V.S. Abdul Khader S/o Saitho v. State of Kerala Information Technology (A) Department, Government Secretariat, Thiruvananthapuram and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE THE CHIEF JUSTICE MR.MOHAN M.SHANTANAGOUDAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 8TH DAY OF FEBRUARY 2017/19TH MAGHA, 1938 WA.No. 260 of 2017 IN WP(C).26525/2015 ------------------------------------------AGAINST THE JUDGMENT IN WP(C) 26525/2015 DATED 17-11-2016 ......................... ## APPELLANT/PETITIONER : ----------------------------- V.S. ABDUL KHADER S/O. SAITHO, VADAKKUMKARI HOUSE, BRAHMAPURAM ERNAKULAM 682 303 BY ADVS.SRI.ISSAC M.PERUMPILLIL SRI.VARGHESE K.PAUL SRI.JIJO PAUL KALLOOKKARAN ## RESPONDENTS/RESPONDENTS IN THE WPC : --------------------------------------------------- 1. THE STATE OF KERALA INFORMATION TECHNOLOGY (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN 695 001 REP BY ITS SECRTARY 2. THE DISTRICT COLLECTOR CIVIL STATION, KAKKANAD, ERNAKULAM 682 030 3. THE SPECIAL TAHASILDHAR (LA) KOCHI REFINERIES LTD NORTH FORT GATE THRIPUNITHURA 682 301 4. M/S. INFOPARK THAPASYA, KUSUMAGIRI KAKKANAD, KOCHI 682 030 REP BY ITS CHIEF EXECUTIVE OFFICER 5. THE COMMISSIONER OF LAND REVENUE PUBLIC OFFICE BUILDING, MUSEUM JUNCTION, THIRUVANANTHAPURAM 695 033 WA.No. 260 of 2017 IN WP(C).26525/2015 ------------------------------------------------- 6. THE VADAVOKODE PUTHENCRUZ GRAMA PANCHAYAT PUTHENCRUZ, ERNAKULAM 682 308 REP BY ITS SPECIAL GRADE SECRETARY R1 TO R3 & R5 BY SR.GOVERNMENT PLEADER, SRI.V. TEKCHAND R4 BY ADV. SRI.E.K.NANDAKUMAR (SR.) R4 BY ADV. SMT.RASHMI. K.V., SC, INFOPARK R6 BY SMT.K.V.RESHMI THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA.No. 260 of 2017 IN WP(C).26525/2015 ------------------------------------------------- ## APPENDIX ## APPELLANT'S EXHIBITS : ANNEXURE A1 : TRUE COPY OF THE LETTER OF THE SURVEYORS, ADDRESSED TO THE 3RD RESPONDENT, DATED 03.10.2007 WITH ENGLISH TRANSLATION. ANNEXURE A2 : TRUE COPY OF LETTER OF THE SURVEYORS ADDRESSED TO THE 3RD RESPONDENT DATED 08.02.2008 WITH ENGLISH TRANSLATION. ANNEXURE A3 : TRUE COPY OF THE LETTER OF THE EXECUTIVE OFFICER OF INFOPARK, ADDRESSED TO THE 3RD RESPONDENT DATED 27.02.2008. ANNEXURE A4 : TRUE COPY OF THE LETTER OF THE 3RD RESPONDENT, ADDRESSED TO THE 2ND RESPONDENT, DATRED 04.07.2008 WITH ENGLISH TRANSLATION. ANNEXURE A5 : TRUE COPY OF THE LETTER OF INFOPARK, ADDRESSED TO THE 2ND RESPONDENT DATED 17.03.2008. ANNEXURE A6 : TRUE COPY OF THE CASH RECEIPT FOR PAYMENT OF PROPERTY TAX FOR THE BUILDING NO.1/341, DATED 25.05.2015. ANNEXURE A7 : TRUE COPY OF THE CASH RECEIPT EVIDENCING THE PAYMENT OF PROPERTY TAX FOR BUILDING NO.1/340, DATED 25.5.15. ANNEXURE A8 : TRUE COPY OF THE LETTER OF the PUBLIC INFORMATION OFFICER, ADDRESSED TO THE APPELLANT, DATED 22.12.16 WITH ENGLISH TRANSLATION. ANNEXURE A9 : TRUE COPY OF THE LETTER OF THE 3RD RESPONDENT ADDRESSED TO THE APPELLANT DATED 14.12.2016, WITH ENGLISH TRANSLATION. ANNEXURE A10 : TRUE COPY OF THE INTIMATION SIGNED ON BEHALF OF THE APPELLANT, ADDRESSED TO THE 3RD RESPONDENT DATED 16.12.2016. RESPONDENTS' EXHIBITS : NIL /TRUE COPY/ PA TO JUDGE ## **Mohan M. Shanthanagoudar, C.J. & Anil K. Narendran, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A. No.260 of 2017 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8[th] day of February, 2017 ## **JUDGMENT** ## **Anil K. Narendran, J.** This appeal arises out of the judgment of the learned single Judge dated 17.11.2016 in W.P.(C)No.26525 of 2015. The appellant filed the said writ petition mainly seeking a declaration that proceedings initiated for acquisition of his land in Re-survey No.103/4 of Puthencruz Village is bad for the reason that there is no draft declaration under Section 6 of the Land Acquisition Act, 1894 for acquiring the said property and as there is no Government sanction under Section 11(1) of the said Act; and declaration that the proceedings for acquiring 0.1407 hectares of land in Re.Sy.No.103/22 of Puthencruz Village is bad for the reason that it was not notified in Exts.P1, P2 and P3 notifications/ notice and as there is no Government sanction under Section 11 (1) of the said Act. The appellant has also sought for various other reliefs, including a declaration that he is entitled for computation of compensation in accordance with the provisions of WA. No. 260/2017 -:2:- the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. 2. The reliefs sought for in the writ petition were opposed by the 3[rd] respondent/Special Tahsildar by filing counter affidavit/statement. The 4[th] respondent/requisitioning authority filed separate counter affidavit/statement. The appellant/writ petitioner has also filed reply affidavit reiterating the contentions in the writ petition. 3. After considering the rival contentions, with reference to the pleadings and materials on record, the learned single Judge, by the impugned judgment, dismissed the writ petition repelling the challenge made by the appellant/writ petitioner against the acquisition proceeding in respect of his land. 4. Feeling aggrieved by the judgment of the learned single Judge, the appellant/writ petitioner is before this Court in this intra-court appeal. 5. We heard learned counsel for the appellant/writ petitioner, learned Senior Government Pleader for respondents WA. No. 260/2017 -:3:- 1 to 3 and 5 and also learned Senior Counsel for the 4[th] respondent/requisitioning authority. 6. The pleadings and materials on record would show that the appellant owns 0.1850 hectares of land comprised in Re-Sy. No.103/4 of Puthencruz Village, evident from Ext.P1 basic tax receipt. In the said property, there are two houses and one well. According to the appellant, the said well is the only drinking water source in the neighbourhood, which caters to the needs of 16 families residing nearby. Petitioner along with his married daughter and her family are residing in those houses, which were originally assigned with building numbers in the year 1993-1994 by the 6[th] respondent/Grama Panchayat as V/360 and V/361 respectively, which were changed in the year 2013-2014 as 1/341 & 1/340 respectively. The rest of the property of the petitioner and his wife comprised in Re-sy.No.103/8, 104/12, 103/18 and 104/11 of Puthencruz Village was already acquired for Phase II of the Infopark. 7. The 5[th] respondent/Commissioner of Land Revenue as per Ext.P2 proceedings dated 7.7.2007, ordered that the WA. No. 260/2017 -:4:- provisions of Section 5A of the Act shall not apply to the acquisition of the lands mentioned therein, for the expansion of Infopark. The said order was issued in exercise of the power conferred under Section 17(4) of the Land Acquisition Act, 1894 (for brevity, 'the Act'). The lands mentioned in Ext.P2 proceedings include Re-Sy.No.103/4Part (0.1135 hectors), 103/5Part (0.3050 hectors), 103/6Part (0.3000 hectors), 103/8 (0.0300 hectors), 103/17Part (0.0380 hectors) and 103/18Part (0.0015 hectors). Pursuant to Ext.P2 proceedings, 3[rd] respondent/Special Tahsildar issued Ext.P3 Section 4(1) notification in the Kerala Gazette Extraordinary dated 30.8.2007, which reveals that, the land covered by Re-Sy. Nos.103/4Part, 103/5Part, 103/6Part, 103/8, 103/17Part and 103/18Part were notified for acquisition along with lands in other survey numbers. In Ext.P4 public notice issued by the 3[rd] respondent, Re-Sy. Nos.103/4Part, 103/5Part, 103/6Part, 103/8, 103/17Part and 103/18Part were included. However, in Ext.P5 Section 6 declaration published on 18.9.2008, the land comprised in Re-Sy.Nos.103/8, 103/22, 103/23, 103/24, WA. No. 260/2017 -:5:- 103/25 and 103/26 were only included. Therefore, the appellant would contend that, since Ext.P5 declaration does not include the property in Re-Sy. Nos.103/4, the acquisition proceedings pursuant to Exts.P2, P3 and P4 notifications/notice, in so far as it pertains to his property in Re-Sy. No.103/4 of Puthencruz Village, stood lapsed. The appellant would point out that, Ext.P3 Section 4(1) notification was published on 30.8.2007, while Ext.P5 Section 6 declaration was published only on 18.9.2008. Section 6(1) declaration was published in Mathrubhumi & Janayugam dailies on 17.9.2008. Therefore, Ext.P5 declaration is barred by limitation, in view of clause (ii) of the first proviso to Section 6(1) of the Act. Since Ext.P5 declaration is barred by limitation, if vitiates all further proceedings pursuant thereto. 8. The appellant would contend that, the 1[st] respondent/State have issued Exts.P6 and P7 orders indiscriminately exempting from acquisition the lands owned by certain persons, stating that there are residential buildings. There are large number of cases in which lands were exempted WA. No. 260/2017 ## -:6:- from acquisition, as evident from Ext.P8. Wherever there are residential buildings, such properties were exempted from acquisition. Exts.P9 and P9(a) are the certificates issued by the 6[th] respondent/Grama Panchayat in relation to the residential buildings situated on the appellant's property. The appellant is also entitled to get a similar treatment at the hands of the respondents. 9. Section 11A of the Act requires that, and award under Section 11 shall be passed within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for acquisition of the land shall lapse. Therefore, as evident from Ext.P10 notice of award dated 11.11.2010, the award passed in LAC No.341/2008, in respect of the appellant's property having an extent of 0.1407 hectares comprised in Re.Sy.No.103/22 is belated. Further, sanction of the Government as envisaged under Section 11(1) of the Act has not been obtained by the 2[nd] respondent/District Collector prior to the passing of the award. That apart, the extent of the property shown in Exts.P3, P5 and WA. No. 260/2017 -:7:- P10 are different and the 2[nd] and 3[rd] respondents did not value the residential buildings of the appellant before passing the award and the award which is non est in law cannot bind the appellant in any manner. 10. According to the appellant, in Ext.P11 letter issued by the requisitioning authority it was recommended to exempt his land from acquisition since two houses are situated therein. Relying on Exts.P13, P16 and P17 documents, the appellant would contend that, the Government have already withdrawn from the acquisition proceedings initiated pursuant to Ext.P3 notification, in so far as the appellant's property in Re.Sy.No.103/4 of Puthencruz Village is concerned. Relying on Ext.P18 resolution dated 20.3.2015 of the 6[th] respondent/ Grama Panchayat, the appellant would contend that the Panchayat has resolved to request the Government and the 4[th] respondent/requisitioning authority to exempt the well owned by the appellant from acquisition in public interest. 11. The 3[rd] respondent/Special Tahsildar vide Ext.P19 letter dated 31.3.2014 informed the 2[nd] respondent/District WA. No. 260/2017 ## -:8:- Collector that, the second house of the appellant was constructed subsequent to the issuance of Section 4(1) notification; such version, according to the appellant, is factually incorrect. As per Ext.P19 letter, the 3[rd] respondent has also recommended to initiate acquisition proceedings afresh under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, which is evident from Ext.P20 reply dated 16.4.2015. However, the appellant was issued with Ext.P21 notice dated 16.7.2015 of the 2[nd] respondent/District Collector, based on the request made by the 4[th] respondent/requisitioning authority for possession of his property in respect of which Ext.P10 award has already been passed. Though the appellant appeared before the 2[nd] respondent, the said respondent was not prepared to accept Ext.P22 written submissions made by him. 12. The 4[th] respondent would contend that, Ext.P2 proceedings was issued under Section 17(4) of Act, 1894 on 7.7.2007. Ext.P3 Section 4(1) notification was issued on 21.8.2007 and Ext.P5 Section 6(1) declaration was made on WA. No. 260/2017 -:9:- 17.9.2008. Thereafter, Ext.P10 award under Section 11 of the Act was passed, with notice to the appellant, on 11.11.2010. In the absence of any challenge, Ext.P10 award has attained finality. After the lapse of 5 years of passing Ext.P10 award, the appellant approached this Court by filing W.P.(C)No.26525 of 2015, on 31.8.2015. Therefore, the writ petition is liable to be dismissed on the sole ground of inordinate delay and laches on the part of the appellant in approaching this Court challenging the acquisition proceedings. The 4[th] respondent would also contend that, once the award is passed, no writ petition can be filed challenging the acquisition proceedings prior to the passing of such award. 13. After considering the rival contentions with reference to the pleadings and materials on record, the learned Single Judge found that the challenge made by the appellant against the land acquisition proceedings in respect of his property is highly belated. 14. As rightly noticed by the learned Single Judge, Ext.P3 Section 4(1) notification was published in the locality WA. No. 260/2017 ## -:10:- only on 20.9.2007, which is evident from Ext.R4(a). Therefore, delay has to be calculated from the date of last publication of the notice and not the date of publication in the newspaper. Admittedly, the appellant has not made any objection to Ext.P3 notification. Thereafter, Section 6(1) declaration was made by the 5[th] respondent on 17.9.2008, which was published in the locality on 13.11.2008. Therefore, there is no delay in the declaration made under Section 6(1) also, since the date of last publication is to be taken into account. Further, the challenge made by the appellant against the land acquisition proceedings cannot be sustained since Ext.P10 award was passed within two years from the date of publication, as per Section 11A of the Act. 15. As rightly noticed by the learned Single Judge, if the appellant was really aggrieved by Ext.P10 award he ought to have taken necessary steps to challenge the same immediately thereafter. The appellant could not succeed in establishing any lapses or laches on the part of the 3[rd] respondent/Special Tahsildar in passing Ext.P10 award. Accordingly, the learned WA. No. 260/2017 -:11:- Single Judge concluded that, the challenge made by the appellant against the land acquisition proceedings after a period of nearly 5 years from the date of Ext.P10 award cannot be sustained in law. 16. As held by the Apex Court in **Municipal Council, Ahmednagar v. Shah Hyder Beig (2000 (2) SCC 48)** any challenge on the notification under the Land Acquisition Act after the passing of award by the land acquisition authority cannot be sustained in law. 17. The appellant alleged discrimination in the matter of granting exclusion of residential buildings from the acquisition proceedings. The 4[th] respondent has made a specific case that the second house constructed by the appellant was after Section 4(1) notification. As such, the appellant is not entitled to get any sympathetic approach in the matter of exclusion of the said building. Ext.P19 letter of the 3[rd] respondent addressed to the 2[nd] respondent would indicate that the appellant was offered exclusion of his residential buildings, subject to certain conditions. However he was not willing to comply with the WA. No. 260/2017 -:12:- conditions stipulated by the 3[rd] respondent. It was in such circumstances, that the appellant's house was not excluded. Therefore, as rightly held by the learned Single Judge, it cannot be said that there was any discriminatory act on the part of the respondents in differentiating the appellant from other similarly situated persons. 18. The learned single Judge, after considering the rival contentions and taking note of the law laid down by the Apex Court in **Shah Hyder Beig's case (supra)** held that, the challenge made by the appellant against the proceedings initiated against his property under the provisions of the Act, much after the passing of Ext.P10 award by the land acquisition authority cannot be sustained in law as it is highly belated. The learned single Judge has also repelled the other contentions raised by the appellant, stating valid reasons. 16. In that view of the matter, we find absolutely no ground to interfere with the reasoning of the learned single Judge in the impugned judgment dismissing the writ petition. WA. No. 260/2017 -:13:- The writ appeal fails and the same is accordingly dismissed. Sd/- **Mohan M. Shanthanagoudar, Chief Justice** Sd/- **Anil K. Narendran, Judge** ttb/09/02