IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 2ND SEPTEMBER 2008 / 11TH BHADRA 1930 WP(C).No. 35419 of 2007(N) -------------------------- PETITIONER(S): --------------- 1. P.VIJAYAKUMAR, S/O. PRABHAKARAN, AGED 52 YEARS, KAMALALAYAM-II, MRA-112, KUNNUKUZHI, THIRUVANANTHAPURAM. 2. P.PRADEEPKUMAR, S/O. PRABHAKARAN, AGED 50 YEARS, P.N.27, PARVATHY NAGAR, KOWDIAR, THIRUVANANTHAPURAM. 3. NALINI VIJAYARAGHAVAN, AGED 53 YEARS, D/O. SUDHAKARAN, GOVINDAM, TC 1/1923(1), NO.35, HIGH SCHOOL LANE, KUMARAPURAM, THIRUVANANTHAPURAM. BY ADV. SRI.V.SURESH SRI.G.SUDHEER RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 3. DEPUTY COLLECTOR (LAND ACQUISITION), COLLECTORATE, THIRUVANANTHAPURAM. 4. SECRETARY, KUMARAN ASAN NATIONAL INSTITUTE OF CULTURE, THONNACKAL, THIRUVANANTHAPURAM. ADV. SRI.K.V.SOHAN FOR R4 SRI.M.R.RAJESH FOR R4 SRI.PRADEEP.V.S. FOR R4 GOVERNMENT PLEADER SRI.BASANT BALAJI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/09/2008 ALONG WITH WPC NO. 37333 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.C.NO.35419/07 PETITIONER'S EXHIBITS EXT.P1 TRUE COPY OF THE REPRESENTATION DATED 23-8-04 SUBMITTED BY PETITIONER 1 AND 2. EXT.P2 TRUE COPY OF THE JUDGMENT IN W.P.C.NO. 5385 DATED 5-8-04 OF THIS COURT. EXT.P3 TRUE COPY OF THE LETTER DATED 24-11-04 EXT.P4 TRUE COPY OF GOVT. ORDER DATED 16-1-05 EXT.P5 TRUE COPY OF THE JUDGMENT IN O.S.NO. 143/04 DATED 6-10-05 ON THE FILE OF ADDL. MUNSIFF, ATTINGAL. EXT.P6 TRUE COPY OF G.O.(RT)NO. 557/2007/CAD DATED 29-10-2007 EXT.P7 TRUE COPY OF THE NEWSPAPER CLIPPING IN THE KERALA KAUMUDI NEWSPAPER DATED 20-11-2007. EXT.P8 TRUE COPY OF GIFT DEED EXECUTED BY PRABHAKARAN DATED 15-11-1958 EXT.P9 TRUE COPY OF THE PHOTOGRAPHS SHOWING THE MODIFICATIONS OF MUD-WALLS EXT.P10 TRUE COPY OF THE PHOTOGRAPHS SHOWING THE STATUTES WHICH HAVE NOTHING TO DO WITH LATE MAHAKAVI KUMARAN ASAN EXT.P11 TRUE COPY OF THE CERTAIN NEWSPAPER ARTICLES EXT.P12 TRUE COPY OF THE RESIGNATION LETTER AND OPEN LETTER WRITTEN BY DR.M.M.BASHEER TO THE HONOURABLE MINISTER DATED 11-5-2002 EXT.P13 TRUE COPY OF THE PHOTOGRAPHS SHOWING THE CULTIVATION. EXT.P14 TRUE COPY OF THE PHOTOGRAPHS SHOWING THE ROAD WAS BLOCKED BY A CONSTRUCTION. EXT.P15 TRUE COPY OF THE PAPER REPORT IN NEWS INDIAN EXPRESS, THIRUVANANTHAPURAM DATED 11-2-2006 EXT.P15(A) TRUE COPY OF THE PAPER REPORT IN PIONEER DATED 25-7-06 RESPONDENT' S EXHIBITS EXT.R4(A) TRUE COPY OF THE G.O.(MS)NO. 204/66/EDN. DATED 30-4-1996 EXT.R4(B) TRUE COPY OF THE GOVT. ORDER DATED 5-8-03 WPC.NO.35419/07 EXT.R4(C) THE PROJECT REPORT FOR COMPREHENSIVE DEVELOPMENT OF KANIC PUBLISHED BY THE PUBLIC RELATIONS DEPARTMENT OF THE GOVT. OF KERALA ON THE KUMARANASAN MEMORIAL DURING OCTOBER 1998. EXT.R4(D) TRUE COPY OF THE PROJECT REPORT PREPARED DURING JUNE 2006 EXT.R4(E) TRUE COPY OF THE GAZETTE NOTIFICATION NO. K4-43813/2007 EXT.R4(F) TRUE COPY OF THE LETTER ISSUED BY THIS RESPONDENT TO THE THIRD RESPONDENT DATED 20-11-2007 EXT.R4(G) TRUE COPY OF THE MINUTES OF THE MEETING DATED 17-12-05 EXT.R4(H) TRUE COPY OF THE MINUTES OF THE MEETING DATED 18-2-06 EXT.R4(I) TRUE COPY OF THE MINUTES OF THE MEETING DATED 8-1-07 EXT.R4(J) TRUE COPY OF THE ORDER DATED 14-11-07 ISSUED BY THE COMMISSIONER OF LAND REVENUE . EXT.R4(K) TRUE COPY OF THE LETTER DATED 29-11-06 GIVEN TO THE SECRETARY TO GOVT., DEPT. OF CULTURAL AFFAIRS. EXT.R4(I) TRUE COPY OF THE LETTER DATED 11-5-06 EXT.R4(M) TRUE COPY OF THE SECRETARY TO GOVT. DEPT. OF CULTURAL AFFAIRS HAS ISSUED A LETTER TO THE FOURTH RESPONDENT. EXT.R4(N) TRUE COPY OF THE LETTER DATED 5-5-07 ISSUED BY THIS RESPONDENT. EXT.R4(O) TRUE COPY OF THE NEWS PAPER REPORT DATED 16-12-2007 OF THE DESHABHIMANI. EXT.R4(P) TRUE COPY OF PAPER REPORT DATED 16-12-2007 OF THE MALAYALA MANORAMA DAILY EXT.R4(Q) TRUE COPY OF THE NEWS PAPER REPORT OF MALAYALA MANORAMA DAILY DATED 21-12-2007 EXT.R4(R) TRUE COPY OF THE SALE DEED DATED 16-2-2005 EXECUTED BY SHRI. BALACHANDRAN. EXT.R4(S) TRUE COPY OF THE LETTER DATED 1-12-2007 EXT.R4(T) TRUE COPY OF THE SKETCH OF THE PROPOSED LAND FOR ACQUISITION. EXT.R4(U) TRUE COPY OF THE NEWS PAPER REPORT DATED 8-11-2006 OF THE KERALAKOUMUDI DAILY. PIUS.C.KURIAKOSE, J. - - - - - - - - - - - - - - - - - - - - - W.P.(c).NOs.35419 & 37333 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of September , 2008 JUDGMENT The petitioners are the grand-children of late Mahakavi Kumaran Asan. The first respondent is the State of Kerala, the second respondent is the District Collector, the third respondent is the Deputy Collector (Land Acquisition) and the fourth respondent is the Secretary, Kumaran Asan National Institute of Culture. According to the petitioners, the 4th respondent has been formed with an objective of administering a memorial for the late Mahakavi. The additional 4th respondent owns property at Thonnackal, the birth place of late Mahakavi. It is the father of the petitioners 1 and 2 who gifted this property so that memorial can be constructed for perpetuating the memory of his father late Mahakavi. The petitioners have their own properties acquired by inheritance and deeds adjacent to the land gifted to the 4th respondent. It is alleged that the person in control of the administration of the 4th respondent break with the petitioners. The enemity between the petitioners and them lead to several legal issues WPC.Nos.35419 & 37333 OF 2007 2 including Ext.P3 to P5. It is alleged that actuated by mala fide and oblique motives such as causing damages to the petitioners the 4th respondent has moved the first respondent state for acquisition of land of the petitioners and the first respondent State acceded to the request of the 4th respondent and has ordered acquisition of the petitioner property by invoking the emergency clauses of the Land Acquisition Act. 2. Ext.P6 is the order of the Government dated 29-10-2007 according sanction for acquisition. Ext.P7 is copy of combined notification under Section 4(1) and Section 17(4) of the Land Acquisition Act directing that enquiry under Section 5A need not be conducted in this acquisition. Challenging the acquisition, writ petition was originally filed seeking a writ of certiorari quashing Exts. P6 and P7. Later writ petition was amended so as to incorporate additional grounds for challenge against Exts.P6 and P7 and also to challenge Ext.P9 order of the Land Revenue Commissioner dated 14-11-2007 to the effect that the properties of the petitioners can be acquired by invoking the urgency clauses under Section 17(1) and (4) and WPC.Nos.35419 & 37333 OF 2007 3 dispensing with the preliminary hearing under Section 5A of the Land Acquisition Act. 3. The fourth respondent requisitioning authority- Kumaranasan National Institute of Culture has filed a detailed counter affidavit through its Secretary. It is submitted that Kumaranasan Memorial was established by the Government of Kerala in 1958 under the Cultural Department of the Government and that the Government by GO(MS)No.204/66/Edn. dated 30-04-1996 formulated rules for management of Kumaranasan Memorial. Ext.R4(a) is copy of the above Government Order. It is pointed out that Kumaranasan Memorial is an autonomous institution having a managing committee and bylaws and that Ext.R4(a) itself provides that the managing committee shall be a corporate body having a perpetual seal and may sue and be sued in its corporate name. Initially Kumaranasan Memorial had 1.25 Ares of land. Later pursuant to Ext.R4(b) Government order dated 5-8-2003 62 cents of more land comprising of both puramboke and private holdings was acquired by the government invoking the urgency clauses under the Land Acquisition Act. At WPC.Nos.35419 & 37333 OF 2007 4 present, there are separate buildings housing the office, library, memorial, Parnasala, conference hall etc. etc. Construction of a statue and landscaping is done by the renowned sculptor Kanayi Kunhiraman. KANIC is conducting a music school, a children's practicing session known as Balasree, Sargavedi which is a meeting place of writers etc. It conducts poetic meeting, seminars, National cultural Festivals etc. KANIC now finding place in the Kerala Tourism Map. In 1998, the Government of Kerala has formulated an overall development programme for KANIC. Ext.R4(c) is copy of the project report for comprehensive development of KANIC published by the Public Relations Department of the Government of Kerala on the Kumaranasan Memorial during October 1998. It is a massive development programme which is finalised spending rupees 30 crores in 180 Acres of land. Later Government of Kerala has prepared project report on KANIC. As regards the second phase of development Ext.R4(d) dated June 2006 is the copy of the said project report. Pursuant to requisition of KANIC notification under Section 4(1) of the Land Acquisition Act for acquiring 1.1 Hectares of land in Survey WPC.Nos.35419 & 37333 OF 2007 5 No. 2651/1, 265/3, 265/4, 269/1, 269/2 and 269/3 has been published in the gazette. Ext.R4(e) is copy of the said gazette notification. The estimated value of the property fixed at Rs. 35 lakhs is already deposited by KANIC before the acquiring authority. Ext.R4(f) is copy of the letter against which cheque was forwarded. As per the bye-laws of KANIC one of the members of the family of late poet Kumaranasan is a permanent member of the committee and presently the first petitioner who is the grandson of Kumaranasan is the member of the committee. The decision to approach the Government for acquiring 1.10 hectares of land for KANIC invoking the urgency clauses under the Land Acquisition Act was taken in the meeting by the Committee dated 17-05-2005. Ext.R4(g) is copy of the minutes of the said meeting. In the next meeting dated 18-02-2006 Ext.R4(g) was read over and accepted. Ext.R4(h) is copy of the minutes of the meeting dated 18-02-2006. The first petitioner was also significantly present in this meeting. Later in the meeting dated 8-1-2007 the managing committee decided to expedite the acquisition steps as decided in Ext.R4(g). Ext.R4(i) is copy of the minutes of the said meeting dated WPC.Nos.35419 & 37333 OF 2007 6 8-1-2007 to which also the first petitioner is a party. The first petitioner never raised any objection. It is accordingly contended that the first petitioner's challenge in the writ petition against the acquisition proceedings is hit by principles of estoppel by conduct and deed. The counter affidavit goes on to deny the averments and grounds raised in the writ petition. It is specifically contended that the grounds raised against invocation of urgency clause for acquisition are without substance. It is claimed that the Government has objectively satisfied as to the need for invoking the urgency clause can it has to be for relevant materials before the Government to take a decision to dispense with the enquiry under Section 5A. Land Revenue Commissioner's order dated 14-11-2007 dispensing with enquiry under Section 5A is produced as Ext.R4(j). Ext.R4(i) is copy of the detailed letter given by KANIC to the Secretary to Government for expediting the land acquisition proceedings. Ext.R4(k) is copy of the letter written by Sri.Varkkala Radhakrishnan M.P. to the fourth respondent intimating that funds are available for allotment for the development activities and that land is to made available. The Secretary to Government, Department of Cultural WPC.Nos.35419 & 37333 OF 2007 7 Affairs has issued a letter to the fourth respondent that unless the utilisation certificate for the amount granted in 2006-07 is submitted this years grant will not be given. All these documents show the urgency of the need. If Section 5A enquiry is not dispensed with, the funds will be lapsed and further grant will not be given to KANIC. Ext.R4(m) is copy of the Government Secretary's letter. Ext.R4(n) another letter dated 5-5-2007 issued by KANIC is also relied on for justifying the invocation of the emergency clauses. Ext.R4(o) is news report in Deshabhimani dated 16-12-2007. Ext.R4(p) news report in Malayala Manorama dated 16-12-2007 and Ext.R4(q) another news report in Malayala Manorama dated 21-12-2007 are produced to show that the petitioners and others by their various acts of commissions and omissions did violence to the legacy of great poet. It is then contended that the intension of the petitioners is to do real estate business by utilising the properties which are covered by acquisition. Ext.R4(r) copy of the sale deed dated 16-02-2005 executed by one Balachandran, a close relative of the petitioners is relied on. It is submitted that on the same day three other sale deeds were executed by the same persons WPC.Nos.35419 & 37333 OF 2007 8 effecting fragmented sales of the property which once belonged to the Poet. Ext.R4(s) letter dated 1-12-2007 written by the first petitioner after filing of the writ petition seeking negotiation in the matter is also relied on. It is alleged that emotional attachment to the property is projected for fulfilment of their selfish desires. Ext.R4(t) true copy of the sketch of the proposed acquisition is relied on. It is contended that the petitioners will not be prejudiced by the acquisition since they are having extensive properties in the locality. 4. On behalf of the Land Revenue Commissioner- the fifth respondent, a counter affidavit has been filed justifying Ext.P9 order. Inter alia it is contended therein that Ext.P9 order was passed on the basis of materials available. The District Collector's proposal for invocation of emergency provisions was examined in detail and the Land Revenue Commissioner was convinced that this is a fit case for invoking the urgency clause because if the acquisition work is not completed within the time limit, the budget provision for the said purpose will lapse. In order to avoid the lapse of budget provision that the acquisition become unavoidable. WPC.Nos.35419 & 37333 OF 2007 9 5. Si. V.Suresh- learned counsel for the petitioners, Sri.K.V.Sohan- learned counsel for the requisitioning authority and Sri.Basant Balaji, learned Government Pleader addressed me extensively on the basis of the various grounds /contentions raised. My attention was drawn to the pleadings and to the various documents placed on record in this case. Sri.V.Suresh would assail Ext.P9 order of the Land Revenue Commissioner forcefully. He submitted that the right of an enquiry under Section 5A was a very valuable right given to the owners of land which was being acquired in exercise of the Government's powers of eminent domain. Such a right shall not be taken away casually. Sri.Suresh would place reliance on the judgment of the Supreme Court in Srinivasa Co-operative House Building Society Ltd. v. Madam Gurumurthy Sastry and others ( 1994(4) Supreme Court Cases 675), the judgment of this court in Seshagiri maller v. Special Tahsildar for Land Acquisition ( 1964 KLT 54), the judgment of this court in Kadeeja Umma v. Taluk land Board, Perinthalmanna and others ( AIR 1982 NOC 149(KER), the judgment of the Supreme Court in The State of Punjab and another WPC.Nos.35419 & 37333 OF 2007 10 v. Gurdial Singh and others ( AIR 1980 Supreme Court 319) and the judgment of the Supreme Court in Madhusudan Chotalal Patel and another v. Special Land Acquisition Officer and others ( AIR 1980 Supreme Court 318) and the judgment of the Supreme Court in Davinder Singh and others v. State of Punjab and others (AIR 2008 Supreme Court 261) in support of the various propositions advanced by him. 6. Sri.K.V.Sohan, learned counsel for the requisitioning authority would analyse the judgment of the Supreme court in Union of India v. Mukesh Hans ( 2004 (3) KLT 462(SC) and argued on the basis of paragraph 36 of that judgment that the competent authority is not expected to write a speaking order. What is necessary is that there must have been some materials on the basis of which authority could have come to a subjective satisfaction regarding the urgency of the situation and the necessity to dispense with enquiry under Section 5A. Sri.Sohan relied on the judgment of the Supreme Court in First Land Acquisition Collector and others v. Nirodhi Prakash Gangoli and another ( 2002(4) Supreme Court Cases 160) and would argue that the WPC.Nos.35419 & 37333 OF 2007 11 emergency of the situation was writ large on the records of this case. 7. Learned Government Pleader who supported all the submissions of Sri.Sohan also would justify Ext.P9. He would rely on the judgment of the Supreme Court in M/s Girias Investment Pvt. Ltd & another v. State of Karnataka and others (JT 2008(4) SC 242) and reiterate that what is required is only the subjective satisfaction of the competent authority. The very circumstance that the funds allotted in the budget stands the risk of lapsing, itself is justification for invocation of the emergency provisions. 8. I have considered the rival submissions addressed at the Bar in the light of the ratio emerging from the various decisions cited at the Bar. I have gone through the file maintained in the office of the Land Revenue Commissioner for the purpose of satisfying as to what were the materials considered by the Land Revenue Commissioner before passing Ext.P9. 9. The public nature of the purpose of the acquisition according to me cannot be in dispute. The genuineness of the need to have land for the accomplishment of the avowed purpose also cannot WPC.Nos.35419 & 37333 OF 2007 12 be in dispute. But the only question is whether the need is of such an intensity that it cannot brook even a delay of 30 days during which enquiry under section 5A of the L.A. Act can be completed. One of the purposes of the enquiry under section 5A is to enable the owners of the land to persuade the acquiring authority against acquisition of their lands or atleast portions thereof on special and peculiar reasons. It may be possible for the petitioners in an enquiry under section 5A to convince the L.A. Officer that acquisition of their properties covered by the present notification can be avoided or that some other more suitable property is available for accomplishing the purpose. After all, the right conferred on the land owners under section 5A has been consistently recognised as a very valuable right which is not to be taken away lightly. The ground seriously raised for projecting the urgency is that the funds provided for the acquisition in the current financial year's budget will lapse. I think that the above aspect can be taken care of by issuing directions for expeditious disposal of the enquiry under section 5A and the follow up orders to be passed by the L.R. Commissioner. The result of the writ petition therefore is that the order dated WPC.Nos.35419 & 37333 OF 2007 13 14-11-2004 ( Ext.P9 in W.P.(C)No.37333/07) is quashed and the land acquisition authority is directed to conduct enquiry under Section 5A. Enquiry will be conducted in accordance with law and will be completed at the earliest and at any rate within one month of receiving a copy of this judgment. Land Acquisition Officer will make his recommendations on the objections filed by the petitioner to the Land Revenue Commissioner and the Land Revenue Commissioner will pass his order either by issuing a declaration under Section 6 or by declining to issue such a declaration. Whatever is the decision of the Land Revenue Commissioner, the same will be communicated to the petitioners also without delay. PIUS.C.KURIAKOSE JUDGE sv.