IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 15TH NOVEMBER 2011 / 23RD KARTHIKA 1933 WA.No. 2159 of 2007() --------------------- APPELLANTS: PETITIONERS IN WP(C): ----------------------------------- 1. MOHAMMED HASSAN, S/O. MOHAMMED, PADANATT THEKKE PURAYIDATHIL, THENGOTTU P.O., EDACHIRA , KAKKANAD. 2. V.S. VIJAYAN, S/O.PANKAJAKSHY KUNJAMMA, VALAVAKKATT, KANNOTHUMOOLA, THENGOTTUKARA, KAKKANAD. 3. P.B. KADER KUNJU, S/O. KUNJAMMA, PARAMBIL MOOLAYIL, THENGOTTUKARA, KAKKANAD. 4. ZAINABA, W/O.LATE KUNJU MUHAMMED, PADANATTUPUTHEN PURAYIL, THENGOTTUKARA, KAKKANAD. 5. E.K. ABOOBAKCER, S/O. KADER, PUTHENPURAYIL, EDACHIRACKAL, THENGOTTUKARA, KAKKANAD. 6. KUNJUMUHAMMED, S/O. P.K. ALI, PUNNAKKUDY PARAMBIL, KALOOR P.O., ERNAKULAM. BY MS. SUMATHI DANDAPANI, SENIOR ADVOCATE RESPONDENTS: RESPONDENTS IN WP(C): ------------------------------------ 1. THE STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM 2. THE DEPUTY COMMISSIONER, LAND REVENUE, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. THE SPECIAL TAHSILDAR (LA), COCHIN REFINERIES LIMITED, VYTTILA, KOCHI. 4. THE THRIKKAKARA GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, THRIKKAKARA,KOCHI. W.A. NO. 2159 OF 2007 :2: 5. M/S. INFOPARK (A REGISTERED UNDER TRAVANCORE COCHIN LITERARY, SCIENTIFIC, CHARITABLE SOCIETIES ACT) PROJECT OFFICE, SDF BUILDING, INFOPARK, KAKKANAD, KOCHI-682030. R1 TO R3 BY SENIOR GOVERNMENT PLEADER SUSHEELA BHAT R4 ADV. MR. S. SHANAVAS KHAN R5 MR. P.A.AHAMED, SC, INFOPARKS FOR R5 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15/11/2011 ALONG WITH W.A. NO. 2702 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A. NO. 2159 OF 2007 APPENDIX APPELLANT'S ANNEXURES : ANNEXURE A : TRUE COPY OF AWARD NOTICE ISSUED BY THE RESPONDENT. ANNEXURE B : TRUE COPY OF THE ORDER OF 1ST RESPONDENT DATED 09.10.2007 ANNEXURE C : TRUE COPY OF THE LETTER OF GOVT. OF INDIA DATED 31.05.2007 WITH RELEVANT PAGES OF BULLETIN. ANNEXURE D : TRUE COPY OF THE LETTER OF GOVT. OF INDIA DATED 19.07.2007 ANNEXURE E : TRUE COPY OF THE ROUGH SKETCH ANNEXURE F (a) : TRUE COPY OF THE NEWS ITEM IN INDIAN EXPRESS DATED 19.10.2007 ANNEXURE F (b) : TRUE COPY OF THE NEWS ITEM IN INDIAN EXPRESS DATED 20.10.2007 ANNEXURE F (c) : TRUE COPY OF THE NEWS ITEM IN INDIAN EXPRESS DATED 23.10.2007 ANNEXURE F (d) : TRUE COPY OF THE NEWS ITEMS IN THE HINDU DATED 23.10.2007 ANNEXURE F (e) : TRUE COPY OF THE NEWS ITM IN THE HINDU DATED 30.10.2007 RESPONDENT'S ANNEXURES : ANNEXURE R1 (a) : TRUE COPY OF INFORMATION BROCHURE PUBLISHED BY M.A. COLLEGE OF ENGINEERING /TRUE COPY/ P.A. TO JUDGE MANJULA CHELLUR, Ag. C.J. & P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.A. Nos. 2159 & 2702 OF 2007 ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 15th day of November, 2011 JUDGMENT Manjula Chellur, Ag.C.J. These two writ appeals are directed against the common judgment of the learned Single Judge came to be disposed of on 24.07.2007. 2. It is not in dispute that the lands of the present appellants along with the lands of several other writ petitioners, as referred to in the common judgment, came to be acquired under the Land Acquisition Act (herein after referred to as 'Act' in short), by issuing preliminary and final notifications. However, emergency clause came to be invoked dispensing with the mandatory enquiry under Section 5A of the Act. The purpose for which the land came to be acquired was for the establishment of Information Technology Park (Info Park in short). It was about 20 acres that came to be acquired under the present notification. The main contention of the writ petitioners was, that there was no need for invoking the emergency clause under Section 17 of the Act, dispensing with the enquiry under Section 5A. It was also contended that there was no justification for the Government for W.A Nos. 2159 & 2702 of 2007 : 2 : acquiring the lands of these appellants and others, as most of them were contemplating in setting up their own industry in information technology in the said land. The learned Single Judge after referring to the detailed objections filed by the present appellants and the other writ petitioners, by way of writ petitions, ultimately opined that, as the acquisition was for public purpose, the individual need must yield to the public need, therefore, acquisitions were held to be just and proper. However, having regard to the shortage of availability of land in the State of Kerala and also having regard to the fact that it would be difficult for the appellants and others to secure similar land, made certain concessions in the final order, directing the appellants and others to give representations to the Government, to give preference to the land owners, who lost the land while allotting the sites in the Info Park. We also note from the record, that these appellants along with other writ petitioners, as a matter of fact approached the Government by giving representations, seeking alternate land for their need and use. Subsequently, an order came to be passed by the Government as per Annexure D dated 09.10.2007 (in W.A. No. 2702 of 2007). Different appeals came to be filed by the writ petitioners. So far as these two appellants are concerned, after giving representations, they came W.A Nos. 2159 & 2702 of 2007 : 3 : up with the appeals and during its pendency, their representations came to be considered by the Government as per order dated 09.10.2007. In two appeals filed by other writ petitioners, W.A. Nos 2462 of 2007 and 2552 of 2007, the appellants therein were challenging the rejection of the representations given by them to the Government, i.e. order dated 09.10.2007. The Division Bench, by order dated 13.01.2009, while rejecting the challenge to the emergency clause invoked by the State, proceeded to opine that, the order of the Government dated 09.10.2007 does not call for interference in the appellate proceedings, as it is altogether a different cause of action, which has to be challenged before a different forrum. 3. When these two appeals came up for consideration before us, the learned senior counsel appearing for the appellant in W.A. 2159 of 2007 argued that the issue involved in the earlier Division Bench judgment dated 13.01.2009 is altogether different from the present challenge raised. 4. On perusal of the entire records, what we notice is that, these two appellants approached the Government with their representations and the same came to be considered as per order dated 09.10.2007. It is open to them to challenge the said order. In so W.A Nos. 2159 & 2702 of 2007 : 4 : far as the challenge raised against the acquisition and dispensation of enquiry contemplated under Section 5A of the Act, we note that, as on the date of invoking the emergency clause, while issuing the notification, what was the situation in existence was considered by the learned Single Judge. In other words, the need of the time came to be discussed, saying public purpose demands such establishment of Info Park and therefore such acquisition was necessary, dispensing with the normal procedure of acquisition. As on today, as we note from the submissions of the Government Pleader, 'Smart city' is being inaugurated in the land in question, which is for the purpose of establishment of Info Park. It is also submitted that along with the Info Park several other infrastructure facilities would also come under this project, which would create several employment opportunities. It is not in dispute that the State of Kerala also has professionals from information technology. They would get opportunity to work in this Info Park, apart from that, certain enthusiastic professionals get opportunity to establish their own units. The concessions given by the learned Single Judge that preference should be given to the losers of land, while allotments are made in this Info Park, cannot be ignored, especially, the appellant in W.A. 2702 of 2007, who is an I.T. W.A Nos. 2159 & 2702 of 2007 : 5 : professional. 5. We have yet to remember one more aspect in the present appeals. When the learned Single Judge rejected the challenge to the emergency clause invoked by the appellant, he proceeded giving certain concessions by directing the appellants and others to give representations to the Government. Having given such representations to the State Government, the appellants cannot prosecute the stand taken by them in these appeals, contending that, the acquisition was bad on several grounds, including no emergency as such existed as on the date of issuance of acquisition notification. In other words, having chosen to pursue their desire to secure alternate land, they cannot on the other hand agitate the acquisition proceedings, which was negated by the learned Single Judge. 6. In that view of the matter and also taking note of the fact that smart city project is already inaugurated, we are of the opinion that it is too late to interfere with the acquisition proceedings. Apart from that, we note, except these two appellants, others have not pursued the further litigation. Therefore entire area covered under notification is put to use by the respondent authorities. In the middle of the entire location, the appellants cannot be allowed to stand as loners. W.A Nos. 2159 & 2702 of 2007 : 6 : Having regard to the discussion and reasoning as stated above, we are of the opinion that, none of the contentions raised now are sustainable and accordingly the writ appeals are dismissed. Sd/- MANJULA CHELLUR, Ag. CHIEF JUSTICE Sd/- P. R. RAMACHANDRA MENON, JUDGE kmd