Ouseph Thomas And Anr @APPELLANT@Hash State Of Kerala And Ors

The captioned writ petitions are inter-related and materially connected and filed by the very same petitioners, concerning the acquisition of properties for the construction/widening of a road. Therefore, I heard them together and propose to deliver a common judgment. For the disposal of the writ petition, the facts narrated in W.P.(C) No.3134 of 2015 are taken into account, which will guide the fate of the other writ petition.

W.P.(C) No.3134 of 2015 is filed by the petitioners seeking to quash Ext.P24 by which the request made by the petitioners to change the alignment of a highway, in order to protect the property, well and other allied structures of the petitioners, pursuant to the direction issued by this Court in Ext.P23 judgment dated 31.10.2014 was declined, and for other consequential reliefs. Material facts for the disposal of the writ petition are as follows:

Petitioners are owners in possession and enjoyment of properties situate in Survey Nos.159/20 and 159/31 of Meenachil Village, on the eastern side of Ponkunnam-Pala Road. The 1st respondent declared a project, namely, "Kerala State Transport Project" (KSTP) for the purpose of improving the roads within the State of Kerala. Survey was conducted by the authorities with the assistance of an outside agency and the alignment of the road was fixed. According to the petitioners, the alignment fixed for the stretch connecting Ponkunnam-Pala is not a feasible one, because it runs through the midst of the busy Pala town which has now been realised by the respondents. Thereupon, without notice and under the influence exerted by respondents 10 to 14, demarcations were done inside the properties of the petitioners.

Thereupon, the 1st petitioner filed O.S.No.143 of 2003 before the Munsiff's Court, Pala, seeking permanent prohibitory injunction, restraining respondents 1, 2, 4, 5, 8 and 9 from entering into the plaint schedule property without the knowledge and consent, or widening the public road by annexing 4 cents of plaint schedule property. The suit was resisted by the defendants, however, the same was finally decreed on 28.07.2005, holding that, "the defendants or any other person under their command are hereby restrained by a permanent prohibitory injunction from acquiring any portions of this plaint schedule property without following the procedures contained in the Land Acquisition Act and the Kerala Highway Protection Act. It is further made clear that this decree of permanent prohibitory injunction would no way affect the lawful procedures initiated by the defendants under the Kerala Highway Protection Act, and the Land Acquisition Act towards acquiring the plaint schedule property or any portions of it. There will be no order as to costs."

It is submitted, thereupon, 6th respondent issued a notification under Sec.6(i) of the Kerala Survey and Boundaries Act, 1961, notifying for survey of certain lands in Meenachil Village of Meenachil Taluk. In the said notification, it was also stipulated that the notification shall also be considered as a notification under Sec.4(1) of Land Acquisition Act, 1894, evident from Ext.P1. According to the petitioners, in Ext.P1, petitioners properties were not included. Thereafter, respondents 10 to 14 started initiating steps, to ensure their properties from being acquired. In the notification, the properties of respondents 10 to 14, which are comprised in Survey Nos.40, 42, 43, 44, 45 and 31 of Block No.168 of Meenachil Village were also included. The properties comprised in Survey Nos.15, 17, 16 and 30 in Block No.159 were published thereafter. Another alignment submitted by the agency who conducted the survey proposing a bye-pass for the busy Pala town in the Ponkunnam-Thodupuzha stretch of the State Highway has been ignored by the authorities under the influence exerted by interested persons. Thus, according to the petitioners, it is evident that, petitioners properties were not proposed for survey or acquisition and their properties were also not in the design and alignment prepared and submitted by Loui Surgeon International, to respondents 1 to 8. However, without any notice, notification or information contemplated under law, respondents started proceedings for surveying and fixing boundaries, and the properties of the petitioners were demarcated.

Thereupon, petitioners represented the matter, however, no action was initiated, evident from Ext.P2 representation submitted to the then Chief Minister on 07.12.2004. It is also stated that, copies of the representation of Ext.P2 were submitted before the Minister for Revenue, Minister for Public Works and also the Chief Secretary. However, no action was initiated. It is also the case of the petitioners that, in the present alignment, the curve in that area will become more severe, and a blind spot will also be created. The same was brought to the notice of the authorities concerned, however, no steps were taken to consider the apprehension voiced by the petitioners, even though 8th respondent replied to Ext.P2 representation as per Exts.P3 and P4 dated 02.05.2005 and 03.05.2005 respectively.

It is also stated that, entry and exit to the building situated in the properties will be interfered with, if the land is acquired. So also, the well from which petitioners take water for drinking and other purposes will be destroyed and filled up, and there are no other source of water, since the area is of a rocky nature. Even though petitioners met the statutory authorities, no fruitful results could be achieved. The respondents are giving a go-by to the original proposal. Petitioners also produced Ext.P5 sketch in order to establish that, if the properties of the petitioners are acquired, the road will become more complicated.

Matters being so, Ext.P6 additional notification was published in the 'Malayala Manorama daily' dated 03.07.2005. In Ext.P6, petitioners properties are also included. According to the petitioners, the attempt of the statutory authorities is to encroach into the properties of the petitioners at the instance of respondents 10 to 14. However, it is admitted that, the officials who conducted the survey informed the petitioners that the drinking water source of the petitioners will be protected if the properties are required for any public purpose. That apart, it is contended that, there is puramboke land on the western side, in the alignment earlier fixed and on the opposite side, which will reduce the cost of acquisition also. According to the petitioners, since the authorities were not adhering strictly to the provisions of law, petitioners have approached this Court by filing W.P.(C) No.846 of 2006, which was dismissed as per Ext.P7 judgment dated 16.12.2011. Aggrieved by Ext.P7, petitioners have preferred W.A.No.663 of 2012 and the same was disposed of as per Ext.P8 judgment dated 05.06.2012.

While disposing of the writ appeal, this Court directed the petitioners, if aggrieved, to approach the respondents concerned and the same is to be considered by conducting an enquiry contemplated under Sec.5A of the Land Acquisition Act, and then to proceed further in accordance with law. According to the petitioners, thus, this Court found out that the right available to the petitioners under the Act for a hearing was not met and thereupon only the said direction was issued. Other contentions are also raised with respect to the illegality.

Anyhow, pursuant to Ext.P8, petitioners preferred objections to the 5th respondent, evident from Exts.P9 and P10. Thereupon, the 5th respondent conducted an enquiry and while so, the officers of the requisitioning authority were also heard, and 8th respondent was heard in the matter, and his objections were also considered, evident from Ext.P12 proceedings issued under the Right to Information Act. Ext.P13 is the sketch appended to the report. Exts.P14 to P16 are letters issued by the 8th respondent to the 2nd petitioner and the objection submitted by the 8th respondent to 9th respondent respectively. The records on the basis of the enquiry conducted under Sec.5A of the Act were forwarded by the 5th respondent to the 3rd respondent for favourable consideration and appropriate action. According to the petitioners, the 5th respondent accepted the findings in Ext.P12 and recommended changes, evident from Ext.P17. Ext.P17 was received in the office of the 3rd respondent on 15.01.2013 and was pending consideration. The 2nd petitioner has filed complaint before the Sainik Welfare Directorate and a study was conducted and the report submitted is produced as Ext.P18.

According to the petitioners, no action was taken on the reports and informed to the petitioners that the proceedings has not been finalized. It is also submitted that, the passing of award mentioned in Ext.P16 and forwarding of funds if any are before Ext.P8 and the same is done without notice and hearing to the petitioners. It is also stated that, in a case within 1 k.m. from the petitioners' properties, the entire work has been stayed and the alignment has been changed to the knowledge of the petitioners. While so, Ext.P19 order has been passed by the 6th respondent, directing the petitioners to hand over possession of the properties within five days from its receipt, and the 8th respondent was authorized to take possession of the properties. It is also the contention of the petitioners that the entire aspects were carried out by the petitioners by giving a go-by to the directions contained in Ext.P8 judgment of the Division Bench.

Thereupon, aggrieved by Ext.P19, petitioners approached this Court by filing W.P.(C) No. 3433 of 2014 and by Ext.P20 judgment dated 23.05.2014, the writ petition was disposed of directing the 3rd respondent to pass appropriate orders in accordance with law, taking into account the report submitted by the Land Acquisition Officer, after conducting enquiry under Sec.5A of the Land Acquisition Act, 1894. It was specifically ordered in Ext.P20 that the petitioners shall be put on notice by the 3rd respondent before passing any orders as directed in the judgment. The said judgment was forwarded to the 3rd respondent. However, nothing transpired in between and no notice was also received by the petitioners from the 3rd respondent in respect of hearing as directed in Ext.P20. It seems, the 3rd respondent passed orders without issuing notice and hearing the petitioners, but taking into account the contentions raised by respondents 7 and 8.

In the meanwhile, respondents withdrew the recommendations and a report totally ignoring Ext.P12, was made by the 5th respondent to the 3rd respondent. There was no enquiry in that regard and Ext.P17 was also ignored. Thereafter, Ext.P22 order was passed. Challenging Ext.P22, petitioners again approached this Court by filing W.P.(C) No.27494 of 2014 and secured Ext.P23 judgment, wherein a direction was issued to take a decision after hearing the petitioners. According to the petitioners, notice of hearing was issued, and a decision was taken as per Ext.P24 order without considering any of the issues raised by the petitioners. It is thus challenging Ext.P24, this writ petition is filed.

Respondents 1 and 2 have filed a detailed counter affidavit, refuting the allegations and claims and demands raised by the petitioners. Therein, basically it is stated that, since an interim order was passed by this Court in this writ petition, staying the operation of Ext.P24, the work could not be completed at a distance of 200 metres. Other contentions raised by the petitioners with respect to encroachment made by the respondents, undue interest shown to save the properties of the party respondents herein are all denied by the said respondents.

Eighth respondent has filed a counter affidavit and additional counter affidavit. Among other contentions, it is stated that, the writ petitioners have misled this Court by saying that no possession was taken, whereas the possession was taken as early as in 2015, evident from Ext.R8(a) mahazar. That apart, it is stated that, the petitioners from the very beginning was opposing the alignment which was finalized by the Project Director, Kerala State Transport Project Division, after hearing the petitioners and after considering the pros and cons of the matter. The said decision was intimated to the petitioners as per Ext.R8(b) communication dated 03.09.2013. In view of the fact that the technical experts had considered the objection of the petitioners, the present objection of the petitioners against the alignment cannot be sustained. The project in question is a major improvement from Ponkunnam-Thodupuzha having 50 K.ms. and the project has to be completed by December, 2016. The terms of the contract would indicate that the project have to be completed within 30 months from June, 2014. Major and substantial portion of the work is now come to a close except 200 metres, in which the petitioners are opposing and objecting. If any delay is caused in completing the project, the Government will have to pay damages to the delay as per clause 8.7 of the contract, evident from Ext.R8(c). Therefore, the 8th respondent seeks to dismiss the writ petition.

In the additional counter affidavit filed by the 8th respondent, it is stated that, the fixation of alignment of a road is a matter of scientific fixation as required by the road standards fixed in that respect by the Indian Road Congress. It is the case of the Department from the very beginning of the issue that a comprehensive study was conducted through M/s. Louis Burger International Limited, a foreign company having versatile knowledge about the road formation and associated activities. The said company is an expert in the field of transportation engineering. The alignment was fixed based on the comprehensive report of the said company, which was duly considered by the competent authority, and thereafter only the alignment was fixed, and the same is the most advantageous among the several options suffused. It is also stated that, the damages occurring to the properties and buildings are less in nature compared to other alignment suggested.

It is also stated that, the Department took the stand from the very beginning itself that it is not in a position to change the alignment as requested and claimed by the petitioners due to the fact that if such individual claims are entertained, it may result in similar objections being raised by the other land owners, which will drastically affect the entire work. Therefore, during 5A enquiry, as evident from Ext.P12, the definite stand adopted by the Department was that there cannot be any change of alignment. It is based on the said decision and finalization of alignment, Ext.P14 communication was issued as early as on 07.06.2012, intimating the petitioners that the alignment cannot be changed. As per Exts.P15 and P16, the Executive Engineer had written in detail to the petitioners as well as to the Land Acquisition Officer regarding the inability to change the alignment due to practical difficulties. In Exts.P15 and P16, the Department even expressed its willingness to take appropriate measures to protect and salvage the well at the time of execution of the work to the extent possible. It is also submitted that, out of the two wells, one of the wells may come partially within the acquisition proceedings and the remaining portion will be protected, and the other well coming under the acquisition, will be substituted with a new one. However, both the suggestions were not acceptable to the petitioners.

It is also the case of the respondents that the alignment was fixed after conducting a detailed survey and scientific study which involves fixation of alignment, geometric designs and other associated issues in the road formation and its finalization. The alignment was fixed taking into account the short, easy, safe, economical, sound, environment friendly, and also other factors like the density of traffic, geometric designs and drainage and other considerations. The malafides alleged by the petitioners against the statutory authorities in order to protect the interest of respondents 9 to 13 are all denied.

A counter affidavit is also filed by respondents 10, 12, 13 and 14, wherein, the allegations raised by the petitioners are denied. It is also stated thereunder that in terms of Exts.P1 and P6, the 13th respondent will loss his residence. Properties of respondents 10 to 12 were acquired and possession has been handed over. Respondent No.14 is only having 3 cents with a residential building thereon. The road in question under KSTP has been completed except in respect of the portion under challenge by the petitioners. Compound wall of the 10th respondent has already been demolished. According to the said respondents, if there is any further change in the alignment, the blind spot will increase and same will result in accidents. The report submitted by the Advocate Commissioner is also disputed thereunder, stating that the same is done without taking into account the design of the project and only on physical verification as well as survey lines. Certain photographs are also produced by the said respondents in order to show the nature of construction carried out and the small extent of the road which is yet to be completed, consequent to the interim order passed by this Court.

Reply affidavits are filed by the petitioners to the counter affidavits filed by the respective respondents, reiterating the stand adopted in the writ petition. Additional documents are also produced along with the reply affidavit to the counter affidavits filed by respondents 1 and 2.

At the instance of the petitioners, an Advocate Commissioner was appointed to inspect and report the matters pointed out by the petitioners, also taking into account the work memo submitted by the other parties in the writ petition. The Advocate Commissioner has filed an interim report as well as a detailed report along with various photographs and sketches. One of the important aspects noted by the Advocate Commissioner is that, certain portion of the properties in possession of respondents 9 to 13 are yet to be taken possession for the purpose of re-construction or widening of the road. So far as the issue raised by the petitioner with respect to the blind spot is concerned, it is reported that the blind spot is an area around, which cannot be directly observed by the driver of a vehicle, and it is related with the maximum visibility to the driver when the vehicle takes the curve. Therefore, it is unable to opine whether any blind spot will be formed if the road is constructed as per the present alignment, and the same can be found out only with the help of an expert. It is also reported that, on inspection, it is found that there is no junction in the location and the junction is existing about 1.2 k.m. away from the petitioners properties. It is further reported that, an extent of 14 sq. mtrs. of puramboke land not subjected to acquisition is situated in the opposite side of the petitioners properties. Other aspects with respect to the nature and lie of the properties of the petitioners, drinking water well and nature of the properties of the party respondents are also recited to in the report.

I have heard learned counsel for the petitioners, learned Senior Government Pleader as well as the learned counsel appearing for the party respondents. Perused the documents on record and the pleadings put forth by the respective parties.

From the discussions made above, it is very clear that the case has a checkered history. It is not disputed that the entire stretch of the road connecting two major Districts are complete, except a small stretch of 200 metres, admittedly. The thrust of the contentions advanced by the petitioners is in respect of the alleged malafides on account of the unprecedented interest shown by the statutory authorities to protect the properties of the party respondents.

First of all, it is clearly submitted in the counter affidavits submitted by the statutory authorities as well as the party respondents that the properties of the party respondents were also acquired and the same are taken possession of. It is also submitted in the counter affidavits that the properties of the petitioners were also taken possession during the year 2015. However, an interim order from dispossession was obtained by the petitioners by suppressing those material facts. Even though acquisition steps were taken by the statutory authorities under the provisions of Land Acquisition Act, 1894, it was challenged in W.P.(C) Nos.846 and 13300 of 2006, however, they were dismissed as per Ext.P7 judgment, wherein, it is recorded that 98% of the properties required for the widening of the road are already acquired. But, the said judgment was interfered in Ext.P8 judgment by the Division Bench, recording the submission made by the Government Pleader that forcible possession of the properties will not be taken and the acquisition will be done strictly adhering to the procedure contemplated under the Land Acquisition Act including the emergency clause, if necessary. It is also stated thereunder that, since the stage of acquisition is only preliminary notification under Sec.4(1) of the Land Acquisition Act, there are no reasons to interfere with the proceedings and it is open to the appellants to approach the respondent competent authority with the objections and the same shall be considered by an enquiry as is contemplated under Sec.5A of the Land Acquisition Act, and then proceed further in accordance with law.

It was on the basis of the directives contained under Ext.P8, petitioners have submitted Ext.P9 objection, wherein, the objection of the petitioners seems to be with respect to the likelihood of loss of two wells situated in the properties of the petitioners, which is the drinking water source of the petitioners. It is also stated thereunder that, the properties of the petitioners are acquired for the purpose of protecting the interest of the party respondents. Yet another grievance highlighted by the petitioners is that, if the properties from the opposite side is taken alone, blind spot can be avoided.

The discussions made above would also make it clear that, the puramboke property situate in between the properties of the party respondents and the existing road is already taken possession, and the properties of the party respondents are also taken possession of. However, the contention of the learned Senior Government Pleader is that, the work of both the properties of the petitioners as well as the party respondents can only be carried out simultaneously, by using men and machinery and that is why certain demolitions are not done by the statutory authorities, of the properties belonging to the party respondents. It is also submitted that the remaining work of the properties of the party respondents will be carried out without fail.

With these background facts, the sole question to be considered by this Court is, whether any manner of interference is warranted to Ext.P24 order passed by the Land Revenue Commissioner dated 08.12.2014, on the basis of the directions contained in Ext.P23 judgment, after hearing the petitioners. The Land Revenue Commissioner has taken into account each of the aspects put forth by the petitioners and has entered into a finding that the well situated in the properties of the petitioners will be protected partially and against taking over of one of the wells, a new well will be constructed. It is also stated thereunder that, the entire stretch of the road work is complete in all respects, except the short strip under dispute in this writ petition, and if the alignment is changed at this point of time, the damages will be irreparable. It is also stated thereunder that, if the alignment is to be changed in accordance with the representations made by each individuals, the project will not be feasible and practical, and therefore, no manner of change can be made to the alignment, as is requested by the petitioners.

So far as the contention raised by the petitioners with respect to the malafides alleged against the party respondents, there is no established proof before this Court to enter into any such finding. There is no dispute with respect to the scientific study conducted in order to fix the alignment of the road. It was on the basis of such study report made by an independent agency, the alignment of the road was fixed. It was based on the alignment fixed by the independent agency that the nature of acquisition to be carried out by the statutory authorities was taken into account and notified under the provisions of the Land Acquisition Act, 1894. Mere allegations of certain malafides will not suffice the situation. Even though the beneficiaries of the malafide act on the part of the respective authorities are made parties in the writ petition, in my considered opinion, there are no well established evidence and proof before this Court to arrive at a finding that it was due to unprecedented interest shown by the statutory authorities that the properties if any of the said persons are not acquired. Moreover, it is evident from the pleadings put forth by the respective parties that the property of some of the party respondents situate on the opposite side of the properties of the petitioners were also taken possession of.

In my considered opinion, except bald allegations, there is no established proof before this Court to show that the alignment was fixed by the independent foreign agency on the basis of the influence exerted by the party respondents over them. The allegations are made by the petitioners against the malafides of the statutory authorities vis-a-vis the influence exerted by the party respondents. There is no dispute for the petitioners that the alignment was fixed on the basis of the study conducted by the independent agency. Therefore, merely by making an allegation that the statutory authorities have colluded with the party respondents to save their properties cannot be sustained under law. Matters being so, in my considered opinion, there is no truth in the allegations made by the petitioners in respect of the same.

It is also contended by the learned Senior Government Pleader that the land was taken possession of in the year 2015, after complying with all the procedures contemplated under the Land Acquisition Act, 1894, and the amounts were deposited in the Land Acquisition Reference Court. Therefore, at this point of time, petitioners cannot turn around and attack the proceedings that are finalized. Moreover, it is evident that the majority of the work is complete in all respects, except the disputed portion involved in this writ petition.

Moreover, the findings of the District Collector in Ext.P12 and the idea conceived therein is merely on the basis of the investigation conducted at the spot where the disputed properties are situated and not based on any study of the entire stretch of the alignment. Thus, it can only be termed as superficial in nature and character, which can never be carried upon to overlook the scientific study conducted by an independent agency. In my view, applying the same principle, the report of the Advocate Commissioner cannot have any credence or reliability over the study report of the agency deputed for finalizing the alignment.

One of the predominant contentions advanced by the petitioners to sustain the reliefs sought for in the writ petition is that, in Ext.P8 judgment, a direction was issued to conduct an enquiry under Sec.5A of the Land Acquisition Act, and therefore, according to the petitioners, if at all any proceedings were initiated prior to Ext.P8 judgment, the entire process after Sec.5A of Act, 1894 is to be undertaken by the respondents. However, from the documents produced in the connected writ petition viz., W.P.(C) No.4116 of 2018 by the 9th respondent, it is evident that Sec.5A enquiry was conducted as per Ext.R9(b). It is also evident from Ext.R9(a) that the additional extent of properties were published. It is also clear from Ext.R9(c) that notice under Sec.9(3) of Act, 1894 was also issued and the notice was accepted by the petitioners on 09.04.2012. It is also evident from Ext.R9(e) that an amount of Rs.1,88,048/- was deposited in the Treasury on 14.03.2013 also evident from Ext.R9(f) Security Register. Even though notice was sent to the 1st petitioner with respect to the deposit in the Court, it was returned as per Ext.R9(g), marking unclaimed. Award was passed evident from Ext.P15 in the said writ petition and since the award amount is not received by the petitioners, it is deposited in the Subordinate Judge's Court after deduction of the income tax.

By issuing the direction in Ext.P8 judgment, the Division Bench did not intend to conduct the entire exercises after Sec.5A enquiry under Act, 1894. It is also clear that the said direction was given since Sec.4(1) notification was already issued and there is nothing wrong in conducting an enquiry under Sec.5A with the specific object of identifying the contentions advanced by the petitioners in the said writ petition, which thus means, if the actions contemplated under law after Sec.5A enquiry were already completed in accordance with law, no manner of interference under the same is thought of by the Division Bench. If the Division Bench intended to do so, it would have been definitely specified in the judgment. That apart, unless and until the procedure adopted by the statutory authority was interfered with by this Court, there is no power vested under law on the statutory authority to re-visit and upset the concluded proceedings. So also, a mere enquiry under Sec.5A on the disputed property may not be feasible without conducting a scientific study over a reasonable stretch. Therefore, at the most in Ext.P8 judgment, the Division Bench intended only peripheral enquiry in respect of certain personal aspects put forth by the petitioners. Furthermore, the photographs produced by the Advocate Commissioner show that the structures remaining in the disputed property are posing threat to the road traffic, and the said area is almost a bottleneck consequent to completion of widening of the rest of the road.

Taking into account all these factual aspects and reckoning the legal issues, I am of the considered opinion that, petitioners are not entitled to get any relief as is sought for in the writ petition. So far as W.P.(C) No.4116 of 2018 is concerned, reliefs are sought for by the petitioners seeking to quash the award passed by the 9th respondent in LAC No.189/06/MNL and LAC No.190/06/MNL, with a further relief to declare that no awards have been passed in the aforesaid Land Acquisition cases.

The discussions made above with respect to the other case would make it clear that, adequate steps were taken by the respondents by resorting to the provisions of Land Acquisition Act, 1894. All the notifications were issued up to the award enquiry and necessary opportunities were provided to the petitioners in each stage, evident from the records produced along with W.P.(C) No.4116 of 2018 by the 9th  respondent. Therefore, since the awards are passed, amounts were deposited and possession was taken in accordance with law, petitioners are not entitled to get any relief in the writ petitions, there being no illegality, arbitrariness and malafides. However, petitioners are at liberty to challenge the award in accordance with law.

Therefore, the writ petitions are dismissed, however, leaving open the liberty of the petitioners to take suitable steps in accordance with law against the awards passed by the respective statutory authority. I also make it clear that, the offer made by the respondents in Exts.P15, P16 and P23 impugned orders with respect to protection of well, and construction of the well shall be undertaken without any default. It is also directed, the properties acquired from the party respondents shall also be utilized in the process, without fail.