S. Shamsudheen v. Land Revenue Commissioner, Public Buildings, Thiruvananthapuram, Special Tahsildar (LA), PWD (SC), Fort, Thiruvananthapuram; District Collector, Thiruvananthapuram; K. Subramoni; Addl.R5 K. Gopakumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **WEDNESDAY, THE 19TH DAY OF JUNE 2013/29TH JYAISHTA 1935** **WP(C).No. 37767 of 2009 (M)** **----------------------------** ## **PETITIONER :** - **----------** **S.SHAMSUDHEEN, TC NO.19/990, THAMALAM, MUDAVANMUGAL P.O., THIRUVANANTHAPURAM.** **BY ADV. SRI.THIRUMALA P.K.MANI** ## **RESPONDENTS :** **----------------------------** ## **1. LAND REVENUE COMMISSIONER, PUBLIC BUILDINGS, THIRUVANANTHAPURAM.** **2. SPECIAL TAHSILDAR,** - **(LA) PWD (SC), FORT, THIRUVANANTHAPURAM.** **3. DISTRICT COLLECTOR, THIRUVANANTHAPURAM.** ## **4. K.SUBRAMONI,** - **S/O.LATE P.KRISHNAN ASARI, T.C. NO.38/2380 ARYASALA, THIRUVANANTHAPURAM.** ***ADDL.R5 IMPLEADED :** **5. K.GOPAKUMAR, S/O.LATE P.KRISHNAN ASARI, T.C.38/2382, ARYASALA, CHALA P.O., THYCAUD VILLAGE, THIRUVANANTHAPURAM-695036.** - ***ADDL.R5 IS IMPLEADED AS PER ORDER DT 14/3/.2011 IN IA 4212/11.** **R1 TO R3 BY GOVERNMENT PLEADER SRI.SHYSON P. MANGUZHA R4 BY ADV. SRI.D.SAJEEV ADDL.R5 BY ADV. SRI.K.K.SATHEESH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BP** ## **WP(C).No. 37767 of 2009 (M)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** - **P1: COPY OF THE ORDER IN SLP (CIVIL) NO. 14591/2000 OF THE SUPREME COURT DT 27/8/2001.** - **P2: COPY OF THE NOTIFICATION NO. LA55-15089/2004 DT 19/6/2006.** - **P3: COPY OF THE NOTICE IN LAC NO. 164/2009 DT 2/11/2009.** - **P4: COPY OF THE RECEIPT THE COPY OF THE OBJECTION FILED BY THE PETITIONER BEFORE THE R3 DT 23/12/2009.** - **P5: COPY OF THE NOTICE ISSUED BY THE R3 DT 12/1/2010** ## **RESPONDENT'S EXHIBITS :** **EXT.R4(a): COPY OF THE JUDGMENT DT 27/6/2000 IN WRIT APPEAL NO. 1166/2000 OF THIS HON'BLE COURT.** **EXT.R4(b): COPY OF THE ORDER DT 12/2/2009 INCIVIL APPEAL NO. 5972/2001 OF THE HON'BLE SUPREME COURT OF INDIA** **EXT.R4(c): COPY OF THE JUDGMENT DT 22/5/2000 IN OP NO. 8105/2000 OF THIS HON'BLE COURT.** **EXT.R4(d): COPY OF THE ORDER OF THE SECRETARY THIRUVANANTHAPURAM CORPORATION DT 10/3/2000.** **//TRUE COPY//** **P.A. TO JUDGE** **BP** ## **C.K. ABDUL REHIM, J. -----------------------------------W.P.(C). No. 37767 of 2009 --------------------------------------------------Dated this the 19[th] day of June, 2013** ## **JUDGMENT** Ext.P2 notification issued under Section 4(i) of the Land Acquisition Act is under challenge. The petitioner is admittedly a tenant conducting business in a building situated in the property sought to be acquired. 2. It is avered that, earlier there was another acquisition proceedings with respect to the very same property, in which a portion of the building was acquired. It is stated that, at that time the landlord had exercised option under Section 49 of the Land Acquisition Act and sought for acquisition of the entire building. Steps taken under Section 49 by landlord was challenged by the petitioner before this court. The matter was taken by the petitioner upto the hon'ble Supreme Court. Under Ext.P1 order, dispossession of the petitioner was stayed on 27.08.2001. In the meanwhile, the acquisition proceedings impugned herein was initiated, on the basis of Ext.P2 notification. The petitioner was issued with a notice of the award passed, as per Ext.P3. On getting such notice the W.P.(C). No. 37767 of 2009 -2- petitioner submitted Ext.P4 representation before the District Collector requesting to drop the acquisition proceedings. Since it was not considered, this writ petition is filed. 3. Ext.P2 notification is challenged on the ground that it is a composite notification issued under Section 4(i) and Section 17(4) of the Act. According to the petitioner a declaration under Section 17(4) can be made only after publication of Section 4(1) notification and any steps taken on the contrary is unsustainable. It is further contended that, denial of opportunity to challenge the proposal for acquisition and dispensation of the enquiry under Section 5(a) cannot be justified. It is also alleged that the impugned acquisition proceedings was initiated only at the instance of the landlord, in order to get rid of the petitioner from occupation of the building. According to the petitioner the invocation of Section 17(4) itself was not maintainable. 4. In the counter affidavit filed by the 4[th] respondent it is mentioned that the petitioner had W.P.(C). No. 37767 of 2009 -3- approached this court suppressing material facts in a manner abusing the process of law. It is stated that, challenge against exercise of Section 49 was finally decided by the hon'ble Supreme Court in the judgment in Civil Appeal No. 5972/2011 dated 12.02.2009. Despite the same the petitioner had produced only the interim order. It is contended that the petitioner has no right to challenge the notification issued under Section 4(1) or any declaration made under Section 17(4), because he has no right to continue in the acquired premises when the hon'ble Supreme court held that the building in question is liable to be acquired on the basis of option exercised by the landlord under Section 49. 5. In the counter affidavit filed on behalf of the 1[st] respondent it is mentioned that the present acquisition is for widening of Kalady-Maruthoorkadavu road and Karamana - Thaliyal road. Ext.P2, Section 4(1) notification, was duly published. Thereafter a notification under section 6(1) as per the Survey and Boundary Act 1961 was also published on 19.6.2006. Pursuant to this W.P.(C). No. 37767 of 2009 -4- the survey and sub division records were approved by the District Survey Superintendent and draft declaration under section 6(1) of the Land Acquisition Act was approved by the Commissioner, Land Revenue, on 24.9.2007. It was published in the official gazette, news papers as well as at the site. Notice under section 9(b) was also served to the parties concerned regarding the award enquiry. Award in this case was passed as early as on 26.9.2009. It is stated that, as per the land acquisition case, an extent of 1.21 Ares of land was acquired from one P.Krihnan Achari who had expired. The possession of the land with structures has already been handed over by the awardees on 10.12.2009. The petitioner is one of the 3 tenants in the shop room situated in the acquired property. The other two tenants have already been dispossessed. Therefore a notice under section 15(3) was issued to the petitioner on 14.1.2010. It is further stated that originally an extent of 2.15 Ares was acquired for widening of Karamana-Kilippalam road and with respect to the said acquisition the petitioner had filed cases up to the W.P.(C). No. 37767 of 2009 -5- Hon'ble Supreme Court. The petitioner is only a tenant running a hotel in the building which is sought to be acquired. The entire land acquisition proceedings were pursued in strict compliance with all the legal procedure. Therefore the petitioner cannot challenge the acquisition proceedings at this stage, is the contention. 6. While appreciating the grounds raised in challenge of the acquisition proceedings, it is noticed that the building in which the petitioner is conducting business was ordered to be acquired in the earlier proceedings by virtue of option exercised by the landlord under section 49. The petitioner failed in his challenges against the exercise of option under section 49. The matter now stands concluded through judgment of the Hon'ble Supreme Court, copy of which is produced as Ext.R4(b). As such the petitioner has no locus standi to challenge the fresh acquisition proceedings initiated. Even with respect to the grounds raised in this writ petition, it is to be observed that the petitioner has no locus standi to question the notification on the basis that it is a composite W.P.(C). No. 37767 of 2009 -6- notification issued under section 4(1) and 17(4). Going by Ext.P2 it is evident that it is only a notification issued under section 4(1) wherein it is mentioned that the Land Revenue Commissioner had permitted to proceed with further steps dispensing enquiry contemplated under section 5(a). It is evident from the facts narrated through counter affidavit of the 1[st] respondent that all the procedure for the acquisition now stands completed and an award has already been passed. Under such circumstances the claim of the petitioner regarding any irregularity with respect to dispensing with enquiry contemplated under section 5(a) cannot be considered. 7. Learned counsel for the petitioner had drawn my attention to various decisions of the Hon'ble Supreme Court such as **Baburam and another vs. State of Haryana and another (2009 (10) SCC 115), Union of India and others vs. Mukesh Hans (2004 8 SCC 14) and State of Uttar Pradesh vs. Radhey Shyam Nigam and others (1989 (1) SCC 591).** The dictum laid in all these cases with respect to exercise of power W.P.(C). No. 37767 of 2009 -7- under section 17(4) has no bearing in this case, in view of the fact that, the challenges raised by the petitioner, who is only a tenant, can at best only to the extent to the proportionate compensation out of the award. Further it is to be noticed that all the procedural formalities with respect to the acquisition has completed and award has already been passed. Under such circumstances the writ petition deserves no merit and the same is accordingly dismissed. Sd/- ## **C.K. ABDUL REHIM, JUDGE** /True copy/ P. A. to Judge pmn/Pn