P. Radhakrishnan Chitranjali vs State of Kerala

Ashok Bhushan, Actg. C.J.

Heard learned counsel for the appellants as well as Sri. P. Ravindran, learned counsel for the 5th respondent.

By this appeal, the judgment of learned Single Judge dated 02.09.2014 passed in W.P. (C) No. 4387 of 2008 had been challenged. The appellants who were the writ petitioners are the land owners whose lands were acquired under the Land Acquisition Act, 1894 (hereinafter referred to as the ''LA Act'').

In this case notification under Section 4(1) of LA Act was issued. The enquiry under Section 5A was also conducted and report was submitted and declaration under Section 6 of the LA Act was issued. The award is said to have been passed on 02.08.2010 and 06.08.2010. The writ petition was filed being W.P. (C) No. 4387 of 2008 praying for quashing Exts. P4, P8 and P9 as well as Ext. P10. Ext. P10 is a notice under Section 6 of the Kerala Survey & amp; Boundaries Act, 1961. Section 6 declaration was issued on 16.02.2009. In the writ petition, petitioners have raised various grounds including the ground that there was no requirement for acquiring 117 cents of land as already there is sufficient land with the temple which could have been utilised for the purpose and acquisition of the land was arbitrary and unreasonable. It was further pleaded that there was no appropriate decision from the part of Commissioner and Secretary of the Board for acquisition of land. The learned Single Judge after considering the submissions raised by the learned counsel for the petitioners dismissed the writ petition against which this appeal has been filed.

Learned counsel for the appellants/writ petitioners raised the following submissions: (i). There being already land available with the temple, which was pleaded before the Court that there was no necessity for acquisition of 71 cents of land and construction, if any, could have been made on the land which is already available with the temple. (ii). The acquisition has lapsed in view of Section 24(2) of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, (hereinafter referred to as the ''2013 Act'') since compensation has not been paid nor possession was taken from the land owners.

We have considered the submissions of learned counsel for the parties. The first submission which has been raised by the learned counsel for the appellant that there was no requirement of 71 cents of land for which acquisition proceedings were initiated. There being already land available with the temple which fact has been pleaded in the writ petition and noted by learned Single Judge. The proceedings of acquisition under the Land Acquisition Act proceeds stage by stage after publication of the preliminary proposal for acquisition under Section 4(1). The enquiry contemplated under Section 5A takes place where all factual issues raised including the issue that the land is not required for acquisition is examined. Present is a case where enquiry under Section 5A was not dispensed, rather the enquiry was conducted and report was submitted justifying the acquisition. After relying on this report under Section 5A, a declaration under Section 6 was issued.

Whether particular piece of land or particular extent of land is required for acquisition or not is essentially a fact which is in the domain of the Government who took a decision to acquire the land. Unless the acquisition is malafide which proceeds in violation of the statutory provisions, the Court in exercise of the writ jurisdiction under Article 226 shall not sit in appeal. However, a decision of the Government regarding the necessity of land is required. In the present case there was sufficient material justifying the necessity and learned Single Judge has also gone into the said issue and reached a finding against the petitioners.

In the second submission that since possession has not taken from the petitioners and compensation not paid, the acquisition was lapsed, reference has been made to Section 24(2) of 2013 Act. Section 24(2) reads as follows:

"24. Land acquisition process under Act No. 1 of 1894 shall be deemed to have lapsed in certain cases.-

xx xx xx xx

(2) Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894, where an award under the said Section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act:

Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under Section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act."

Section 24(2) is applicable only "where an award under the said Section 11 has been made five years or more prior to the commencement of this Act", i.e. with effect from 01.01.2014. In the present case the award is dated 06.08.2010. Thus it is made within 5 years from the date of commencement of the Act and hence Section 24(2) is not applicable. Learned counsel for the appellants also sought to rely on the proviso to sub-section (2) of Section 24. It is well settled law that in statutory interpretation a proviso to the Section cannot be go beyond the scope of the substantive Section of which it is only a proviso. Thus on the aforesaid grounds, we do not find any fault with the acquisition.

We do not find any error in the judgment of the learned Single Judge dismissing the writ petition. Hence, the Writ Appeal is dismissed.