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2006 DIGILAW 438 (KER)

Gopakumar v. M. VS State of Kerala

2006-07-18

THOTTATHIL B.RADHAKRISHNAN

body2006
JUDGMENT Thottathil B. Radhakrishnan, J. 1. Petitioner challenges Ext. P1 notification under the Land Acquisition Act, 1894, (hereinafter referred to as the Act, for short). The acquisition is stated to be for the public purpose of the development of Thirunavaya Navamukunda Temple and parking place for the same. 2. Before proceeding further to consider the grounds of challenge, it is apposite to note that the petitioner had challenged the acquisition in question before this Court by filing WP (C) No. 23652 of 2003. That found its Waterloo in Ext. R2(A) judgment, dated 30/07/2004. Though he filed a writ appeal and later sought leave to withdraw the appeal, leave was not granted and appeal was dismissed as withdrawn, as is evident from Ext. R2(B). The acquisition did not, however, proceed further. Therefore the second respondent moved this Court by filing WP (C) No. 19258 of 2006. That led to Ext. R2(C) judgment which was confirmed as per Ext. R2(D) judgment in WA No. 492 of 2006. Notwithstanding the above, the learned counsel for the petitioner urges that the issue raised is virgin, inasmuch as, it was never urged earlier. The petitioner, having challenged the acquisition in the writ proceedings that led to Exts. R2(A) and R2(B) judgments, whatever would be his contentions against the acquisition, all such contentions are concluded on grounds of res judicata, including that of constructive res judicata, a principle founded on public policy. Such principle eminently applies to this case. So much so, the challenge of the petitioner is only to be rejected. 3. Be that as it may, now, on to the merits of the plea raised. 4. It is contended by the petitioner that the term public purpose� as defined in S.3(f) of the Act does not conceive of any purpose as that reflected in Ext. P1, as a public purpose. It is urged that the different purposes that could be treated as public purposes are defined in the said provisions and the requirement of a temple and or its precincts or the development of a temple or the provision of a parking place are not public purposes within the format of S.3(f) of the Act. It is accordingly urged that the acquisition is without the sanction of law and therefore void. 5. The expression public purpose� is defined in S.3(f) of the Act by means of inclusive definition. It is accordingly urged that the acquisition is without the sanction of law and therefore void. 5. The expression public purpose� is defined in S.3(f) of the Act by means of inclusive definition. The different categories enumerated therein as (i) to (viii) are not exhaustive. They are only matters which the Legislature chose to enumerate, obviously, being aware of its limitations to contemplate all situations, needs and purposes that would arise with the passage of time, as a public purpose, which may be even beyond comprehension at the time the legislation is being made. This is the very purpose of the use of the term includes� in the opening paragraph of clause (f) of S.3 of the Act. Being an inclusive definition, it is up to the wisdom of the Government to decide as to what is the public purpose, having regard to the broad parameters that would be available. Such issue will also depend upon the local requirement, need, change in times, the context and other matters that would go into the decision making process. 6. Viewed in any angle, the need to provide more space for Thirunavaya Navamukunda Temple and also parking place in relation to the said temple cannot be treated as away from the scope of the definition public purpose as defined in the Act. In this view of the matter, I do not find any ground to uphold the contentions of the petitioner. In view of the aforesaid findings, the writ petition fails. It is accordingly dismissed.