KANDANKUTTY Vs. STATE OF KERALA

JUDGEMENT

(1.) All the above original petitions were filed for quashing the acquisition proceedings initiated by Government notification under S.3(1) of the Kerala Land Acquisition Act issued on the basis of requisition by the Palghat Municipality for acquisition of site for the construction of a stadium and shopping complex with approach road. According ' to the petitioners in O.P. No. 5382 of 1986, Palghat Municipality entertained a proposal for the construction of a stadium and shopping complex and for that, two sites lying in Sultanpet were considered. The first site consisted of slightly more than 23 acres of double crop lands where three crops were being raised. The second site lies on the eastern side of the first site and consisted of single crop lands having an extent of about 75 acres. The first site is unsuitable for stadium and shopping complex as the same has to be filled up to a height of 2 to 3 meters which could have been avoided if the second site was chosen. It was stated that at one corner of the first site there is a church and in another portion there is a temple. At about the middle there is a tank which supplies water. But to accommodate some of the Councillors, second site was not selected and first site was specifically chosen. Therefore, according to the petitioners, selection of the first site for the construction of the stadium and shopping complex is governed by malafides. The then District Collector objected to the site chosen. However, subsequently with the influence of the local M.L.A. the Municipality approached the Government for selecting the first site which is mainly double crop lands having an extent of 9.4859 hectare as site for the proposed construction of stadium and shopping complex and notification under S.3(1) of the Kerala Land Acquisition Act, 1961 was published in the local dailies. Petitioners produced a copy of the notification published in Mathrubhoomi daily dated 10-1-1981 as Ext. P5. Plots covering temple and church were not included in the notification as those areas are not covered under the plan. In support of the allegation of malafides, reports appearing in newspapers were also produced as Exts. PI to P4. Petitioners are persons interested in portions of the notified land. Therefore, they filed objections to the proposed acquisition as can be seen from Ext. P6. The above objections, after due enquiry under S.5, were rejected and Declaration under S.6 was published in Mathrubhoomi daily dated 10-1-1982. Copy of the declaration is produced as Ext. P7. According to the petitioners, the decision for abandoning the acquisition of eastern portion is malafide. The petitioners and some others challenged the above acquisition proceedings by filing O.P. No. 2436 of 1982 and by Ext. P8 judgment the above original petition was dismissed in limine. The matter was taken up in appeal. W.A. No. 223 of 1982 filed against the above judgment was also dismissed as evidenced by Ext. P9. Petitioners contended that the above decisions were pronounced by this Court without considering the contentions and since the original petition and writ appeal were dismissed in limine it cannot operate as res judicata.

(2.) By Resolution No. 400 dated 5-9-1981 the Municipal Council decided to complete the acquisition in respect of vacant lands and to take possession thereof leaving the sites occupied by buildings to be acquired at the second stage. Copy of the Resolution No. 400 is produced as Ext. P10. Accordingly, S.9(5) notice for award enquiry was given only in respect of vacant lands covering 6.7745 hectares as evidenced by Ext. P12. The petitioners have land in the above area covered by award enquiry notice. Award was passed as early as on 7-4-1982. According to the petitioners, the award enquiry regarding the balance land covered in the original notification was started only subsequently and it was contended that in respect of lands covered by S.6 declaration there should be single award and several award enquiries cannot be made as it is in violation of Art.14 and 16 of the Constitution of India. It was further contended that Municipal Council by Ext. P14 resolution decided to exclude certain portions of the land covered by declaration. The relevant extract of the award dated 7-4-1982 was produced as Ext. P13. By Ext. P15 resolution, the Municipality decided to deposit an amount of Rs.7,63,370/- as compensation in accordance with the award.

(3.) By Resolution No. 58 dated 20-4-1983 (produced as Ext. P18) Ext. P14 decision for provisionally excluding certain portions of land was approved by the Municipality by a majority vote. It was contended by the petitioners that once a notification has been issued, portions of the land covered by the notification cannot be excluded and if such exclusions are made the entire notification will become invalid. For this proposition the petitioners relied on a Division Bench decision of this court in Sreenivasa Shenoy v. State of Kerala. ( AIR 1968 Ker. 325 ). It was also contended by the petitioners that the above resolution clearly shows that the entire acquisition proceedings are actuated by malafides. The portions excluded by the above resolution are portions owned by two Councillors and it shows favouritism and therefore the entire proceedings are vitiated. By notification dated 24-9-1985 which was produced as Ext. P20, Government issued a notification under S.52(1) of the Kerala Land Acquisition Act to withdraw from the acquisition proceedings certain portions of land comprising of a total extent of 0.06868 hectares. When proceedings for taking possession of the land were taken in accordance with award dated 7-4-1982, this original petition was filed and stay was obtained. Similar contentions are raised in O.P. Nos. 6807 and 6808 of 1986.