Kerala High Court
Zamorin Raja vs The Government Of Kerala on 5 November, 2024
Author: Anil K.Narendran
Bench: Anil K.Narendran
2024:KER:82627
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 5TH DAY OF NOVEMBER 2024/14TH KARTHIKA, 1946
W.P.(C) NO. 26934 OF 2013
PETITIONER:
ZAMORIN RAJA
CENTRAL DEVASWOM, TALI, RESIDING AT SOUDHAM,
THIRUVANNOOR, CALICUT - 673 029.
BY ADVS.
SRI.M.P.SREEKRISHNAN
SMT.M.H.BINDU
RESPONDENTS:
1 THE GOVERNMENT OF KERALA
REPRESENTED BY SECRETARY REVENUE, (DEVASWOM
DEPARTMENT), THIRUVANANTHAPURAM - 695 001.
2 THE DISTRICT COLLECTOR
MALAPPURAM - 676 505.
3 THE COMMISSIONER HR CE
MALABAR DEVASWOM BOARD, HOUSE FED
COMPLEX,ERANHIPALAM, KOZHIKODE - 693 036.
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W.P.(C) No.26934 of 2013
4 KARIPPALLY BHARATHAN [DIED]*
S/O. VELAYUDHAN, ALANCHERY VILLAGE, THALAPPILLY
TALUK, THRISSUR - 679 532.
5* SHYLAJA
W/O KARIPPALI BHARATHAN, 'SREEHARSHA', NEENDOOR
HOUSE, THALASSERY P.O, THALAPPILLY TALUK,
THRISSUR DISTRICT, PIN - 679532.
6* HARSHINI
D/O KARIPPALI BHARATHAN, 'SREEHARSHA',
KARIPPALI HOUSE, THALASSERY P.O, THALAPPILLY
TALUK, THRISSUR DISTRICT, PIN - 679532.
*Are IMPLEADED AS ADDL.R5 & R6 AS PER ORDER
DATED 24.10.2024 IN I.A 1/2020 IN THE WP(C)
BY ADVS.
SRI. S. RAJMOHAN, SR. GP
SMT.RANJINIE, SC FOR MDB
SRI.R.LAKSHMI NARAYAN, SC, MALABAR DEVASWOM
BOARD
SRI.V.KRISHNA MENON, SC, MALABAR DEVASWOM BOARD
SRI.KRISHNAKUMAR.S, SC, MALABAR DEVASWOM BOARD
SRI.MAHESH V.RAMAKRISHNAN, SC, MALABAR DEVASWOM
BOARD
SRI.C.M.MOHAMMED IQUABAL
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL
HEARING ON 24.10.2024, THE COURT ON 05.11.2024 DELIVERED
THE FOLLOWING:
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W.P.(C) No.26934 of 2013
ANIL K. NARENDRAN & P.G. AJITHKUMAR, JJ.
-----------------------------------------------------------
W.P.(C) No.26934 of 2013
-----------------------------------------------------------
Dated this the 5th day of November, 2024
JUDGMENT
P.G.Ajithkumar, J.
The petitioner is the trustee of Alathiyur Perumthrikkovil
Devaswom (Alathiyur Hanuman Temple), Poilassery. 23.5
cents of property belonging to the 4th respondent was
acquired for the purpose of the Temple. After completion of
the acquisition proceedings and taking over possession, the
Government issued Ext.P6 cancelling the acquisition
proceedings. Seeking to set aside Ext.P6 order, this writ
petition has been filed invoking the provisions under Article
226 of the Constitution of India.
2. The 2nd respondent has filed a counter-affidavit.
The matters connecting to the acquisition and the
circumstances leading to issuance of Ext.P6 order are
narrated in paragraph Nos.5 to 8 in the counter-affidavit,
which are extracted below:
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"5. It is submitted that the draft award was approved
as per the order No.LA4-15074/2010 dated 26.03.2013
and the award has been passed by the Special Tahsildar,
LA(General), Tirur on 26.03.2012 vide Award No.01/
2013 dated 26.03.2013. As per the award, the total
compensation awarded was Rs.8,91,228/- (including
land value, value of improvements, value of structures,
12% increase on market value and 30% solatium). The
entire compensation awarded was deposited in the Sub
Court, Tirur. Statutory notices under Section 12(2) of
the Land Acquisition Act and the Form 12 notices were
issued to Sri. Bharathan by the Land Acquisition Officer
through registered post and through the Village Officer,
Arangottukara. The registered letter was sent back by
the Postal Authorities saying that the address is out of
India. The Village Officer, Arangottukara has served the
above statutory notices by fixing the copy on the outer
door of the house of Sri. Bharathan, accordingly service
of the statutory notice was done under Section 45(3) of
the Land Acquisition Act on 16.04.2013.
6. It is submitted that after completing the land
acquisition procedure in the case, 0.0950 Hectors of
land in Re-Sy. No.139/21 (Old 139/6) of Triprangode
Village of Tirur Taluk has been handed over to the
requisitioning authority on 22.04.2013.
7. It is submitted that Sri. Karippali Bharathan
represented by Power of Attorney Holder, Narayanan,
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Karippali, Thrissur has filed W.P.(C). No.11327/2013
before the Hon'ble High Court praying to stay all further
proceedings pursued to land acquisition proceedings
initiated in this land acquisition case. The statement of
facts has already been filed in this case, saying that the
entire land acquisition proceedings has been completed
and the land has been handed over to the Requisitioning
Authority on 22.04.2013. The said Writ Petition is still
pending before the Hon'ble High Court of Kerala.
8. It is submitted that, in the meanwhile, the
Government in its order No.4558/13/RD dated
17.08.2013 has cancelled the Government Order
No.3717/2010/RD dated 31.07.2010 by which sanction
has been issued to invoke urgency clause under Section
17 of the Act for the acquisition of 0.0950 Hectares of
land in Re-Sy. No. 139/6 of Triprangode Village in favour
of Alathiyur Perumthrikovil Devaswom. Since the land
acquisition proceeding under the Land Acquisition Act
and Rules had already been completed and the land has
been handed over to the Requisitioning Authority,
clarification has been sought for from Government
regarding the further action to be taken in this case."
3. The 4th respondent expired on 26.09.2020 and his
legal representatives were impleaded as additional
respondents Nos.5 and 6. No counter-affidavit was filed by
them.
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4. Heard the learned counsel for the petitioner, the
learned Senior Government Pleader. The learned counsel for
additional respondents No.5 and 6 did not turn up to make
their submissions.
5. Ext.P5 is the award relating to acquisition of 23.5
cents of lands belonging to the 4th respondent. The 2nd
respondent categorically averred that possession of the
property was taken and handed over to the requisitioning
authority, the petitioner. The learned counsel for the petitioner
would submit that the amount of award was deposited by the
petitioner long before issuance of Ext.P6 and possession of
the property was handed over to the petitioner. It was
thereafter Ext.P6 was issued by the Government, that too,
without giving any notice to the petitioner. It is accordingly
submitted that Ext.P6 is totally illegal and liable to be set
aside.
6. The Apex Court in City Montessori School v.
State of U.P. [(2009) 14 SCC 253] held that the State
Government is obliged to give an opportunity to the
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requisitioning authority to show cause why the order of
acquisition is withdrawn. The 2nd respondent does not have a
case that before issuing Ext.P6, a notice was given to the
petitioner. For that reason itself, Ext.P6 is liable to be set
aside.
7. A similar situation confronted a Division Bench of
this Court in W.A.No.492 of 2006 [V.M.Gopakumar v.
Zamorian Raja of Calicut - Judgment dated 24.03.2006].
There also the acquisition was for a Temple. After completing
the proceedings for acquisition, the same was cancelled by
the Government. Challenge was to that order. The Division
Bench held that the Government initiated the proceedings for
acquisition on convincing the necessity to have that property
for the Temple and the Government subsequently (Ext.P4),
could not cancel the order unless there are sufficient materials
to show that the acquisition proceedings were vitiated by
malafides. None of the respondents has a case that for such a
reason the acquisition proceedings were cancelled as per
Ext.P6. In the circumstances, we are of the view that Ext.P6 is
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not legally or factually sustainable. Therefore, Ext.P6 is liable
to be set aside.
In the result, the writ petition is allowed and Ext.P6 is
set aside.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
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APPENDIX OF WP(C) 26934/2013
PETITIONER EXHIBITS
EXHIBIT-P1 TRUE COPY OF THE NOTIFICATION DATED
31/07/2010 ISSUED BY THE IST
RESPONDENT INVOKING THE URGENCY CALUSE
OF SECTION 7 OF THE LAND ACQUISITION
ACT.
EXHIBIT-P2 TRUE COPY OF THE NOTIFICATION
PUBLISHED BY THE IST RESPONDENT IN THE
GAZETTE DATED 14/07/2011.
EXHIBIT-P3 TRUE COPY OF THE NOTIFICATION UNDER
SECTION 4 (1) PUBLISHED IN
DESHABHIMANI DAILY DATED 22/07/2011.
EXHIBIT-P4 TRUE COPY OF THE SECTION 6
NOTIFICATION PUBLISHED IN DESABHIMANI
NEWS PAPER DATED 12/09/2012.
EXHIBIT-P5 TRUE COPY OF THE AWARD 01/2013, NO. A
298/2010 DATED 26/03/2013.
EXHIBIT-P6 TRUE COPY OF THE ORDER DATED
17/08/2013 ISSUED BY THE GOVERNMENT
CANCELLING THE ENTIRE PROCEEDINGS FOR
ACQUISITION.
