P. Balakrishnan v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **MONDAY, THE 3RD DAY OF MARCH 2014/12TH PHALGUNA, 1935** ## **WP(C).No. 14760 of 2007 (F)** **----------------------------** ## **PETITIONER :** **--------------------------** **P. BALAKRISHNAN,S/O.LATE P. KUTTAYI, PAZHUKKADA KANDY HOUSE, CHERUVANOOR, KOLATHARA P.O.,KOZHIKODE-673 655.** **BY ADVS.SMT.PRABHA R.MENON SRI.M.KRISHNAKUMAR** ## **RESPONDENT(S):** - **----------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE SPECIAL TAHSILDAR (LA.), LAND ACQUISITION, KOZHIKODE.** **3. THE CALICUT DEVELOPMENT AUTHORITY, REPRESENTED BY ITS SECRETARY, KOZHIKODE.** - ***ADDL.R4 & R5 IMPLEADED** - ***R4: THE CORPORATION OF CALICUT, REPRESENTED BY ITS SECRETARY.** ***ADDL.R4 IS SUO MOTU IMPLEADED AS PER ORDER DATED 25/7/08** ***ADDL.R5: THE EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT, ROADS DIVISION, KOZHIKODE.** - ***ADDL.R5 IS SUO MOTU IMPLEADED AS PER ORDER DATED 5/12/08** **R1,R2 & ADDL.R5 BY SR GOVERNMENT PLEADER SRI.P.FAZIL R3 & R4 BY ADV. SRI.K.D.BABU,SC,KOZHIKODE CORPORATION** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-03-2014,ALONG WITH WP(C)NO.19771 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **A.V.RAMAKRISHNA PILLAI, J.** = = = = = = = = = = = = = = = = = = = W.P(C) Nos.14760 of 2007 & 19771 of 2013 = = = = = = = = = = = = = = = = = = = = = Dated this the 3[rd] day of March, 2014 ## **JUDGMENT** In these writ petitions, the petitioner is challenging the notification issued by the respondents under Section 4(1) of the Land Acquisition Act, by which a portion of property where the house of the petitioner is situated, is intended to be acquired for the purpose of a road. 2. Originally in the year 2007, Section 4(1) notification was issued and the road was aligned in such a manner that 3.75 cents of land belonging to the petitioner would be acquired for widening the existing road. 3. The petitioner challenged the same in W.P(C) No.14760 of 2007. However, subsequently fresh notification under Section 4(1) of the Act was published, in which the proposed road was realigned so that the petitioner would lose 7.24 cents of land. It is the subject matter in W.P(C) No.19771 of 2011. 4. In the light of the second notification, the cause of action in W.P(C) No.14760 of 2007 no longer survives and it has WP(C)s.14760/07&19771/11 ## **-:2:-** ## practically become infructuous. 5. The petitioner alleges that he is the owner of 15 cents of land which was purchased in the year 1989 in Cheruvannoor village of Kozhikode taluk. The petitioner applied for a building permit to construct a residential house in the 1996. He was informed by the Panchayat concerned that there was a proposal to widen the Cheruvanoor-Kolathara road by 24 metres and that any construction would be permitted only beyond 24 metres road so proposed. Therefore, the petitioner, redrew the building plan so as to accommodate the proposed 24 metres wide road and resubmitted the plan to the Panchayat. Before granting any permission, the Panchayat referred the matter to the Calicut Development Authority which is to grant permission for areas ear marked for road development. The said authority sought approval of the Chief Town Planner and finally approval was granted. Thus, the Panchayat finally granted permission as per Ext.P1 dated 8.10.1999. 6. The petitioner alleges that according to Ext.P1, even if the 24 metres wide road is laid, he is likely to lose only a very small area at the south western tip of the property which would not WP(C)s.14760/07&19771/11 ## **-:3:-** affect his residential house. Therefore, he constructed the house leaving the provision for the proposed 24 metres wide road. 7. The petitioner further alleges that in the year 2005, he was given to understand that the proposal to construct 24 metres wide road was dropped due to want of funds or for other reasons and what was proposed only was to construct 15 metres wide road i.e.9 metres less. The petitioner would submit that when there is such a huge reduction in the width of the proposed road, then his land would be totally free from acquisition. 8. However, a smaller road was realigned in such a manner that 3.7 cents of land would be required for widening and accordingly, Section 4(1) notification was issued in the year 2007 proposing to acquire said area from the petitioner's building. As the petitioner felt that his house would be partially acquired and the plot would be rendered useless on account of the same, he approached this Court in W.P(C) No.14760 of 2007 wherein this Court stayed the dispossession of the petitioner. 9. Now a fresh notification under Section 4(1) of the Act is published in which the proposed road is realigned so that the petitioner would lose 7.24 cents of land which according to the WP(C)s.14760/07&19771/11 **-:4:-** petitioner is double the extent over that of the earlier notification. 10. He challenges the present notification as bad in law on the ground that invocation of Section 17(4) of the Act to dispense with the statutory enquiry under Section 5A of the Act is bad in law and also that the realignment of the proposed road was designedly made with mala fide intention of excluding the property of certain land owners from the rigours of compulsory acquisition. 11. In the counter affidavit filed by the third respondent, it was contended that dispensation of Section 5A enquiry is on valid reasons and the requisitioning authority has clearly substantiated the reason for urgency clause by dispensing 5A enquiry. 12. I have heard the learned counsel for the petitioner and the learned Government Pleader in the matter. 13. The main grievance of the petitioner is that Section 5A enquiry was dispensed with invoking Section 17(4) of the Land Acquisition Act. It was argued that this is not a case where there were circumstances warranting invocation of urgency clause. It was pointed out that the right to be heard under Section 5A of the Act is akin to a fundamental right and application of mind precede an order invoking Section 17(4) of the Act. I see valid force in the WP(C)s.14760/07&19771/11 **-:5:-** submission made by the learned counsel for the petitioner. 14. In this case though it was argued by the learned counsel for the petitioner that Section 5A was dispensed with on account of the urgency, it is crucial to note that the proposal to widen the road was pending at least for more than 16 years and, therefore, it cannot be said that there was necessity to dispense with the hearing under Section 5A. 15. As rightly pointed out by the learned counsel for the petitioner, the Apex Court in the decisions reported in **Hindhusthan Petroleum Corporation Ltd.** v. **Darius Shapur, Chenai** [2006 (1) KLT 230 (SC)], **Union of India and others** v. **Mullesh Hans** [(2004) 8 SCC 14] and **Union of India and others** v. **Krishan Lal Arneja & others** [(2004) 8 SCC 453] held that a hearing under Section 5A is akin to the fundamental right and such right cannot be taken away unless the very purpose of the acquisition would be defeated. The urgency should be one that naturally arises out of the circumstances at hand and it is not to be invoked to speed up delayed projects. In otherwords, unless, the purpose sought to be achieved by the acquisition is so eminent Section 5A enquiry cannot be dispensed with. WP(C)s.14760/07&19771/11 **-:6:-** 16. Here, the petitioner would admit that 24 metres wide road would not do any serious harm to the his plot while a smaller 15 metres road would render his plot useless. From Ext.P4 it can be seen that the newly proposed road shaded in blue, touches the sunshade of the petitioner's house while the originally proposed 24 metres wide road touches only a tip of his property. It can also be seen that the yellow shaded portions were all vacant land. 17. However, all these matters should come within the province of enquiry under Section 5A of this Court. Since, there was no urgent need to dispense with Section 5A enquiry, this Court is of the view that matter has to be remitted back to the Land Acquisition Officer to proceed with, from the stage where Section 5A enquiry has to be conducted. 18. Therefore, the W.P(C) No.19771 of 2011 is disposed of. Ext.P7 notification insofar it takes away the right of hearing of the petitioner under Section 5A of the Land Acquisition Act is hereby quashed. The matter is remitted back to the Land Acquisition Officer to conduct Section 5A enquiry wherein the petitioner shall be afforded an opportunity of being heard. This exercise shall be completed within a period of three months from the date of receipt WP(C)s.14760/07&19771/11 ## **-:7:-** of a copy of this judgment. To facilitate early disposal, it shall be open to the petitioner to produce a copy of this judgment before the Land Acquisition Officer within a period of one month from today. Needless to say, the existing state of affairs shall continue till finalisation of the said proceedings. W.P(C) No.14760 of 2007 is closed as the matter has become infructuous. Sd/- **A.V.RAMAKRISHNA PILLAI JUDGE** krj /True Copy/ P.A to Judge