Vinod Vijayachandran Nair v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 25TH NOVEMBER 2010 / 4TH AGRAHAYANA 1932 WP(C).No. 25129 of 2010(M) -------------------------- PETITIONER(S): VINOD VIJAYACHANDRAN NAIR, NANDANAM, AYYAPPA NAGAR, THONNALLOOR, PANDALAM .(FORMERLY OF D/714, ORCHID CHS LTD., GOVANDI(E), MUMBAI400088), THROUGH HIS FATHER AND POWER OF ATTORNEY HOLDER VIJAYACHANDRAN NAIR, NANDANAM, AYYAPPA NAGAR, THONNALLUR, PANDALAM. BY ADV. SRI.K.SASIKUMAR SRI.S.ARAVIND SRI.P.JINISH PAUL RESPONDENT(S): 1. STATE OF KERALA REPRESENTED BY THE ADDL.CHIEF SECRETARY, REVENUE (DEVASWOM) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, PATHANAMTHITTA. 3. SPECIAL TAHSILDAR, LA (GENERAL), PATHANAMTHITTA. 4. TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM. BY ADV. SRI.P.GOPAL, SC FOR R4 BY GOVERNMENT PLEADER SRI.K.RAMESH FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## APPENDIX IN W.P.(C) No.25129 of 2010 - EXT.P1 A TRUE COPY OF THE LAND TAX RECEIPT DATED 27.1.09 ISSUED FROM THE PANDALAM VILLAGE OFFICE. - EXT.P2 A TRUE COPY OF THE BUILDING PERMIT DATED 11.5.09 ISSUED BY THE PANDALAM GRAMA PANCHAYAT. - EXT.P3 A TRUE COPY OF THE DEVELOPMENT PERMIT DATED 29.8.09 ISSUED BY THE PANDALAM GRAMA PANCHAYAT. - EXT.P4 A TRUE COPY OF THE FORM 2 FORM OF REQUISITION FOR ACQUISITION OF LAND SUBMITTED BY THE FOURTH RESPONDENT BEFORE THE FIRST RESPONDENT. - EXT.P5 A TRUE COPY OF THE LETTER DATED 18.3.2009 FORWARDED BY THE FOURTH RESPONDENT TO THE FIRST RESPONDENT. - EXT.P6 A TRUE COPY OF GO NO.3111/09/RD DATED 5.9.2009 - EXT.P7 A TRUE COPY OF GO. NO.4488/09/RD DATED 9.12.2009 EXT.P8 A TRUE COPY OF THE REPRESENTATION DATED 16.2.2010 FORWARDED BY THE PANDALAM PALACE ADMINISTRATION SOCIETY. - EXT.P9 A TRUE COPY OF THE REPRESENTATION DATED 8.1.2010 FORWARDED BY THE AKHILA BHARATHA AYYAPPA SEVA SANGHAM, BRANCH PANDALAM TO THE SECOND RESPONDENT. - EXT.P10 A TRUE COPY OF THE REPRESENTATION DATED 9.1.2010 FORWARDED BY THE AYYAPPAN NAGAR RESIDENTS ASSOCIATION TO THE SECOND RESPONDENT. - EXT.P11 A TRUE COPY OF THE RESIDENCE PERMIT ISSUED TO THE PETITIONER FROM THE UK GOVERNMENT. - EXT.P12 A TRUE COPY OF THE REPRESENTATION DATED 4.1.2010 FORWARDED BY THE PETITIONER TO THE FIRST RESPONDENT. - EXT.P13 A TRUE COPY OF THE LETTER DATED 13.1.2010 ISSUED FROM THE HON'BLE REVENUE MINISTER'S OFFICE. - EXT.P14 A TRUE COPY OF THE LETTER DATED 31.5.2010 ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER. - EXT.P15 A TRUE COPY OF THE NOTIFICATION DATED 9.6.2010 ISSUED BY THE THIRD RESPONDENT PUBLISHED IN THE EXTRA ORDINARY GAZETTE DATED 17.6.2010 - EXT.P16 A TRUE ROUGH LOCATION SKETCH. - EXT.P17 A TRUE COPY OF THE OBJECTION DATED 6.9.2010 FILED BY THE PETITIONER BEFORE THE THIRD RESPONDENT. - EXT.R4(a) TRUE COPY OF THE SUITABILITY CERTIFICATE DATED 5.8.2006 ISSUED BY THE PANDALAM PANCHAYAT. - EXT.R4(b) TRUE COPY OF THE ROUGH SKETCH. //TRUE COPY// P.A. TO JUDGE. ## **P.N. RAVINDRAN, J.** ------------------------------- ## **W.P.(C) No.25129 of 2010** ------------------------------- ## **Dated this the 25[th] day of November, 2010** ## **J U D G M E N T** The petitioner is the owner of a parcel of land, 8.09 ares in extent, situated in Re-survey No.8/2-5 of Pandalam Village in Pathanamthitta District. The said land lies close to the Pandalam Valiyakoikkal Temple. In this writ petition, the petitioner challenges Ext.P6 order passed by the Government on 5.9.2009 according sanction to the Travancore Devaswom Board to acquire his land and the other lands situated in the locality and Ext.P15 notification dated 9.6.2010 issued by the third respondent under section 4(1) of the Land Acquisition Act, 1894. The main contention raised by the petitioner is that in view of the stand taken by the Government themselves in Ext.P14 letter sent in reply to his representation, wherein the Government have unequivocally declared that the petitioner's land cannot be exempted from the acquisition, no purpose will be served by holding an enquiry under section 5A of the Land Acquisition Act. 2. The Travancore Devaswom Board has filed a counter affidavit justifying the proposed acquisition. It is stated that besides the petitioner's land, the adjoining lands which are situated close to the temple are sought to be acquired to provide amenities to the large W.P.(C) No.25129 of 2010 2 number of pilgrims who worship at the temple during the pilgrimage season to Sabarimala. The fourth respondent has also stated that a total extent of 24.92 ares of land (corresponding to 62 cents) is sought to be acquired and that no one of the other land owners has objected to the proposed acquisition. The petitioner has no case that the acquisition itself is mala fide. The only objection is that as the Government have already made its stand clear, the third respondent, the Land Acquisition Officer is disabled from conducting a proper enquiry under section 5A of the Land Acquisition Act. 3. The Apex Court has in **Sooraram Pratap Reddy and** ## **others v. District Collector, Ranga Reddy District and others** (2008 (9) SCC 552) held that in deciding whether the acquisition is for a public purpose or not, prima facie the Government is the best judge and normally in such matters, the Writ Court will not interfere by substituting its judgment for the judgment of the Government. The Apex Court has also referred to and relied on the decision of the Privy Council in **Hamabai Framjee Petit v. Secretary of State for India in Council** (AIR 1914 PC 20), wherein, the Judicial Committee of the Privy Council held that on the question whether the purpose for which land is proposed to be acquired is a purpose in which the W.P.(C) No.25129 of 2010 3 general interest of the community is concerned, prima facie, the Government are good judges and that though they are not the absolute judges, the Court does not easily hold them to be wrong. The Apex Court has also relied on various earlier decisions wherein it had been held that it is primarily for the State Government to decide whether there exists a public purpose of not, and it is not for the High Court to evaluate the evidence and come to its own conclusion as to whether or not there is public purpose unless it comes to the conclusion that it is a mala fide or colourable exercise of the power. In other words the court would interfere only when the exercise of the power serves no public purpose or it serves a private purpose _._ 4. The petitioner has no case that acquisition is not for a public purpose or that it is intended to serve a private purpose. He has also no case that the acquisition is mala fide or a colourable exercise of power. Further, as stated by the Travancore Devaswom Board, lands other than the land belonging to the petitioner are also sought to be acquired. In such circumstances, I find no merit to challenge Ext.P6 Government order whereby the Government accorded sanction for acquisition of the lands and Ext.P15 notification issued under section 4(1) of the Land Acquisition Act. Then, the only W.P.(C) No.25129 of 2010 4 question that arises is whether there is any merit in the contention of the petitioner that section 5A enquiry is rendered meaningless, in view of the stand taken by the Government in Ext.14. 5. A reading of Ext.P14 discloses that it was issued at a point of time when the notification under section 4(1) of the Land Acquisition Act had not been issued, in reply to a representation dated 4.1.2010 sent by the petitioner to the Government. At that stage, the Government had also permitted the Travancore Devaswom Board by Ext.P7 letter dated 9.12.2009 to invoke the urgency clause. The decision to invoke the urgency clause was not translated into action in view of the decision taken by the Land Revenue Commissioner on 15.5.2010, as stated by the fourth respondent in paragraph 6 of the counter affidavit. Though the Government had permitted the urgency clause to be invoked, the Land Revenue Commissioner did not grant such permission. 6. As noticed above, Ext.P14 letter was sent to the petitioner on 31.5.2010. From the counter affidavit, it is evident that till 15.5.2010, the petitioner had no right to have his objections considered in the enquiry under section 5A of the Land Acquisition Act. The decision to furnish an opportunity of hearing to the persons W.P.(C) No.25129 of 2010 5 whose lands are sought to be acquired was taken only on 15.5.2010. I am therefore constrained to hold that the petitioner cannot rely on Ext.P14 to contend that the stand taken by the Government disables the Land Acquisition Officer from conducting an enquiry under section 5A of the Land Acquisition Act. As a matter of fact, the petitioner had submitted Ext.P17 objection dated 6.9.2010 before the third respondent Special Tahsildar, who received it on 6.9.2010 and the objections were also considered on 11.11.2010. However, during the course of the arguments, the learned counsel for the petitioner submitted that the third respondent stated that he cannot consider the objections or hear the petitioner. Under section 5A of the Land Acquisition Act, the third respondent is bound to hear the objector either in person or through his authorised agent and to make a report to the competent authority, which in the instant case is the Land Revenue Commissioner. Though such a plea has not been raised in the pleadings, in view of the assertion made at the Bar by the learned counsel for the petitioner that the petitioner was not given a proper hearing on 11.11.2010, which is not disputed by the learned counsel for the fourth respondent, I am of the opinion that the ends of justice would be met if the third respondent is directed to hear the W.P.(C) No.25129 of 2010 6 petitioner or his authorised agent and consider his objections before making a report to the Land Revenue Commissioner. I accordingly hold that there is no merit in the writ petition. The writ petition fails and is dismissed with the observation that the third respondent shall issue notice to the petitioner, hear him or his authorised representative and take note of his objections also, before submitting a report to the Land Revenue Commissioner. **P.N. RAVINDRAN, JUDGE.** nj.