IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 12TH MAY 2009 / 22ND VAISAKHA 1931 WP(C).No. 8084 of 2007(K) ------------------------------- PETITIONER: -------------- DR.SREEDHAR KAVIL, KAVIL HOUSE, GURUVAYOOR, REPRESENTED BY THE POWER OF ATTORNEY HOLDER, MINI MENON, W/O.DEVAN MENON, 206, ROYAL HERITAGE, BANGALORE - 83. BY MR.KURIAN GEORGE KANNAMTHANAM, SENIOR ADVOCATE. MR.K.R.RAJKUMAR, ADVOCATE. MR.TONY GEORGE KANNANTHANAM, ADVOCATE. RESPONDENTS: ------------------ 1. STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY, REVENUE (DEVASWOM DEPARTMENT), TRIVANDRUM. 2. THE DISTRICT COLLECTOR, TRICHUR. 3. GURUVAYOOR DEVASWOM, REPRESENTED BY ITS ADMINISTRATOR, GURUVAYOOR. 4. GURUVAYOOR DEVASWOM COMMISSIONER, GURUVAYOOR. 5. THE PRINCIPAL, SREE KRISHNA HIGHER SECONDARY SCHOOL, GURUVAYOOR. ADDL. RESPONDENTS 6 & 7 IMPLEADED: ADDL. R6: K.V. RAVEENDRAN, S/O. VASU, KURUMBOOR HOUSE, ORUMANAYOOR, THRISSUR - 680 512. WP(C).No. 8084/2007 ...2... ADDL. R7: C.I. GEORGE, S/O. ITTICHAN, CHAZHOOR HOUSE, KOONAMMOOCHI VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT ARE IMPLEADED AS ADDL. RESPONDENTS 6 & 7 AS PER ORDER DT.9.4.07 IN I.A. 5029/07. BY MR.P.V.CHANDRA MOHAN, ADVOCATE, FOR R5. MR. BASANT BALAJI, SR.GOVERNMENT PLEADER FOR R1 & R2 MS.T.D.RAJALAKSHMI, ADVOCATE, FOR R3 & R4 MR.E.R.VENKATESWARAN, ADVOCATE, FOR R3 & R4 MR.A.SURESAN, ADVOCATE, FOR R3 & R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/09/2008, ALONG WITH WP(C) No.9974 OF 2008, THE COURT ON 12/05/2009 DELIVERED THE FOLLOWING: WP(C).No.8084/2007 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF LETTER DTD. 18.1.2008 ISSUED FROM THE 1ST RESPONDENT. EXT. P2 : COPY OF REPRESENTATION DTD.9.2.2006 FROM THE PETITIONER TO THE MINISTER OF DEVASWOM BOARD. EXT. P3 : COPY OF BUILDING PERMIT DTD.28.2.2006 ISSUED TO THE PETITIONER. EXT. P4 : COPY OF GOVERNMENT ORDER DTD.7.4.2006 OF REVENUE (DEVASWOM) DEPARTMENT. EXT. P5 : COPY OF COUNTER AFFIDAVIT DT.10.7.2006 FILED IN W.P.(C) 12472/06 OF THIS HON'BLE COURT. EXT. P6 : COPY OF LETTER DTD.9.9.2005 TO THE 3RD RESPONDENT. EXT. P7 : COPY OF THE DECISION OF THE GOVERNING BOARD OF THE DEVASWOM DTD. 27.11.2005. EXT. P8 : COPY OF PROCEEDINGS DTD.28.12.2005 OF THE 4TH RESPONDENT. EXT. P9 : COPY OF COVERING LETTER DTD.17.4.2006 TO THE 2ND RESPONDENT. EXT. P10 : COPY OF FORM OF REQUISITION FOR ACQUISITION OF LAND UNDER THE KERALA LAND ACQUISITION ACT. EXT. P11 : COPY OF JUDGMENT DTD. 22.8.2006 IN W.P.(C) No.12472/06 OF THIS HON'BLE COURT. EXT. P12 : COPY OF ORDER No.553/2007/RD DTD.7.2.2007 OF THE REVENUE (DEVASWOM) DEPARTMENT. RESPONDENT'S EXHIBITS: NIL. EXT. R6(a) : COPY OF REPRESENTATION DTD. 3.4.06 SUBMITTED BY THE PRINCIPAL TO THE ADMINISTRATOR, GURUVAYOOR DEVASWOM. EXT. R6(b) : COPY OF SKETCH. WP(C).No.8084/2007 EXT. R6(c) : COPY OF THE REPRESENTATION DT.30.11.06 SUBMITTED BY THE PRINCIPAL OF THE SCHOOL TO THE GOVERNMENT. // True Copy // P.S. to Judge. smp PIUS C. KURIAKOSE, J. ----------------------------------------------------------------- W.P.(C)Nos. 8084 of 2007 & 9974 of 2008 ------------------------------------------------------------------- Dated this the 12th day of May, 2009 JUDGMENT Writ petition No.8084/2007 under Article 226 is filed by Dr. Sreedhar Kavil, who owns 64 cents of land near Sree Krishna Higher Secondary School, Guruvayur challenging the proceedings initiated for acquisition of his land invoking the urgency provisions of the Land Acquisition Act. The first respondent is the State represented by the Principal Secretary, Revenue, the 2nd respondent is the District Collector, Thrissur, the 3rd respondent is the Guruvayoor Devasom Board, the 4th respondent is the Guruvayoor Devaswom Administration Commissioner, the 5th respondent is the Principal of Sree Krishna Higher Secondary School. Additional respondents 6 and 7 are respectively one Sri.K.V.Raveendran and Sri.C.I.George, who are said to be a President and Executive Committee member of the WP(C)N0. 8084/07 etc. -2- Parents Teacher's Association, Sreekrishna Higher Secondary School, Guruvayoor. 2. The case of the petitioner is that he is a NRI presently working in the United State. His property extending to 64 cents is situated adjacent to the Sree Krishna Higher Secondary School Guruvayoor belonging to the Guruvayoor Devawom. The petitioner wanted to construct a residential apartment on this property and applied to the Guruvayoor Municipality for permit. While so, he came to know from one Sri.Salim, the petitioner in W.P.(C) No.9974/2008, who also owns a piece of land near the school, that he received a letter from the District Commissioner, Thrissur wherein it is stated that there is a proposal to acquire the land invoking urgency clause on the request of the Guruvayoor Devaswom Commissioner. Ext.P1 is a copy of that letter. It is submitted by the petitioner that Ext.P1 is a communication from the WP(C)N0. 8084/07 etc. -3- Government to the District Collector requesting to conduct enquiry regarding the need to undertake urgency clause for acquisition of land including that of the petitioner. According to the petitioner, no notice whatsoever has been given to him so far. On coming to know about Ext.P1, the petitioner submitted Ext.P2 representation before the Minister concerned on 9/2/2006. The Municipality granted building permit -Ext.P3 to the petitioner on 28/2/2006. On the strength of Ext.P3, the petitioner started construction of the apartment complex. Foundation work is almost complete. The petitioner started project in India and abroad and already entered into agreements with many prospective buyers. The petitioner has already invested about 50 Lakhs in this project. Without considering the objection of the petitioner, the Government passed Ext.P4 order according sanction for the acquisition of the petitioner property invoking the urgency provision. According to the WP(C)N0. 8084/07 etc. -4- petitioner, the reasons stated in Ext.P4 is curious and has nothing to do with urgency as contemplated by the Land Acquisition Law. The reason stated is that the District Collector has reported that since the land is close to the high school, if a multi storied building comes near the school, there is a probability of waste pollutants falling to the school compound. According to the petitioner, high rise residential building does not cause any sort of pollutions, since adequate precautions permissible under law for preventing pollution are being taken. The petitioner challenged Ext.P4 order before this court by filing W.P.(C) No.12472/2006. In that writ petition Devaswom filed Ext.P5 counter affidavit. It is pointed out that in Ext.P5 it is not stated anywhere that the Devaswom considered the question of expansion of the school and as to what was the urgency in the matter of acquiring the petitioner's land. The only reason stated in the affidavit as the reasoning and the WP(C)N0. 8084/07 etc. -5- need for acquisition is the risk of pollution by high rise building coming up near the school. This according to the petitioner can not be a public purpose warranting acquisition. The petitioner has produced Ext.P6 copy of a letter from the Principal of the school to the Devaswom Administrator, which had been produced by the Devaswom along with Ext.P5. It is stated that steps for acquisition started from Ext.P6. The petitioner has also produced Ext.P7 which is a copy of the decision of the Governing Board of the Devaswom dated 27/11/2005. It is submitted that under Ext.P7, there is no decision at all for expansion of the school premises. The only request is to acquire the land to avoid pollution by multi storied buildings coming up. Ext.P8 is a copy of the proceedings of the Devaswom Commissioner dated 28/12/2005 and it is submitted that without even considering the question of urgency Devaswom Commissioner has given permission to invoke the urgency WP(C)N0. 8084/07 etc. -6- provision. It is pointed out that the Devaswom Commissioner has no powers to give permission to invoke the urgency clause. But it is a power vested with the statutory authorities under the Land Acquisition Act. Following Ext.P8, the Devaswom Administrator submitted Ext.P9 requisition for acquisition to the District Collector. It is pointed out that the only reason stated in Ext.P9 is that land owners are taking hasty steps to construct buildings and hence urgency clause is to be invoked. Along with Ext.P9 formal requisition Ext.P10 was also enclosed. Under Ext.P10 also no different reason is stated. The petitioner submits that even before the formal request was received on 7/4/2006 the Government has issued Ext.P4 order according sanction for invoking the urgency clause. The question as to whether the land is to be acquired or not has to be independently decided by the Government, on the receipt of the requisition. This has not so far been done. WP(C)N0. 8084/07 etc. -7- According to the petitioner from Ext.P4 it is clear that the same is based on Ext.P7 and the report of the District Collector. The petitioner submits that while issuing Ext.P4, the Government had not considered whether there is public purpose and whether there is necessity for invoking urgency provision. W.P.(C) No.12472/2006 filed by the petitioner was disposed of by passing Ext.P11 judgment, under which the Government was directed to reconsider the matter after affording hearing opportunity to all concerned. Pursuant to Ext.P11, the matter was heard and the Government passed fresh order Ext.P12. It is submitted that acquisition is not absolutely necessary and in Ext.P12 the Government does not discuss any reason as to the need for invoking urgency clause. The reasons stated in Ext.P12 is at any rate is insufficient. It is submitted that the requirement of land for Higher Secondary School is only 3 acres. But the school in question owns about 5 acres. Whether the need for WP(C)N0. 8084/07 etc. -8- expansion and what is the expansion planned and decided are all material. These material aspects have never been considered. On these facts and for the grounds raised the petitioner prays that Exts.P4 and P12 be quashed and a writ of mandamus be issued directing the respondents not to invoke any urgency clause for acquisition of the petitioner's land. 3. On behalf of the second respondent District Collector, a counter affidavit is filed. It is submitted that the Administrator, Guruvayoor Devswom, vide its letter dated 17/4/2006 requested to acquire an extent of 0.3035H (Sy.No.158/3-674 cents and Sy.No.158/5-11 cents) of property belonging to the petitioner in Iringappuram Village, Chavakkad Taluk for the prevention of pollution and development of Sree Krishna Higher Secondary School, Guruvayoor. The Government vide order dated 7/4/2006 accorded sanction for acquisition of the above land invoking WP(C)N0. 8084/07 etc. -9- the urgency clause under Section 17. The Special Tahsildar (LA) Guruvayoor Devaswom was appointed as Land Acquisition Officer in this case vide District Collector's proceedings dated 5/5/2006. The petitioner in the writ petition, who is the owner of 64 cents covered by the proceedings has started construction of multi storied building on this side. The proposal for invoking urgency clause was submitted to the Land Revenue Commissioner from the District Collector's Office. While so the petitioner in W.P.(C)No.8084/2007 filed W.P.(C) No. No.12472/2006. This court by judgment in that writ petition directed the first respondent- the Principal Secretary, Revenue(Devaswom) Department, Thiruvananthapuram, to hear all the parties and to decide the matter within four months. Accordingly, all parties concerned were heard and the matter was examined in detail by the respondent. It was found that the acquisition was highly essential for WP(C)N0. 8084/07 etc. -10- further development of the school. It is submitted that the Devawom Administrator, Guruvayoor Devaswom has reported that Sree Krishna Higher Secondary School is the one and only plus two school in this area accommodating more than 2700 students mostly from the lower strata of society and is in need of that land and hence acquisition is required. It is submitted that the land is absolutely for the development of the school. The requisition in Form No.2 (Rule 4 (1) from the Administrator, Guruvayoor Devaswom ( No.B3-8336/06 dated 17/4/2006) has been received for the land acquisition process. As per Government letter dated 18/1/2006, a petition from Sri.Salim was received from the Government. That petition was enquired into through the Special Tahsildar, Guruvayoor Devaswom and it was found that there is no merit in it. It is submitted that land is close to the Sree Krishna Higher Secondary School and it is sure that waste pollutants will come to school compound. WP(C)N0. 8084/07 etc. -11- Though the petitioner may be able to take measures to control pollution, the high rise building in front of the school will certainly hinder the smooth passage of fresh air and light to the school. The necessity of sufficient land for the future development of school is also a factor to be taken into account. The Land Revenue Commissioner took all relevant aspects into account and issued proceedings dated 13/10/2006 according sanction for invoking the urgency clause. Referring to Ext.P7, it is submitted that Ext.P7 is only a decision of the Administrator to request for the acquisition of 75 cents of land for the development of Sree Krishna Higher Secondary School. It is the Government which has accorded sanction vide Government Order No.2510/06/RD dated 7/4/2006. The Land Revenue Commissioner vide its proceedings No.LR-C3-25310/2006 dated 13/10/2006 examined the proposal for invoking the urgency clause and being satisfied that the land is urgently WP(C)N0. 8084/07 etc. -12- required and directed in exercising the power under sub section (4) of Section 17 of the L.A. Act that the enquiry under Section 5A will not apply in this case. It is pursuant to the above order that the formal requisition was submitted. It is thereafter, the Collector appointed the land acquisition officer. Notification under section 4(1) was published in Kerala Gazette and in the local dailies. 4. The third respondent, Administrator Guruvayour Devaswom has also filed detailed counter affidavit. It is contended therein that Guruvayur Sree Krishna Higher Secondary school is a pioneer High School of the locality which was started by the 3rd respondent for accomplishing its social obligations. The school was started with a view to help economically weak and down trodden people of Guruvayur and near by areas. The school maintains high standards in academic area. The student strength of the school is more than 3000. The school is situated on the WP(C)N0. 8084/07 etc. -13- eastern side of the public road. There is a private road that leads from public road to the school. This property is very much necessary for future development of the school. It is submitted that the 5th respondent noticed that the petitioner proposes to put up a high rise building complex in his property and that any such building shall be a cause of perennial cause of hazard, nuisance and pollution to the school. It was also noticed that the proposed construction is likely to affect even free flow of fresh air to the school thereby adversely affecting the atmosphere of the school premises. The Guruvayoor Devaswom was convinced about the apprehensions of the 5th respondent. Hence the matter was placed before the Managing Committee of the Devaswom. The Managing Committee after due deliberations resolved to acquire the property of the petitioner having an extent of 64 cents with a view to avert pollution of the school premises and for future expansion of WP(C)N0. 8084/07 etc. -14- the school. It is submitted that once the subject matter is made use of for constructions, no more land will be available adjoining the school for expansion of the school in future. Decision of the Managing Committee of Guruvayur Devaswom is Ext.P7. Considering request of Devaswom the 4th respondent in his proceedings dated 28/12/2005 accorded sanction to acquire the subject land invoking urgency provision and to take advance possession. It is stated that the as the petitioner was taking urgent steps to start construction, the District Collector was requested to initiate immediate steps to invoke urgency clause and to take advance possession of the property on the basis of Ext.P8. The petitioner approached this court and filed W.P. (C) No.12472/2006 challenging proposal to invoke urgency provision of L.A.Act. This court directed the Government to consider all relevant aspects and take decision after affording reasonable opportunity to all the aggrieved WP(C)N0. 8084/07 etc. -15- parties. The Government represented by Principal Secretary to the Government Revenue (Devaswom) Department considered the matter and passed Ext.P12 order. According to the counter affidavit, Ext.P12 is justified in all respects. The counter affidavit goes on to contend that Ext.P4 and Ext.P12 are not liable to be quashed as they are orders legally passed by competent Authorities on a consideration of all aspects involve din the matter. It is then submitted that decision on expansion of the school has to be taken at the appropriate time and in accordance with need. But to implement expansion projects land is necessary. The subject land to be acquired lies adjacent to the school property and in between the public road and the school property. Once the property is not acquired land will not be available for future expansion of the school. The Devaswom is bound to main in the school premises a healthy atmosphere free of all pollutions. WP(C)N0. 8084/07 etc. -16- It is lastly contended that the petitioner only started construction of the foundation. Exts.P4 and P12 orders are perfectly legal and in accordance with the spirit of Section 17 of the L.A.Act. It is the experience that once a high rise building come that is liable to cause pollution of all sorts. It is stated in the counter affidavit that even if statutory precaution and safety measures are provided, but in practice those are not complied with. The school is in possession of roughly 4 acres of land. Action of the authorities is not an violative of Article 300 A of the Constitution. 5. Additional 6th and 7th respondents have also filed counter affidavit. Apart from endorsing the contention raised by the Devaswom Administrator, it is stated in this counter affidavit that the school is one of the largest and the oldest school in the whole of State. There are 562 students in the Higher Secondary Section and 1831 students WP(C)N0. 8084/07 etc. -17- in the High School Section. There are 25 teaching and non teaching staff in the higher secondary and 64 in the High school. The school is situated on a land having an extent of 4.36 acres. The school playground occupies about 2 acres and only the remaining 2.36 Acres are available for the functioning of the school. Lack of enough space prevents construction of new buildings. Due to lack of accommodation the school authorities are not in a position to give admission to all students who are applying for it. During the educational year 2006 – 07 many students had to be denied admission for this reason. The school mainly caters to the students coming from socially and economically weaker sections of the society. Since the school is having a higher secondary section, it is essential to have a good library, reading room, computer lab, etc. These are the basic requirements to satisfy the needs of curriculum. Presently the school lacks all these facilities. WP(C)N0. 8084/07 etc. -18- The 8th, 9th and 10th classes are functioning in temporary sheds and they have to be shifted to permanent buildings. On finding that new buildings have to be constructed very urgently for the development of the school, Principal of the school submitted a representation dated 3/4/2006 to the Administrator, Guruvayoor Devaswom. The Parent Teacher Association of the school was also pressing the authorities for acquiring more lands for the construction of new buildings. It is submitted that the school is short of land and no other land is available in the neighbourhood. Ext.R6(b)- the sketch showing -the school premises and the locality is relied on. The counter affidavit goes on to reiterate the contention raised in the Administrator's affidavit regarding the evil effects of the high rise building coming up. In addition it is stated that the well of the school is very close to the boundary with the petitioner's property. This well is the only source of drinking water and WP(C)N0. 8084/07 etc. -19- water for other purposes for the students and the teachers. The petitioner has sunk a bore well, which is very close to the school well. Once this bore well is put in operation, the school well would definitely dry up. Expressing concerns regarding the construction of the petitioner's building, Principal of the school submitted a representation to the Government. Lastly it is contended that the petitioner is permanently settled in America and does not have much interest here, leave alone developing the land. A powerful builder is behind this venture and the petitioner is only a tool in his hands. The purpose behind this construction is to make as such profit as possible with scant concern for ecological and environmental factors. It is essential in the larger interest of the students and for the systematic development of the school that the land of the petitioner is acquired for constructing new building for the school, it is so stated in the counter affidavit. WP(C)N0. 8084/07 etc. -20- 6. WP(C) No. 9974 is filed by Sri. R.A.Saleem who is the owner of 10 cents of landed property which is being proposed to be acquired along with the property of the petitioner in WP(C) No. 8084/07. The respondents in this writ petition are: (1) The State of Kerala, (2) the Guruvayoor Devaswom and (3) The Sree Krishna Higher Secondary School. According to the petitioner , he owns 10 cents of land with building thereon consisting of 15 flats and two shop rooms. Ext.P1 is copy of the title document. Ext.P2 is the location certificate and it is admitted that he went in to purchase the property relying on Ext.P2 which indicated that there was no proposal for land acquisition in respect of the property. The Municipality issued the petitioner with Ext.P3 building permit. The original proposal was for construction of a three storied flat complex. While so, the plan was altered and permission was sought for an WP(C)N0. 8084/07 etc. -21- addition of a floor. That was also sanctioned by the Municipality and Ext.P4 is copy of the building permit issued to the petitioner by the Municipality. The petitioner submits that subsequent to the grant of building permit, on extraneous reasons, the petitioner's land was proposed to be acquired at the instance of the Devaswom Administration. Ext.P5 copy of the order of the Government according administrative sanction for acquisition is produced. The petitioner came to understand that further proceedings for acquisition were not initiated on account of the pendency of a writ petition before this court. Petitioner relies on Ext.P6 sanction issued by the Principal Secretary to the Government in this regard. The petitioner alleges that the attempt for the acquisition was wholly extraneous as the petitioner could not satisfy the illegal demands made by the members of the Devaswom Committee which administers the third respondent. Petitioner understands that the WP(C)N0. 8084/07 etc. -22- authorities are bent upon acquiring the petitioner's property for some reason or other. Dr.Sreedharan Sreedharan Kavil, a neighbour whose properties are also being acquired, moved this Court challenging the land acquisition proposal and pursuant to the judgment of this court the petitioner was also surprisingly called for a hearing. Now the Government has passed Ext.P7 order proposing to acquire the land of Dr.Sreedharan Kavil as well as that of the petitioner stating the reason that the land is necessary for further development of the school. Immediately on receiving Ext.P7 petitioner submitted Ext.P8 review petition But nothing was heard in the matter. But when the building was completed in the meanwhile, the Municipality refused to number the building. Under these circumstances the petitioner moved this Court by way of WP(C). No. 32055/07 wherein this court was pleased to direct numbering of the building by an interim order. It is said WP(C)N0. 8084/07 etc. -23- that the said writ petition is pending. In the meanwhile, the petitioner was issued with a communication from the Government informing that acquisition of the petitioner's land is necessary for the purpose of Sree Krishna Higher Secondary School and that the District Collector is directed to initiate the steps. The petitioner alleges that the proposal culminating in Ext.P9 proceedings is solely made without application of mind and is intended only to harass the petitioner. The Devaswom has adjacent to the petitioner's land, about 11 cents of land which could have been utilized for future development