IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 6TH JANUARY 2009 / 16TH POUSHA 1930 WA.No. 2446 of 2008() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.9735/2008 Dated 25/11/2008 .................... APPELLANT(S): PETITIONERS: ---------------------------------------------- 1. E.A.ABOOBACKER, ADVOCATE, ELAVAKKAT HOUSE, VAZHAKALA JUNCTION, KAKKANAD WEST PO, KOCHI 682 030. 2. E.A.NIZAMUDDIN, ADVOCATE, ... DO..DO.... 3. K.A.ABDULKALAM, ELAVAKKAT HOUSE, ... DO....DO.. BY ADV. SRI.S.EASWARAN SRI.SHINU J.PILLAI RESPONDENT(S): RESPONDENTS: ----------------------------------------------------- 1. STATE OF KERALA,REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM. 2. THE LAND REVENUE COMMISSIONER ,KERALA, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, ERNAKULAM AT CIVIL STATION, KAKKANAD. 4. THE SPECIAL TAHSILDAR (LA) KOCHI REGINERIES LIMITED, NORTH FORT GATE, TRIPUNITHURA. Kss ...2/- ....2..... W.A.NO.2446/2008 5. SECRETARY INFORMATION TECHNOLOGY (A) DEPARTMENT THIRUVANANTHAPURAM. 6. M/S. INFOPARK, PARK OFFICE, THAPSYA, KAKKANAD, KOCHI 682 030, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER. 7. MALERIL POULOSE, S/O. VARKEY AGED 63 YEARS, MALERIL GALEELA HOUSE, BRAHMAPURAM P.O.,AMABALAMEDU 682 303, PUTHENCRUZ VILLAGE, KUNNATHUNADU TALUK. GOVERNMENT PLEADER SRI. M.P.SREEKRISHNAN FOR R1 TO R5 ADV. SRI. P.A.AHAMMED, SC FOR R6 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06/01/2009 ALONG WITH WA NO. 2447 OF 2008 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss J.B. KOSHY, Ag. CHIEF JUSTICE & P.R. RAMACHANDRA MENON, J. ........................................................................ W.A. Nos. 2446, 2447, 2453 & 2475 OF 2008 ......................................................................... Dated this the 6th January, 2009 J U D G M E N T KOSHY, Ag. CJ. : All these Writ Appeals are filed against the common judgment passed by the learned single Judge repelling the challenge made against the land acquisition proceedings for expansion of the Infopark. 2. Notification under section 4(1) of the Land Acquisition Act was issued for acquisition of 138 acres for the development of Infopark under the Fast Track Project. No doubt, establishment of Infopark is important for the development of the State. The only question before us is whether “the officer who issued the notification has power to issue Section 4(1) notification”. Exts. P1 and P2 public notices under section 4(1) are seen issued by the Special Tahsildar (LA), Cochin Refineries Limited, Ernakulam. It is contended that he is not the Collector as defined under the Land Acquisition Act and therefore, the entire acquisition proceedings are bad. According to the 6th respondent most of the lands covered under the notification were later purchased by the Government on the price fixed on negotiation. W.A. Nos. 2446, 2447, 2453 & 2475 OF 2008 2 It is also stated that though properties of 500 persons were acquired, only 18 have questioned the same on the above ground. Anyhow, since the petitioners have a legal ground,we have to consider it. 3. Section 4(1) of the Land Acquisition Act reads as follows: “(1) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company a notification to that effect shall be published in the Official Gazette and in two daily newspapers circulating in that locality of which at least one shall be in the regional language, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of publication of the notification. ” (emphasis is supplied). Section clearly provides that before taking any steps for acquisition, preliminary notice under Section 4(1) has to be issued by the Collector. Section 3(c) of the Act defines the term ' Collector' which reads as follows: “The expression “Collector” means the Collector of a district, and includes a Deputy W.A. Nos. 2446, 2447, 2453 & 2475 OF 2008 3 Commissioner and any officer specially appointed by the appropriate Government to perform the functions of a Collector under this Act.” 4. Learned Government Pleader points out that by Annexure-1 notification dated 21st August, 1989 (Kerala Gazette dated 17th October, 1989) Government authorised the Special Tahsildar (Land Acquisition) Cochin Refineries Limited, Ernakulam,Vytilla, Cochin-19 to perform the functions of a Collector under the said Act within the area of Ernakulam district. The lands covered under Exts. P1 and P2 are situated in Ernakulam. It is the case of the petitioners that he is authorised as a collector for acquisition of 320 acres of land for expansion of the Cochin Refineries Limited and not for any other purpose and therefore he cannot be relied on 5. Since the matter centres round the scope of the Notification dated 21st August, 1989, we extract the notification including its explanatory note: “S.R.O.No.1743/89:- In exercise of the powers conferred by clause © of section 3 of the Land Acquisition Act, 1894 (Central Act 1 of 1894),the Government of Kerala hereby appoint the W.A. Nos. 2446, 2447, 2453 & 2475 OF 2008 4 Special Tahsildar (Land Acquisition ) Cochin Refineries Limited, Ernakulam,Vytilla , Cochin-19 to perfom the functions of a Collector under the said Act within the area of Ernakulam District and under sub section (2) of section 4 of the said act, authorize him, his servants and workmen to exercise the powers conferred by the said subsection in respect of any land within his jurisdiction for the Acquisition of which a notification under subsection (1) of section 4 has been published. xx xx xx Explanatory Note (This does not form part of the notification that is intended to indicate its general purport.) As per the Government order (MS )No. 71/89/ID dated 25.04.1989 Government have sanctioned the creation of a new special land acquisition Unit with 30 staff for the acquisition of 320 acres of land for the expansion of Cochin Refineries Limited Ambalamugal. In order to perform the functions of a ' collector' under the Land Acquisition Act, the Land Acquisition Officer has to be authorised under section 3(c) of the Land W.A. Nos. 2446, 2447, 2453 & 2475 OF 2008 5 Acquisition Act. Hence the Notification. ” 6. The said notification shows that the Special Tahsildar,(Land Acquisition) Cochin Refineries Limited is appointed to perform the functions of a Collector under the Land Acquisition Act within the area of Ernakulam district. It is true that at the time of issuance of the said notification, 4(1) notification has already been issued for acquisition of 320 acres of land for the expansion of Cochin Refineries Limited as evidenced from the explanatory note. It is also evidenced from the explanatory note that for the said purpose 30 staff have been appointed. Even after the acquisition of the land for expansion of the Cochin Refineries Limited that Unit exists. We are of the view that even though the main and immediate purpose for issuance of the notification dated 21st August,1989 was acquisition of land for expansion of Cochin Refineries Limited, in view of the establishment of the complete Unit for Acquisition purpose, the Special Tahsildar (Land Acquisition) Cochin Refineries Limited is entrusted with specific powers to perform the functions of a Collector under the Land Acquisition Act within the area of Ernakulam district. The said notification still authorises the Special Tahsildar to issue notification under section 4 (1). In our view, when public interests are concerned a liberal view W.A. Nos. 2446, 2447, 2453 & 2475 OF 2008 6 has to be taken and when majority of the lands were acquired or acquisition is in progress, the said progress cannot be stopped on any cryptic hyper technical ground. It is also argued that the Collector has not applied his mind. It was the Government policy to acquire land for the Info Park and the Collector was authorised to issue notification for implementing the Government policy. In that view of the matter, we cannot set aside the notification because the decision to acquire the land was not originated by the Collector. Here notification dated 21st August 1989 specifically authorised the Special Tahsildar (LA ) Cochin Refineries Limited, who issued Exts. P1 and P2, to act and perform the functions of Collector in Ernakulam district for land acquisition purpose. Hence he is the 'Collector' in view of the definition of Collector under Section 3(c). 7. The decision of the Supreme Court in Abdul Hussain Tayabali v. State of Gujarat and others ( AIR (55) 1968 Supreme Court 432) wherein the scope of Section 3(c) of the Land Acquisition Act was dealt with, also affirms the view that the Special Tahsildar is the Collector in view of Section 3 (c) of the Land Acquisition Act and Section 15 of the General Clauses Act. In the above circumstances, on the grounds pleaded by the W.A. Nos. 2446, 2447, 2453 & 2475 OF 2008 7 appellants, the impugned judgment cannot be interfered with. Accordingly, the appeals are dismissed. J.B. KOSHY, ACTING CHIEF JUSTICE. P.R. RAMACHANDRA MENON, JUDGE. lk