SUNDARAM Vs. PALAKKAD MUNICIPALITY

JUDGEMENT

(1.) The case has rather a checkered history. It has its roots from a notification issued under Section 4 of the Land Acquisition Act, 1894, hereinafter referred to as 'Act of 1894', on 7.1.1981. The land belonging to the appellant (petitioner in the original lis) and others was acquired for a public purpose, namely for construction of a Sports Stadium. The petitioner objected to the proposal of acquisition on variety of grounds, his primary objection being that his land was not required for stadium as large extent of land was available in and around the proposed area. The notification issued in 1981 was, however, not taken to its logical ends for long time and the petitioner in 1986 filed O.P.No.6498 of 1986 challenging the proposal to acquire his land. The Original Petition of the petitioner came up for hearing along with other connected matters and the same was dismissed vide order dated 9.2.1996. In the meanwhile, the notification under Section 4 of the Act lapsed. The Government, however, issued a fresh notification on 4.11.1998. Aggrieved, the petitioner filed O.P.No. 10873 of 1999 reiterating the grounds taken by him while challenging the notification dated 7.1.1981. Learned Single Judge before whom the Original Petition came up for hearing, remitted the matter to the Government directing the Revenue Divisional Officer, Palakkad, the 3rd respondent herein, to consider the objections filed by the petitioner, Ext.P2. The petitioner was also permitted to file additional representation. It is the case of the petitioner that the learned Judge directed the Government even to take note of the contention that his land was not required for the purpose for which it was notified. The Revenue Divisional Officer, however, rejected the objections and the additional representation filed by the petitioner, thus, constraining the petitioner once again to file a fresh Original Petition bearing No.28871 of 2000. Meanwhile, however, the petitioner challenged the judgment of the learned Single Judge remitting the matter to the Government before a Division Bench, which was disposed of by order Ext.P2. During the pendency of the appeal aforesaid, the petitioner made an application for appointment of Commission, which was allowed and advocate Smt. Daisy Thampy was appointed as Advocate Commissioner to inspect and report about various relevant aspects so as to enable the Court to have a correct appraisal and assessment of the situation and take a correct decision on the contention raised by the petitioner. Advocate Commissioner submitted report, Ext.P3 along with a plan, Ext.P4. The Division Bench by judgment Ext. P2 directed the Government to consider the detailed representation to be made before the Government. The petitioner was permitted to incorporate the factual findings of the Advocate Commissioner. The petitioner did file a representation on the basis of Division Bench judgment, Ext.P2, and also an additional representation.

(2.) Learned Single Judge before whom the matter came up for hearing but for one, repelled all contentions raised in the Original Petition challenging the order of the Government rejecting the representation pursuant to the directions already given by the Single Judge and Division Bench as mentioned above. The only contention that was accepted was that order Exhibit P1 passed by the Government was cryptic and that the directions given by this Court in judgment Exhibit P2 were not taken into consideration, in particular for exclusion of the property from acquisition of the ground that the same was not at all necessary for the stadium purposes. In view of the findings of the learned Single Judge that the impugned order was non-speaking without taking into consideration the plea raised by the petitioner, particularly with regard to the requirement of his land for public purpose, the land acquisition authorities were directed to examine the issue afresh and to that limited extent the petition was allowed vide order dated 28th October, 2005. It is this order which has been challenged in the present Writ Appeal.

(3.) Mr. V.R. Venkitakrishnan, learned Senior Counsel contends that the petitioner has suffered a protracted litigation spanned over a period of 25 years and once there was sufficient material in the record, the learned Single Judge would have better decided the controversy in issue himself instead of relegating the petitioner to have the issue decided by the Revenue Divisional Officer. On the basis of material placed on record, inclusive of the Advocate Commissioner's report, learned Counsel states that the petitioner had a cast iron case and a finding ought to have been rendered to the effect that his property was not required for the purpose for which notification was issued. He further contends that as per the Scheme notified under the Town Planning Act, the petitioner's property was earmarked as a residential area and, therefore, unless the Scheme was amended, the proposal to acquire the property for non-residential purpose, i.e., establishment of the Stadium, would be illegal. It is further urged by counsel that once a Scheme has been notified earmarking the area for residential purposes, to have change in the land use, consent from the Government is required under Sections 14 and 15 of the Madras Town Planning Act, 1920. The learned Counsel also relied upon a certificate dated 21.8.2006 issued by R.Dasanpotty, Superintending Engineer, P.W.D. (Retired), engaged by the petitioner.