V.S. Abdul Khader v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 17TH DAY OF NOVEMBER 2016/26TH KARTHIKA, 1938** **WP(C).No. 26525 of 2015 (M) ----------------------------** **PETITIONER(S): -------------** **V.S.ABDUL KHADER, S/O.SAITHO, VADAKKUMKARI HOUSE, BRAHMAPURAM PO, ERNAKULAM DISTRICT, PIN-682303.** **BY ADVS.SRI.S.VINOD BHAT SRI.VARGHESE K.PAUL SMT.VINCY MARY VAVACHAN** **RESPONDENT(S):** - **--------------** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, INFORMATION TECHNOLOGY (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.** **2. THE DISTRICT COLLECTOR,** - **CIVIL STATION, KAKKANAD, ERNAKULAM, PIN-682030.** **3. THE SPECIAL TAHSILDAR (LA), KOCHI REFINERIES LTD, NORTH FORT GATE, THRIPUNITHURA, PIN-682301.** **4. M/S.INFOPARK,** - **THAPASYA, KUSUMAGIRI, KAKKANAD, KOCHI, PIN-682030, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER.** **5. THE COMMISSIONER OF LAND REVENUE, PUBLIC OFFICE BUILDING, MUSUEM JUNCTION, THIRUVANANTHAPURAM, PIN-695 033.** **6. THE VADAVOKODE PUTHENCRUZ GRAMA PANCHAYATH. REPRESENTED BY ITS SPECIAL GRADE SECRETARY, PUTHENCRUZ, ERNAKULAM, PIN-682308.** **R1-3 BY SENIOR GOVERNMENT PLEADER SMT.K.R.DEEPA R4 BY ADVS. SRI.E.K.NANDAKUMAR (SR.) SMT.RASHMI. K.V., SC, INFOPARK** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** ## **WP(C).No. 26525 of 2015 (M)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** - **P1 : THE TRUE COPY OF LAND TAX RECEIPT DATED 1-10-2010** - **P2 : THE TRUE COPY OF THE PROCEEDINGS OF THE 5TH RESPONDENT DATED 7- 7-2007** - **P3 : THE TRUE COPY OF THE SEC. 4 (1) NOTIFICATION PUBLISHED IN THE KERALA GAZETTE EXTRAORDINARY DATED 30-8-2007** - **P4 : THE TRUE COPY OF PUBLIC NOTICE ISSUED BY THE 3RD RESPONDENT U/S 4(1) OF THE ACT.** - **P5 : THE TRUE COPY OF THE SEC. 6 DECLARATION PUBLISHED IN KERALA GAZETTE EXTRA ORDINARY DATED 18-9-2008** - **P6 : THE TRUE COPY OF GOVT. ORDER DATED 19-8-2009** - **P7 : THE TRUE COPY OF LETTER DATED 20-7-2010 ISSUED BY THE 2ND RESPONDENT ADDRESSED TO THE 1ST RESPONDENT.** - **P8 : THE TRUE COPY OF LETTER DATED 15-9-2010 ISSUED BY THE 1ST RESPONDENT ADDRESSED TO THE 4TH RESPONDENT.** - **P9 : THE TRUE COPY OF THE CERTIFICATE ISSUED BY THE SECRETARY OF THE 6TH RESPONDENT IN RELATION TO THE RESIDENTIAL BUILDINGS OF THE PETITIONER BEARING DOOR NO.1/340.** - **P9(A) : THE TRUE COPY OF CERTIFICATE ISSUED BY THE SECRETARY OF THE 6TH RESPONDENT IN RELATION TO THE RESIDENTIAL BUILDINGS OF THE PETITIONER BEARING DOOR NO.1/341.** - **P10 : THE TRUE COPY OF THE AWARD NOTICE DATED 11-11-2010 ISSUED BY THE 3RD RESPONDENT.** - **P11 : THE TRUE COPY OF THE LETTER DATED 17-4-2013 ISSUED BY THE CHIEF EXECUTIVE OFFICER OF THE 4TH RESPONDENT ADDRESSED TO THE 1ST RESPONDENT.** - **P12 : THE TRUE COPY OF THE NO OBJECTION CERTIFICATE DATED 20-12-2006 ISSUED BY THE SECRETARY OF THE 6TH RESPONDENT.** - **P13 : THE TRUE COPY OF THE LETTER DATED 16-8-2013 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.** - **P14 : THE TRUE COPY OF THE DECLARATION DATED 4-11-2013 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** - **P15 : THE TRUE COPY OF THE NOTICE DATED 18-12-2013 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.** - **P16 : THE TRUE COPY OF THE LETTER DATED 22-11-2014 ISSUED BY THE PRINCIPLE SECRETARY OF GOVERNMENT ADDRESSED TO THE 2ND RESPONDENT.** **....2/-** **PJ** **..2..** **WP(C).No. 26525 of 2015 (M) ----------------------------** - **P17 : THE TRUE COPY OF THE LETTER DATED 29-1-2015 ISSUED BY THE 2ND RESPONDENT ADDRESSED TO THE 3RD RESPONDENT.** - **P18 : THE TRUE COPY OF RESOLUTION NO.22 DATED 20-3-2015 OF THE 6TH RESPONDENT.** - **P19 : THE TRUE COPY OF THE LETTER DATED 31-3-2014 ISSUED BY THE 3RD RESPONDENT ADDRESSED TO THE 2ND RESPONDENT.** - **P20 : THE TRUE COPY OF THE REPLY DATED 16-4-2015 OF THE 2ND RESPONDENT TO THE 3RD RESPONDENT.** - **P21 : THE TRUE COPY OF THE NOTICE DATED 16-7-2015 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.** - **P22 : THE TRUE COPY OF THE REPRESENTATION DATED 31-7-2015 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT ALONG WITH THE RECEIPT ISSUED BY THE OFFICE OF THE 2ND RESPONDENT TO THE PETITIONER.** - **P23: COPY OF SEC.9(3) NOTICE DATED 15/9/10 ISSUED BY THE R3 TO THE PETITIONER** - **P24: COPY OF THE LETTER DATED 11/8/2008 FROM R2 TO THE R5 REGARDING PUBLICATION OF THE DRAFT DECLARATION** - **P25: COPY OF THE FORM NO.10 AWARD NOTICE DATED 11/11/2010 SERVED ON THE PETITIONER ALONG WITH THE TRUE COPY OF THE ACKNOWLEDGMENT OF THE PETITIONER** - **P26: COPY OF THE FORM NO.12 NOTICE OF TAKING OVER POSSESSION DATED 11/11/10 SERVED ON THE PETITIONER ALONG WITH THE TRUE COPY OF THE ACKNOWLEDGMENT OF THE PETITIONER.** - **P27: COPY OF THE APPLICATION FILED UNDER THE RIGHT TO INFORMATION ACT 2005 BY THE STANDING COUNSEL OF R4 DATED 9//3/16** - **P28: COPY OF THE REPLY OF THE PUBLIC INFORMATION OFFICER IN REPLY TO EXT.P27 APPLICATION DATED 21//3/16** - **P29: COPY OF THE CIRCULAR ISSUED BY THE R1 DATED 17/3/2008** - **P30: COPY OF THE LETTER SENT TO THE PETITIONER BY THE SECRETARY OF THE R6 DATED 7/1/08** - **P31: COPY OF THE LETTER SENT BY THE R4 ADDRESSED TO THE PETITIONER DATED 4/12/08.** **RESPONDENT(S)' EXHIBITS** - **-----------------------** - **R3A: COPY OF THE CLAIM STATEMENT FILED BY THE PETITIONER ON 30/9/10** - **R3B: COPY OF THE REPLY SUBMITTED BY THE PETITIONER.** - **R4A: COPY OF EXT.P3 NOTIFICATION PUBLISHED IN THE LOCALITY ON 20/9/07** **....3/-** **PJ** **..3..** **WP(C).No. 26525 of 2015 (M) ----------------------------** - **P4B: COPY OF EXT.P5 DECLARATION PUBLISHED IN THE LOCALITY ON 13/11/08** - **P4C: COPY OF THE EXTRACT OF THE AREA REGISTER ISSUED BY THE SUPERINTENDENT OF SURVEY AND LAND RECORDS ERNAKULAM WHICH WOULD INDICATE THAT LAND SY.NO.103/4 WAS SUB DIVIDED INTO SY.NO.103/4 & 103/22** - **P4D: COPY OF THE FIELD SKETCH IN RESPECT OF SY.NO.103 IN BLOCK 37 OF PUTHENCRUZ VILLAGE ISSUED BY THE SUPERINTENDENT OF SURVEY AND LAND RECORDS ERNAKULAM.** - **P4E: COPY OF THE EXTRACT OF BUILDING TAX ASSESSMENT REGISTER ISSUED BY THE VADAVUCAUD PUTHENCRUZ GRAMA PANCHAYATH** |**P4F:**|**COPY OF THE COMMUNICATION DATED 22/8/08 ISSUED BY THE TAHSIDLAR**| |---|---| ||**(LA) KRL.THRIPUNITHURA TO THE DISTRICT COLLECTOR, ERNAKULAM**| |**P4G:**|**COPY OF THE ROUGH PLAN SHOWN THE PROPERTY WHICH IS SUBJECT**| ||**MATTER OF ACQUISITION BY THE R4 AND THE PROPERTY OF THE**| ||**PETITIONER.**| **/ TRUE COPY / P.S. TO JUDGE** **PJ** ## **SHAJI P. CHALY, J.** ----------------------------------------------- **W.P.(C). No.26525 of 2015 ----------------------------------------------Dated this the 17[th] day of November, 2016** ## **JUDGMENT** This writ petition is filed by the petitioner seeking to declare that the proceedings initiated for acquiring the land of petitioner in Re-Sy No.103/4 of Puthencruz Village, Ernakulam District is bad, for the reason, there is no approved declaration under Section 6 of the Land Acquisition Act, 1894, hereinafter called “Act, 1894”, for acquiring the said property, and there is no Government sanction under Section 11(1) of the Act, 1894, and for other related reliefs. 2. Material facts for the disposal of the writ petition are as follows; petitioner owns an extent of 0.1850 hectares of land comprised in Re-Sy No.103/4 of Puthencruz Village, evident from Ext.P1 land tax receipt. In the said property, there are two houses and a well which is the only source of drinking water in the neighbourhood, and which cater to the needs of 16 families residing nearby. Petitioner along with W.P.(C). No. 26525 of 2015 2 his married daughter and their family are residing in the house situated in the property. Those houses were originally given its door numbers in the year 1993 - 1994. The 6[th] respondent had originally given house Nos.V/360 and V/361 to those residential buildings. In the year 2013-2014, the said house numbers were changed by the 6[th] respondent and alloted house Nos.1/341 & 1/340 respectively. The rest of the property of the family consisting of the petitioner and his wife, Abida Beevi viz., the land 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 Info Park. The 5[th] respondent as per his proceedings dated 7.7.2007, in exercise of the power conferred under Section 17(4) of the Act, 1894, (wrongly stated in the writ petition as 1984) directed that the provisions of Section 5A of the Act shall not apply to the acquisition of the lands mentioned therein. The lands mentioned in the proceedings include Re-Sy.No.103/4 part (0.1135 htrs), 103/5part (0.3050 htrs), 103/6Part (0.3000 W.P.(C). No. 26525 of 2015 3 htrs), 103/8(0.0300 htrs), 103/17Part (0.0380 htrs) and 103/18 Part (0.0015 htrs), evident from Ext.P2. It was in the light of Ext.P2 proceedings, 3[rd] respondent issued Section 4(1) notification under Act, 1894, in the Kerala Gazette Extraordinary dated 30.8.2007, evident from Ext.P3. Ext.P3 notification 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 the public notice issued by the 3[rd] respondent under Section 4(1) of the Act, Re-Sy Nos.103/4Part, 103/5Part, 103/6Part, 103/8, 103/17Part and 103/18 Part were included, evident from Ext.P4. However, in Section 6 declaration published on 18.9.2008, the land comprised in Sy.Nos.103/8, 103/22, 103/23, 103/24, 103/25 and 103/26 were only included, evident from Ext.P5. It is, therefore, the contention 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 W.P.(C). No. 26525 of 2015 4 notification/notice in so far as it pertains to the property of the petitioner in Re-Sy No.103/4 of Puthencruz Village stood lapsed. According to the petitioner, Ext.P3 notification was published on 30.8.2007, while Ext.P5 declaration was published only on 18.9.2008. Section 6(1) declaration was published in Mathrubhumi & Janayugam newspapers on 17.9.2008. Therefore, according to the petitioner, Ext.P5 notification is clearly barred by the limitation prescribed under Clause (ii) of 1[st] proviso of Section 6(1) of the Act, 1894. Since Ext.P5 declaration is barred by limitation, all further proceedings pursuant to it cannot be legally acted upon. 3. It is also submitted that 1[st] respondent has issued orders indiscriminately exempting lands owned by certain persons, who could influence the authorities, stating that, there were residential buildings in the lands notified for acquisition. Petitioner has produced Ext.P6 Government Order dated 19.8.2009 purportedly granting exemption in similar cases. So also Ext.P7 dated 20.7.2010 is produced to W.P.(C). No. 26525 of 2015 5 show that, the lands belonging to other persons were exempted even after the award was passed. The reasons shown in Ext.P7 order is that, there is residential building in the property. According to the petitioner, there are large number of cases, which were exempted from acquisition, evident from Ext.P8. That apart it is also stated, wherever there are residential buildings exemption were provided from acquisition. According to the petitioner, petitioner is also entitled to get similar treatment from the respondents. Exts.P9 and P9(a) are certificates, issued by the Secretary of the concerned Grama Panchayat in relation to the residential buildings of the petitioner. It is also contended, persons with high political influence were excluded from acquisition of the lands, especially, the residential buildings. That apart it is contended, Section 11(a) of the Act requires that, the award under Section 11 shall be within a period of 2 years from the date of publication of the declaration and if no award is passed within that period, the entire proceedings for W.P.(C). No. 26525 of 2015 6 acquisition shall lapse. Therefore, evident from Ext.P10 notice of award dated 11.11.2010, it is clear that, the award passed is belated. It is also stated that, sanction of the Government as envisaged under Section 11(1) of the Act has not been obtained by the 2[nd] respondent prior to the passage of the award. That apart, the extent of the property shown in Exts.P3, P5 and P10 are different and the 2[nd] and 3[rd] respondents did not value the residential buildings of the petitioner before passing the award and the award is non est in law and cannot bind the petitioner. It is also contended, petitioner had filed representation before various authorities for exempting his land and the houses therein included as per Ext.P3 notification for acquisition. According to the petitioner, as per Ext.P11, letter issued by the Chief Executive Officer of the 4[th] respondent, there was a specific recommendation to exempt the land of the petitioner, wherein two houses were built. It is also the contention, 6[th] respondent had issued No Objection Certificate for modification of the 2[nd] house of the W.P.(C). No. 26525 of 2015 7 petitioner as early as on 20.12.2006, evident from Ext.P12. It is also stated, 3[rd] respondent had directed the petitioner as per letter dated 16.8.2013 to submit a declaration/affidavit stating that, the petitioner would not raise any claim or compensation from Government due to the damage suffered if any by him as a consequence of the proceedings to acquire the land in Re-Sy No.103/22 of Puthencruz Village, due to withdrawal from the acquisition, evident from Ext.P13. According to the petitioner, as per Ext.P14 the said stipulation put forth in Ext.P13 letter was complied with by the petitioner. Thereafter, petitioner was served with Ext.P15 notice dated 18.12.2013 by the 3[rd] respondent stating that the Government would exempt only an area of 0.0165 hectares of land in Sy.,No.103/22. According to the petitioner, the said letter was replied by the petitioner stating that, the petitioner is not agreeable for the proposal made in Ext.P15 and requested for withdrawal from the acquisition proceedings. That apart it is stated, having considered the request of the W.P.(C). No. 26525 of 2015 8 petitioner for exemption of his land from acquisition, the Principal Secretary, Government of Kerala as per Ext.P16 letter dated 22.12.2014 directed the 2[nd] respondent to furnish a proposal/report as to whether an extent of 12.42 Ares of land of the petitioner could be acquired under negotiated purchase and to forward such a fresh proposal along with the consent of the land owner and an undertaking in the form of an affidavit, not to raise any claim for damages. Consequent to the direction in Ext.P16, 2[nd] respondent directed the 3[rd] respondent as per his letter dated 29.1.2015 to furnish fresh proposal with the consent of the petitioner for negotiated purchase, evident from Ext.P17. According to the petitioner, Exts.P13, P16 and P17 documents clearly reveal, Government have already withdrawn from the acquisition proceedings of the property of the petitioner in Re-sy No.103/4 of Puthencruz Village initiated pursuant to Ext.P3 notification. 4. It is further submitted, Ext.P6 letter of the Government is not capable of being considered in any other W.P.(C). No. 26525 of 2015 9 manner except, that of its decision to withdraw from acquisition. Ext.P18 resolution No.22 dated 20.3.2015 of the 6[th] respondent is produced to canvass the point that the Panchayat has resolved to request the Government and the 4[th] respondent to exempt the well owned by the petitioner from acquisition in public interest. Third respondent vide letter dated 31.3.2014 informed the 2[nd] respondent, 2[nd] house of the petitioner was built subsequent to the issuance of Section 4(1) notification, evident from Ext.P19. According to the petitioner, such version is incorrect and the houses were constructed in the year 1993-1994 but the house was modified in the year 2007 having obtained Ext.P12 No Objection Certificate. As per Ext.P19 letter, 3[rd] respondent had also recommended to initiate acquisition proceedings afresh under Act 30 of 2013, evident from Ext.P20 dated 16.4.2015. 5. However, petitioner received a notice dated 16.7.2015 from the 2[nd] respondent evident from Ext.P21 and W.P.(C). No. 26525 of 2015 10 consequently petitioner appeared before the 2[nd] respondent on 30.7.2015 for making submissions and request. It is the contention of the petitioner, 2[nd] respondent threatened the petitioner stating that he would be ousted from his property immediately, and 2[nd] respondent is not interested to hear anything from the petitioner. Second respondent also refused to receive written representation from the petitioner, which according to the petitioner, is produced as Ext.P22. It is also the contention, the reason stated in Exts.P3 and P4 documents, issued under Section 4(1) of Act, 1894, is that, the property required for development of Info-Park and development of IT Township. That apart it is also contended that, Exts.P3 and P4 notices were issued by the 3[rd] respondent, who is only a delegatee of the 2[nd] respondent, District Collector and 2[nd] respondent has no power to delegate his functions under the Act, he himself being the delegate of the Government. Therefore, Exts.P2 and P3 is also bad under that circumstances. According to the petitioner, however, W.P.(C). No. 26525 of 2015 11 lands were acquired for the development of the Smart City project at Kakkanad, same were handed over to the Smart City Authorities. It is also contended, various lands acquired as well as transferred from the KSEB is available with the 4[th] respondent remaining idle. Therefore, Ext.P15 issued by the authorities totally ignoring Exts.P13 and P16 letters is bad and therefore, interference of this court is warranted. 6. Fourth respondent has filed a counter affidavit contending that Ext.P2 proceedings was issued under Section 17(4) of Act, 1894 on 7.7.2007. Ext.P3 notification under Section 4(1) of the said Act was issued on 21.8.2007, Ext.P5 declaration under Section 6(1) of the said Act was made on 17.9.2008 and thereafter the award under Section 11 of the Act was passed on 11.11.2010. The writ petition is filed on 31.8.2015 after the lapse of 5 years of passing the award. Therefore, it is the contention of the 4[th] respondent that, the writ petition is liable to be dismissed on the said sole ground of inordinate delay and laches on the part of the petitioner in W.P.(C). No. 26525 of 2015 12 approaching this court challenging the acquisition proceedings. It is also stated, petitioner had notice of the notification issued under Section 4(1) of Act, 1894 and also the declaration made under Section 6(1) of the said Act. The award was passed on 11.11.2010 and petitioner had also notice of the said award, evident from Ext.P10. Petitioner has not challenged the award passed under Section 11 of the Act till this date. Therefore, it is trite that, after the award is passed no writ petition can be filed challenging the acquisition proceedings prior to the passing of the award. Therefore, according to the 4[th] respondent, the challenge cannot be sustained legally. 7. That apart it is contended that petitioner has not disclosed the true and correct facts relating to the case. The 4[th] respondent has made a requisition for acquisition of an extent of 160 acres of land comprised in various survey numbers in Puthencruz and Kunnathunad Villages of Kunnathunad Taluk in Ernakulam District for the extension of W.P.(C). No. 26525 of 2015 13 Info-Park Phase II. Accordingly Ext.P3 notification under Section 4(1) of the Act, 1894 was issued by the 3[rd] respondent proposing to acquire the lands referred to in the notification invoking urgency clause under Section 17(4) of the said act dispensing with enquiry under Section 5 of the Act. Ext.P3 notification takes in the property of the petitioner in Sy.No.103 of Puthencruz Village. Ext.P3 was published in the locality on 20.9.2007, evident from Ext.R4(a) notification dated 20.09.2007. Petitioner has not filed any objection to Ext.P3 notification. Thereafter, Section 6(1) declaration was made by the 5[th] respondent on 17.9.2008 and the same was published in the locality on 13.11.2008. The said publications are produced as Ext.R4(b). It is submitted that the petitioner was in possession of 18.50 Ares of land in Sy.No.103/4Part of Puthencruz Village. After the issuance of Ext.P3 notification and before the publication of Ext.P5 declaration, 18.50 Ares of land in Sy.No.103/4Part was further sub divided by the Survey Authorities into Sy.Nos.103/4 and 103/22. An extent W.P.(C). No. 26525 of 2015 14 of 4.43 Ares of land was included in Sy.No.103/4 and 14.37 Ares of land was included in Sy.No.103/22. Therefore, when Ext.P5 declaration was made, the land in Sy.No.103/4 (sub divided after 4(1) notification and before Section 6 declaration) was not included therein, instead the property in Sy.No.103/22 was included. In fact the land in Sy.No.103/22 shown in Ext.P5 declaration is the very same land shown as the land comprised in Sy.No.103/4Part in Ext.P3, 4(1) notification issued under the Act. Ext.R4(c) is produced, which is the copy of the extract of the Area Register issued by the Superintendent of Survey and Land Records, Ernakulam, which would indicate that land in Sy.No.103/4 was sub divided into Sy.Nos.103/4 and 103//22. Field sketch is produced as Ext.R4(d). Therefore, according to the 4[th] respondent, the contention of the petitioner that, the property comprised in Ext.P3 notification viz., Sy.No.103/4 is excluded in Ext.P5 declaration is not correct and cannot be accepted at all. Moreover, it is contended, petitioner has not challenged W.P.(C). No. 26525 of 2015 15 Ext.P5 declaration till date of the filing of this writ petition and above all 3[rd] respondent has passed an award under Section 11 of the Act, 1894. Therefore, petitioner is not legally entitled to challenge Ext.P5 notification at this distance of time. That apart it is contended, there was only one house situated in the property of the petitioner, and there were two houses in the property of the petitioner as alleged, is incorrect. In fact building number shown as 1/340(old No.V/361) in Ext.P9 is only a motor shed and not a house, evident from Ext.R4(e), Building Tax Assessment Register maintained by the 6[th] respondent Panchayat. It is also stated, as per Ext.P6 to P8, the entire land of the persons mentioned therein are not excluded by the Government. Only residential building in the appurtenant land was excluded from the acquisition. It is also stated, the 2[nd] house was constructed after Ext.P3 notification and the exemption was granted only to those houses constructed prior to Section 4(1) notification, Ext.P3. The communication in that regard issued by the W.P.(C). No. 26525 of 2015 16 Tahsildar, (LA), KRL, Thripunithura to the District Collector will reveal the same. It is also contended, persons who have constructed the houses after the notification are not legally eligible or entitled to claim any exemption. The 3[rd] respondent had in fact recommended for exclusion of house constructed by the petitioner prior to Section 4(1) notification, and since by that time the award was passed, petitioner was required to file an affidavit stating that he will not claim any compensation in respect of an extent of 0.0165 hectares of land (land proposed to be excluded as house site). However, petitioner declined to file an affidavit stating that the entire land of the petitioner shall be excluded from the acquisition, which according to the 4[th] respondent, is evident from Ext.P19 communication issued by the 3[rd] respondent to the 2[nd] respondent and also Ext.P14 letter dated 4.11.2013 issued by the petitioner to the 3[rd] respondent. 8. In sum and substance, the contention of the 4[th] respondent is, there is no arbitrary exercise of power on the W.P.(C). No. 26525 of 2015 17 part of the respondents in discriminating the petitioner in the matter of exclusion of the residential building. The circumstances which led to such a situation is observed from the documents produced by the petitioner himself and therefore, there are no material circumstances available to establish that discrimination is practiced upon the petitioner by any of the statutory authorities. Therefore, the dismissal of the writ petition on the grounds enumerated are sought for. A statement is also filed by the 4[th] respondent in similar circumstances. 9. Petitioner has filed a reply affidavit reiterating the stand adopted in Ext.P4 and refuting the claims and allegations made by the 3[rd] respondent in the affidavit. In the reply affidavit, petitioner challenges the action of subdivision and contends that the same was done without following the procedures contemplated under the Kerala Surveys and Boundaries Act, 1961. It is also stated, petitioner is not issued with any notice before subdivision of the land by the W.P.(C). No. 26525 of 2015 18 said authorities. The illegalities of Exts.P3 and P4 notices, consequential delay in declaration and the delay occurred in passing the award are also reiterated in the reply affidavit. Therefore, it is the contention of the petitioner that, petitioner is entitled to succeed in the writ petition. 10. Additional affidavit is also filed by the petitioner on the basis of the counter affidavit filed by the 3[rd] respondent dated 7.4.2016. Third respondent maintains the stand that is adopted by the 4[th] respondent and contends that there are no illegalities on the part of the respondents in the acquisition of land and the consequential procedures adopted. Therefore, it is the contention of the 3[rd] respondent, there are no enabling circumstances made out by the petitioner warranting interference of this court under Article 226 of the Constitution of India. 11. Heard learned counsel for petitioner, learned Standing Counsel appearing for respective respondents and perused the documents on record and the pleadings put forth W.P.(C). No. 26525 of 2015 19 by the respective parties. 12. The first question to be considered is whether the challenge made by the petitioner to the acquisition proceedings is belated or not ? Petitioner has no case that, petitioner was not aware of the acquisition proceedings pursuant to Exts.P3 and P4 notices and other consequential actions on the part of the respondents. Admittedly, the award was passed by the competent authority as early as on 11.11.2010. The challenge made in this writ petition against the notification and consequential actions were made only on 1.9.2015 i.e., nearly 5 years from the date of passage of the award. Therefore, in my considered opinion, the challenge itself is very belated. It is well settled that, no limitation is prescribed for an aggrieved person to approach this court under Article 226 of the Constitution of India, however, as held in various judgments of this court as well as the Apex Court, that two year period would be a reasonable period to sustain the challenge under Article 226 of the Constitution of W.P.(C). No. 26525 of 2015 20 India. Therefore, in my considered opinion, the challenge itself is belated beyond a reasonable period. Since I have found that several legal contentions are raised by the petitioner with respect to the delay in publication of declaration under Section 6 of Act, 1894, and delay in passing the award, I think it is only appropriate that the questions raised are answered. The delay occurred is pointed out by the petitioner on the basis of publications carried out in the newspapers. However, from Ext.R4(a), it can be seen that, Ext.P3 notification was published in the locality only on 20.9.2007, which is a necessary mandatory action under the provisions of Act, 1894. Therefore, the delay is to be calculated from the date of last publication of the notice, and not the date of publication in the newspaper. This is evident from Ext.R4(a) produced by the 4[th] respondent and the specific pleadings to the said effect. Petitioner 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, W.P.(C). No. 26525 of 2015 21 which was published in the locality on 13.11.2008. Therefore, it can be seen that, 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. 13. Viewed in that circumstances, the challenge made by the petitioner in that regard cannot be sustained under law for the reason same is passed within two years from the date of publication as contemplated under Section 11A of the Act. The challenge made by the petitioner on the basis of belated award, passed on 11.11.2010 also cannot be sustained. That apart if the petitioner was really aggrieved by Ext.P10 award, petitioner ought to have taken necessary steps immediately thereafter. Petitioner is unable to establish before this court also that, there was any lapses or laches on the part of the competent authority to pass the award. In my considered opinion, the challenge made by the petitioner on the award after a period of 5 years nearly cannot be sustained under law. W.P.(C). No. 26525 of 2015 22 14. Learned counsel appearing for 4[th] respondent has invited my attention to the judgment of the Apex Court in **Municipal Council, Ahmednagar and another v. Shah Hyder Beig and others** [ (2000) 2 SCC 48], in that regard. The Apex Court was considering the challenge of an acquisition notification by filing a writ petition after publication of the award and held that, any challenge on a notification after passage of the award by the authority under the Land Acquisition Act, 1894 cannot be sustained. The similar is the legal background pointed out by the petitioner in this writ petition. Therefore, in my considered opinion, petitioner has failed miserably in the challenge made against the notification and the consequential action initiated by the respondents. 15. Apart from the said contention, petitioner has a contention that, petitioner was discriminated in the matter of avoiding residential buildings from the acquisition proceedings. The 4[th] respondent has a clear cut case that 2[nd] W.P.(C). No. 26525 of 2015 23 house was constructed by the petitioner after Section 4(1) notification issued under Act, 1894. Therefore, petitioner is not entitled to get any sympathetic approach in the matter of inclusion of the said residential building. Ext.P19 document and Ext.P4 letter issued by the petitioner show that petitioner was offered, exclusion of his residential building situated in the property, subject to certain conditions. Apparently from the documents and the pleadings, it is clear, petitioner was not willing to comply with the conditions stipulated by the 3[rd] respondent. It was in that background the house of the petitioner was not excluded. Therefore, it cannot be said that there was any discriminatory act from the part of the respondents differentiating the petitioner from other similarly situated persons as contended by the petitioner, and consequentially there is no arbitrariness or illegality or unfairness established by the petitioner against the actions of the respondents consequent to Exts.P3, P4 and P5 acquisition proceedings, which culminated in Ext.P10 award. W.P.(C). No. 26525 of 2015 24 16. Taking note of the entire gamut of the matter and arguments advanced by learned counsel for respective parties, I am of the considered opinion, petitioner has failed to establish the case put forth in the writ petition, which persuades me to arrive at a conclusion that the same is liable to be dismissed. Writ petition fails, accordingly it is dismissed. Sd/- **SHAJI P. CHALY JUDGE** smv 18.11.2016