IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 23RD MAY 2011 / 2ND JYAISHTA 1933 WA.No. 1723 of 2009() --------------------- AGAINST THE JUDGEMENT IN WPC.35419/2007 Dated 02/09/2009 .................... APPELLANT(S): 3RD PETITIONER ---------------------------- NALINI VIJAYARAGHAVAN, AGED 54 YEARS, WIFE OF DR.VIJAYARAGHAVAN, GOVINDAN, T.C. 1/1923, 35 HIGH SCHOOL LANE, KUMARAPURAM, THIRUVANANTHAPURAM. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S): PETITIONERS 1 & 2 -------------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 3. DEPUTY COLLECTOR (LAND ACQUISITION), COLLECTORATE, THIRUVANANTHAPURAM. 4. SECRETARY, KUMARANASAN NATIONAL INSTITUTE OF CULTURE, THONNAKKAL, THIRUVANANTHAPURAM. 5. P.VIJAYAKUMAR, AGED 52 YEARS, S/O.PRABHAKARAN, KAMALALAYAM-II, MRA-112, KUNNUKUZHI, THIRUVANANTHAPURAM. 6. P.PRADEEPKUMAR, AGED 50 YEARS, S/O.PRABHAKARAN, P.N.27, PARVATHY NAGAR, KOWDIAR, THIRUVANANTHAPURAM. ADV. SRI.K.V.SOHAN FOR R4 SRI.M.R.RAJESH FOR R4 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23/05/2011, ALONG WITH WPC NO. 25281 OF 2009 WPC NO. 25282 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J. CHELAMESWAR, C.J & ANTONY DOMINIC, J. ---------------------------------------------- W.A.No. 1723 of 2009, W.P(C).No. 25281 of 2009 & W.P(C).No. 25282 of 2009 ---------------------------------------------- Dated this the 23rd day of May, 2011 JUDGMENT J.Chelameswar, CJ. W.A.No.1723 of 2009 arose out of a judment in W.P.(C) No.35419 of 2007 dated 2.9.2008. There are three petitioners in the abovementioned Writ Petition. The said Writ Petition was filed challenging the land acquisition proceedings against some property jointly owned by the abovementioned three petitioners admeasuring an extent of 1.1 hectare by Exhibit P7 notification dated 15.11.2007. The said Writ Petition was partially allowed. The operative portion of the judgment is as follows: “The result of the writ petition therefore is that the order dated 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 WA.1723/09, WP(C).25281 & 25282/09 - 2 - 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 othe Land Revenue Commissioner, the same will be communicated to the petitioners also without delay.” Not satisfied with the result, the third petitioner therein preferred W.A.No. 1723 of 2009. 2. The factual background of the litigation is as follows: It appears that in the year 1958, the Government of Kerala established an institution known as the “Kumaran Asan Memorial” to perpetuate the memory of a renowned Poet called Kumaran Asan. The three petitioners referred to above are the grand children of the above mentioned Poet. It appears that the family of the Poet gifted an extent of 1.25 acres of land in Thonnakkal village in Thiruvananthapuram district for the purpose of establishing a memorial. Admittedly, there exist today on the above piece of land certain structures. In the year 1966, the Government of Kerala issued an order, G.O.MS.No.204/66/Edn. dated 30.4.1966 making rules for the administration of the abovementioned institution. We regret to place on record that the order creates a lot of confusion regarding the nature of organisation. While on the one hand there is enough indication in various clauses of the order that the memorial is a part of the State Government in clause 5 of the said order a WA.1723/09, WP(C).25281 & 25282/09 - 3 - legally doubtful declaration is made that the Managing Committee created in the abovementioned order “shall be a corporate body and shall have a perpetual seal (?) and may sue and to be sued in its corporate name”. Though it is highly doubtful whether a body corporate could be brought into existence by such an executive fiat, we do not propose to deal with that question as that may not be necessary for the present purpose nor there is any specific pleading or issue in that regard. But, for the purpose of the present litigation, we proceed on the basis that the memorial is administered by the Committee constituted by the Government and the same is a part of the State of Kerala. 3. Notwithstanding such a doubtful status, the memorial is being treated as a body corporate even for the purpose of the present litigation. The memorial, represented by its Secretary is shown as the fourth respondent to the abovementioned Writ Petition. 4. Some time in the year 2007, the Managing Committee of the fourth respondent made a representation to the Government requesting to acquire certain vacant land admeasuring 1.1 hectare adjacent to the existing Kumaran Asan National Institute of Culture, Thonnakkal. By order No.G.O.(Rt).No.557/2007/CAD dated 29.10.2007, the Government accorded sanction for acquisition of the abovementioned property comprised in various survey numbers WA.1723/09, WP(C).25281 & 25282/09 - 4 - of Veiloor Village of Thiruvananthapuram Taluk invoking urgency clause of the Land Acquisition Act (for short, 'the Act'). Subsequently, the Land Acquisition Collector issued a notification dated 15.11.2007 under Section 4 of the Land Acquisition Act, 1894. It further contained a statement that the urgency clause of Section 17(4) of the Act is invoked, thereby dispensing with the requirement of enquiry contemplated under Section 5A of the Act. 5. Challenging such procedure adopted by the respondents, the abovementioned Writ Petition came to be filed. By the judgment under appeal, the learned Judge of this Court opined that invocation of Section 17(4) of the Act was not justified and directed an enquiry under Section 5A of the Act to be conducted in accordance with law. The operative portion of the judgment is already extracted above. However, while reaching such a conclusion, a finding is recorded in the judgment under appeal at paragraph 9 by the learned Judge, which reads as follows: “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 be in dispute.” 6. The instant appeal is preferred on a very limited ground that the question whether there is a public purpose in acquiring a piece of land or not can itself be a subject matter of enquiry under WA.1723/09, WP(C).25281 & 25282/09 - 5 - Section 5A of the Land Acquisition Act and the same is required to be decided on the basis of the materials to be placed before the enquiring authority. By virtue of the abovementioned finding recorded by the learned Judge, the writ petitioners were deprived of an opportunity to place the necessary materials before the enquiring authority and invite a finding as to the existence of a public purpose. Learned counsel for the petitioner Sri.G.S.Raghunath in this regard relied upon a judgment of the Supreme Court reported in Hindusthan Petroleum Corporation Ltd. v. Darius Shapur, Chenai (2006(1) KLT 230(SC) ). At paragraph 9 of the said judgment the Supreme Court held as follows: “......Such an opportunity of being heard is necessary to be granted with a view to show that the purpose for which the acquisition proceeding is sought to be made is not a public purpose as also the suitability of land therefor. (See M.P.Housing Board v. Mohd. Shaffi, (1992)2 SCC 168, State of T.N v. A.Mohd. Yousef, (1991(4 SCC 224, Bharat Singh v. State of Haryana, (1988)4 SCC 534, and Farid Ahmed Abdul Semad v. Mu8nicipal Corporatin of the City of Ahmedabad, (1976)3 SCC 719).” 7. It can be seen from the above portion of the judgment that the Supreme Court categorically held that it is always open to the persons interested in the land proposed to be acquired to establish before the authority conducting enquiry under Section 5A of the Act that there is no public purpose would be served by the acquisition. WA.1723/09, WP(C).25281 & 25282/09 - 6 - Obviously, for the purpose of establishing such a fact, the objectors are required to place appropriate material before the enquiring authority. On the facts of the instant case, no such enquiry was conducted. On the other hand, such an enquiry was dispensed with by invoking Section 17(4) of the Act. Therefore, we are of the opinion that the learned Judge erred in recording a finding regarding the existence of a public purpose in the acquisition. The judgment under appeal to the above extent is required to be modified and accordingly, we modify the same. 8. However, pursuant to the judgment under appeal, it appears that an enquiry under Section 5A of the Act was conducted and a report, which is marked as Exhibit P11 in WP.(C).No.28281 of 2009 is made. The enquiry officer recorded in the context as follows: “......Since Government have found that the expansion for the Institute is necessary the question of public purpose is not relevant.” Obviously, the finding is wholly untenable in law. The existence of a public purpose does not, in our opinion, depend upon the decision of the Government, but must depends upon some criteria independent of the decision of the Government. In the context of the present acquisition what is the nature of the expansion which is proposed to be undertaken and what is the extent of land required for such an extension of the institution are some of the more relevant WA.1723/09, WP(C).25281 & 25282/09 - 7 - considerations for deciding whether a public purpose is involved in the matter. 9. Challenging such conclusion recorded by the enquiring authority and the consequential further action, WP(C).Nos.25281 and 25282 of 2009 are filed. For the reasons recorded above, the conclusion that an enquiry into the existence of a public purpose is irrelevant cannot be sustained. Therefore, the abovementioned two Writ Petitions are also required to be allowed. We therefore allow these Writ Petitions directing the respondents to consider afresh the question of existence of a public purpose in acquiring the land in question and take a decision in accordance with law expeditiously, preferably within a period of two months from the date of receipt of a copy of this judgment. J.CHELAMESWAR, CHIEF JUSTICE ANTONY DOMINIC, JUDGE vgs