Molly Jacob v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932** **WP(C).No. 19847 of 2008(K)** **---------------------------------------** **PETITIONER:** - **-------------------** **MOLLY JACOB, W/O. JACOB THOMAS, MULAMOOTTIL HOUSE, KOZHENCHERRY.** **BY ADV. SRI.V.PHILIP MATHEWS.** **RESPONDENTS:** **------------------------** **1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** ## **2. THE DISTRICT COLLECTOR, KOTTAYAM** **3. THE LAND REVENUE COMMISSIONER, THIRUVANANTHAPURAM** ## **4. THE CHIEF ENGINEER,** - **K.S.T.P OFFICE, THIRUVANANTHAPURAM.** **5. LAND ACQUISITION OFFICER, THE SPECIAL TAHSILDAR ,L.A.(N.H), CHANGANACHERRY.** ## **R1 TO R5 BY GOVERNMENT PLEADER SMT. N. SUDHA DEVI.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/07/2010,THE COURT ON 14/07/2010 DELIVERED THE FOLLOWING:** ## **W.P.(C). NO.19847/2008-K:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXT.P.1: COPY OF THE LAND TAX RECEIPT NO. 3924340 DT. 20/10/2006. EXT.P.2: COPY OF THE LAND TAX RECEIPT NO. 3924338 DT. 20/10/2006. EXT.P.3: COPY OF THE LAND TAX RECEIPT NO. 3924339 DT. 20/10/2006.** **EXT.P.4: COPY OF THE NOTICE ISSUED BY R.5 DT. 14/03/08 IN SURVEY NO. 233/42-1. EXT.P.5: COPY OF THE NOTICE ISSUED BY R.5. DT. 14/03/08 IN SURVEY NO. 233/68-1. EXT.P.6: COPY OF THE NOTICE ISSUED BY R.5. DT. 14/03/08 IN SURVEY NO. 233/69-1. EXT.P.7: COPY OF THE NOTICE ISSUED BY R.5 DT. 14/03/08 IN SURVEY NO. 233/43-1.** **EXT.P.8: COPY OF THE NOTICE ISSUED BY R.5. DT. 14/03/08 IN SRUVEY NO. 233/44-1.** **EXT.P.9: COPY OF THE OBJECTION DTD. 09/04/08 SUBMITTED BY PETITIONER BEFORE THE R.5.** **EXT.P.10: COPY OF THE OBJECTION DTD. 09/04/08 SUBMITTED BY PETITIONER BEFORE THE R.1.** **EXT.P.11: COPY OF THE OBJECTION DTD. 09/04/08 SUBMITTED BY PETITIONER BEFORE THE R.2.** **EXT.P.12: COPY OF THE OBJECTION DTD. 09/04/08 SUBMITTED BY PETITIONER BEFORE THE R.3.** **EXT.P.13: COPY OF THE OBJECTION DTD. 09/04/08 SUBMITTED BY PETITIONER BEFORE THE R.4.** ## **RESPONDENTS' EXHIBIT:** **EXT.R2.A: COPY OF THE LIE OF THE PROPERTIES AND THE ROAD UNDER CONSTRUCTION SHOWING THE BYE-PASS, NEW IAPALAM THE PROPOSED WIDENED M.C. ROAD AND OTHER RELEVANT DETAILS.** ## **//TRUE COPY//** ## **P.A. TO JUDGE.** **Prv.** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) No.19847 of 2008-K** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 14th day of July, 2010.** ## **JUDGMENT** Aggrieved by the proceedings initiated for acquiring the properties of the petitioner under the Land Acquisition Act, this writ petition has been filed. 2. The proposal is to acquire 5.65 ares of petitioner's property for widening the M.C. Road. The total extent of property owned by the petitioner is 25 cents. It is the case of the petitioner that only when the notice under Section 9(3) of the Land Acquisition Act was received, the petitioner knew about the proposal. The notices have been produced as Exts.P4 to P8. It is contended that the widening of M.C. Road is being done by acquiring the properties lying on either side and only when it reached the spot in question, the properties of one side alone are being acquired and the properties lying on the western side are not touched. According to the petitioner, the original alignment has been altered with malafide motive, to save the properties on the western side of the road. It is further pointed out that in the property in question, there are three buildings and in one of them the petitioner is conducting a business and the other two buildings are wpc 19847/2008 2 having heritage value. If the properties are acquired from both sides, the buildings could be saved. Exts.P9 to P13 are the objections submitted by the petitioner in the matter. 3. The respondents have filed a counter affidavit and the petitioner has filed a reply affidavit. The counter affidavit filed on 8.7.2009 shows that the preliminary notification under Section 4(1) of the Land Acquisition Act and that under Section 6(1) of the Survey and Boundaries Act were published in the Extra Ordinary Gazette No.2432 dated 20.11.2004. The notice to the petitioner under Form No.4A was affixed on the doors of House Nos.200 and 220 of Changanacherry Municipality, as the petitioner is not residing at the address as shown in the village records. The draft declaration had been approved by the Commissioner (LA), Thiruvananthapuram by proceedings dated 15.5.2006 and published in the Extra Ordinary Gazette No.866 dated 16.5.2006 and dailies Kerala Kaumudi on 27.6.2006 and Mangalam on 27.7.2006. 4. It is submitted that with regard to the alignment of the road, the same was fixed by the international consultant, M/s. Louis Berger Inc. after taking in consideration of all technical, social and economic parameters and approved by the P.W.D. (K.S.T.P.). The allegation raised by the petitioner that there was a change in the original proposal and the alignment was wpc 19847/2008 3 altered to help other people, is denied. It is not as if the property of the petitioner alone is being acquired and the total extent acquired is 0.2793 hectares of land. It is further pointed out that the widening of the road is for the common cause and for the well being of the whole persons and there are no malafides in the acquisition proceedings. 5. Later, the respondents have filed I.A. No.8377/2010, an application to vacate the interim order. It is pointed out therein that the existing bridge at Laikkad (La-palam) is having a width of 5 meters only and this is constructed in laterite masonry arches of 6 mts span. The M.C. Road at this stretch is a bottleneck due to the inadequate width of the road. There are two alternate solutions, viz. either to extend the width of the bridge or to construct a new bridge to one side of the existing bridge. Since the extension of an old bridge is of no use, the same was avoided. The reconstruction of an existing bridge after demolishing the existing bridge will also lead to serious traffic problems in M.C. Road and therefore the only possible solution is to construct a new bridge close to the existing one. The construction of Changanacherry Bye-pass Road is fast nearing completion and it joins the M.C. Road just after the bridge, towards the eastern side of the road. It is pointed out that the expected traffic flow is from the eastern side and hence constructing a bridge towards the western wpc 19847/2008 4 side of existing bridge is of no use. The petitioner's property lies between the bye-pass road and the new bridge. It is further pointed out that the property of the petitioner lies in a crucial position at the mouth of the byepass road. 6. Learned counsel for the petitioner submitted that the notice to the petitioner was not served and therefore there is violation of Section 45 of the Act. Reliance is placed on the judgment of the Apex Court in **Jnanedaya Yogam and another v. K.K. Pankajakshy and others** ( AIR 1999 SC 3891), **Sube Singh and others v. State of Haryana and others** (AIR 2001 SC 3285) and **Vyalikaval House Building Coop. Society by its Secretary v. V. Chandrappa and others** {(2007) 9 SCC 304). 7. The first contention is that the petitioner was not personally served the notice proposing acquisition. It is true that Section 45 of the Act provides for service of notice and it is mentioned that “service of any notice under the Act shall be made by delivering or tendering a copy thereof signed, in the case of a notice under Section 4, by the officer therein mentioned, and, in the case of any other notice, by or by order of the Collector or the Judge.” A reference to Section 4(1) of the Act shows that it provides for publication of notification and the mode prescribed is by wpc 19847/2008 5 publication in the Official Gazette and in two daily newspapers circulating in that locality of which at least one shall be in the regional language. Subsection (2) provides for the power to conduct survey, etc. in the property to be acquired and the proviso therein stipulates that “no person shall enter into any building or upon any enclosed Court or garden attached to a dwelling-house without previously giving such occupier at least seven days' notice in writing of his intention to do so.” Therefore, the service of notice under Section 45(1) of the Act can only be a notice under sub-section (2) of Section 4 and not in respect of a notification under Section 4(1) of the Act. Therefore, the said contention cannot be accepted and the acquisition proceedings on that ground cannot fail. Apart from that, going by the counter affidavit, notices under Rule 7(1) of the Land Acquisition Rules were affixed on the doors of House Nos.200 and 220, as the petitioner is not residing in the site address and it is explained by the learned Govt. Pleader that the said buildings are the buildings in the acquired property. Therefore, no irregularity can be attached to the same. I am fortified in this view by a decision of the Supreme Court in **Mahadev v. Sub Divisional Officer** {(1997) 8 SCC 487), wherein it was held that non-service of individual notice of the substance of notification does not render the wpc 19847/2008 6 notification under Section 4(1) ineffective. 8. The next question is whether the alignment has been changed in favour of anybody who is owning property on the western side. Herein, the property is acquired for providing a new bridge on the eastern side. Therefore, it cannot be comprehended that the properties on the western side of the road should be acquired to provide a bridge on the eastern side. Therefore, the argument that properties should be acquired on equal proportion from either side, cannot be accepted. Apart from that, on the eastern side Changanacherry Bye-pass joins the M.C. Road just after the bridge as stated in the affidavit filed in support of I.A. No.8377/2010. Therefore, actually the petitioner's property lies on the mouth of the byepass and there will be heavy flow of traffic there. The construction of a bridge is a public purpose, especially since the old bridge is more than 50 years of old. For these reasons, the steps for acquisition are not illegal on the alleged ground of malafides. Various aspects have been brought out while fixing the alignment. Herein, learned counsel for the petitioner submitted that an international consultant has fixed the alignment and not the officers under the Land Acquisition Act. The said contention cannot be accepted. There can be consultants for fixing the alignment, as modern techniques are involved in the matter. But it is evident that the alignment wpc 19847/2008 7 was approved by the Public Works Department. Therefore, the final decision is that of the Public Works Department. In that view of the matter, the contention raised by the learned counsel on that score also cannot be accepted. 9. It is further pointed out that at least a part of the area could have been exempted from the acquisition and the portion where the new building of the petitioner is situated, could have been excluded. Learned Govt. Pleader on instructions, submitted that there cannot be an exemption of that portion since the said building is in the middle of the junction and the smooth flow of traffic will be affected, as heavy traffic will be there once the bye-pass road is opened in that area. It is of importance to notice that the bye-pass road joins the M.C. Road on the eastern side of the bridge. Therefore, the alignment of the bridge has been fixed in such a manner that the flow of traffic is regulated. For that reason also, the alignment proposed cannot be said to be wrong, as no purpose will be served by shifting the alignment to the western side. 10. It is clear from the counter affidavit that the enquiry under Section 5A of the Act was conducted. Seventeen objections were there and all the objections have been rejected also. Therefore, it is not as if the objections were not considered by the authorities concerned. Therefore, the wpc 19847/2008 8 objections raised by the petitioner herein with regard to the alignment cannot have any legs to stand for that reason also. 11. Reliance is placed on the decision of the Apex Court in **Vyalikaval House Building Co-op Society's case** {(2007) 9 SCC 304} to contend that allegations regarding malafides can be gone into by the Court. There cannot be any dispute regarding the said proposition. But still, herein when the purpose itself is to have a smooth flow of traffic, especially since the bye-pass joins the junction, the alignment can only be put in the way which was done now. Therefore, the allegation that the properties on the western side were excluded with malafide reason to protect the persons who are owning properties on the western side, cannot hold good. The decision in **Jnanedaya Yogam's case** (AIR 1999 SC 3891) is relied upon to submit that a little diversion of the route cannot be held to be an impermissible possibility even after the acquisition proceeding have been completed. But herein, it was submitted by the learned Govt. Pleader that a diversion of alignment is not possible to save the property of the petitioner, because that will affect the entire widening of the road itself. Therefore, that decision cannot be of any help to the petitioner. 12. For all these reasons, the challenge against the land acquisition wpc 19847/2008 9 proceedings fail. Alternatively, it is contended by the learned counsel for the petitioner that the petitioner is conducting a business in the new building and if the writ petition is dismissed, the petitioner may be granted a reasonable time of three months to vacate the building. This was opposed by the learned Govt. Pleader. Learned counsel for the petitioner submitted that an alternate building will have to be found out by the petitioner to shift the existing business. In the light of the interim order passed by this Court, the petitioner has not been dispossessed also. 13. The writ petition is dismissed. The petitioner is granted two months time from today to vacate the building wherein the business is being conducted. But the petitioner will have to surrender the other portions wherein the old buildings are situated. If the petitioner does not vacate the premises within the above period, the respondents will be entitled to take possession of the same. No costs. ## **(T.R. Ramachandran Nair, Judge.)** ## **kav/**