K.K.Sukumaran vs State Of Kerala
2021 Latest Caselaw 22103 Ker

W.P.(C) No. 32676/2009                :1:

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                     PRESENT

                  THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

         FRIDAY, THE 5TH DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943

                          WP(C) NO. 32676 OF 2009

PETITIONER:

              K.K.SUKUMARAN
              K.K.HOUSE, MUZHUPPILANGAD (P.O),, KANNUR DISTRICT.

              BY ADVS.
              T.K.AJITH KUMAR
              P.VINODKUMAR
              T.KRISHNANUNNI (SR.)



RESPONDENT:

     1        STATE OF KERALA
              REPRESENTED BY THE SECRETARY TO GOVERNMENT,, DEPARTMENT
              OF LOCAL SELF GOVERNMENT,, GOVERNMENT SECRETARIAT,
              THIRUVANANTHAPURAM.

     2        THE DIRECTOR OF PANCHAYATS,
              THIRUVANANTHAPURAM.

     3        MUZHUPPILANGAD GRAMA PANCHAYATH
              REPRESENTED BY ITS SECRETARY,, MUZHUPPILANGAD (P.O),
              KANNUR DISTRICT.

      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

     05.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No. 32676/2009            :2:

            Dated this the 5th day of November, 2021.

                            JUDGMENT

The petitioner is a co-owner of 89 cents of property in re-Survey

No. 92/1B situated in the territorial limits of the third respondent --

Muzhappilangad Grama Panchayat, Kannur District, apparently

adjacent to the National Highway in Dharmakkulam Bazaar, and it is

stated to be a very valuable property. It is submitted that, as per Ext.

P3 resolution dated 24.02.2007, the Grama Panchayat had taken a

decision to acquire 15 cents of land out of the aforesaid 89 cents of

property belonging to the petitioner and his brothers and sister and

the Panchayat has requested the State Government to proceed further

in the matter to acquire the property.

2. Being aggrieved by the resolution of the Grama Panchayat,

the petitioner challenged the legality and correctness of the said

resolution by filing Ext. P7 petition dated 28.02.2008 invoking the

remedy provided Section 191 of the Kerala Panchayat Raj Act, 1994,

('Act, 1994' for short) before the State Government. Thereafter, the

petitioner approached this Court and secured Ext. P8 judgment dated

01.04.2008 in W.P.(C) No. 11012 of 2008, whereby the State

Government was directed to consider Exhibit P7 petition submitted by

the petitioner. By virtue of the scheme contained under Section

191(2) of the Act, 1994, the State Government referred the matter to

the Ombudsman. As per Exts.P11 and P13 counter statements, the

Panachayat had reported before the Ombudsman that they had given

up the project to acquire 15 cents of land for setting up a pubic market

and waste disposal plant and decided to proceed with the acquisition of

an extent of 30 cents of land belonging to one K.K. Pavithran for

constructing a market cum shopping complex. Accordingly, the

petitioner submitted Ext. P12 statement before the Ombudsman

praying that further proceedings in the matter may be dropped in view

of the decision taken by the Grama Panchayat that it has withdrawn

from the project involving the petitioner's land.

3. According to the petitioner, without considering the crucial

aspect of the matter, the Ombudsman has opined in Ext. P14

proceedings dated 24.07.2009 that the proposal for acquisition of 30

cents of land for constructing the market cum shopping complex can

be pursued. Based on the recommendation, the Government

considered Ext. P15 G.O.(Rt.) No. 2764/2009/LSGD dated 23.10.2009

and found that there are no valid grounds to intervene in the

impugned resolution of the Muzhappilangad Grama Panchayat for the

acquisition of the land, exercising the power conferred under Section

191 of the Act, 1994 and thereby, the Grama Panchayat was given

liberty to proceed with the project. It is in the above background

facts, this writ petition is filed challenging the order of the Government

dated 23.10.2009 and Ext. P3 resolution passed by the Grama

Panchayat to acquire a portion of the property of the petitioner and

his siblings.

4. The contention advanced by the petitioner in the writ petition

is that as per the Land Acquisition Act and the Rules, the Panchayat

has to complete certain procedures before placing a requisition for the

acquisition of the land and necessary provision should be made in the

budget in the case of acquisition. It is further submitted that sanction

for the acquisition by the Ombudsman even before placing necessary

requisition before the concerned authorities was not at all warranted;

that the objection of the land owners has to be considered and the

third respondent ie., the Grama Panchayat, on enquiry, should also be

satisfied that no other suitable land which is not open to objections by

the owner is available; and that as per Rule 3 of the Kerala Panchayat

Raj (Acquisition and Disposal of the property) Rules, 2005, a

Panchayat before acquiring any land under sub-Rule 1 shall get a

suitability certificate to the effect that the proposed land is suitable for

the proposed purpose from the Deputy Director of

Panchayats/Assistant Development Commissioner/District Collector in

the case of Village/Block/District Panchayats respectively.

5. However, in the case on hand, the Panchayat has not secured

a suitability certificate from any authority as mentioned above; that

the property of the petitioner is situated in a commercially important

junction proceeding to a Beach where several tourists visit and

therefore, the property is a very valuable property situated by the side

of the National Highway. It is also submitted that the change of the

project from public market and waste disposal plant (Bio Gas Plant) to

a shopping complex is a clear indication that the motive of the third

respondent is to acquire the property of the petitioner at any rate and

that the third respondent has not even got sanction from the State

Government and the Director of Panchayats, Thiruvananthapuram, first

and second respondents respectively.

6. The sum and substance of the contention advanced is that

the proposal for acquisition of the petitioner's property in the above

circumstances is absolutely irrational and without any factual or legal

justification. It is also pointed out that acquisition is proposed only out

of an ill-will of some of the members of the Grama Panchayat towards

the petitioner and not for any public purpose as stated and therefore,

the action of the respondent smack of mala fides and vitiated by mala

fides in law and on facts.

7. I have heard the learned Senior counsel for the petitioner

Sri. T. Krishnanunni assisted by Sri. T.K. Ajith Kumar, learned Senior

Government Pleader Sri. K.P. Harish and Sri. I. V Pramod appeared for

the Grama Panchayat, and perused the pleadings and materials on

record.

8. Learned Senior Counsel for the petitioner has submitted that

the decision of the Grama Panchayat to change the purpose of

acquisition from market and biogas plant to a shopping complex

makes it clear that there are mala fides on the part of the third

respondent Grama Panchayat. It is further submitted that there are

other properties available in the locality without any objection and

therefore, the Panchayat ought to have taken necessary steps to

acquire other lands.

9. On the other hand, the learned counsel for the Grama

Panchayat submitted that the contention raised in the writ petition

that it was on the basis of the decision taken by the Grama Panchayat

that they are proposing to acquire the property of a different person

by filing Ext. P12., the Ombudsman for Local Self Government

Institutions was requested to close the proceedings before it, is not

true or correct, since the Panchayat did not make any submission that

it is proposing to acquire the property of different persons to proceed

with the acquisition. On the other hand, it is quite clear and evident

from Ext. P11 that the Grama Panchayat has submitted a statement

before the Ombudsman for Local Self Government Institutions that

contrary to its earlier decision to acquire 15 cents of property, it has

decided to acquire 30 cents of property for the construction of a

market cum shopping complex and the Panchayat has set apart an

amount of Rs.3,00,000/- from the development fund and

Rs.4,50,000/- from its plan funds for the acquisition of the property.

Therefore, the contention advanced in the writ petition that the

Panchayat had taken a decision to acquire the property of Sri.

Kulikulangara Sadanandan is not at all correct, especially due to the

fact that as per Ext. P13 submitted by the Grama Panchayat before

the Ombudsman, it is clearly stated that the property of Sri.

Sadanandan is not a fit property to carry out the construction in

question and the Panchayat has decided to acquire 30 cents and

accordingly paper publication is given to acquire 30 cents of property

situated adjacent to the National Highway. It was on the basis of Exts.

P11 and P13 statement submitted by the Panchayat and Ext. P12

statement submitted by the petitioner that the Ombudsman has

passed Ext. P14 order dated 24 th July, 2009 and submitted before the

Government in terms of Section 191(2) of the Act, 1994. On the

basis of the order passed by the Ombudsman and in view of the other

attendant circumstances that the Government has passed Ext. P15

order, upholding the decision of the Grama Panchayat for the

acquisition of the property. Anyhow, the decision was taken by the

Grama Panchayat as per Ext. P3 resolution as early as in the year

2007. Now, 14 years have elapsed. In the year 2007, the law relating

to land acquisition was the Land Acquisition Act, 1894.

10. Apparently, from the materials available on record, no

acquisition proceedings under the Act, 1894 was taken by the State

Government. In the year 2013, the Land Acquisition Act, 1894 was

replaced by the Right to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement Act, 2013, which came

into force on and with effect from 27 th September, 2013. The said Act

has its own facets and scheme in the matter of acquisition of the

property, including a social impact assessment study before proceeding

with the acquisition of the property by issuing appropriate notification,

consult the local bodies, and take into consideration the impact of the

project likely to have on various components, such as livelihood of

affected families and other component factors, public hearing for social

impact assessment etc. apart from other fundamental and basic

features, before the publication of the preliminary notification. So also,

after the publication of the preliminary notification, there is a provision

for hearing of objections, wherein the area and suitability of land

proposed to be acquired, justification offered for public purposes, and

the findings of the social impact assessment report will have to be

considered by the acquisitioning authority and an aggrieved person is

entitled to submit a suitable objection before the District Collector.

Therefore, the petitioner has got a remedy to object to the acquisition,

if and when the Government is proposing to acquire the property of

the petitioner and his siblings on the basis of any requisition made by

the Grama Panchayat. Moreover, the sole contention advanced in

respect of mala fides in the matter of acquisition of the property of the

petitioner is that, the action of the Panchayat in deviating from its

original plan of constructing a market and Bio-gas plant to the

construction of a shopping complex is mala fide in nature.

11. I do not think, merely because the scheme of the Panchayat

is altered, it is a mala fide action on the part of the Panchayat in the

matter of acquisition of the property of the petitioner. It is well settled

in law that unless mala fides are established in the matter of

acquisition of property, an aggrieved person is not entitled to succeed.

Taking into consideration the above legal and factual aspects, I am of

the view that petitioner has failed to establish any mala fides in the

writ petition so as to interfere with the impugned resolution of the

Panchayat and the order passed by the State Government.

12. Needless to say, the writ petition fails and accordingly it is

dismissed, however leaving open the liberty of the petitioner to take

up all contentions in the event of proceedings initiated for the

acquisition of the property, in accordance with law.

sd/- SHAJI P. CHALY, JUDGE.

Rv

APPENDIX OF WP(C) 32676/2009

PETITIONER'S EXHIBITS:

Exhibit P1 TRUE COPY OF THE COMPLAINT DATED 26-03-2006 SUBMITTED BEFORE THE SUB INSPECTOR OF POLICE EDAKKAD.

Exhibit P2 TRUE COPY OF THE RESOLUTION NO. 23/07 DATED 24-02-

Exhibit P3 TRUE COPY OF THE RESOLUTION NO. 27/07 DATED 24-02-

Exhibit P4 TRUE COPY OF THE PAPER PUBLICATION DATED 21-11-

2007.

Exhibit P5 TRUE COPY OF THE OBJECTION DATED 8-12-2007 FILED BY THE PETITIONER.

Exhibit P6 TRUE COPY OF THE REPLY DATED 21-1-2008 GIVEN BY THE 3RD RESPONDENT.

Exhibit P7 TRUE COPY OF THE REPRESENTATION DATED 28-02-2008.

Exhibit P8 TRUE COPY OF THE JUDGMENT IN W.P(C) 11012 OF 2008 DATED 1-4-2008

Exhibit P9 TRUE COPY OF THE REPORT OF THE 2ND RESPONDENT DATED 18-11-2008.

Exhibit P10 TRUE COPY OF THE PAPER PUBLICATION IN DESABHIMANI DAILY DATED 10-02-2009.

Exhibit P11 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE 3RD RESPONDENT BEFORE THE OMBUDSMAN.

Exhibit P12 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER BEFORE THE OMBUDSMAN.

Exhibit P13 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE 3RD RESPONDENT BEFORE THE OMBUDSMAN.

Exhibit P14 TRUE COPY OF THE ORDER OF THE OMBUDSMAN DATED 24-07-2009.

Exhibit P15 ORDER PASSED BY THE 1ST RESPONDENT DATED 23-10-

2009.

RESPONDENTS' EXHIBITS: NIL

/True Copy/

PS to Judge.