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Judgment
Mr. Justice C.T. Ravikumar
This writ petition carries challenge against Exts. P11 and P12 which are respectively the notification issued u/s 4(1) and the order of sanction
passed by the second respondent in exercise of the power u/s 17(4) of the Kerala Land Acquisition Act, 1894 (for short ''the Act'') for dispensing
with hearing of objections u/s 5A in respect of acquisition of the proposed land mentioned therein for the purpose of construction of Kanjirappally
Town by-pass. Essentially, the grievance of the petitioner is with respect to the dispensation of the enquiry contemplated u/s 5A of the Act in
respect of the proposed acquisition. It is contended that dispensation of Section 5A enquiry is possible and permissible only if the Government
form an opinion regarding the existence of urgency in terms of the provisions u/s 17(1) of the Act or on account of an unforeseen emergency in
terms of Section 17(2) of the Act. In essence, the petitioner did not challenge the power of eminent domain of the Government whilst, his challenge
is only with respect to the deprivation of the invaluable right available to him by dispensing with the enquiry u/s 5A of the Act. The facts and
circumstances that constrained the petitioner to raise such a challenge against the aforesaid proposed acquisition are as hereunder:-The petitioner,
an Agriculturist, claims to be owner in absolute possession over 10 acres of agricultural property comprised in Survey No. 97 of Kanjirappally
Village. It is his contention that Kanjirappally town lies in between chainage 144/100 and 146/100 of NH 220 and the seventh respondent, the
Member of Legislative Assembly from Kanjirappally Constituency initiated proposal for construction of a by-pass for NH 220 at Kanjirappally for
bypassing the entire Kanjirappally and pursuant to which Ext. P2 proposal was submitted by the 6th respondent. Going by Ext. P2, the by-pass
was to start from Kanjirappally Taluk Hospital Junction at chainage 143/100 and to pass through the Dominic - Thomman road (also known as
DB road) and after crossing Kanjirappally - Manimala road and Chittarpuzha River to end at chainage 146/800 at Ranni Hospital junction. It
necessarily, had to pass through certain private properties and the width of the proposed road was initially 15 metres and the estimate was for Rs.
650 lakhs. A bridge of 17 metres length was to be built across Chittarpuzha river. However, a revised proposal was made by the 6th respondent
as per Ext. P3 revising the estimate to Rs. 750 lakhs without any change in the alignment but increasing width of the road to 20 meters and shifting
the end point further to chainage 146/1000. The further contention of the petitioner is that a second proposal was then made by the 6th
respondent, at the instance of the 7th respondent, to provide an alignment in total exclusion of Dominic - Thomman road, as per Ext. P4.
According to him, as per Ext. P4, the second proposal, the origin of the by-pass would be from a steep downward curve called ''Panchayat
Curve'' at chainage 146/700 and that it has to cross the Kanjirappally - Manimala road and Chittarpuzha River by a bridge of 60 metres length. It
is further contended that in case of acceptance of the second proposal the alignment would pass through certain private rubber plantations including
that of the petitioner. The petitioner attributes malafide action in the matter of change in the original proposal besides collusion between
respondents 7 and 8. The contention of the petitioner is that the 8th respondent is the Principal Secretary to Chief Minister and several of her
husband''s family members are residing by the side of Dominic -Thomman road and they apprehend demolition of their compound walls in case of
acceptance of the first proposal and that is the reason for submission of Ext. P4 proposal. The further contentions of the petitioner are as follows:-
Consequent to Ext. P4 proposal, that was put under the Fast Track Procedure of the Government and following the same Ext. P6 notification u/s
6(1) of the Kerala Survey and Boundaries Act was issued for the purpose of surveying the land required for acquisition for the purpose of
construction of the said by-pass in terms of the second proposal. The petitioner came to know about the second proposal only when the
authorities surveyed and demarcated his property in pursuance of Ext. P6. His agricultural property is a steep hill slanting towards the north and if
any portion of it is acquired for construction of the by-pass that portion of the hilly terrain has to be converted to plain level and in such eventuality
it would incur considerable expenditure. The alignment in terms of the first proposal would pass only through plain terrain. In the said
circumstances, the petitioner along with certain others whose properties are proposed to be acquired submitted Ext. P8 representation highlighting
the advantages of the first alignment and the disadvantages of the second alignment and then, submitted Ext. P9 mass petition to the Hon''ble
Minister. The contention of the petitioner is that it was without considering Exts. P8 and P9 that the second proposal is sought to be implemented
in an undue hasty manner and it is for that sole purpose that Ext. P11 notification was issued u/s 4(1) of the Act invoking the urgency clause
contained in Section 17 of the Act dispensing with enquiry contemplated u/s 5A of the Act. Ext. P12 is the sanction order issued u/s 17(4) of the
Act by the second respondent for dispensing with hearing of objection u/s 5A of the Act for the acquisition of the land comprised in the survey
numbers mentioned thereunder having an extent of 3.9830 hectares.
Separate counter affidavits have been filed by respondents 2, 5 and 7.
In the counter affidavit filed by the second respondent it has been stated that as per Ext. R2(a) dated 28.11.2008 Government have accorded
administrative sanction for acquisition of land for the aforesaid purpose and also accorded sanction for acquisition by invoking urgency clause of
Land Acquisition Act, 1894, under the Fast Track Procedure, as per Ext. R2(b) order dated 5.6.2010. Ext. R2(c) dated 2.2.2010 is the sanction
for taking appropriate steps for land acquisition.
The acquisition authority then, forwarded all required documents along with a requisition in Form No. 2 stressing the need for acquiring land
invoking the urgency clause. Ext. R2(d) is the copy of the said requisition in Form No. 2. Considering all those letters sanction was accorded by
the Government to acquire the land invoking urgency provisions under the Fast Track Procedure and forwarded it to the third respondent District
Collector who in turn forwarded the urgency proposal for invocation of the urgency clause to the second respondent Land Revenue Commissioner
as per Ext. R2(e). In paragraph 4 of the counter affidavit it is stated that the requisition authority had informed the District Collector that invocation
of urgency clause is needed on account of the heavy intensity of traffic through Kanjirappally town and therefore, it is essential to invoke the
urgency clause for the construction of Kanjirappallay by-pass. According to the 2nd respondent, the proposal of the District Collector was
properly scrutinized before issuing Ext. P12.
In the counter affidavit filed by the fifth respondent, the Executive Engineer, Roads and Bridges Division, Kanjirappally, it is admitted that Ext.
P2 proposal was submitted earlier. The averments of the petitioner regarding the first proposal and the revised proposal to the extent of its
alignment, estimation and width of the road proposed, as per Ext. P2 and as per revised Ext. P3, were admitted. The reasons alleged by the
petitioner for changing the alignment as proposed in Ext. P2 have been refuted therein. It is stated therein that implementation of the original
alignment would affect the rubber plantations as also many residential plots. It is also specifically stated therein that in case of implementation of the
new alignment only three residential plots would be affected whereas implementation of the original alignment would affect several residential plots.
It is further stated therein that implementation of the original alignment would necessitate acquisition of properties of a prime Higher Secondary
School in the aided sector and further that the length of the by-pass as per the new alignment would be lesser than the originally proposed one. The
implementation of the project is required for averting the traffic congestion in the area and that the urgency clause was invoked after taking into
consideration of all the relevant aspects, it is stated therein.
The 7th respondent has in his counter affidavit stated that land acquisition proceedings have been initiated by respondents 1 to 6 for fulfilling the
long cherished dreams not only of the local people of Kanjirappally but also for satisfying the need of millions of devotees of Swami Ayyappa who
have to travel through Kanjirappally to reach Erumely and Sabarimala. It is specifically stated therein that the objections of the land owners and the
feasibility of the alternatively suggested route were duly considered and it was found not feasible and virtually impossible. It is stated therein that the
authorities concerned have considered all the relevant aspects involved and would be involving, in the acquisition and it was thereupon that they
had come to the subjective satisfaction of the need for invoking urgency clause. The project, if materialized, would satisfy the public purpose
including averting of traffic and transportation problems of the pilgrims to Sabarimala. It is stated that the present proposal is an outcome of
feasibility studies, discussions and deliberations. The learned counsel appearing for the 8th respondent submitted that the allegation of malafides
raised in the writ petition are too vague and in the absence of specific allegations the allegation of malafides is only to be discarded. By raising such
contentions respondents 2, 5 and 7 submitted that the writ petition is devoid of any merit and it is liable to be dismissed.
A reply affidavit has been filed by the petitioner to the counter affidavit filed by the second respondent. It is contended therein that the Land
Revenue Commissioner, the second respondent, issued Ext. P12 without due application of mind and the order itself would reveal that it was
issued in a mechanical way.
I have heard the learned counsel for the petitioner, learned Government Pleader for respondents 1 to 6 and the seventh respondent in person
and also the learned counsel for the 8th respondent.
A careful consideration of the contentions of the petitioner itself would reveal that he too, did not dispute the fact that the project in question
involves a public purpose. A bare perusal of the purpose of the project viz., to avoid traffic congestion in Kanjirappally town would undoubtedly
show that it is a public purpose and the right of the Government to acquire land for a public purpose cannot be disputed.
Evidently, there is change in the alignment, to certain extent, of the proposed by-pass in Ext. P2 proposal which stood revised as per Ext. P3 and
in Ext. P4 proposal. A perusal of the pleadings and the materials would reveal that the petitioner did not have a case that implementation of Ext. P4
proposal viz., the second proposal would render him landless or deprive him of his one and the only source of livelihood and/or of his shelter. He is
having 10 acres of agricultural land and implementation of Ext. P4 would result in acquisition of some extent from out of the said extent of property.
His attribution is that the first proposal was more feasible and less expensive whilst the respondents categorically contend that the new alignment is
more feasible and less expensive. It is specifically stated by the respondents that considerable study had been made prior to Ext. P4 proposal. I do
not think that this Court will be justified in making observations on the merits of the rival contentions at this stage in view of the order proposed to
be passed. At the same time, I would hasten to add that the project in question necessarily involves a public purpose, as found earlier. As noticed
hereinbefore, the involvement of public purpose in the matter of construction of the by-pass in question is not seriously disputed or challenged by
the petitioner himself. Thus, it is evident that the dispute confines only regarding the alignment of the by-pass to be constructed. It is in that context
that the petitioner contends that the dispensation of the enquiry u/s 5A of the Act by invoking the urgency clause u/s 17 of the Act was made solely
with a view to deprive the petitioner and other similarly situated persons likely to be aggrieved and adversely affected, of their invaluable right to
raise objections at the enquiry. Therefore, the question would precipitate into one aspect viz., whether invocation of the urgency clause while
dispensing with the enquiry u/s 5A is justifiable and sustainable as perhaps, such an opportunity of being heard might have persuaded the authorities
competent to have a reconsideration in the matter of alignment. I do not think it necessary to have a detailed survey on authorities to decide on the
said issues in view of the decision of the Hon''ble Apex Court in Sri Radhy Shyam (Dead) through L.Rs. and Others Vs. State of U.P. and Others,
. In that decision the Hon''ble Supreme Court reiterated the earlier view that eminent domain is a right inherent in every sovereign to take and
appropriate property belonging to citizens for public use. To put it differently, the sovereign is entitled to reassert its dominion over any portion of
the soil including private property without its owner''s consent provided that such assertion is on account of public exigency and for public good.
As noticed hereinbefore, in this case, there is no dispute with respect to the fact that the project is one for public purpose and public route. But,
then while considering the sustainability of the invocation of the urgency clause, certain aspects have to be looked into. In fact, on orders of this
Court, the entire files relating the proceedings whereby Section 5A enquiry was dispensed with were made available for perusal by the learned
Government Pleader.
Before adverting to the relevant material contained in the said files for deciding on the sustainability or otherwise of the invocation of the urgency
clause certain other relevant aspects have to be noted.
Admittedly, the original proposal viz., Ext. P2 was made on 1.3.2008.
That was subsequently revised as per Ext. P3 on 12.5.2008. The present proposal viz., Ext. P4 was made on 7.11.2008. Thereafter, Ext. P6
notification u/s 6(1) of the Kerala Survey and Boundaries Act was issued on 5.12.2009. Ext. P11 notification u/s 4(1) of the Act was issued more
than one year thereafter, i.e., on 20.12.2010.
Ext. P12 order u/s 17(4) of the Act was issued by the second respondent on 3.12.2010. In Ext. P12, letters dated 1.7.2010 and 26.8.2010 from
District Collector, Kottayam were referred to. Ext. P11 would reveal that the appointment of the Special Tahsildar was effected as per
Government order dated 28.11.2008. In this context, it is to be noted that when once a notification u/s 4(1) of the Act is issued, the time limit for
filing objections u/s 5A(1) is 30 days from the date of publication of such notification in a case where urgency clause is not involved and Section
5A enquiry is not dispensed with. True that, in terms of the provisions u/s 5A(2) the Collector is required to give opportunity of hearing to the
objector/objectors and then submit a report to the Government after making such further enquiry as he thinks necessary. Considering the extent of
the land sought to be acquired for the aforesaid purpose, it cannot be presumed that hearing of innumerable number of persons would be required.
In fact, it is nobody''s case. The Hon''ble Apex Court in Radhy Shyam''s case (supra) mentioned about the factors justifying invocation of the
urgency provisions. Acquisition of land is certainly a drastic procedure though the right of eminent domain of the sovereign is an inherent right with
every sovereign. At the same time, Section 5A of the Act embodies the rule of audi alteram partem and that is the only invaluable right which is
available to a person who is likely to be affected and aggrieved by a proposed acquisition of land. True that, Sections 17(1) and 17(4) confer
extraordinary power upon the State to acquire private land without complying with the mandate of Section 5A. However, exclusion of Section 5A
enquiry could be justified and sustained and only in such circumstances where the purpose of acquisition cannot brook the delay of even a few
weeks or months. In this case, Ext. P12 is under challenge on the ground that the second respondent issued Ext. P12 in a mechanical manner
without any application of mind regarding the existence of real urgency and for the necessity of invoking the urgency clause for dispensing with the
invaluable right u/s 5A, invoking the power u/s 17(4) of the Act.
The petitioner assails Ext. P12 and the invocation of the urgency clause and dispensing with Section 5A enquiry in the matter of acquisition of
land for the purpose of construction of Kanjirappally bypass on the aforementioned grounds and the respondents sought to sustain the same
contending that there is absolute absence of malafides, existence of real urgency and the circumstances justify invocation of the powers u/s 17(4)
and dispensation of enquiry u/s 5A, of the Act. Though Section 17(4) of the Act empowers acquisition of private land without complying with the
mandate of Section 5A of the Act there can be little doubt that the said power is neither unbridled nor unguided for the simple reason that the
section itself obliges for forming an opinion about the urgency in taking decision. A scanning of Ext. P12 order of sanction does not disclose
application of mind by the Commissioner to form such an opinion as is obliged to form in view of the provisions u/s 17(4). It is also to be noted
that there is no indication whatsoever in the counter affidavit filed by the second respondent as regards the application of mind by the
Commissioner while issuing Ext. P12 order in the manner enjoined u/s 17(4) of the Act. The respondents, more particularly the 7th respondent,
submitted that a detailed discussion of circumstances or assignment of reasons for forming such an opinion is not required to be reflected in an
order passed in exercise of the powers u/s 17(4). Though the recital in Ext. P12 order or in the counter affidavit do not state as to how the opinion
was found on the need to dispense with the enquiry u/s 5A of the Act, taking note of the contentions raised by the petitioner as also the
respondents, this Court directed for production of the records relating to the decision that culminated in Ext. P12 order.
Entry Nos. 7 and 8 in page No. 1 of the said file bearing No. LR(C)330534/10 are relevant which read thus:-
Whether order of the Commissioner of Land : Revenue is sought u/s 17(4) to Yes. dispense with the objection hearing u/s. 5A.
If so, have sufficient reasons been adduced : to show such urgency that it cannot wait for even a couple of months for completing the objection
hearing u/s. 5A which is a valuable right of the persons interested.
Page No. 263 is the forwarding letter bearing No. G2-56040/09 dated 26.08.2010 from the District Collector, Kottayam addressed to the
Commissioner, Land Revenue Commissionerate, Thiruvananthapuram.
Along with the same an urgency clause proposal was also forwarded.
Page No. 265 of the file is the form for requisition for acquisition of land whereon Sl. Nos. 5(b) and 5(c) read thus:-
5(a) ....
(b). Whether it is necessary to take : Yes. Administrative possession of the land in advance sanction for the work by invoking the urgency clause is
only for a period of u/s 17 of the land 2 years. acquisition Act.
(c). If so the special reasons to be : Due to the heavy intensity given in a detailed manner as of traffic through Kanjirap - possible to enable the
government pally Town, the construction of to decide upon the question. Kanjirappally bye-pass is very essential to avoid traffic block in
Kanjirappally Town.
At the same time, page No. 285 of the said file carrying the endorsements dated 14.10.10 would reveal that along with the said proposal
circumstances and the required documents revealing urgency were not appended with. The endorsement therein by the second respondent virtually
attributed lack of careful scrutiny in the matter at the office of the third respondent. Evidently, even after receiving the subsequent letters and details
from the third respondent the second respondent seems to have maintained the view of lack of proper scrutiny and laches and the failure to bring in
the relevant materials revealing urgency. Page No. 299 of the record carries the reply sent by the third respondent to the second respondent to the
effect that from his office reports after curing the defects were sent on 18.11.10.
It is after the letter dated 20.11.2010 at page No. 299 of the records referred earlier, that the impugned order viz., Ext. P12 was passed in
exercise of power u/s 17(4) of the Act dispensing with the provision for hearing of objection u/s 5A in respect of the acquisition of the land, the
survey numbers of which are given thereunder. As noticed hereinbefore, the Land Revenue Commissioner had been repeatedly calling for special
reasons for invocation of urgency clause to dispense with the enquiry u/s 5A and except the reason stated in Form No. 2 at page 265 of the
records viz., heavy intensity of traffic through Kanjirappally Town, no other reasons seems to have been brought to the notice to enable him to
decide upon the question whether the urgency clause u/s 17(4) should be invoked or not. In fact, it is after receiving the letter dated 26.8.2010 and
the urgency clause proposal carrying the aforementioned reasoning that the Commissioner called for such details. What are the materials and the
special reasons assigned thereafter for enabling the Commissioner to form the opinion that the urgency clause should be invoked, in respect of the
acquisition in question, dispensing with Section 5A enquiry ? As stated earlier, there is no indication either in the impugned Ext. P12 order or in the
affidavit filed to sustain the same regarding the circumstances or materials that enabled the Commissioner to form such an opinion. What are the
circumstances or materials that were taken into consideration by the Government to form the opinion to dispense with enquiry and to acquire the
land under Fast Track Procedure, are also not forthcoming. Even if it is taken that in an order passed granting sanction for dispensing with Section
5A enquiry in exercise of the powers u/s 17(4) it is not incumbent to assign reasons therefor, there can be little doubt that the reasons therefor are
liable to be revealed when it is called in question before a court. The respondents should have indicated such reasonings at least in the counter
affidavit filed to support and sustain Exts. P11 and P12. The records relating to the order in Ext. P12 would not disclose existence of any special
reasons that enabled the Commissioner to form such an opinion to pass an order dispensing with the enquiry u/s 5A in exercise of the powers u/s
17(4) of the Act. If it is taken that the intensity of the traffic at Kanjirappally town was the special reason taken for dispensing with Section 5A
enquiry I am afraid, that cannot be the reason for dispensing with Section 5A enquiry. The only invaluable right that is available to those who are
aggrieved by the proposal for acquisition u/s 5A cannot be deprived of unless the circumstances to form an opinion to dispense with such an
enquiry as contemplated either u/s 17(1) or u/s 17(4) exists.
In this case, it is in exercise of Section 17(4) that the order was passed and there is absolutely no indication at all that materials or circumstances
enabling to form such an opinion existed at the time of issuance of Ext. P12 in exercise of powers u/s 17(4) and to dispense with the provision for a
hearing of objections u/s 5A of the Act. It is also to be noted that it is not the mere existence of an urgency that would empower him to pass an
order dispensing with the enquiry u/s 5A. Before passing such an order it is incumbent on the authority passing such an order to consider the need
for dispensing with an enquiry in spite of the existence of such emergency, in the light of the decision in Radhy Shyam''s case (supra).
Another factor also assumes relevance in the context of the challenge against Ext. P12. It is evident from the proceedings referred to earlier that the
order of sanction for dispensing with the enquiry u/s 5A was passed in exercise of the power u/s 17(4) of the Act only months after the proposal.
As noticed earlier, after the issuance of a notification u/s 4(1), in usual circumstances where Section 5A enquiry was not dispensed with, objection,
if any, has to be preferred within 30 days. Considering the extent of land proposed to be acquired it cannot be said that hearing of innumerable
number of persons are required in the case on hand.
Considering the entire circumstances, including the fact that the proposal is of the year 2008, it cannot be said that the acquisition in question
cannot brook a delay even of a few weeks or months for the purpose of conducting Section 5A enquiry. If that be so, there is no reason for not
conducting an enquiry u/s 5A of the Act to enable the persons who would be aggrieved by the acquisition to raise their objections. In the said
circumstances, while upholding the contention of the respondents that the acquisition is for a public purpose, I am inclined to accept the contention
of the petitioner that no circumstance warranting dispensation of the provision for hearing of objections u/s 5A in exercise of the power u/s 17(4) of
the Act exist in the case of the acquisition in question. In the result, Exts. P11 and P12 are set aside and the writ petition is allowed to said extent.
However, it is made clear that the respondent authorities shall be free to proceed from the stage of Section 4 notification and to take appropriate
action after complying with the provisions under Sections 5A(1) and (2) of the Act. It is also made clear that this Court has not made any
observation with regard to the feasibility of making further change in the alignment as contended by the petitioner. It is a matter to be gone into by
the competent authority after hearing the objections and in accordance with law.