N. Bharathi Amma v. State of Kerala and others

WP(C) NO. 7466 OF 2014 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 3[RD] DAY OF JUNE 2024 / 13TH JYAISHTA, 1946 WP(C) NO. 7466 OF 2014** ## **PETITIONER/S:** **N.BHARATHI AMMA W/O.N.KRISHNAN NAIR, ANANDABHAVANAM , NEAR VAYANASALA, PUNUKANNOOR, PERUMPUZHA PO, PIN 691 504.** **BY ADVS. SRI.I.V.PRAMOD SMT.LEELA S.** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT,GOVERNMENT OF KERALA, THIRUVANANTHAPURAM 695 001.** - **2 SECRETARY TO GOVERNMENT REVENUE DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM 695 001.** - **3 THE DISTRICT COLLECTOR KOLLAM 691 001** - **4 SPECIAL TAHSILDAR LAND ACQUISITION (KIP), KOLLAM 691 001.** - **5 THE SECRETARY DEPARTMENT OF IRRIGATION, GOVERNMENT OF** WP(C) NO. 7466 OF 2014 2 **KERALA,THIRUVANANTHAPURAM 695 001.** **BY ADVS. GOVERNMENT PLEADER** ## **OTHER PRESENT:** **SRI.B.S.SYAMANTAK, GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) NO. 7466 OF 2014 3 ## **P.V.KUNHIKRISHNAN, J** **–-------------------------------------** **W.P.(C.) No. 7466 of 2014** **-------------------------------------Dated this the 3[rd] day of June, 2024** ## **JUDGMENT** It is submitted that the petitioner's land was acquired for the purpose of formation of a tributary to Thrikkaruva Distributory of the Kallada Irrigation Project in the year 1997, pursuant to notification for the public purpose in the year 1993. It is submitted that the land has not been utilized for the above public purpose or any other public purpose. Hence, the petitioner filed a representation before the Secretary to Revenue, Kerala State praying that the land acquired may be reconveyed. Ext.P1 is the representation. It is submitted that the petitioner accepted the award passed and she did not seek further enhancement of compensation. It is also submitted that the land was acquired and symbolic possession was taken. It is WP(C) NO. 7466 OF 2014 4 also submitted that the Irrigation Department had already intimated in similar cases that the land acquired for forming the Thrikkaruva Distributory of the Kallada Irrigation Project is not required by them. Hence, the land was transferred to the Revenue Department. It is also submitted that no other department of the Government or local authorities or any other Government companies required such land. According to the petitioner, by the time land acquisition awards were passed pursuant to notification, no public purpose was surviving. It is also submitted that the acquired property is lying contiguous to the agricultural land of the petitioner. No person other than the petitioner holding contiguous land can make use of the strip of land acquired for the formation of the distributory, is the further submission. It is also submitted that part of the same notification for acquisition for Thrikkaruva Distributory was allowed to fail, since the compensation was not paid in accordance with the award passed. It is also submitted that the project was not financially viable. It is also submitted that the WP(C) NO. 7466 OF 2014 5 Government of Kerala pursuant to the direction of the Apex Court in **State of Kerala v. Bhaskaran Pillai** [1997 (2) KLT 217], framed Ext.P2 Government Order. It is also submitted that as per Ext.P3 judgment, this Court distinguished the above judgment of the Apex Court. Therefore, this writ petition is filed with following prayers: 1) “Declare that the lands are acquired from the petitioner without following due process of law. 2) Quash Exhibit P2 Government order as it is not in tune with the legislative policy or in the alternative declare that is not applicable to the petitioner's case to the extent that property once acquired shall not be assigned or sold to those persons from whom the property is acquired without resorting to public auction since no public purpose was served by the land acquisition. 3) Issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ order or direction directing the 1[st] respondent to recovery 5.33 ares land in Sy.No.105/21 of Elampallur Village that was acquired pursuant to notification in 1992 and Land Acquisition award No.3/94-95 dated 3.2.1995 of the Special Tahsildar LA, Kallada Irrigation Project. 4) Issue any other appropriate writ order or direction that this Honourable court may in the interest of justice in this WP(C) NO. 7466 OF 2014 6 case.” [sic] 2. Heard the learned counsel for the petitioner and the learned Government Pleader. 3. The counsel for the petitioner reiterated the contentions raised by the petitioner in the writ petition. The counsel takes me through Ext.P3 judgment of this Court and submitted that reconveyance is possible, in this case. But the Government Pleader takes me through the counter affidavit filed on behalf of the 4[th] respondent and submitted that the contention of the petitioner is not sustainable. 4. This Court considered the contentions of the petitioner and the Government Pleader. The counsel for the petitioner relied on Ext.P3 judgment. After going through Ext.P3 judgment, it is clear that it is an inter-parte judgment and no specific dictum is laid down in the above judgment. This Court in **Sivaprakashan v. State of Kerala** [2024 (1) KHC 352] considered the issue in detail. The relevant paragraph is WP(C) NO. 7466 OF 2014 7 ## extracted hereunder : 10. “From the above order it is clear that this Court cannot exercise the power under Art.226 of the Constitution to release a lawfully acquired land only on the premise that such land has not been used for the public purpose for which it was acquired. The Apex Court also goes to the extent of saying that there is no gainsaying that once the land vests in the State or its authorities, the public purpose of its acquisition can be changed at a later stage. The Apex Court observed that all that is required is that such land should be utilized for public purposes only. It is also held that there cannot be a time limit within which the authorities are expected to utilize the acquired land. The same is the situation herein. It is true that the acquisition proceedings were started in the year 1983. Now about four decades over. The construction of the post office building is not completed as of now. That is not a reason for re - conveying the property to the petitioner. I am of the considered opinion that once the land is acquired for a public purpose and the compensation is paid to the land owner, the land owner has no right to the property. The only restriction on the part of the requisitioning authority is that the land should be used only for public purposes. In this case, a perusal of Annexure A photographs produced by the DSGI along with a memo in the writ petition would show that the construction of the post office building has already started. Moreover, there is no case to the petitioner that the property is used not for public purposes. In such circumstances, I am of the considered WP(C) NO. 7466 OF 2014 8 opinion that the petitioner has no right to get back the property for the simple reason that there is a delay in using the land for the purpose for which it was acquired.” 5. In the light of the dictum laid down in the above judgment, I am of the considered opinion that the contention of the petitioner cannot be accepted. The petitioner has no case that the property after acquisition is transferred to any private parties. In such circumstances, the property cannot be reconveyed to the petitioner, even though it is acquired as per the Land Acquisition Act for a specific purpose and the land is not used for the specific purpose for which the same is acquired. It will also be relevant to extract the relevant portion of the counter affidavit filed by the 4[th] respondent. “The petitioner submitted a representation before the Secretary, Revenue Department to reconvey the land acquired from her as the land is not utilized for any public purpose. A report in the petition has been sent to the District Collector, Kollam. The land acquisition was made in urgency U/S 17(4) of LA Act 1894. Hence 5(A) enquiry was not applicable in this case. The land in question could not be utilized by the KIP for the formation of Thrikkaruva Distributory as the Government WP(C) NO. 7466 OF 2014 9 has abandoned the project in due course. Nevertheless the post award action was carried out and, now the land is under possession of Government. In G.O.(Ms) No. 309/2000/RD dated 28.09.2000 and G.O.(Ms) No.387/2000/RD dated 22.12.2000 instructions were issued with regard to the disposal of the acquired lands. As per the above G.O's such land should be utilized only for public purpose and in contingencies in which such utilization is not possible, it should be disposed of in public auction or disposed of by way of assignment to any institution in public interest. The government orders prevents this reconveyance of the acquired land to the parent Thandapper holder/legal heirs of parent Thandapper holder.” 6. In the light of the above affidavit and also in the light of the dictum laid down in **Sivaprakashan's** case (supra), I think there is no merit in this case. Accordingly, this writ petition is dismissed. **sd/P.V.KUNHIKRISHNAN JUDGE** SKS WP(C) NO. 7466 OF 2014 10 ## **APPENDIX OF WP(C) 7466/2014** ## **PETITIONER EXHIBITS** **EXHIBIT P1 COPY OF THE REPRESENTATION OF THE PETITIONER DATED 3/2/2014** **EXHIBIT P2 COPY OF GO(MS) NO. 309/2000/RD DATED 28/9/2009** **EXHIBIT P3 COPY OF JUDGMENT DATED 14/6/2007 IN WPC NO. 18949/2006**