless the land is not acquired under the emergency provision under Section 17(4), the work cannot be commenced utilising the budgetary provision. The Government was satisfied that there was urgency as contemplated by Section 17(4) and in exercise of its power issued Ext.P1 notification dispensing with Section 5A enquiry. It is after considering all these aspects that the Government ordered dispensation of Section 5A enquiry. The State Government had applied its mind properly in the matter and there was no malafide in taking such action. It is in the general interest of the public that the urgency was felt by the Government. It is seen that through the town there are 57 buses plying apart from thousands of private vehicles. Schools, bus stand and mosque are also situated in the area which has vitally affected the vehicular traffic of especially for those travelers who had to cross the town. The town is very near to the W.P.C.No.5758/06 - 9 - Medical College and Karipur Airport. Under the above circumstances, there is justification for invoking the emergency provisions. 5. The petitioner has filed a reply affidavit. It is contended therein that the very purpose of acquisition is for avoiding traffic congestion in the Perumanna town and that very purpose of the acquisition will be defeated, if the proposed acquisition is proceeded with. It is further contended that Ext.P2 is not an approved alignment and it is only a free hand sketch without any detailed study. Ext.P2 sketch is prepared by the Assistant Engineer, P.W.D. Roads Section, Kozhikode and the Village Officer has signed it. Ext.P10 has been produced along with the reply affidavit. Ext.P10 is copy of the resolution passed by the local Panchayat informing him that the widening of the existing road will satisfy the need of the locality and the Panchayat is ready to make available the land on the side of the existing road free of cost. Some of the occupants and owners on the side of the existing road including the petitioner have agreed to surrender their portions of the property free of cost. Ext.P11 is the true copy of the consent given by the petitioner and some others on stamp paper in that regard. 6. Extensive arguments were addressed before me by Mr.K.Mohanakannan, counsel for the petitioner, Mr.Basant Balaji, W.P.C.No.5758/06 - 10 - learned Senior Government on behalf of the Government and the official respondents and Mr.A.N.Rajan Babu, counsel for the additional 6[th] respondent. 7. Mr.Mohanakannan would refer to Exts.P1, P3, P14, P15, P10, P11, P12 and P13. He submitted that the present proposal to have a bye-pass coming to the existing bus stand in the town will not serve the purpose of a bye-pass. He did not dispute that there was traffic congestion in the town. But according to him, the said problem can be solved by widening the existing road rather than by going in for a bye-pass. According to him, people including himself who owns properties on the side of the existing road have comeforward to give free surrender of their properties for the purpose of widening of the existing road. Learned counsel would argue that there is no justification for dispensing with the enquiry under Section 5A. The right to have such an enquiry is a very valuable right and it is not taken away. After all, there is no such emergency in this case which cannot brook even a month's delay. Counsel relied on various decisions in support of his submissions. The judgments of the Supreme Court in **Union of India v. Mukesh Hans** (2004(3) KLT 462 (SC) and **Competent Authority v. Barangore Jute Factory** [ (2005) 13 SCC 477] and the judgment of this court in **Abdul** W.P.C.No.5758/06 - 11 - **Latheef P.K. v. State of Kerala** (2008(3) KHC 947) were among the decisions cited before me by Mr.Mohanakannan. Counsel highlighted that the Government itself had not taken any action for about two and half years for taking further proceedings after the Land Revenue Commissioner passed his order. 8. Mr.Basant Balaji, learned Senior Government Pleader was able to meet the submissions of Mr.Mohanakannan effectively to a considerable extent. He submitted that Ext.P15 is challenged after the passage of the award. Ext.P13 is the rule 15(3) notice demanding delivery of possession threatening magisterial action. Ext.P13(2) is the award notice under Section 12(2). He pointed out that the declaration under Section 6 was yet to be challenged by the petitioner. He read over to me Section 6(3) which provides that declaration under Section 6 shall be conclusive evidence of the public nature of the acquisition. He submitted that the Land Revenue Commissioner is not expected to pass a detailed order while dispensing with enquiry under Section 5A. What was expected to be done by the Commissioner was to arrive at a subjective satisfaction on the basis of the materials produced before him. In the instant case, there were sufficient materials before the Land Acquisition Officer on the basis of which the Land Revenue Commissioner W.P.C.No.5758/06 - 12 - became satisfied that the urgency existed for invoking Section 17(4) and for dispensing with enquiry under Section 5A. The learned Government Pleader relied on the judgment of the Division Bench of this court in **Ramesh v. State of Kerala** (1992(1) KLT 268). He relied also on the judgment of the Supreme Court in **Scindia Employees' Union v. State of Maharashtra** [(1996) 10 SCC 150]. 9. I have considered the rival submissions addressed at the Bar in the light of the pleadings raised by the parties and the ratio emerging from the various decisions which were cited before me by the counsel. I do not find justification for entertaining the belated challenge of Ext.P15 in this case where the award is already passed and notice under Section 12(2) is issued to the petitioner. The court is expected to be very slow in intervening in land acquisition matters when all steps are completed and the proceedings have become final except in the matter of taking over of possession of the property. Even on merits it is not possible to accept the argument that Ext.P15 is not preceded by application of mind by the Land Revenue Commissioner - the competent authority. It is not necessary that the competent authority should write a detailed order. What is required is the subjective satisfaction of the competent authority regarding the existence of urgency. Significantly, the petitioners do not contend W.P.C.No.5758/06 - 13 - that the purpose behind the acquisition is not a public purpose. Their contention is that the public purpose behind the acquisition can be accomplished by widening the existing road, a case which cannot be accepted for the reasons stated in the counter affidavit submitted by the respondents. The only question to be considered is whether the competent authority- the Land Revenue Commissioner had enough materials before him on which he could have arrived at a satisfaction that emergency exists so as to justify invocation of provisions of Section 17(4) and the dispensation of enquiry under Section 5A. I find from the file placed before me by the learned Government Pleader that the Land Revenue Commissioner had enough materials before him. There was District Collector's letter. There was requisitioning authority's letter. There was also letter from the Vyaparai Vyavasyi Ekopana Samithi. All these according to me were sufficient materials on the basis of which the competent authority could have arrived at a subjective satisfaction regarding the existence of emergency. Such a satisfaction arrived at by the competent authority in this case cannot be said to be arbitrary and not preceded by independent application of mind. 10. Sri.Mohanakannan's explanation for delay caused in the matter of challenging Ext.P15 is not acceptable. The petitioner W.P.C.No.5758/06 - 14 - should have known that apart from the Government granting administrative sanction, there should have been another order by the competent authority dispensing with enquiry under Section 5A. It was for the petitioner to have obtained a copy of that order and make challenge sufficiently earlier. As for this case, even if the challenge is entertained, I do not find any reason to accept the same. The result of the discussion is that the writ petition fails and the same will stand dismissed. srd/sv ## **PIUS C.KURIAKOSE, JUDGE**