Tomy P.C. and Annie Ipe and Saramma Varkey v. State of Kerala, District Collector, Special Tahsildar (Land Acquisition) & Kerala State Road Transport Corporation

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC WEDNESDAY, THE 22ND DAY OF AUGUST 2012/31ST SRAVANA 1934 WP(C).No. 31475 of 2011 (H) --------------------------- PETITIONER(S): ------------- 1. TOMY P.C., AGED 58 YEARS, S/O.CHAKKAPPAN PICHANKKADU HOUSE, PULIYANAN P.O. ANGAMALY - 683572. 2. ANNIE IPE, AGED 63 YEARS, W/O.DR.IPE THOLATH IPE, THOLATH HOUSE, CONVENT ROAD, KUNNAMKULAM - 6890503. 3. SARAMMA VARKEY, AGED 85 YEARS, W/O.LATE VARKEY, C/O.DR.IPE THOLATH IPE THOLATH HOUSE, CONVENT ROAD, KUNNAMKULAM - 6890503. BY ADVS.SRI.P.THOMAS GEEVERGHESE SRI.R.D.SHENOY (SR.) RESPONDENT(S): -------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, TRANSPORT, DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 2. DISTRICT COLLECTOR, CIVIL STATION, KAKKANAD, ERNAKULAM. 3. SPECIAL TAHSILDAR (LAND ACQUISITION) NATIONAL HIGHWAY NO.2, ALUVA, ERNAKULAM. ADDL.R4 4. KERALA STATE ROAD TRANSPORT CORPORATION, REP. BY ITS MANAGING DIRECTOR, TRANSPORT BHAVAN, TVM-695033 (IMPLEADED AS PER ORDER DATED 10.1.12 IN I.A.460/2012) BY ADV. GOVERNMENT PLEADER SUNITHA VINOD BY ADV. SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-082012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).31475/11 ## APPENDIX ## EXHIBITS P1TRUE COPY OF SECTION 4(1) LAND ACQUISITION NOTIFICATION ISSUED ON 30TH OCTOBER 2011 IN MATHRUBHUMI NEWSPAPER P2TRUE COPY OF NOTICES ISSUED IN FORM 4B DATED 11TH NOVEMBER 2011 UNDER RULE 7(2) OF THE KERALA LAND ACQUISITION RULES. P3TRUE COPY OF SURVEY SKETCH OF THE LOCALITY IN WHICH PROPOSED ROAD IS HIGHLIGHTED P4TRUE COPY OF TERRESTRIAL SURVEY OF THE LOCALITY MEASURING THE LAND REQUIRED FOR STRAIGHT LINE ACQUISITION AND COST COMPUTATION DONE BY CHARTERED ENGINEER. P5G.O.(Rt) NO.119/2011/Tran DATED 9.3.2011 P6FORM II SUBMITTED BY THE REQUISITIONING AUTHORITY UNDER RULE 4(1) OF THE KERALA LAND ACQUISITION RULES, 1990 P7PROCEEDINGS OF DISTRICT COLLECTOR NO.C5-8271/2010 DATED 22ND MARCH 2011 P8ORDER NO.LR-C6-34877/11 OIF LAND REVENUE COMMISSIONER DATED 5.8.2011 P9NOTICE DATED 11.6.2012 ISSUED BY THE 3RD RESPONDENT R3(a)- TRUE COPY OF DATAS COLLECTED FROM THE CASE REGISTER OF THE OFFICE OF THE SUB INSPECTOR OF POLICE, ANGAMALY /true copy/ PA To Judge mrcs ## **ANTONY DOMINIC, J** ........................................ W.P.(C).31475/2011 .............................................. Dated this the 22[nd] day of August, 2012 ## **JUDGMENT** Heard the learned senior counsel for the petitioners and the learned Government Pleader appearing for the respondents. 2 Petitioners are impugning Ext.P1 notification issued under Section 4(1) of the Land Acquisition Act (in short 'the Act') to the extent urgency clause under Section 17(4) of the Act is invoked. Pleadings in the writ petition show that by Ext.P6 requisition made by the additional 4[th] respondent, they sought acquisition of the properties of the petitioners, for the purpose of providing an entrance to the Angamaly bus depot of the KSRTC. Government, by Ext.P5 dated 9.3.2011, granted administrative sanction for the acquisition in question and the District Collector by Ext.P7 order dated 22.3.2011, authorized the 3[rd] respondent to carry out the land acquisition work. Subsequently, by Ext.P8 proceedings dated 5.8.2011, the Land Revenue Commissioner accorded sanction for invoking the urgency clause and to dispense **W.P.(C).31475/11** 2 with the enquiry as provided under Section 5A of the Act. It was accordingly that Ext.P1 notification was issued and published in the newspapers, invoking the urgency clause under Section 17(4) of the Act. In pursuance to Ext.P1, Ext.P2 notice under Rule 7(2) of the Kerala Land Acquisition Rules was also issued. It is at that stage this writ petition is filed. 3. The notification in question, as already stated, is for acquiring property of the petitioners for providing an entrance to Angamaly bus station. Ext.P3 sketch produced by the petitioners show that the property notified for acquisition is a strip of land belonging to them. This property along with the adjacent puramboke land, is sought to be made use of for providing the entrance. Petitioners submit that if the alignment presently fixed is slightly modified, a portion of their property can be excluded from acquisition and that by such exclusion, they will be able to save a well situated in their property from acquisition. It is stated that this contention of theirs could have been urged before the authorities, if an enquiry under Section 5A of the **W.P.(C).31475/11** 3 Act was conducted and according to the petitioners there is absolutely no urgency justifying invocation of power under Section 17(4) of the Act and to dispense with the enquiry under Section 5A. It is on this premise, this writ petition is filed. 4. A counter affidavit has been filed by the 3[rd] respondent, as also an additional affidavit. Apart from justifying the acquisition in question, the 3[rd] respondent is also attempting to justify the invocation of the power under Section 17(4) of the Act. According to the 3[rd] respondent, the bus stand has become a reality and the bus stand is situated in a place where there is traffic congestion and consequent accidents. It is stated that in order to ease the traffic congestion and to prevent future accidents, it is necessary to provide an additional access to the bus stand in question. It is contended that it was therefore, that the property is notified for acquisition and that considering the urgency of the situation, power under Section 17(4) of the Act has been invoked. **W.P.(C).31475/11** 4 5. Petitioners have no case that the project does not involve any public purpose. They are also not aggrieved by the acquisition of their property to the extent it is required. They are only aggrieved by the invocation of power under Section 17(4) of the Act dispensing with the enquiry under Section 5A. 6. It is true that in cases of real urgency, enquiry under Section 5A can be dispensed with and the circumstances in which such power can be invoked has been indicated by this Court in **Sharlet v. State of Kerala (2012 (3) KLT 73)** . 7. Insofar as the invocation of urgency clause is concerned, Ext.P8 is the proceedings of the Land Revenue Commissioner. It was by this order sanction has been accorded. In this order, after referring to the proposal made by the District Collector vide his letter dated 29.7.2011, and furnishing the details of the property to be acquired, the Commissioner has stated thus:- “The Commissioner of Land Revenue having examined the proposal and being satisfied that the **W.P.(C).31475/11** 5 Land is urgently required hereby directs in exercise of the power under/Sub Section (4) of Section 17 of the L.A Act, 1894 that the provision for hearing of objection under Section 5A shall not apply to the acquisition of the above said land for the above purpose as per the reference IInd paper above.” 8. A reading of this order therefore, shows that the Commissioner has not independently applied his mind to the requirement of invoking the power under Section 17(4) of the Act. On the other hand, he has blindly accepted the proposal of the District Collector. In my view, such an order does not satisfy the legal requirements for invoking power under Section 17(4) as indicated by the Apex Court and by this Court in various judgments including the judgment mentioned above. 9. Even otherwise Section 17(4) of the Act can be invoked in cases where the necessity of urgent implementation of the project cannot brook any delay that is inevitable if an enquiry under Section 5A is conducted. The materials available in this case show that administrative sanction was granted in March, 2011 and 4(1) notification was issued only in September, 2011. Even thereafter, proceedings were 6 ## **W.P.(C).31475/11** continued only at a very slow pace. In the circumstances, I am not satisfied that this was a case to be proceeded dispensing with an enquiry under Section 5A of the Act. 10. Therefore, I set aside Ext.P1 to the extent enquiry under Section 5A of the Act is dispensed with and direct the authorities to conduct enquiry under Section 5A and complete the proceedings on that basis. In order to expedite the matter, I direct that the petitioners will file their objections before the 3[rd] respondent within three weeks from today, in which event enquiry will be conducted and matter will be proceeded with in accordance with law thereafter. Writ petition is disposed of as above. ## **Sd/- ANTONY DOMINIC, JUDGE** mrcs /true copy/ PA To Judge