T.R. Kurian v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN** **WEDNESDAY, THE 2ND JUNE 2010 / 12TH JYAISTHA 1932** **OP.No. 28382 of 1999(D)** **-----------------------------------** ## **PETITIONER(S):** **------------------------** **T.R. KURIAN, THAYIL HOUSE, CHULLIKKAL, COCHIN-5.** **BY SRI.M.C.SEN, SENIOR ADVOCATE, ADV. SMT.PARVATHI A.MENON, SRI.M.P.SREEKRISHNAN, SRI.S.PRAKASH.** ## **RESPONDENT(S):** **--------------------------** **1. STATE OF KERALA, REPRESENTED BY SPECIAL SECRETARY TO GOVERNMENT, REVENUE (B) DEPARTMENT, TRIVANDRUM.** **2. THE DISTRICT COLLECTOR, ERNAKULAM.** **3. THE ASSISTANT EXECUTIVE ENGINEER, CORPORATION OF COCHIN.** **4. CORPORATION OF COCHIN, REPRESENTED BY ITS SECRETARY, ERNAKULAM.** **5. SPECIAL TAHSILDAR, LAND ACQUISITION, MATTANCHERRY.** **R1, R2 & R5 BY GOVT. PLEADER SMT.SMITHA SUKUMARAN. R3 & R4 BY ADV. SRI.M.K.CHANDRAMOHAN DAS,SC,COCHIN CORPN.** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 02/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP.No. 28382 of 1999(D)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS & ANNEXURE:** **EXT.P1: COPY OF THE NOTIFICATION AND DECLARATION UNDER SEC.5 OF THE COCHIN LAND ACQUISITION ACT II OF 1070, DATED 08/08/1961.** **EXT.P2: COPY OF THE NOTICE TO THE 2ND RESPONDENT DATED 29/08/1981 BY THE PETITIONER'S COUNSEL.** **EXT.P3: COPY OF THE REPLY TO THE PETITIONER'S COUNSEL NO.19935/B2/82/RD, DATED 17/08/1982 BY THE 1ST RESPONDENT.** **EXT.P4: COPY OF THE LETTER FROM THE 2ND RESPONDENT L.DIS.32485/82/C2, DATED 06/04/1982 TO THE PETITIONER.** **EXT.P5: COPY OF THE LETTER ALONG WITH APPLICATION FROM THE PETITIONER TO THE 3RD RESPONDENT, DATED NIL.** **EXT.P6: COPY OF THE LETTER FROM THE 2ND RESPONDENT NO.C2-47810/82, DATED 02/07/1982 TO THE 1ST RESPONDENT.** **EXT.P7: COPY OF THE ORDER OF THE 4TH RESPONDENT, NO.FCE3/2839/95, DATED 23/06/1998 TO THE PETITIONER.** **EXT.P8: COPY OF THE APPEAL FILED BY THE PETITIONER TO THE 4TH RESPONDENT DATED 24/07/1998.** **EXT.P9: COPY OF THE ORDER OF THE 4TH RESPONDENT, NO.F.C.E3/2839/95 DATED 18/09/1998 TO THE PETITIONER.** **EXT.P10: COPY OF THE APPLICATION FROM THE PETITIONER TO THE 4TH RESPONDENT, DATED 23/11/1998.** **EXT.P11: COPY OF THE LETTER FROM THE 4TH RESPONDENT NO.F.C.E3/2839/95 DATED 24/07/1999 TO THE PETITIONER.** **EXT.P12: COPY OF THE SKETCH OF THE PROPERTY USED FOR ROAD THE REMAINIGN LAND NOT USED FOR THE PURPOSE OF THE ROAD.** **EXT.P13: COPY OF THE COMMISSIONER'S REPORT IN E.A.81/97 IN E.P.79/97 IN O.S. NO.758/83 DATED 19/06/1997.** **EXT.P14: COPY OF THE LATEST TAX RECEIPT ISSUED BY THE VILLAGE OFFICER, THOPPUMPADY, DATED 17/08/1999.** **EXT.P15: COPY OF THE SKETCH OF THE LAND ACQUIRED THE ROAD ALIGNMENT AND THE LAND RETURNED.** ## **OP.No. 28382 of 1999(D)** **EXT.P16: COPY OF THE REPRESENTATION DATED 25/10/1961 BY THE PETITIONER TO THE SPL. TAHSILDAR LAND ACQUSITION, MATTANCHERRY.** **EXT.P17: COPY OF THE REPRESENTATION BY THE PETITIONER TO THE MINISTER FOR LOCAL ADMINISTRATION AND FISHERIES, TRIVANDRUM.** **EXT.P18: COPY OF THE ACKNOWLEDGEMENT OF EXT.P16.** **EXT.P19: COPY OF THE BASIC TAX RECEIPTS UP TO 92-93, 94-95, 96-97, 97-98, 98-99 AND 2000-2001.** **ANNEXURE A: COPY OF THE LETTER DATED 07/04/70 ISSUED BY THE DISTRICT COLLECTOR THE SPL. TAHSILDAR, ERNAKULAM.** ## **RESPONDENT'S EXHIBITS: NIL** **//TRUE COPY//** ## **P.S. TO JUDGE** **rs.** ## **P.N.RAVINDRAN, J.** ---------------------------O.P.No.28382 of 1999 ---------------------------Dated 2[nd] June, 2010 ## **JUDGMENT** The petitioner was the owner of 44 cents of land situated in Survey No.1103 of Mattancherry Village. The said land was acquired for extending the reach of Eraveli road to Rameshwaram road. A declaration under section 5 of the Cochin Land Acquisition Act II of 1070 was issued on 8.8.1961. An award was passed in the year 1962 and possession of the land was taken. Long thereafter, the petitioner caused Ext.P2 notice dated 29.8.1981 to be issued to the District Collector, Ernakulam stating that out of the 44 cents of land acquired from him only 9 ½ cents have been utilised for the purpose of road, that the balance 34 ½ cents is lying vacant and that it may be re-conveyed to him. In the alternative, he demanded payment of the market value of the said 34 ½ cents at the rate of Rs.3000/= per cent. On receipt of Ext.P2 notice, the District Collector forwarded it to the Government. The Government thereupon sent Ext.P3 letter dated 17.8.1982 to the petitioner's counsel informing him that the Government have issued standing orders laying down the procedure to be followed for the disposal of land acquired under the Kerala Land O.P.No.28382/1999 2 Acquisition Act but not required for the purpose for which it was acquired. It was also stated therein that as per the said order the land acquired by the Government can be re-conveyed to the original owner only if it is not required by any Government Department or local body of that area and that the District Collector, Ernakulam has been asked to ascertain the said fact. It was also stated that if after such enquiry it is found that the land is not required by any Government Department or local body of that area, action should be taken to reconvey it to the original owner as provided in the order. 2. The petitioner thereafter sent a petition dated 24.3.1982 to the District Collector, Ernakulam. The District Collector returned the said representation to the petitioner along with Ext.P4 letter dated 6.4.1982 whereby the petitioner was also informed that a formal application for reconveyance will have to be routed through the requisitioning authority. The petitioner thereupon moved the Cochin Corporation by filing a representation. The said representation was rejected by Ext.P7 order dated 23.6.1998 issued by the Secretary to the Cochin Corporation. The petitioner thereupon filed Ext.P8 appeal before the Council of the Cochin Corporation. By Ext.P9 letter dated 18.9.1998, the said appeal was rejected. This original petition was thereupon filed challenging Exts.P7 and P9 and seeking a direction to the respondents to reconvey 24½ cents of land to the petitioner. In the original petition O.P.No.28382/1999 3 the petitioner contends that as the land acquired from him was not put to use for the purpose for which it was acquired and is lying vacant, he is entitled to have the land reconveyed to him. He has also raised a contention that he has not received the entire compensation for the land acquired and part of the compensation is still to be paid. The respondents have filed a counter affidavit resiting the original petition contending that the petitioner has no right to obtain reconveyance, that the entire compensation was paid and that the land remaining vacant is required for other public purposes. 3. I have considered the submissions made at the Bar by Sri.M.C.Sen, learned Senior Advocate appearing for the petitioner, Sri.M.K.Chandramohandas, learned counsel appearing for respondents 3 and 4 and Smt.Smitha Sukumaran, learned Government Pleader appearing for respondents 1, 2 and 5. I have also gone through the pleadings and the materials on record. It is evident from the case set out by the petitioner in Ext.P2 lawyer notice that the compensation payable for the land acquired from him was paid. He had no case in Ext.P2 that any portion of the compensation was remaining unpaid. As a matter of fact, in Ext.P2 he wanted the Government to reconvey the land or to pay him market value at the rate of Rs.3,000/- per cent in lieu of reconveyance. In the subsequent correspondence also the petitioner had no case that the land value has not been paid for the land O.P.No.28382/1999 4 acquired from him. It is for the first time that he has raised such a contention in the original petition. It has therefore to be necessarily held that the claim made by the petitioner in that regard is without any merit. 4. As regards the petitioner's entitlement for reconveyance, though the learned Senior Advocate appearing for the petitioner referred to the rules issued by the Cochin Government under the Land Acquisition Act (II of 1070) especially rule V thereof, the learned counsel submitted that in view of the binding decision of the Division Bench of this Court in _**Bhaskaran Pillai**_ v. _**State of Kerala**_ (1991 (2) KLT 332) that was affirmed by the Apex Court in _**State of Kerala**_ v. _**M.Bhaskaran Pillai**_ (AIR 1997 SC 2702) the petitioner cannot seek reconveyance of the land that was acquired by the Government or any agency of the Government under the provisions of the Land Acquisition Act. In _**Bhaskaran Pillai**_ v. _**State of Kerala**_ (supra) after an elaborate analysis of the provisions governing the field and the law on the point, the Division Bench of this Court held that land acquired by the Government under the provisions of the Kerala Land Acquisition Act, can be disposed of only under the law governing assignment of Government lands and that it cannot be reconveyed to the person from whom it was acquired. The said decision was affirmed by the Apex Court in _**State of Kerala**_ v. _**M.Bhaskaran Pillai**_ (supra) wherein the Apex Court held that if O.P.No.28382/1999 5 land is acquired for a public purpose and any portion of the acquired land is left after the public purpose is achieved, the rest of the land can be used for any other public purpose and in case there is no other public purpose for which the land is needed, then, the only course open is to dispose it of by way of public auction instead of reconveyance to the erstwhile owner. The Apex Court held that the executive order issued by the State Government in the year 1967 (G.O.M.S.530/67/RD dated 30.10.1967) which provides for reconveyance of the land acquired by the Government from the erstwhile owner is invalid and inoperative. In the light of the authoritative pronouncements of the Apex Court and this Court referred to above, the petitioner cannot seek reconveyance of any portion of the acquired land, long after it had vested in the Government. I accordingly hold that there is no merit in the original petition. The original petition fails and is accordingly dismissed. P.N.RAVINDRAN Judge TKS