SANTHAKUMAR and S.SARATH KUMAR v. STATE OF KERALA and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE K.M.JOSEPH FRIDAY, THE 15TH FEBRUARY 2008 / 26TH MAGHA 1929 WA.No. 1854 of 2007 ---------------------------AGAINST THE JUDGEMENT IN WPC.7488/2007 DATED 30/05/2007 .................... ## APPELLANTS/PETITIONERS: ----------------------------------------- 1. SANTHAKUMAR, AGED 70, S/O.LATE N.DAMODARAN, T.C.NO.7/1069-4, MARUTHOONKUZHI, SASTHAMANGALAM, THIRUVANANTHAPURAM. 2. S.SARATH KUMAR, S/O SANTHA KUMAR, RESIDING AT DO. DO. BY ADV. SRI.NAIR AJAY KRISHNAN SRI.R.T.PRADEEP SRI.V.VIJULAL ## RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, COLLECTORATE, THIRUVANANTHAPURAM. 3. SPECIAL TAHASILDAR, ADDITIONAL LAND ACQUISITION UNIT, THIRUVANANTHAPURAM. 4. K.C.VIKRAMAN, COUNCILLOR, PANGOD WARD, H.NO.UAR 115, VATTIYOORKAVU, THIRUVANANTHAPURAM. - R1 TO R3 BY SR.GOVERNMENT PLEADER SMT.K.MEERA THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 15/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **H.L.DATTU, C.J. & K.M.JOSEPH, J.** ------------------------------------------ **W.A.No.1854 of 2007** -----------------------------------------Dated, this the 15[th] day of February, 2008 ## **JUDGMENT** ## **K.M.Joseph, J.** The appellants are the petitioners in the writ petition. The writ petition came to be filed challenging Ext.P2. Ext.P2 is a notification issued under Section 4(1) of the Land Acquisition Act, hereinafter referred to as 'the Act'. It is also a notification issued under Section 17(4) of the Act, whereby the resort to Section 5A of the Act is dispensed with. 2. The case of the appellants is that there was no public purpose. According to them there was an attempted widening of the lane on the western side of the property by the Corporation of Thiruvananthapuram and others. Apprehending demolition of their compound wall, a civil suit was filed which culminated in Ext.P1 judgment by the civil court interdicting widening of the road on the western boundary. It is the further case of the appellants that Ext.P2 came to be issued after the change of the Government and resort is made to the powers under Section 17(4) of the Act for dispensation of enquiry under Section 5 of the Act which is without any warrant in law. This contention came to be rejected by the learned Single Judge. The learned Judge took note of the fact that the Government had accorded sanction for acquisition of certain land for widening of Kurachal – Kuttikkathara Road in Pangode Ward, Thiruvananthapuram. Taking note of the contention, the learned Judge proceeded to hold that a combined notification under Section 4 (1) read with Section 6(1) under the Kerala Survey and Boundaries Act, 1961 had already been published. It is also noted that the Commissioner was W.A.No.1854 of 2007 2 satisfied with the urgency. It is further stated that when the notification was issued the property comprised in Sy.No.2349 was omitted to be included and therefore a further requisition was forwarded by the Corporation to acquire that land also invoking the urgency clause. 3. We have heard Mr.R.T.Pradeep, learned counsel appearing for the appellants, and the learned Government Pleader. 4. Learned counsel for the appellants would contend that there was absolutely no basis for the notification issued under Section 17(4) of the Act in the facts of the case. He would also contend that what was involved is a small lane and there was no public interest as such and, at any rate, he would contend that the resort made to the power under Section 17(4) of the Act is totally unjustified. He would rely on the decisions of the apex Court reported in _Union of India and others_ v. _Mukesh Hans_ , (2004) 8 SCC 14 and _Union of India and others_ v. _Krishan Lal Arneja and others,_ (2004) 8 SCC 453. 5. It is important to notice the brief facts stated in the said cases. In the first case, the notification came to be issued on a representation made in the year 1987 for acquisition of 4000 sq. yards of land at Mehrauli for the purpose of an annual festival called 'Phool Walon Ki Sair' which was started during the Mughal regime, and revived in 1961 after brief interruption. Therein the apex Court took note of the resort made to the power providing for dispensation of enquiry under Section 5A of the Act. It is most important to notice the following observation made by the apex Court in paragraph 32 of the said judgment: W.A.No.1854 of 2007 3 _“32. A careful perusal of this provision which is an exception to the normal mode of acquisition contemplated under the Act shows that mere existence of urgency or unforeseen emergency though is a condition precedent for invoking Section 17(4), that by itself is not sufficient to direct the dispensation of the Section 5-A inquiry. It requires an opinion to be formed by the Government concerned that along with the existence of such urgency or unforeseen emergency there is also a need for dispensing with Section 5-A inquiry which indicates that the legislature intended the appropriate Government to apply its mind before dispensing with Section 5-A inquiry. It also indicates that mere existence of an urgency under Section 17(1) or unforeseen emergency under Section 17(2) would not by itself be sufficient for dispensing with Section 5-A inquiry. If that was not the intention of the legislature then the latter part of sub-section (4) of Section 17 would not have been necessary and the legislature in Sections 17(1) and (2) itself could have incorporated that in such situation of existence of urgency or unforeseen emergency automatically Section 5-A inquiry will be dispensed with. But then that is not the language of the section which in our opinion requires the appropriate Government to further consider the need for dispensing with Section 5-A inquiry inspite of the existence of unforeseen emergency. This understanding of ours as to the requirement of an application of mind by the appropriate Government while dispensing with Section 5-A inquiry does not mean that in each and every case when there is an urgency contemplated under Section 17(1) and unforeseen emergency contemplated under Section 17(2) exists that by itself would not contain the need for dispensing with Section 5-A inquiry. It is possible in a given case the urgency noticed by the appropriate Government under Section 17(1) or the unforeseen_ W.A.No.1854 of 2007 4 _emergency under Section 17(2) itself may be of such degree that it could require the appropriate Government on that very basis to dispense with the inquiry under Section 5-A but then there is a need for application of mind by the appropriate Government that such an urgency for dispensation of the Section 5-A inquiry is inherent in the two types of urgencies contemplated under Sections 17(1) and (2) of the Act. “_ See also the observation of the Court at paragraph 37 of the judgment which ## reads as follows: “37. We will now refer to the facts of the present case. We make it clear that this consideration of facts by us is not for the purpose of finding out whether the stated public purpose is in reality a public purpose or not, nor is it for the purpose of finding out whether there was an urgency as contemplated under Section 17(1) of the Act, but limited to the question of whether there was any material available before the Lt. Governor pursuant to whose order Section 4(1) notification stated that Section 5-A inquiry is dispensed with. Since formation of an opinion and application of mind cannot be assessed except by looking into the proceedings which culminated in the impugned order, we intend considering only such facts as are necessary for this limited purpose. The facts of the present case as found from the records show that the Anjuman-Saire-e-Gul-Faroshan, the Committee that organises this festival was using some land in Village Mehrauli for conducting its concluding ceremony. It is for this purpose it sought 4000 sq. yards of land in Khasra Nos.1151/3 (new) and 1665 (old) of the said village. It is also found from the record that ever since the revival of the festival the concluding programme was being continued in a piece of land situated in the said Khasra of Mehrauli village which is now sought to be acquired along with certain other lands. There is no material on W.A.No.1854 of 2007 5 record to show that either the said festival has been discontinued for want of land or the owners of the land where the festival has its concluding ceremony are preventing the utilisation of that land for the said purpose. We have also noticed hereinabove that an earlier attempt to acquire 40 bighas of the land for the very same purpose was allowed to be lapsed by the authorities concerned by efflux of time which was also a relevant factor to be taken note of by the Lt. Governor when he took the decision to dispense with the Section 5-A inquiry but the same was not placed before him. These facts coupled with the findings of the High Court that in almost all the notings in the file there is no reference to the need for invoking Section 17 (4), indicates that the Lt. Governor was not apprised of all the necessary and relevant facts before he took the decision in question. Therefore, in our opinion, the findings of the High Court that the decision of the Lt. Governor to dispense with the Section 5-A inquiry suffered from the vice of non-application of mind has to be upheld. For the reasons stated above, these appeals fail and are dismissed.” 6. The other decision relied on by the learned counsel for the appellant in the case of _Union of India and others_ v. _Krishan Lal Arneja and others_ (2004) 8 SCC 453, also would appear to be on the same lines, namely that the resort cannot be lightly made to the powers under Section 17(4) of the Act. That was a case where land was requisitioned under the powers conferred under the Land Acquisition Act and the orders were being extended from time to time and the last extension as permissible under law was to expire in the year 1987. There was a period of two years within 1987 within which the acquisition could have been made. 14 pieces of land came to be acquired. Some persons filed writ petitions which came to be allowed which ultimately culminated in the W.A.No.1854 of 2007 6 decision of the apex Court in _Banwari Lal & Sons (P) Ltd._ v. _Union of India_ and _Union of India_ v. _Shakuntala Gupta_ , (2002) 7 SCC 98. It was thereafter that certain others filed writ petitions and ultimately the matter reached the apex Court. The apex Court found that the writ petitioners in the latter writ petitions could not claim a differential treatment that is meted out to the parties in _Banwari Lal_ case and the case was inseparable and the same principle should be accepted as a precedent. It was in such circumstances the Court proceeded to hold that the resort made to the powers providing for dispensation of the enquiry under Section 5A of the Act is without warrant. 7. In this case, what is involved is the widening of a lane. In the counter affidavit filed by the respondents before this Court in the writ appeal, it is brought out that the widening of the lane would enure to the benefit of 50 families. Forty sq.mts. of land belonging to the second appellant alone is acquired. There was a proposal for acquisition from the local authority in the year 2004. In the year 2004, it is pertinent to note that the Government that was in power was not the Government which has issued Ext.P2, against which allegations have been made by the appellants. When the earlier Government was in power, Exts.R3(a) and R3(b) orders were passed providing for invoking the urgency clause for the development of the road in question. It is on the basis of the same that ultimately Ext.P2 notification came to be published in the year 2006. Before that, Ext.R3(c) order dated 6.10.2006, no doubt, came to be passed by the Commissioner of Land Revenue after assumption of the new Government, providing for dispensation of the enquiry under Section 5A of the Act by resort to Section 17(4) of the Act. It is pertinent to note that though this document came to be produced along W.A.No.1854 of 2007 7 with the counter affidavit, there is no challenge to the said decision of the Commissioner. What is challenged is the combined notification which was published later. This is a case where there is a proceeding at the hands of the competent body providing for dispensation of the enquiry under Section 5A of the Act. It is on the basis of Ext.R3(c) order dated 6.10.2006 that Ext.P2 notification came to be published by the concerned Government on 19.10.2006 providing for dispensation of the enquiry under Section 5A of the Act by resort to Section 17(4) of the Act. It is also pertinent to note that as pointed out by the respondents, an award was passed, the appellants participated in the enquiry and possession has been taken on 21.1.2008. What is most pertinent is that there can be no dispute that the land is acquired for a public purpose as the land has been acquired for the purpose of widening of a lane. We would think that it may not be open to the appellants to contend that there is no public purpose, or that Ext.P2 is liable to be interfered with. Having regard to the totality of the facts and circumstances of the case, we would think that the appellants have not made out any case for interference in this appeal. Accordingly the writ appeal fails and it is dismissed. ( **H.L.DATTU) CHIEF JUSTICE** **(K.M.JOSEPH) JUDGE** vns