Ibrahim Haji v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 4TH DAY OF DECEMBER 2013/13TH AGRAHAYANA, 1935 WP(C).No. 23115 of 2012 (L) ---------------------------- PETITIONER: ----------IBRAHIM HAJI, AGED 58 YEARS S/O MOIDU, NADUVILAKANDY HOUSE, VADAKARA KOZHIKODE. BY ADV. SRI.K.PRAVEEN KUMAR RESPONDENT(S): -------------- 1. STATE OF KERALA, REP. BY THE SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. THE DISTRICT COLLECTOR, KOZHIKODE-673 020. 3. THE SPECIAL TAHSILDAR (LA), KOZHIKODE CITY ROAD IMPROVEMENT PROJECT KOZHIKODE-673020. 4. KOZHIKODE CITY ROAD IMPORVEMENT PROJECT, REP. BY ITS CO-ORDIANTOR, CIVIL STATION (PO) KOZHIKODE-673 020. R4 BY ADV. SRI.K.JAJU BABU, SC, KERALA ROAD FUND BOARD R3 BY GOVERNMENT PLEADER ADV. SRI B.GOPAKUMAR ADV.COMMISSIONER BY ADV. SRI.B.UNNIKRISHNA KAIMAL THIS WRIT PETITION (CIVIL)HAVING BEEN RESERVED FOR JUDGMENT ON 26.09.2013, THE COURT ON 04.12.2013 DELIVERED THE FOLLOWING: WP(C).No. 23115 of 2012 (L) **A P P E N D I X** PETITIONER'S EXHIBITS EXHIBIT P1: TRUE COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT DATED 26.4.2012. EXHIBIT P2: TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER DATED 6.9.12. EXHIBIT P3: TRUE COPY OF THE RECEIPT EVIDENCING SUBMISSION OF BUILDING PLAN. EXHIBIT P4: TRUE COPY OF THE BUILDING AND SITE PLAN. 4TH RESPONDENT'S EXHIBITS ANNEX.R4(a): TRUE COPY OF THE REPLY DT.19.09.12 ISSUED BY R4 TO THE PETITIONER. EXT.R4(a): COPY OF THE JUDGMENT OF THIS COURT IN WPC.37763/04 DT.31.3.05. EXT.R4(b): COPY OF THE JUDGMENT OF THIS COURT IN WPC.32742/2010 DT.27.10.10. /TRUE COPY/ P.A TO JUDGE **K.SURENDRA MOHAN, J. ----------------------------------------------------W.P(c) No.23115 of 2012-L ---------------------------------------------------Dated this the 4[th] December, 2013** ## **J U D G M E N T** The petitioner herein has filed this Writ Petition challenging the proposal of the respondents to construct a bus bay in front of his property. The contention of the petitioner is that, the proposed bus bay would block the entire road frontage of his property, thereby depriving him of the use of the rest of his property also. He had planned to construct an 18 storied building in the property, which would not be possible, it is contended. 2. The petitioner along with 6 others are the absolute owners in possession of an extent of 59.55 cents of land comprised in Re-survey No.2.18-678 (Survey No.86/2) of Kachery Village, Kozhikode Taluk. The property of the petitioner is very close to the Eranhipalam junction, a busy junction in Calicut city. The junction is only about 25 meters from the petitioner's property. His property faces the Eranhipalam-Karaparamba road, which extends from the south to north. The property is on the western side of the road. 2 **W.P(c) No.23115 of 2012-L** 3. While so, about 5.659 cents of land was acquired by respondents 2 and 3 for widening the Karaparamba-Kalluthan Kadavu road as per Gazette Notification dated 26.11.2010. After finalising the proceedings of acquisition, notice was served on the petitioner for taking possession of the property, as per Ext.P1 dated 26.04.2012. Pursuant to Ext.P1 notice, the land was taken possession of. According to the petitioner, properties on the southern and northern sides of his property were also acquired for the very same purpose. According to him, there are properties on both sides of his property which are vacant. The frontage of the petitioner's property would be lost, if the proposed bus bay is constructed. By shifting the bus bay to either the south or the north, at least in part, a portion of the petitioner's frontage could be left free. According to the petitioner, the proposed bus bay would completely block his access to the remaining extent of land. 4. It is also contended by the petitioner that the Eranhipalam junction being the busiest junction in Kozhikode, construction of the bus bay at the junction itself would only aggravate the traffic congestion in the area. According to the petitioner, at present vehicles have to wait about 20 minutes 3 **W.P(c) No.23115 of 2012-L** during peak hours to pass the Eranhipalam junction. If a bus bay is constructed as proposed, the situation would only become worse. According to the petitioner, a bus bay should not be constructed close to a busy junction. Even if it is assumed that a bus bay is necessary, the same would have to be constructed after acquiring properties from both sides of the road, in equal proportions. Though the petitioner had submitted a representation, Ext.P2, to the respondents setting out his objections, he complains that, no orders have been passed thereon till date. Therefore, he has filed this Writ Petition seeking appropriate reliefs. 5. A counter affidavit has been filed by the 3[rd] respondent. According to the 3[rd] respondent, the present roads in Kozhikode city are totally inadequate in containing the huge volume of traffic in city. The traffic is only increasing, with every passing day. It was with the object of improving the situation and easing the traffic congestion that a project for the upgradation of 13 road corridors in Calicut city was taken up. The proposal is being implemented through the Kerala Road Fund Board, Thiruvananthapuram, in three phases. A detailed project report containing proposals for land acquisition, improvement of 4 **W.P(c) No.23115 of 2012-L** roads etc. was prepared by M/s.Consulting Engineering Services Private Ltd., Delhi, under the guidance of Professor Dr. N.S.Sreenivasan, an expert in such matters. It is on the basis of the said report that the present road is being implemented. 6. Accordingly, the necessary land for the purpose was acquired by initiating proceedings under the Land Acquisition Act (hereinafter referred to as `the Act' for short). After completing the necessary formalities, a declaration under Section 6 of the Act was published on 15.11.2011. Award Enquiry under Section 11 of the Act was conducted and thereafter award was passed as early as on 25.04.2012. The entire compensation amount of Rs.24,15,183/- was paid to the petitioner. He has received the compensation amount. Therefore, the property has vested in the Government, it is submitted. The present challenge is therefore not maintainable according to the 3[rd] respondent. 7. A statement has been filed on behalf of the 4[th] respondent reiterating the contentions of the 3[rd] respondent. It is further stated that stones marking the area where the bus bay is proposed to be constructed had been planted in the property well before publication of the notification. Construction of the **W.P(c) No.23115 of 2012-L** 5 bus bay is part of widening of the road. In answer to the allegations of the petitioner that the entire road frontage of his property is proposed to be utilised for construction of the bus bay, it is stated that a 5 metre wide access has been provided to the petitioner, so as to enable him to utilise the remaining property. Therefore, Ext.R4(a) reply has been given to the petitioner informing him of the access provided. The 4[th] respondent has therefore prayed for dismissal of the Writ Petition. The petitioner has filed a reply statement refuting the statements made by the 4[th] respondent. 8. At the instance of the petitioner, as per order dated 3.1.13, an Advocate Commissioner was deputed from this Court to inspect the property and to submit a report. Accordingly, the Advocate Commissioner has inspected the property and has submitted a report dated 18.01.2013, supported by a rough sketch. The Commission Report and sketch are marked as Exts.C1 and C1(a) respectively. 9. According to the Commission Report, neither the proposal for shifting the bus bay nor for changing the alignment of the road by acquiring equal extent of properties from both sides of the road are possible. This is for the reason that the 6 **W.P(c) No.23115 of 2012-L** alignment of the road was fixed by the Chief Engineer, Kerala Road Fund Board in the year 2007, it is not possible to make any changes to the same. Shifting of the bus bay would also affect the alignment, which is not permissible. Further, there are no vacant properties either on the southern or on the northern sides of the property of the petitioner, that could be acquired for the construction of the bus bay. It has also been stated by the Advocate Commissioner that the petitioner has been provided with a 5 meter wide access for facilitating his entry to the rest of his property. It is further stated that the bus bay is located 72 meters to the north of the Eranhipalam junction. Therefore the bus bay would not aggravate the traffic congestion at the junction. 10. The petitioner has filed his objections to the report of the Advocate Commissioner alleging that the petitioner's idea to construct an 18 storied building in the property would not fructify since the access provided is only having a width of 5 meters. The finding of the Advocate Commissioner that there are no vacant properties available for acquisition has also been disputed. ## **W.P(c) No.23115 of 2012-L** 7 11. Heard Advocate K.Praveen Kumar, who appears for the petitioner, the learned Government Pleader Sri G.Gopakumar, Sri Jaju Babu, the Standing Counsel for the 4[th] respondent as well as the Advocate Commissioner Sri B.Unnikrishna Kaimal. I have considered the rival contentions advanced before me anxiously. 12. In the present case, the Notification under Section 4 (1) of the Act was published as early as on 26.11.2010. The Section 6 declaration was published on 15.11.11. Thereafter, an award enquiry was conducted and the award was passed under Section 9 of the Act on 25.04.2012. The petitioner has also received the award amount. The above proceedings have all been completed without the petitioner raising any objections. The property of the petitioner has therefore vested in the Government, having been taken possession of pursuant to Ext.P1. This Writ Petition was filed only on 3.10.12, long thereafter. Therefore, the land acquisition proceedings that were completed without being subjected to any challenge by the petitioner, cannot be reopened at present. I am supported in the above view by the decision of the Division Bench in **G.C.D.A v. Victoria Xavier & Ors.** [2001(1) KLJ 595]. Considering a 8 **W.P(c) No.23115 of 2012-L** similar challenge it has been held in paragraph 11 of the said judgment as follows: “ _Further, we wish to point out that the petitioners approached this Court only in 1994, whereas the award was passed in 1989. The possession of the property was taken in 1979. According to us, petitioners are guilty of laches. We rely on the following observation of the Supreme Court at paragraph 14 in the decision reported in_ _**Muncipal Council, Ahmednagar (supra)** , which reads as follows:_ “..... It is now a well settled principle of law and we need not dilate on this score to the effect that while no period of limitation is fixed but in the normal course of events, the period the party is required for filing a civil proceeding ought to be the guiding factor. While it is true that this extraordinary jurisdiction is available to mitigate the sufferings of the people in general, but it is not out of place to mention that this extraordinary jurisdiction has been conferred on to the law courts under Article 226 of the Constitution on a very sound equitable principle. Hence, the equitable doctrine, namely, “delay defeats equity” has its fullest application in the matter of grant of relief under Article 226 of the Constitution. The discretionary relief can be had provided one has 9 **W.P(c) No.23115 of 2012-L** not by his act or conduct given a go-by to his rights. Equity favours a vigilant rather than an indolent litigant and this being the basic tenet of law, the question of grant of an order as has been passed in the matter as regards restoration of possession upon cancellation of the notification does not and cannot arise.” _In any event, after the award is passed, no writ petition can be filed challenging the acquisition notice or against any proceedings thereunder. This has been the consistent view taken by the Supreme Court.”_ 13. The petitioner has a contention that the proposal for land acquisition was only for widening of the road and not for the construction of a bus bay. The acquisition proceedings were admittedly for the purpose of widening and improving the Karaparamba-Kalluthan Kadavu road. The construction of a bus bay is only part of such widening and improvement of the road. Therefore, the contention of the learned counsel for the petitioner that the construction of a bus bay is not permissible pursuant to acquisition of land for widening of the road, cannot be accepted. 14. The only other question that requires to be considered is, whether the construction of the bus bay as proposed would 10 **W.P(c) No.23115 of 2012-L** shut out the entire means of access of the petitioner to the road. The 4[th] respondent has in his statement stated that a 5 metre wide access has been provided for the petitioner for entering his property. Ext.C1 report of the Advocate Commissioner has found that such an access has been provided. Therefore, it is clear that the petitioner has been provided with a reasonable means of access to his remaining property from the public road. 15. The petitioner has a further case that his idea was to develop the property by constructing an 18 storied building in his property. According to the learned counsel for the petitioner, he had also moved the Kozhikode Corporation for approval of a building plan for the purpose of putting up the construction. It was thereafter that the Notification under Section 4(1) of the Act was issued. It is contended that, construction of an 18 storied building is not permissible with the access that is provided at present. Therefore, it is contended that the construction of the bus bay causes substantial prejudice to the petitioner. 16. As already noticed above, the acquisition proceedings have been completed and the entire property has been taken possession of by the respondents. The property has vested in the State consequent to the acquisition. The petitioner has received **W.P(c) No.23115 of 2012-L** 11 the compensation amount also. The alignment of the road appears to have been fixed much earlier. It was on the basis of the alignment so fixed that the land was acquired. The said proceedings are also over. What remains at present is only the execution of the work. The petitioner had no complaints right from the year 2010 up to the date of filing of this Writ Petition in October, 2012, regarding either the alignment or the acquisition. At present, when all the proceedings have been completed, there is no justification for contending that the utility of the petitioner has been diminished by the proceedings. Since a 5 metre wide access has been provided, it cannot be said that there has been any substantial reduction in the utility of his property. Any change in the present alignment would require initiation of fresh land acquisition proceedings. That would delay the entire project further at substantial prejudice to the public interest. I am not convinced that such a procedure is warranted in the facts and circumstances of the present case, especially viewed in the background of the inaction on the part of the petitioner in challenging the proceedings at the appropriate time. I notice that, by providing a 5 meter wide access, the second prayer in this Writ Petition already stands redressed. **W.P(c) No.23115 of 2012-L** 12 For the foregoing reasons, I am not satisfied that the petitioner is entitled to any of the reliefs sought for in this Writ Petition. This Writ Petition fails and is accordingly dismissed. Sd/- _**(K.SURENDRA MOHAN, JUDGE)**_ rtr/