K.G. Hymavathy v. The Principal Secretary, Department of Revenue, Government of Kerala, Thiruvananthapuram; The Tahasildar, Kochi Taluk; The District Collector, Ernakulam; The Special Tahasildar, Land Acquisition (General) ErnaKulam Collectorate (Tsunami Rehabilitation Cell), Kochi-30; The Secretary, Disaster Management (TRP Cell), Department of Environment, Thiruvananthapuram; The Kerala State Housing Board, represented by the Chairman; Union of India represented by the Secretary to Central Government, Department of Disaster Management, Ministry of Environment, New Delhi.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **TUESDAY, THE 10TH DAY OF OCTOBER 2017/18TH ASWINA, 1939** ## **WP(C).No. 5664 of 2010 (G)** ## **---------------------------** ## **PETITIONER:** - **------------------** **K.G.HYMAVATHY, KEDARAM,KADEKUZHI HOUSE, KUNDANNOOR, MARADU.P.O, KOCHI-682 304.** ## **BY ADV. SRI.K.REGHU KOTTAPPURAM** **RESPONDENT(S):** **------------------------** **1. THE PRINCIPAL SECRETARY, DEPARTMENT OF REVENUE, GOVT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE TAHASILDAR, KOCHI TALUK, KOCHI.** **3. THE DISTRICT COLLECTOR, ERNAKULAM,KOCHI.** **4. THE SPECIAL TAHASILDAR, LAND ACQUISITION(GENERAL) ERNAKULAM COLLECTORATE,,** **(TSUNAMI REHABILITATION CELL),KOCHI-30.** **5. THE SECRETARY, DISASTER MANAGEMENT,(TRP CELL)DEPARTMENT, THIRUVANANTHAPURAM.** **6. THE KERALA STATE HOUSING BOARD, REPRESENTED BY THE CHAIRMAN, THIRUVANANTHAPURAM.** **7. UNION OF INDIA REPRESENTED BY THE SECRETARY TO CENTRAL GOVT. ,DEPARTMENT OF DISASTER MANAGEMENT, MINISTRY OF ENVIRONMENT,, NEW DELHI.** - **R1 TO R5 BY SENIOR GOVERNMENT PLEADER SRI.M.V.ANANDAN R6 BY ADVS. SRI.A.JAYASANKAR, SC** - **SRI.GEORGE BOBAN, SC,** - **SRI.K.DENNY DEVASSY, SC,** - **SRI.MANOJ RAMASWAMY, SC** - **R7 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL BY ADV. SMT.ANGELY SIRUS, CGC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **TS** **WP(C).No. 5664 of 2010 (G) --------------------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS** ## **------------------------------------** **EXHIBIT P1:- A TRUE COPY OF VID DALE DEED NO.541/2007 OF S.R.O .KOCHI. EXHIBIT P2:- A TRUE COPY OF RECEIPT VIDE VTR 988/08-09 DATED 30.9.2008.** **EXHIBIT P3:- A TRUE COPY OF LAND TAX RECEIPT DATED 6.10.2008.** **EXHIBIT P4:- A TRUE COPY F ENCUMBRANCE CERTIFICATE NO.18788/08 DATED 27.9,2008.** **EXHIBIT P5:- A TRUE COPY OF THE BROCHURE IN RESPECT OF HE HOSPITAL ISSUED BY THE PETIONER** **EXHIBIT P6:- A TRUE COPY OF NOTIFICATION NO.542 DATED 17.3.2008.** **EXHIBIT P7:- A TRUE OF NOTICE NO.69/08/D1 DATED 7.4.2008.** **EXHIBIT P8:-A TRUE COPY OF LETTER SENT BY THE PETITIONER PURSUANT TO EXHIBIT P6 & P7.** **EXHIBIT P9:- A TRUE COPY OF LETTER NO.B9-14409/08 DATED 19.5.2008.** **EXHIBIT P10:-A TRUE COPY OF THE LETTER SENT Y THE PETITIONER TO THE SECRETARY DISASTER MANAGEMENT DEPARTMENT.** **EXHIBIT P11:- A TRUE COPY OF SOP MEMO NO.D1-69/08(1)DATED 4.4.2008.** **EXHIBIT P12:- A TUE COPYU F THE MINUTES OF VIDEO CONFERENCE HELD ON 10.9.2009 BY HE PRINCIPAL REVENUE SECRETARY.** **EXHIBIT P13:- A TRUE COPY OF PETITION DATED 17.9.2009 TO THE REVENUE MINISTER.** **EXHIBIT P14:- A TRUE COPY OF LETTER NO.C3-1496/2008 DATED 14.10.2009 SENT BY DISTRICT COLLECTOR.** **EXHIBIT P15:- TRUE COPY F LETTER NO.C3-`1496/2008 DATED 2.2.2010 SENT BY DISTRICT COLLECTOR.** **EXHIBIT P16:- A TRUE COPY OF REPRESENTATION DATED 23.1.2010 TO REVENUE PRINCIPAL SECRETARY.** **EXHIBIT P17:- A TRUE COPY OF REPRESENTATION DATED 1.2.2010 TO THE PRINCIPAL REVENUE SECRETARY.** **EXHIBIT P18:- A TRUE COPY F ORDER NO.G.O(MS)387/2000/RD DATED 22.12.2000.** **WP(C).No. 5664 of 2010 (G) --------------------------------------** ## **EXHIBIT P19:- A TRUE COPY OF PRESS REPORT DATED 22.2.2012 APPEARED IN MALAYALA MANORAMA KOCHI EDITION.** ## **RESPONDENTS EXHIBITS:** **--------------------------------------** **R1(A) TRUE COPY OF THE PROPOSAL SENT BY THE THIRD RESPONDENT. R1(B) TRUE COPY OF G.O (RT) NO 593/11/DMD.** **/TRUE COPY/** **T.S. P.S.TO JUDGE** **RESPONDENT(S)' EXHIBITS - NIL ------------------------------------------------** **/TRUE COPY/** **PS TO JUDGE** ## **TS** ## **A. MUHAMED MUSTAQUE, J.** ------------------------------------ ## W.P. (C) No.5664 of 2010 ------------------------------------ Dated this the 10[th] day of October, 2017 ## **J U D G M E N T** The petitioner in this case challenges the land acquisition proceedings initiated to acquire land for Tsunami Rehabilitation Scheme. Alternatively, the petitioner is also having a prayer for return of the land acquired. A notification was issued as early as on 15.03.2008 to acquire the land. The petitioner objected to the acquisition of the land stating that his land is required for the purpose of establishing a wellness hospital and also for developing it for tourism. Anyhow, the acquisition is over. The petitioner also received compensation. The petitioner would submit that she received the compensation under protest. 2. The present writ petition in fact arises in the backdrop of the fact that the land is found not suitable for the rehabilitation scheme. Therefore, the petitioner attacks the very notification itself stating that there was no public purpose. 3. If the above argument is accepted, certainly, the entire **W.P.(C) No.5664/2010** **2** land acquisition proceedings in respect of the petitioner's property has to be nullified. Therefore, the alternative prayer would depend upon the outcome of the first challenge. 4. The petitioner relied upon the judgments of the Supreme Court in _**Bajirao T.Kote (dead) by Lrs. and another** vs._ _**State of Maharashtra and others**_ ((1995) 2 SCC 442), _**H.M.T House Building Cooperative Society** vs._ _**Syed Khader and others**_ ((1995) 2 SCC 677) and in _**Mahender Pal and others** vs._ _**State of Haryana and others**_ ((2009) 14 SCC 281). 5. The petitioner particularly points out paragraph 14 of the H.M.T's case (supra) and submitted that there was no application of mind in deciding whether the land was suitable for public purpose and therefore, the acquisition is vitiated. The HMT's case in fact arises from a challenge made to a notification issued under Section 4(1) of the Land Acquisition Act, 1894 wherein the land was sought to be acquired for the purpose of a housing scheme. The housing scheme requires prior approval of the State Government. The Supreme Court held that prior approval is to be obtained from appropriate Government for acquisition of the land for public purpose. It is to be noted that acquisition was **W.P.(C) No.5664/2010** **3** for the purpose of a housing co-operative society. It is in that context the Supreme Court held that without prior approval, it cannot be treated as public purpose. In _Bajirao's case_ (supra), the Supreme Court considered whether providing access to temple is public purpose or not. The Supreme Court held that satisfaction with regard to existence of public purpose, of the State Government, is not open to judicial scrutiny unless there is mala fide or colourable exercise of power. 6. This Court does not find that the proposition laid down in _Bajirao's case_ would apply in the present case. There are two ways of looking at this issue. One is that when a decision was taken by a public authority to acquire land, certainly, the petitioner could have challenged that decision contending that the said decision was bad on account of non application of mind. It is concomitant to hold that any decision is valid, if not challenged otherwise. Suitability is a factor to be taken into account by any public authority before proposing to acquire land invoking the provisions of the Land Acquisition Act. The petitioner could have very well challenged that decision under Article 226 of the Constitution of India. However, the petitioner had not chosen to **W.P.(C) No.5664/2010** **4** do so. The petitioner now assails the land acquisition proceedings. When the land acquisition proceedings is questioned, the court will look into the fact whether the land acquisition procedure have been complied or not. There cannot be any doubt that the purpose for which the land was acquired would come within the meaning of 'public purpose'. It is in the domain of the Government to acquire land for any public purpose. The scheme of rehabilitation itself would show it was 'public purpose' as defined under the Land Acquisition Act. No doubt, it is still open for the petitioner to challenge the notification issued under Section 4(1) of the Act. However, the petitioner did not make such a challenge. The petitioner waited till the entire land acquisition proceedings are over. After receiving compensation under protest, the petitioner now cannot turn around and challenge the notification issued under Section 4(1). As already noted, the purpose for which the land was acquired is public purpose. The petitioner having not challenged Section 4(1) notification before conclusion of the land acquisition proceedings is precluded from making any challenge after its conclusion. Therefore, the challenge on this ground **W.P.(C) No.5664/2010** **5** must fail. 7. As far as return of the land is concerned, it is to be noted that in _**State of Kerala** vs._ _**Bhaskaran Pillai**_ ((1997 (2) KLT 217 (SC)), it was held that if land is not fully utilised, that cannot be returned to the owner of the land without recourse to public auction. Therefore, in the light of the above judgment also, I am of the view that the petitioner's alternate plea of return of land cannot be allowed. Accordingly, this writ petition is dismissed. The interim order dated 24.03.2010 of this Court will continue so as to enable the petitioner to workout her appellate remedy, for a period of one month or till such period the Division Bench decides whichever is earlier. Sd/- ## **A. MUHAMED MUSTAQUE JUDGE** smp