T.A. Kuriachan v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **FRIDAY, THE 26TH MARCH 2010 / 5TH CHAITHRA 1932** **WP(C).No. 8188 of 2010(W)** **---------------------------------------** ## **PETITIONER(S):** - **-----------------------** **T.A. KURIACHAN, S/O.AVIRACHAN, THATTAMPARAYIL HOUSE, OLIYAPPURAM P.O., THIRUMARADY VILLAGE, KOOTHATTUKULAM VIA, ERNAKULAM DISTRICT.** **BY ADV. MR.K.JAJU BABU,** **SMT.M.U.VIJAYALAKSHMI, MR.BRIJESH MOHAN, SMT.DHANYA CHANDRAN, MR.T.S.SHYAM PRASANTH.** ## **RESPONDENT(S):** **--------------------------** **1. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVT.SECRETARIAT, TRIVANDRUM.** **2. THE DISTRICT COLLECTOR, ERNAKULAM.** **3. THE SPECIAL TAHSILDAR (LA), N.H.NO.1, CIVIL STATION, KAKKANAD, ERNAKULAM.** **4. THE EXECUTIVE ENGINEER, KERALA STATE TRANSPORT PROJECT DIVISION (KSTP). MUVATTUPUZHA.** **5. THE CIRCLE INSPECTOR OF POLICE, PIRAVOM POLICE STATION, PIRAVOM, ERNAKULAM DIST.** **6. REV.FR.JOY KADUKUMMAKKIL, VICAR, ST.JOHN'S ORTHODOX SYRIAN CHURCH, VADAKARA, OLIYAPPURAM P.O., KOOTHATTUKULAM.** ## **R1 TO R5 BY GOVT. PLEADER MR.P. NARAYANAN.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) No. 8188 of 2010-W** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 26th day of March, 2010.** ## **JUDGMENT** The petitioner is a Parishioner of St. John’s Orthodox Syrian Church, Vadakara, Koothattukulam. He is aggrieved by the proposed demolition of the Chapel building at Koothattukulam Town, belonging to the said Church. 2. Learned Govt. Pleader opposed the prayer of the petitioner pointing out that already the matter is covered by the judgment in W.P.(C) No.25462/2009 and the property including the Chapel buildings have been taken possession after invoking the provisions of the Land Acquisition Act, especially under Section 49 of the At and the petitioner who is only a parishioner, cannot challenge the same as the authorities of the Church have already agreed for the demolition of the building. 3. What is pleaded by the petitioner in the writ petition is that the Church is governed by the 1934 Constitution of Malankara Orthodox Syrian Church. Ext.P1 is the copy of the Constitution. It has been declared as a Parish Church as per Ext.P2 order passed by the District Court. Exts.P3 and P4 are the judgment and decree in O.S. No.11/1981 wherein there is a finding that the Church is governed by Ext.P1 Constitution. Accordingly, it wpc8188 /2010 2 is contended that in the light of the specific terms of the Constitution, for sale or encumbrance of immovable properties of the Church, written permission of the Metropolitan is to be obtained by the Vicar based on the decision of the Parish meeting. 4. It is also pointed out that apart from the main Church building and properties at Vadakara, the Church owns three chapels, including one in Koothattukulam town. The chapel at Koothattukulam is situated in Sy. No.93/1, 2, 3 and 4 of Koothattukulam village in Muvattupuzha Taluk. 5. Heard the learned Government Pleader Shri P. Narayanan for respondents 1 to 5. 6. The notification for acquisition of 3.88 ares of land belonging to Koothattukulam Chapel is one for widening of the M.C. Road and the same is dated 15.1.2005. The award amount has been deposited in Sub Court, Muvattupuzha, in L.A. Case No.248/2006, in the light of the dispute between the two factions with regard to the properties of the Church. It is pointed out that there is a five storied tower in front of the Chapel. The Chapel is situated just behind the tower with shop rooms on either side. Taking possession of the Chapel, according to the petitioner, is illegal and the same is not required for the widening of the road and the surrender of the shop building by the Vicar cannot be supported. It is further pointed out wpc8188 /2010 3 that the petitioner has filed a representation as Ext.P9 before respondents 1, 2 and 4. 7. Learned Govt. Pleader, on getting written instructions, pointed out that the land was required for the upgradation of Muvattupuzha – Ettumanoor – Chengannoor road under the Kerala State Transport Project of PWD. The alignment plan was approved by the Government and boundary stones for land acquisition were planted by the 4[th] respondent in 2005. The land and structures in Sy. No.93/1-2 in Koothattukulam village owned by Vadakara Puthenkoor Church falls within the acquisition boundary and a chapel and adjacent shop buildings are included in the acquisition. 8. It is evident from the details submitted by the learned Govt. Pleader that the award was passed on 27.4.2006 and in the light of the dispute between two factions, viz. Jacobite and Orthodox, the amount was deposited in the Sub Court under Section 31(2) of the Land Acquisition Act. The deposit was made in the light of the fact that the Grievance Redressal Committee of the District Collector as Chairman and the Executive Engineer of P.W.D.-K.S.T.P. Division, Muvattupuzha, as Convener, even though initiated negotiations between the two factions, no agreement could be reached in the meeting held on 14.1.2008. The notice to vacate the buildings has been issued on 13.10.2008. This was challenged in wpc8188 /2010 4 W.P.(C) No.25462/2009 by certain tenants. The writ petition was dismissed. They were granted some time to vacate the premises. It is pointed out that the tenants vacated the buildings later and the shop buildings and Chapel were taken over by the Land Acquisition Officer on 24.2.2010 and handed over the PWD-KSTP on the same day. 9. It is further pointed out by the learned Govt. Pleader that the Chapel and the shop buildings on either side form a continuous structure and are required to be acquired and demolished for widening of the road and junction in Koothattukulam town. It is further stated that the entire structures including Chapel building have been valued and the compensation had been deposited in the Sub Court. It is also pointed out by the learned Govt. Pleader that in the light of Section 49 of the Act, the authorities are vested with the power for taking over of all the buildings under the Act itself and therefore a person like a parishioner cannot at this stage, oppose the same. 10. In fact, learned Govt. Pleader produced before me for perusal the minutes of the meeting held on 1.11.2006 for fixing the price of the church property by negotiation. Therein, the authorities of the Church requested for fixing the compensation in respect of the entire building, obviously as they cannot have any use of the part of the building. This was accepted for wpc8188 /2010 5 passing the award. 11. In the judgment in W.P.(C) No.25462/2009, this Court noticed the contention of the learned Govt. Pleader that all other buildings have been taken possession of. The same has been recorded also in the judgment. Evidently, in the light of the said judgment, it is clear that the all the buildings have been taken possession already. 12. Even though learned counsel for the petitioner submitted that the Vicar and other persons in charge of the Parish cannot surrender a Chapel and other buildings, as rightly pointed out by the learned Govt. Pleader, there is a right of option under Section 49(1) of the Land Acquisition Act. The said right has evidently, been exercised by the Vicar and other office bearers of the Church and the same has been recorded in the minutes of the meeting held on 1.11.2006. It is well settled that a third party cannot challenge the same. The said legal position is clear from the decision of a Full Bench of this Court in **Saramma Itticheriya v. State of Kerala** (2008 (1) KLT 6). Therein, the challenge was made by the tenant of a building against the option exercised by the owner under Section 49(1) of the Act. It was held by the Full Bench that the right of option given under Section 49 (1) is only available to the owner and not anybody including any person interested or occupier, tenant, etc. It was also held that the expression of wpc8188 /2010 6 opinion to acquire the entire building need not be in any particular form but it should be made before passing of the award. In that view of the matter, even if the petitioner can be termed as a person interested, he cannot challenge it in these proceedings. Obviously, the award has been passed and the whole amount has been deposited before the Sub Court. The property has already been taken possession. Any right of the parishioner, etc. based on the judgment in the suit cannot therefore be a matter for reconsideration at the hands of the Land Acquisition Officer in the light of the special scheme under the Land Acquisition Act. 13. As rightly pointed out by the learned Govt. Pleader, every one of the steps taken by the Land Acquisition Officer would have been within the knowledge of the petitioner and the petitioner has approached this Court at the stage of demolition of the building. The notification under the Act is in the year 2005. There had been different meetings for negotiation and for other purposes which were held at the instance of the officers of KSTP also. There was a meeting of the two factions at the instance of the Grievance Redressal Committee in which the District Collector is the Chairman and the 4[th] respondent is the convener. Both factions were represented in the meeting. This meeting was held on 14.1.2008 and the minutes of the meeting was produced before me for perusal by the learned wpc8188 /2010 7 Govt. Pleader. It is clearly mentioned therein that as both sides could not agree for reconciliation, the amount of compensation is being deposited before the Sub Court under Section 31(2) of the Act. 14. It cannot be said that the petitioner was unaware about these developments. Therefore, this writ petition is highly belated also. Apart from the same, as found by me earlier, the petitioner has no right to seek for a direction in this writ petition, in the light of the findings rendered above. The writ petitioner has not sought to challenge the Land Acquisition proceedings or the award passed in the light of the exercise of option under Section 49 of the Act. For all these reasons, the writ petition fails and the same is dismissed. **(T.R. Ramachandran Nair, Judge.)** ## **kav/**