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2013 DIGILAW 809 (KER)

C. M. Paul v. C. G. Thilakan

2013-09-11

K.VINOD CHANDRAN, MANJULA CHELLUR

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Judgment : Manjula Chellur, CJ. 1. Respondents 1 to 6 appear through Sri. Abraham K John. Sri P.A Ahamed appears for 7th respondent Municipality. Learned Government Pleader takes notice for respondents 9 and 10. No notice is required for 8th respondent since, he did not appear before the learned Single Judge, inspite of service of notice. 2. The respondents 1 to 6 herein were the writ petitioners before the learned Single Judge, and the appellant herein was the 2nd respondent. The writ petitioners approached the learned Single Judge seeking the following reliefs: a. issue a writ of mandamus or any other appropriate writ, order or direction directing the 1st and 4th respondents to ensure that the 2nd respondent is not making any construction of compound wall in violation of Ext.P3 order passed by the 1st respondent's Municipality. b. issue a writ of mandamus or any other appropriate writ, order or direction directing the 1st respondent to take immediate action on Ext.P4 compliant filed by the petitioners before the 1st respondent. c. pass such other order or direction as deem fit to the facts and circumstances of the case. 3. It is not in dispute that the writ petitioners are the residents of the locality where the appellant-respondent is also residing. It is also not in dispute that the appellant intended to put up a compound wall around his property which became the grievance of the writ petitioners on the ground that the said compound wall would obstruct the ingress and egress to their properties. It is also not in dispute that Ext.P3 is a notice from the respondent Municipality, addressed to the appellant opining that the re-construction of the wall undertaken by him was illegal for want of sanction of the Municipality. According to the petitioners and the learned Government Pleader, before the learned Single Judge, under Land Acquisition Act, notification under Section 4(1) of the Act came to be published on 25.5.2013 and the same did appear in local dailies on 26.5.2013. Hence the proceedings have to be concluded with the final declaration under Section 6(1) of the Act. The notifying authority has one year's time to notify final declaration under Section 6(1) from 25.5.2013. As a matter of fact, acquisition of land was never the subject matter raised by the writ petitioners. Hence the proceedings have to be concluded with the final declaration under Section 6(1) of the Act. The notifying authority has one year's time to notify final declaration under Section 6(1) from 25.5.2013. As a matter of fact, acquisition of land was never the subject matter raised by the writ petitioners. The only grievance was that if compound wall is reconstructed by the appellant, it would obstruct ingress and egress to their properties. In other words, the contention impliedly refers to a right of easement or other civil rights. We fail to understand how such a factual situation could be adjudicated in a proceeding under Article 226. That apart, in the absence of invoking emergency clause under acquisition proceedings the proceedings have to be in accordance with the procedure contemplated under the Act which includes final notification under Section 6(1) within the time prescribed. An enquiry is envisaged under Section 5A of the Act, and this Court cannot bypass such enquiry. 4. The learned Single Judge, relying on the submissions of the petitioners that the acquisition involves urgent work and needs to be completed immediately without delay, proceeded to grant relief unconnected with the subject matter raised in the writ petition, ignoring totally, the contents of Ext.P3 which has challenged in the Writ Petition. If the concerned authority is directed to complete the acquisition proceedings within three months, it is nothing but, cutting short the procedure contemplated under the LA Act, when acquiring authority has not invoked emergency clause under the Act. Therefore, the direction given by learned Single Judge to conclude acquisition proceedings withing three months is without any justification and deserves to be set aside. 5. From the arguments, we note, subsequent to Ext.P3 being served on the appellant, a provisional order under Section 406 of the Kerala Municipality Act, came to be passed, to which, already an explanation is submitted as per the submissions of learned counsel for th appellant. Such proceedings have to take its own course ending with some action on the part of the Municipality. It is up to the Municipality concerned, either to accept the explanation, or to reject the same. In the absence of such direction taken, except asking the Municipality to take recourse to suitable action, if the reconstruction is illegal, writ petitioners had no business to insist upon expedition of the acquisition proceedings. It is up to the Municipality concerned, either to accept the explanation, or to reject the same. In the absence of such direction taken, except asking the Municipality to take recourse to suitable action, if the reconstruction is illegal, writ petitioners had no business to insist upon expedition of the acquisition proceedings. In the light of the above findings, we set aside the judgment of the learned Single Judge reserving liberty to the petitioners to approach the appropriate forum, or prosecute such proceeding if already resorted to, we do not find any merit in the writ petition. We set aside the impugned judgment and the Writ Appeal is allowed without costs.