Sreekumar A. and others v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR TUESDAY, THE 18TH MARCH 2008 / 28TH PHALGUNA 1929 OP.No. 16242 of 1999(H) ----------------------- PETITIONERS: - ------------ 1. SREEKUMAR A, S/O.ARUMUGHOM ASARI, AGED 47, RESIDING AT T.C.38/2844, SELVA BHAVAN, PAZHAYASALA,THIRUVANANTHAPURAM. 2. ARUMUGHOM AMMAL, D/O.BHAGAVATHY AMMAL, AGED 59, RESIDING AT T.C.38/2798, ARUNA, PAZHAYASALA, THIRUVANANTHAPURAM 36. 3. S.VIRAYAN, S/O.SUBBAYYAN ASARI, AGED 43, RESIDING AT RAJESH BHAVAN, T.C.38/2940, NEAR TAMIL HIGH SCHOOL, KILLIPPALAM, CHALAI, THIRUVANANTHAPURAM. 4. S.MUHAMMED SALI, S/O.SYED MUHAMMED PILLAI, AGED 76, RESIDING AT T.C.41/2384, SALIM VIHAR, MANARCAUD, THIRUVANANTHAPURAM. 5. JAGADISH PATEL, S/O.R.C.PATEL, AGED 56 YEARS, RESIDING AT T.C.27/1073, KAINIKKARA, VANCHIYOOR, THIRUVANANTHAPURAM. 6. BALASHANMUGHAM, S/O.BHOOLOKAM CHETTIYAR, AGED 47, RESIDING AT T.C.38/291, NEAR TEMPLE, CHENTHITTA, THIRUVANANTHAPURAM. 7. THULASIDAS, S/O.MARUTHAPPAN CHETTIYAR, AGED 46, RESIDING AT MUKKUVILAKAM, KARAYKKA MANDAPAM, PAPPANAMKODU, THIRUVANANTHAPURAM. 8. A.KANNAN, S/O.ARUMUGHOM ASARI, AGED 36, RESIDING AT T.C.38/2844, SELVA BHAVAN, PAZHAYASALA, THIRUVANANTHAPURAM. BY ADV. SRI.V.PHILIP MATHEW RESPONDENTS: - ------------- 1. STATE OF KERALA, REP. BY THE CHIEF SECRETARY, GOVENMENT SECRETARIAT, THIRUVANANTHAPURAM. OP No.16242/1999 2 2. SECRETARY, LOCAL ADMINISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THIRUVANANTHAPURAM DEVELOPMENT AUTHORITY, REP. BY ITS SECRETARY. - (*)ADDL.4TH RESPONDENT: 4. LAND REVENUE COMMISSIONER, LAND REVENUE COMMISSIONERATE, THIRUVANANTHAPURAM. - (*) IS IMPLEADED AS ADDL.R4 VIDE ORDER DATED 11.3.2008 IN IA NO.3574/08. - (**)ADDL.RESPONDENTS 5 AND 6: 5. THE SPECIAL TAHSILDAR (ADDITIONAL L.A. UNIT), RISHIMANGALAM ROAD, THIRUVANANTHAPURAM. 6. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. - (**)ADDL.R5 & R6 ARE SUO MOTU IMPLEADED VIDE JUDGMENT DATED 18.3.2008 IN WP(C). R1 R2 & ADDL.R4 TO R6 BY SR. GOVERNMENT PLEADER SHRI BASANT BALAJI R3 BY ADV. SRI.K.A.JALEEL, SC., TRIDA THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 18/03/2008, ALONG WITH OP NO. 6665/2000 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN OP NO.16242/1999 PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF THE TITLE DEED OF THE FIRST PETITIONER'S PROPERTY EXT.P2 TRUE COPY OF THE RECEIPT EVIDENCING PAYMENT OF LICENCE FEE BY THE THIRD PETITIONER TO THIRUVANANTHAPURAM CORPORATION EXT.P3 TRUE COPIES OF THE CORPORATION LICENCE FEE RECEIPT PAID TO THE THIRUVANANTHAPURAM CORPORATION BY THE FOUTH PETITIONER FOR A SUM OF Rs.215/- EXT.P3(a) -DO- FOR A SUM OF Rs.300/- EXT.P3(b) -DO- FOR A SUM OF Rs.12/- EXT.P4 TRUE COPY OF THE RECEIPT ISSUED TO THE FOURTH PETITIONER BY THE THIRUVANANTHAPURAM CORPORATION ON PAYMENT OF PROFESSION TAX ON 17.5.99 EXT.P5 TRUE COPY OF THE TITLE DEED OF THE FIFTH PETITIONER IN RESPECT OF HIS PROPERTY. EXT.P6 TRUE COPY OF THE TAX RECEIPT IN RESPECT OF THE FIFTH PETITIONER'S PROPERTY EXT.P7 TRUE COPY OF THE RECEIPT EVIDENCING PAYMENT OF CORPORATION LICENCE FEE BY THE SIXTH PETITIONER EXT.P8 TRUE COPY OF THE TITLE DEED IN RESPECT OF THE PROPERTY OF THE EIGHTH PETITIONER'S EXT.P8(a) TRUE COPY OF THE RECEIPT EVIDENCING PAYMENT OF PROFESSION TAX BY THE EIGHTH PETITIONER TO THE THIRUVANANTHAPURAM CORPORATION EXT.P9 TRUE COPY OF THE ORDER ISSUED BY THE FIRST RESPONDENT DATED 16.2.1999 TO THE THIRD RESPONDENT EXT.P10 TRUE COPY OF THE NOTICE ISSUED BY THE THIRUVANANTHAPURAM FLOWERIST ASSOCIATION EXT.P11 TRUE COPY OF THE REPRESENTATION DATED 10.6.1999 SUBMITTED TO THE MINISTER FOR LOCAL ADMINISTRATION BY THE PETITIONERS EXT.P12 TRUE COPY OF NOTIFICATION DATED 30.1.2000 IN DESHABHIMANI DAILY EXT.P13 TRUE OPY OF REPRESENTATIONS 7.2.2000 FILED BY THE PETITIONER TO THE CHIEF SECRETARY TO GOVT. RESPONDENTS' EXHIBITS: EXT.R3(a) TRUE COPY OF THE DECISION TAKEN BY THE EXECUTIVE COMMITTEE OF TRIDA ON 7.2.2008 //TRUE COPY// ## **K. PADMANABHAN NAIR ,J.** **------------------------------------------------O.P.No.16242 of 1999 H & O.P.No.6665 of 2000 R ------------------------------------------------Dated, this the 18[th] day of March, 2008** ## **JUDGMENT** The Land Acquisition Officer and District Collector, Thiruvananthapuram are suo motu impleaded. 2. The main reliefs sought for in both these Original Petitions are same. Petitioners seek a writ of certiorari to quash Exts.P9 and P12 and also to issue a direction to the respondents 1 to 3 to take appropriate action on Exts.P11 and P13 representations within a time limit. 3. The petitioners are owners of properties situated on the either side of the public road passing through Chalai Bazzar at Thiruvananthapuram. The properties are comprised in Sy.Nos.1223 and 1241 of Iranimuttam Village of Thiruvananthapuram District. Those properties are sought to be acquired for rehabilitating the flower merchants who are doing business in the road pavements. According to the petitioners that is only a pretext for acquisition and the persons for whose benefit the land is sought to be acquired are having their own shops and they have filed representations before the competent authority stating that they do OP Nos.16242/1999 & 6665/2000 2 not want the land now sought to be acquired as it will cause inconvenience. Petitioners have also got a case that the Floweriest Association have filed a representation on 28.11.2003 before the Thiruvananthapuram Development Authority and that they do not require the land sought to be acquired. Association had pointed out three alternate sites which are convenient in every respect. 4. The matter was pending from 1999 onwards. Till date no decision has been taken. I issued a direction to the TRIDA to take a decision and communicate the same to this Court. The Land Revenue Commissioner is made as a respondent in this matter. I have issued a direction to the learned Government Pleader to produce the relevant files. Government Pleader made available a letter received from the Land Revenue Deputy Commissioner in which it is stated that all the records pertaining to this particular case had been destroyed and no records are available. In the order granting sanction to invoke urgency clause the only reason stated was that the District Collector in his request had explained the public purpose and requirement of land to implement the scheme. There is not even a reference what exactly the reason stated by the District Collector and whether those reasons are genuine or not. 5. In the counter affidavit filed by the respondents it was contended that this road is having very heavy traffic also. So I am of the view that it OP Nos.16242/1999 & 6665/2000 3 was absolutely unnecessary to invoke the provisions under Section 17(4) of the Land Acquisition Act in this particular case. In **Union of India v. Krishan Lal** **Arneja ((2004) 8 SCC 453)** the Apex Court has held that unless there is very pressing grounds the limited right to have an enquiry under Section 5A of Land Acquisition Act cannot be taken away. So I am of the view that it is only just and proper to quash the urgency clause under Section 17(4) of Land Acquisition Act invoked in this case and direct the District Collector, Thiruvananthapuram to conduct Section 5A enquiry in the matter. Petitioners are given three weeks time from the date of receipt of a copy of this judgment to file their objections under Section 5A of the Land Acquisition Act before the Land Acquisition Officer. After receipt of such objections the Land Acquisition Officer shall forward the file to the District Collector, Thiruvananthapuram who shall conduct Section 5A enquiry and take a decision in the matter as expeditiously as possible, at any rate, within a period of two months from the date of receipt of files from the Land Acquisition Officer. The District Collector shall consider the request made by the Floweriest Association and also the suitability of other sites pointed out by the Floweriest Association while holding Section 5A enquiry. Until the District Collector conducts Section 5A enquiry and takes a final decision, the interim order passed by this Court will be in force. C.M.P.No.26407/1999 in O.P.No.16242/1999 is disposed of vide judgment OP Nos.16242/1999 & 6665/2000 4 and C.M.P.No.8145/2001 and I.A.No.15334/2003 in O.P.No.16242/1999 are dismissed. C.M.P.No.11165/2000 in O.P. No.6665/2000 is disposed of vide judgment. . **K. PADMANABHAN NAIR, JUDGE.** cks OP Nos.16242/1999 & 6665/2000 5 K.PADMANABHAN NAIR, J. O.P.No.16242 of 1999 H & O.P.No.6665 of 2000 R JUDGMENT 18[th] March, 2008.