IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 16TH MARCH 2010 / 25TH PHALGUNA 1931 WP(C).No. 11785 of 2008(C) ----------------------------------------- PETITIONER(S): ------------------------ MATHEW XAVIER, S/O.MATHEW, RESIDING AT MOOLAYIL, VAZHAPPALLY, CHANGANACHERRY. BY ADVS. MR.K.JAYAKUMAR, MR.R.SURAJ KUMAR. RESPONDENT(S): --------------------------- 1. SECRETARY TO GOVERNMENT, STATE OF KERALA, LOCAL ADMINISTRATION (R.C.) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. SECRETARY TO GOVERNMENT, STATE OF KERALA, INDUSTRIES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, KOTTAYAM. 4. THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, KOTTAYAM. 5. THE VAZHAPPALLY GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, KURISUMMAL POST, CHANGANACHERRY. 6. SHRI.M.C.ANTONY, PRESIDENT, VAZHAPPALLY GRAMA PANCHAYAT, KURISUMMAL POST, CHANGANACHERRY. R1 TO R4 BY GOVERNMENT PLEADER MR.V. MANU R5 BY ADV.MR.P.KURUVILLA JACOB R6 BY ADVS.MR.V.G.ARUN, MR.T.R.HARIKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.11785/2008 C APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE NOTIFICATION S.R.O.NO.929/01 ISSUED BY THE GOVERNMENT OF KERALA, INDUSTRIES (F) DEPARTMENT DTD.8/10/2001. P2: COPY OF G.O.(S) NO.188/2008/LSG ISSUED BY THE GOVERNMENT DTD. 21/08/2008. P3: COPY OF THE REQUEST MADE BY THE PETITIONER BEFORE RESPONDENT NO.5 DTD. 14/02/2008. P4: COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE RESPONDENT NO.1 DTD. 26/02/2008. P5: COPY OF THE LETTER NO.C1-184/087 SENT TO THE PETITIONER BY RESPONDENT NO.5. DTD. 14/03/2008. P6: COPIES OF THE RECEIPTS DTD. 5/03/2008. P7: COPY OF THE LETTER SENT BY THE PETITIONER DTD. 12/05/2008. P8: COPY OF THE LETTER ISSUED BY RAJAGIRI COLLEGE OF SOCIAL SCIENCES TO THE PETITIONER DTD. 20/05/2008. P9: COPY OF THE LETTER FROM KERALA WATER AUTHORITY, CHANGANASSERY DTD. 16/06/2008. P10: COPY OF THE LETTER SENT BY ADVOCATE JOSHY K.JOSEPH DTD. 5/05/2008. P11: COPY OF THE LETTER SENT BY VAZHAPPALLY GRAMA PANCHAYAT DTD. 5/06/2008. P12: COPY OF THE LETTER DTD. 6/08/2008. P13: COPY OF THE PRESS RELEASE DTD. NIL. P14: COPY OF THE JUDGMENT IN WPC.NO.20859/2008 G DTD. 23/07/2008. P15: COIPY OF THE ORDER IN WPC.NO.2201 OF 2008 K DTD. 30/07/2008. Kss ..2/- ..2... WPC.NO.11785/2008 C P16: COPY OF THE APPLICATION FILED BEFORE THE VAZHAPPALLY GRAMA PANCHAYAT DTD. 5/05/2008. P17: COPY OF THE COMMUNICATION NO.C1-501 ISSUED BY THE VAZHAPPALLY GRAMA PANCHAYAT DTD. 23/06/2008. P18: COPY OF THE NOTICE ISSUED TO THE PETITIONER DTD.13/02/2008. P19: COPY OF THE PROHIBITION ORDER NO.262/08 ISSUED TO THE WIFE THE PETITIONER DTD. 24/04/2008. P20: COPY OF THE PROHIBITION ORDER NO.262/08 ISSUED TO SRI. SANTHOSH.J. DTD. 24/04/2008. P21: COPY OF THE LETTER NO.B4/1204/08 ISSUED BY THE DISTRICT INDUSTRIES CENTRE, KOTTAYAM DTD. 25/08/2008. RESPONDENT'S EXHIBITS: R4(A): COPY OF THE MINUTES OF THE MEETING OF THE CLEARANCE BOARD ON 25/06/2009. R4(B): COPY OF THE COMMUNICATION NO.9026/F2/2008/IND DTD.10/06/2008. R5(A): COPY OF THE RESOLUTION NO.2(1) DTD. 1/1/2008. R5(B): COPY OF THE ORDER NO.G1-448/08/K.DIS. DTD. 17/01/2008. R5(C): COPY OF THE LETTER NO.C2-232/07 DTD. 16/01/2008. R5(D): COPY OF THE FEASIBILITY CERTIFICATE ISSUED BY THE ASST. EXECUTIVE ENGINEER. R5(E): COPY OF THE LETTER NO.C2-41/08 DTD.22/01/2008. R5(F): COPY OF THE LOCATION PLAN. R5(G): COPY OF THE CHALAN NO.454 DTD. 10/03/2008. R5(H): COPY OF THE LETTER NO.420/2008 DTD. 27/02/2008. R5(I): COPY OF THE LETTER NO.B4-2019/2002 DTD. 19/03/2008. Kss ..3/- ...3.... WPC.NO.11785/2008 C R5(J): COPY OF THE REPORT DTD. 7/09/06 OF THE RETIRED SUPERINTENDING HYDROGEOLOGIST, GROUND WATER DEPARTMENT, PATTOM P.O., TRIVANDRUM ISSUED TO VAZHAPPALLY GRAMA PANCHAYATH REGARDING THE INVESTIGATION OF THE CAPACITY OF THE WATER STORAGE AND ACCUMULATION OF WATER TO THE POND AND ITS PREMISES AT CHETHIPUZHA, CHANGANACHERRY. R5(K): COPY OF THE LETTER DTD. 10/06/08 OF THE SECRETARY TO THE DEPARTMENT OF INDUSTRIES AT TRIVANDRUM RECENTLY COMMUNICATED TO THE PRESIDENT OF VAZHAPPALLY GRAMA PANCHAYATH. R5(L): RECENT PHOTOGRAPH OF PETITIONER'S P;OND AND ADJOINING LAND, WHICH ARE SELECTED FOR IMPLEMENTING “MOOLAYIL WATER SUPPLY SCHEME” PROPOSED BY VAZHAPPALLY GRAMA PANCHAYATH. R5(M): COPY OF THE 5TH RESPONDENT'S LETTER DTD. 3/1/08 COMMUNICATED TO PETITIONER. R7(A): COPY OF THE FEASIBILITY REPORT. R7(B): COPY OF THE ORDER PASSED BY THE PRINCIPAL SECRETARY DTD. 25/06/2009. /TRUE COPY/ P.S.TO JUDGE Kss ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.11785 OF 2008 (C) -------------------------------------------------- Dated this the 16th day of March, 2010 J U D G M E N T Reliefs sought in this writ petition are to quash Ext.P2 order and to direct the first respondent to consider and dispose of Ext.P4 representation made by the petitioner and to restrain the respondents 5 and 6 and their men and agents from collecting monies from the public for the Moolayil Drinking Water Scheme. 2. Briefly stated, the facts of the case are that, an extent of 12.69 acres of land in Sy. Nos.49/1,2,198/2,198/1,199 and 195/1 of Chethipuzha Village, belonging to the petitioner has been declared as a private industrial estate by Ext.P1 notification issued under Section 5 of the Kerala Industrial Single Windows Clearance Boards and Industrial Area Development Act, 1999 (here-in-after referred to as the 'Act of 2000'). 3. It would appear from Ext.P8 report submitted by the Rajagiri College of Social Sciences, that the respondent Panchayat was looking out for ways and means to solve the water shortage in the Panchayat and engaged the said college to conduct a feasibility study of a water supply project to be implemented by WPC.No. 11785/08 :2 : utilizing water source from a pond identified by the Panchayat. Accordingly the college conducted studies and submitted Ext.P8 report. Based on Ext.P8, in order to implement the water supply scheme, the respondent Panchayat passed Ext.R5(a) resolution dated 1.1.08, resolving to initiate proceedings for the acquisition of 93.97 ares of land situated in Sy. No.195/1 of Chethipuzha Village which is a part of the industrial estate, notified in Ext.P1. It would appear that as required under the Kerala Panchayat Raj Act, the proposal was placed for the consideration of the Deputy Director of Panchayats, who by Ext.R5(b) proceedings dated 17.1.2008, recommended the proposal, after conducting an inspection of the site identified by the Panchayat. 4. On the strength of the above, the Panchayat submitted Ext.R5(c) representation to the Government, enclosing Ext.R5(d), the Feasibility Certificate issued by the Assistant Executive Engineer of the Kerala Water Authority. By this, the Government was requested to accord sanction to initiate proceedings under the Land Acquisition Act for acquiring the property for the purpose of the Water Supply Project. Government considered the request and passed Ext.P2 order dated 21.8.2008, according WPC.No. 11785/08 :3 : administrative sanction for the acquisition of the property, subject to the conditions mentioned therein. One of the conditions incorporated in Ext.P2 order is that the Government will have no financial commitment in the project. Pursuant to the above, by Ext.R5(e), Panchayat requested the District Collector to initiate acquisition proceedings. Along with Ext.R5(e), the Panchayat enclosed its request in form No.2 and a sketch, a copy of which is Ext.R5(f). 5. It would appear that, at that stage, petitioner submitted Ext.P3 application to the Panchayat, complaining that without notice to him or obtaining his permission, officials of the Panchayat entered his property and therefore, petitioner wanted to know on what basis it was done. Immediately, thereafter the petitioner submitted Ext.P4 to the Secretary to the Government objecting to the proceedings that are to be initiated for acquisition of the property. In reply to Ext.P3, Panchayat issued Ext.P5 confirming that they visited the property in pursuance to their proposal for establishment the water supply project. Petitioner also states that the Panchayat also started collection of money from the public and Ext.P6 receipts are produced in WPC.No. 11785/08 :4 : support of this contention. It is in this background that this writ petition is filed with the prayers mentioned earlier. 6. The main contention raised by the counsel for the petitioner is that Ext.P2 order has been issued without application of mind and on irrelevant considerations. Yet another contention raised is that, Ext.P2 order has been issued without consulting the Industries Department or the State Board constituted under Ext.P1 notification issued under Act 2000 referred to above. 7. The contention that Ext.P2 order was passed without any application of mind has been raised by the counsel for the petitioner, mainly relying on Ext.P8 report of Rajagiri College and Ext.R5(a),(b) and Ext.P2 itself. In Ext.R5(a) resolution passed by the Panchayat, it has been stated that the project will be to the benefit of approximately 12680 households in the Panchayat. This number is reiterated in Ext.R5(b) recommendation made by the Deputy Director of Panchayat. In Ext.R5(c), it is stated by the Panchayat that the project will be beneficial to the residents of 20 wards of the Panchayat. According to the petitioner, these documents also indicated that the total project cost as conceived by the Panchayat is only Rs.7,7 lakhs. It is pointed out that, as WPC.No. 11785/08 :5 : against this, in Ext.P8, the Feasibility report submitted by the Rajagiri Collage of Social Sciences itself, it is stated that the project area covers only 10 wards of Vazhappally Grama Panchayat and that the population of the Panchayat is 22479 and the number of households benefited the project is 3740. It is also pointed out that the project cost as envisaged in Ext.P8 is Rs.400 lakhs and not 7.70 lakhs as mentioned in the records of the Panchayat on the basis of which Ext.P2 order was obtained. 8. Counsel therefore submits that the area which is covered by the water supply scheme, the number of beneficiaries of the scheme, the project cost as mentioned in Ext.P8 substantially varies from what is indicated in Ext.R5(a) and (b), based on which administrative sanction was granted by Ext.P2 order. On this basis, it is argued that Ext.P2 reflects total non application of mind and therefore Ext.P2 requires reconsideration with notice to petitioner. According to the Panchayat, figures as reflected in Ext.P8 report of Rajagiri college of Social Science are based on 2001 census and the numbers have gone up substantially for the period subsequent thereto. It is contended that it is therefore that the figures vary in the documents of the Panchayat and WPC.No. 11785/08 :6 : Ext.P8. According to them, Rs.7.70 lakhs, is only the cost of the land and not the entire project cost. 9. First of all, I must say that, by Ext.P2 order, all that has been done by the Government is that administrative sanction for the acquisition of land for establishment of water supply scheme of the respondent Panchayat has been accorded. The Land Acquisition Act does not contain any provision requiring an order in the nature of Ext.P2 for initiating a land acquisition proceedings. Therefore, an order in the nature of Ext.P2, is purely an administrative order. Even when land acquisition proceedings are finally sought to be initiated, such proceedings can be successfully challenged only on limited grounds, such as cases where the purpose for which the land is acquired is not a public purpose or that acquisition proceedings are initiated for mala fide reasons or cases where there is colourable exercise of power. In this case, the purpose of the scheme is to provide drinking water to the residents of the respondent Panchayat. Not even the petitioner has raised a plea that a scheme for water supply is not a public purpose. Then what remains is whether the petitioner has succeeded in establishing that the proceedings WPC.No. 11785/08 :7 : are vitiated for mala fides. No specific plea of mala fides has been raised by the petitioner against anyone of the respondents. In such a case in my view, this ground is also not available to the petitioner. The plea of colourable exercise of power can be raised in cases where power is exercised for purposes other than for what is conferred or ostensibly exercised. This situation is also absent in this case. If that be so, I am not persuaded to invalidate Ext.P2, on the ground that there is a slight variation in the number of beneficiaries of the water supply project or that there is variation in the project costs that is conceived by the Panchayat. In this context, I should also take note of the contention of the Panchayat that the cost indicated by it is not the cost of the project itself, but is the costs of land alone. Therefore, I do not find any reason to invalidate Ext.P2 on the ground of non- application of mind or on the ground that it is passed on irrelevant considerations etc. as contended by the counsel for the petitioner. 10. Then what remains is the other contention of the counsel for the petitioner that there was no consultation with the Industries Department or Board constituted by Ext.P1 WPC.No. 11785/08 :8 : Government Order before issuing Ext.P2 order. It is true that the land proposed to be acquired has been notified as a private industrial estate in terms of the provisions of Act,2000. However, either in the Act 2000 or in any other enactment, is there any provision excluding such private industrial estates from the purview of the Land Acquisition Act. The petitioner also could not show me any provision requiring consultation as contended by him. If that be the case, petitioner cannot contend that the land acquired is notified under Act, 2000 and therefore, should not be acquired without consulting the Industries Department or the Board. If that be so, proceedings initiated under the provisions of the Land Acquisition Act will not be invalidated on the ground that such proceedings have been initiated without consulting the Industries Board or the Board constituted under Section 5 of the Act, 2000. Therefore this ground also is not available to the petitioner. Therefore the aforesaid grounds urged by the counsel for the petitioner do not impress me to invalidate Ext.P2 and to require the first respondent to consider Ext.P4 representation filed by the petitioner. WPC.No. 11785/08 :9 : 11. It was pointed out by the counsel for the petitioner that, if what the Panchayat wants is to provide water to the residents of the Panchayat, the petitioner is willing to supply water to the Panchayat and is also prepared to negotiate with the Panchayat about the rate at which such supply is to be made. However in the additional counter affidavit, Panchayat has come out with a story that when the matter was discussed with the petitioner, it came to know that the project conceived by the petitioner is to establish a mineral water project and from such project it will not be possible for the petitioner to supply water to the entire residents of the Panchayat. Here is a case where the Panchayat wants to implement a project of its own for the water supply to the residents of the Panchayat. When an offer is made by the petitioner to supply water, it is up to the Panchayat to examine the offer and decide as to whether such offer should be accepted or not. From the affidavit filed by the Panchayat it appears to have considered the offer and was satisfied that it will not be possible for the petitioner to supply water to satisfy the drinking water needs of the residents of the Panchayat. In such a case unless this court is satisfied that the decision of the Panchayat is WPC.No. 11785/08 :10 : vitiated for arbitrariness or mala fides, this court will not be justified in forcing the Panchayat to accept the offer made by the petitioner. On the materials available I am unable to reach any conclusion vitiating the view taken by the Panchayat. In such situation, I am not in a position to require the Panchayat to accept the offer made by the petitioner. In the result I do not find any merit in the challenge against Ext.P2. Writ petition fails and is dismissed. However, it is clarified that the findings in this judgment will not be to the prejudice of the petitioner in urging this contentions, which he may have, as and when any notification under Section 4(1) of the Land acquisition Act is issued. (ANTONY DOMINIC) JUDGE vi/ WPC.No. 11785/08 :11 :