Jose Joseph vs State of Kerala and Others

T.R. Ramachandran Nair, J.—The matter relates to land acquisition proceedings for the purpose of the fifth respondent-Municipality to establish a bus stand. A notification was issued by invoking the emergency clause which was challenged in W.P. (C) No. 28175/2004 and this Court quashed the emergency clause and directed conduct of enquiry u/s 5A of the Land Acquisition Act. There was a Review Petition as per R.P. No. 825/2007 wherein the entire acquisition proceedings were sought to be quashed. While that was pending, a fresh notification u/s 4(1) of the Land Acquisition Act was issued which is dated 14/02/2008 and which was published in the Gazette on 08/04/2008 and, in two dailies on 06/05/2008 and 09/05/2008. Notice was issued to the petitioner under Rule 7(1) of the Land Acquisition (Kerala) Rules, 1990 which is produced as Ext.P3 and his objection is produced as Ext.P4. The enquiry u/s 5A was also fixed to 21/06/2008. Later, the Review Petition was disposed of with certain directions as per Ext.P7 order. It appears that thereafter the petitioner was issued a notice by the Land Acquisition Officer as per Ext.P8 to submit his objections before the Revenue Divisional Officer. Ext.P9 is the further objection submitted by the petitioner. Ext.P12 is the order passed by the Land Revenue Commissioner rejecting all the objections which is under challenge in this writ petition.

The learned Counsel for the petitioner mainly submitted that the directions issued by this Court in Ext.P7 in the Review Petition have not been complied with by the Land Acquisition Officer as well as the Land Revenue Commissioner. Paragraph (7) of the Order contains the following directions:

No case is made out for review within the confines of Order 47 Rule 1 of the Code of Civil Procedure. The Review Petition will stand dismissed. However, the following directions are issued to the first respondent-Land Acquisition Officer so that the relief granted to the petitioners under the Judgment becomes meaningful and more effective.

The first respondent is directed to afford sufficient opportunity to the petitioners for adducing whatever evidence they want to at the enquiry u/s 5A permitted under the Judgment.

The Land Acquisition Officer is directed to hear the petitioners either personally or through counsel before finalising his recommendations regarding the objections raised by them. Written arguments, if any submitted will be accepted by the Land Acquisition Officer.

The Land Acquisition Officer is also directed to forward copy of the recommendations to be forwarded by him regarding the objections raised by the petitioners to the acquisition proposal upon culmination of the enquiry u/s 5A to the Land Revenue Commissioner to the petitioners also.

If the petitioners are desirous of a hearing opportunity before the Land Revenue Commissioner, they are permitted to request for such an opportunity before the Land Revenue Commissioner and if such a request is made by them within one week of their receiving copies of the recommendations of the Land Acquisition Officer, the Land Revenue Commissioner will grant such opportunity to them before taking decision on the question as to whether the recommendations of the Land Acquisition Officer should be accepted or not.

The Land Acquisition Officer was directed to hear the review petitioners and, thereafter, forward the recommendation with respect to the objections. Finally, the review petitioners were allowed to make a request to the Land Revenue Commissioner for an opportunity of hearing after the receipt of the copies of the recommendations within one week and if so, the Land Revenue Commissioner was directed to grant an opportunity before taking a decision. Herein, the notice Ext.P8 is dated 26/06/2009 and within the time permitted the review petitioners made objections as per Ext.P9. But the order passed by the Land Revenue Commissioner is dated 18/06/2009. Therefore, evidently the order passed by the Land Revenue Commissioner is even prior to Ext.P8 notice. Therefore, it is pointed out by the learned Counsel for the petitioner that the calling for objections by the Revenue Divisional Officer and submission of objections became a mere formality and that has defeated the rights of the petitioners as allowed by the order passed in the Review Petition. It is clear from the counter affidavit filed on behalf of the third respondent that enquiry u/s 5A was completed on 11/07/2008 by sending a notice dated 07/06/2008 to appear before the Land Acquisition Officer on 21/06/2008. Again the case was adjourned to 11/07/2008 for hearing as per the request by the aggrieved parties. It is mentioned that Section 5A enquiry reports were forwarded to the Land Revenue Commissioner on 07/10/2008 for approval of the draft declaration.

The learned Government Pleader submitted that during the pendency of the Review Petition, Section 5A Enquiry was completed which fact could not be brought to the notice of this Court. I am not going into the veracity of the enquiry report submitted u/s 5A of the Land Acquisition Act in view of the directions I propose to make. Herein, evidently, this Court permitted the review petitioners to make a request before the Land Revenue Commissioner within one week of their receiving copy of the recommendation of the Land Acquisition Officer and, accordingly if such a request was made, the Land Revenue Commissioner was also obliged to hear the review petitioners. Evidently, the said direction is in tune with the principles of Natural Justice. The said direction has not been complied with by the Land Acquisition Officer and the Land Revenue Commissioner, evidently, even though reference is made to the order passed in the Review Petition in Ext.P12 order. Copy of the recommendation of the Land Acquisition Officer has not been forwarded to the petitioners for enabling them to file a request before the Land Revenue Commissioner for a personal hearing. Therefore, it amounts to a violation of the direction in sub-para (4) of para (7) of the order Ext.P7 passed in the Review Petition. In that view of the matter, as the directions have not been complied with properly, Ext.P12 cannot be sustained and hence, Ext.P12 is quashed. Whether the objections submitted by the Review Petitioners pursuant to Ext.P8 notice have been forwarded to the Land Revenue Commissioner is not clear. Since, I am directing the Land Revenue Commissioner to hear the petitioner, it is upto the petitioner to point out any deficiency with regard to Section 5A enquiry already conducted before the Land Revenue Commissioner.

Therefore, the writ petition is allowed with the following directions:

The fourth respondent will communicate a copy of the recommendation, he has made to the Land Revenue Commissioner, to the petitioner within a period of ten days from today. On receipt of the same, the petitioner will submit a request to the Land Revenue Commissioner apart from the objections, if any, to the recommendation, seeking for a personal hearing. The Land Revenue Commissioner will afford a hearing to the petitioner and appropriate orders will be passed after hearing the Municipality also within two months from the date of receipt of the request. The learned Counsel for the petitioner submitted that he may be allowed to raise all arguments including the validity of the enquiry u/s 5A, the question whether the Municipality is having sufficient funds for the acquisition and the question whether the time limit under Clause (ii) of the first proviso of Section 6 of the Land Acquisition Act was fully complied with. The petitioner is free to make any such objections before the Land Revenue Commissioner which will be considered on merits by the Land Revenue Commissioner while passing the order. No costs.