IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 16TH SEPTEMBER 2008 / 25TH BHADRA 1930 WP(C).No. 20244 of 2008(I) -------------------------- PETITIONERS: ------------ 1. K.K.OMANAKUTTAN, KAIPADAPARAMBIL VEEDU, PERINGARAKAZHA, HMT COLONY P.O., KALAMASSERY, PIN 683 503. 2. K.K.RAVEENDRAN NAIR, KAIPADAPARAMBIL VEEDU, PERINGARAKAZHA, HMT COLONY P.O., KALAMASSERY, PIN 683503 BY ADV. SRI.M.RAJASEKHARAN NAYAR SMT.K.N.RAJANI SMT.MANJUSHA MOHANDAS RESPONDENTS: ------------- 1.STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, THIRUVANANTHAPURAM. 2.LAND REVENUE COMMISSIONER, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM- 695033. 3.THE DISTRICT COLLECTOR, ERNAKULAM. 4.THE SPECIAL TAHSILDAR (LA) FOR COCHIN REFINERY LIMITED, VYTTILA, TRIPUNITHURA. 5.KERALA INFRASTRUCTURAL DEVELOPMENT CORPORATION, KINFRA HOUSE, ELANKAM LANE, THIRUVANANTHAPURAM 695 010 REPRESENTED BY THE MANAGING DIRECTOR. R1 TO R4 BY SR. GOVT. PLEADER MR.D.ANILKUMAR R5 BY ADV. SRI.G.S.RAGHUNATH, S.C. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/08/2008, THE COURT ON 16/09/2008 DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE,J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.20244 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 16th September, 2008 JUDGMENT The petitioners grievance is that a substantial portion of their lands in R.S.No.207 Part III in Block No.6 of Thrikkakkara North Village extending to 1 acre and 80 cents is proposed to be acquired at the request of the Kerala Infrastructural Development Corporation (for short 'the KINFRA'), the 5th respondent for the purpose of constructing a new road from the Seaport-Airport road to the Hi-Tech Industries Park which is being established by KINFRA. According to them, they were having other lands in their possession but those lands were acquired for the purpose of HMT Ltd. in the year 1963. On 25.1.2006 the 4th respondent, the Special Tahsildar (LA) issued a notification under section 6 of the Kerala Survey and Boundaries Act proposing to conduct survey of the petitioners land along with other lands and on noticing that notification the petitioners made enquiries with the 5th respondent and learned that their lands are going to be acquired for constructing the proposed new road. The petitioners allege that the lands lying to the south of the petitioners properties have been purchased by some of the employees of the 5th respondent. The lands so purchased by the employees of the 5th W.P.C.No.20244/08 - 2 - respondent are excluded from the acquisition. The petitioners filed Ext.P1 petition before the third respondent, the District Collector pointing out that they are persons who were deprived of their lands for the purpose of HMT and have surrendered their lands for the construction of Panchayat road and while their lands are being acquired for the construction of the proposed new road, the persons who purchase lands in the area recently are being spared from acquisition proceedings. The third respondent without considering any of the points raised by the petitioners rejected Ext.P1 by issuing Ext.P2. Thereupon the petitioners submitted Ext.P3 pointing out the malafide action on the part of the 5th respondent and requesting the third respondent to look into the matter personally. The petitioners submit that though the third respondent was satisfied about the genuineness of their contentions, he expressed his inability to look into the matter without direction from the higher authorities. Later composite notification under Sections 4 and 17 of the Land Acquisition Act was issued by the 4th respondent, the Land Acquisition Officer, ignoring the contentions raised by the petitioners in Ext.P3. Ext.P4 is copy of the above composite notification dated 3.5.2007 published in Mangalam Daily, a Daily which according to the W.P.C.No.20244/08 - 3 - petitioners has no circulation in the locality. On noticing Ext.P4 the petitioners filed W.P.C.No.14362 of 2007 on various grounds like malafides on the part of the 5th respondent, non-application of mind on the part of respondents 2 and 3, failure on the part of the 5th respondent to consider the petitioners request and unsustainability of the composite notifications like Ext.P4. In that Writ Petition the 2nd respondent, the Land Revenue Commissioner has filed Ext.P5 counter affidavit. The petitioners submits that it is clear from Ext.P5 that the 2nd respondent was carried away by the claims of the 5th respondent, the requisitioning authority. This court finally disposed of W.P.C.No.14362/07 allowing the same in part and directed the Land Acquisition Officer to conduct an enquiry under Section 5A. Ext.P6 is copy of the judgment in W.P.C.No.14362 of 2007. After pronouncement of Ext.P6 the petitioners submitted Ext.P7 objections before the 4th respondent in addition to the objections which they had filed earlier. Pursuant to Ext.P6 the petitioners were directed to appear before the 4th respondent, hearing was conducted and the 1st petitioner submitted Ext.P8 argument notes also before the 4th respondent. Thereafter nothing was heard for some time. The 2nd respondent finally rejected the contention of the petitioners by issuing W.P.C.No.20244/08 - 4 - Ext.P9 order. Within a few days, Section 6 declaration was made and notification was issued. Ext.P10 is copy of the notification in Mathrubhumi Daily regarding the declaration under Section 6. The petitioners submit that they are ready and willing to surrender their lands at the value fixed by the Government under the fair value order and if the Government is prepared to allot each of them 7 cents also for the purpose of rehabilitation. Impugning Exts.P9 and P10 on various grounds, the petitioners have filed this Writ Petition seeking the following reliefs: 1. Call for the records relating to issuance of Exts.P9 and P10 and quash them by a writ in the nature of certiorari or other appropriate writ, order or direction. 2. Issue a writ in the nature of mandamus or other appropriate writ, order or direction to the 2nd respondent to consider Exts.P7 and P8 after calling for a report from HMT Limited about their willingness to surrender land for constructing a new road. 3. Issue a direction to the 2nd respondent to consider whether a road can be constructed through the land in possession of HMT (Government land) at a lesser cost and with a better facility. 4. Stay further proceedings pursuant to Ext.P10 for acquisition of the W.P.C.No.20244/08 - 5 - land till the disposal of this Writ Petition. 2. The requisitioning authority, the KINFRA has filed a detailed counter affidavit. It is contended therein that the 5th respondent is a statutory Corporation formed under the Kerala Industrial Infrastructure Development Act, 1993 (Act 3 of 1993). Referring to Section 25 of the said Act it is contended that the Government is bound to acquire land when the 4th respondent makes a request. It is then contended that KINFRA is in possession of 240 acres of land in Kalamassery adjacent to the HMT land and that the said land was assigned to KINFRA for setting up of Hi-Tech Park with all infrastructure facilities. M/s.FEDO has prepared a master plan for the entire 240 acres of land dividing the lands into different zones by connecting well developed roads from the proposed Airport-Seaport road and the entry to the Hi-Tech Part is mainly from the above Airport-Seaport road located near the HMT office, which is approximately 2 K.M. away. KINFRA land is located approximately 400 meters away from the second phase development of Airport- Seaport road which is proposed as an alternate entry. A survey was conducted by the technical team of KINFRA for the proposed link road and identified an extent of 4.5 acres of land having 400 meters length W.P.C.No.20244/08 - 6 - and 45 meters width between KINFRA Park and Airport-Seaport road. The counter affidavit contends that the proposed link road is very essential to provide access to the Airport-Seaport road from the Hi- Tech Park. This is why request was made for acquisition. The petitioners' land is a paddy field which is not under cultivation since long time. Shifting of the alignment of the proposed road to one side will necessitate acquisition of land from the temple and pond of the Devaswom Board and acquisition of residential buildings in the area. If the alignment is shifted to other side, it would necessitate acquisition of a number of residential houses and shopping complex of the Kalamassery Municipality. Therefore the two options pointed out by the petitioners are not technically and economically feasible. It is further pointed out that enquiry conducted through the Village Officer reveals at the first petitioner Omanakuttan had possessed total extent of 2.88 acres of land in the area and out of which an extent of 1.12 acres was sold out recently and another extent of 34 cents has been acquired by the Government for the development of Airport-Seaport road. KINFRA is acquiring only from the balance 1.42 acres from the 1st petitioner for the purposes of the link road. It is also pointed out that recently the 1st petitioner had tried to sell the W.P.C.No.20244/08 - 7 - above 1.42 acres but the proposal did not materialise due to high price demands. It is then pointed out in the counter affidavit that the width of the proposed link road is fixed based on IRC specification of roads for State Highway. The total width of the acquired area is 45 meters which includes black topping width, divider and road shoulders along with road embankments. The bottom width of the embankment is considered as 45 metres and the road is designed equivalent to Highway standards keeping in view of the future developments in connection with the following projects: 1. Special Economic Zones for Bio-Technology, Gem and Jewellery and Electronics. 2. International Exhibition and Trade Centre (100 storied building comprising of commercial office space, club house and service apartments). 3. Academic zone developed by National University for Advanced Legal Studies etc. It is then pointed out that the traffic volume to the park will be increased within a short period due to further development of Hi-Tech Park and the traffic volume can be diversified only by providing a second entrance. Therefore an additional access to the Seaport- W.P.C.No.20244/08 - 8 - Airport road is necessary from the north west side of the KINFRA Hi- Tech Park. The Government is still proceeding with the work of second phase of the Seaport-Airport road. This road can be connected to the proposed Kalamassery bus stand through the peripheral road of KINFRA. The public will also be benefited by this road to a great extent. It is then alleged that the petitioners are having only their personal interest of improving their pocket and they want the entire development activities of the State benefiting a large section of the public being stalled or destroyed for their personal interest. Ext.R5(a) produced along with the counter affidavit is the plan showing the land being acquired. The counter affidavit denies the allegation that declaration under Section 6 has been issued without conducting detailed hearing. The allegation that near the property proposed to be acquired there is land belonging to the employees of the 5th respondent and that the acquisition as per the proposed alignment is with the objective of helping them are denied and described as vague, false and malicious. It is pointed out that the petitioners have not chosen to disclose the names of the so-called employees and the officers of KINFRA. It is then pointed out in the counter affidavit that out of a total extent of 4.464 acres which is being acquired for the W.P.C.No.20244/08 - 9 - purpose of the link road, the petitioners property has only 1.42 acres and that it is the petitioners alone who have comeforward to this court challenging the acquisition, attributing malafides and such other wild allegations. The allegation that the acquisition is behind the back of the HMT also denied as untenable and false. The allegation that the notification under Section 4(1) has not been given due publicity is also denied and it is pointed out that apart from Mangalam daily, the notification was published in Desabhimani, the Official Gazette and on the acquired property. As regards the contention of the petitioners that they are agreeable for acquisition if compensation is given as per the fair value order, it is contended that the land value fixed for Stamp Act cannot be considered for determining compensation. It is pointed out that the claim for compensation can be considered only at the proper stage of the proceedings. The above contention of the petitioners will indicate that the petitioners intention is to sell their land for fancy price. The petitioners claim for 9 cents of land for rehabilitation is also not a matter to be considered in this Writ Petition since such claims will depend upon the policy of the Government regarding each case. The counter affidavit goes on to deny each and every grounds raised by the petitioners one by one and ultimately W.P.C.No.20244/08 - 10 - concludes by contending that the petitioners are not entitled to claim any reliefs under the extra ordinary jurisdiction of this court under Article 226 of the Constitution. 3. Mr.M.Rajasekharan Nayar, learned counsel for the petitioners would address me extensively on the various grounds raised in the Writ Petition. Learned counsel drew my attention to the various documents placed on record by both sides and submitted that there is every reason for quashing Exts.P9 and P10 orders. Learned counsel would refer to the judgment of the Supreme Court in Collector (Distt. Magistrate), Allahabad v. Raja Ram (AIR 1985 S.C. 1622) and submitted that the power conferred on the Government and the District Collector under Section 4(1) of the Land Acquisition Act is the power to acquire land for a public purpose and the said power is to be exercised reasonably and in good faith for effectuating the public purpose. Learned counsel submitted that if the power is exercised for extraneous and irrelevant considerations such as to provide road and road access to the properties recently purchased by the employees of the 5th respondent, then such exercise will unquestionably be colourful exercise of power or fraud on power. Referring to the judgment of this court in George Joseph v. Union of India (ILR W.P.C.No.20244/08 - 11 - 2008 (2) Kerala 545), the learned counsel would submit that the conduct of a public hearing before issuance of a notification under Section 4(1) of the Act regarding major projects such as new roads, bye-pass etc. is absolutely necessary so that objections by the public regarding the feasibility of an alternative alignment or alignments can be avoided and transparency can be maintained by giving an opportunity to the beneficiaries of the acquisition and the persons who are likely to be affected by the project. Such a meaningful public hearing has not been conducted in this case, submitted Mr.Rajasekharan Nayar. Principles of natural justice are to be followed by the authorities under the Land Acquisition Act and in support of this argument the learned counsel would refer to the decision of the Division Bench of this court in Subair Haji v. Secretary to Government (2007 (4) KLT 865). Strong reliance was placed by Mr.Rajasekharan Nayar on the judgment of the Full Bench of this court in Padmavathi Amma v. State of Kerala [1983 KLT 29(FB) ] in support of his argument that what is to be expected from the Land Revenue Commissioner is independent application of mind on the question as to whether a particular land proposed to be acquired is really needed for a public purpose. In the instant case W.P.C.No.20244/08 - 12 - there is no such independent application of mind. The Land Revenue Commissioner has without making an independent application of the mind concluded that the land in question is needed for public purpose accepting the reasoning of the requisition authority requesting the land for its purposes. The issue whether there has been application of mind by the Government or the competent authority, the Land Revenue Commissioner, on the question there has been application of mind by the Government or the competent authority, the Land Revenue Commissioner and the question whether there is need to acquire the very property which is now proposed to be acquired while serving declaration under Section 6 is justiciable. Learned counsel placed strong reliance on the judgment of the Supreme Court in Devinder Singh v. State of Punjab [ (2008) 1 S.C.C. 728]. 4. Meeting the submissions of Mr.Rajasekharan Nayar very ably, Mr.G.S.Raghunath would refer to various provisions of the Kerala Industrial Infrastructure Development Act, 1993 (Act 3 of 1993) such as Sections 4, 5, 9, 10 and 25. Referring to the judgment of the Supreme Court in First Land Acquisition Collector v. Nirodhi Prakash Gangoli [ (2002) 4 S.C.C. 160], Mr.Raghunath submitted that urgency is a matter for subjective satisfaction by the W.P.C.No.20244/08 - 13 - appropriate Government and this is a case where pursuant to the orders of this court enquiry under Section 5A has been conducted and the petitioners cannot have any legitimate grievance since sufficient opportunities has been given to the petitioners for objecting to the acquisition on all available grounds. Learned counsel submitted on the authority of very same decision that the burden of establishing mala fides is very heavy on the person who alleges it. Mere allegations are not enough and specific materials should be placed before the court for proving malafides. In this case no such materials has been produced for establishing malafides. Referring to the judgment of the Supreme Court in Balakrishna Pillai v. State of Kerala (AIR 1992 Kerala 136) Mr.Raghunath argued that the actual extent needed for a purpose is to be decided by the authorities concerned under the Act and not by the court in exercising extra-ordinary powers under Article 226 of the Constitution. Referring to the judgment of the Supreme Court in Gandhi Grah Nirman Sahkari Samiti Ltd. v. State of Rajasthan (AIR 1994 S.C. 2329) Mr.Raghunath submitted that the court cannot judge comparative utility of the public purposes to decide the validity of acquisition and once the court is satisfied that the acquisition is for a public purpose, no fault can be found with the W.P.C.No.20244/08 - 14 - proceedings on the ground that the land is already being used for some beneficial purpose. Mr.Raghunath also relied on the judgments of the Supreme Court in Bhagat Singh v. State of U.P. [ (1999) 2 S.C.C. 384] and Bajirao T.Kote v. State of Maharashtra [ (1995) 2 S.C.C. 442]. On the authority of the decision of the Supreme Court in Chameli Singh v. State of U.P. [ (1996) 2 S.C.C. 549] Mr.Raghunath argued that in every acquisition by its very compulsory nature, the owner may be deprived of the land which may be his means of livelihood. The State exercises its power of eminent domain for public purpose and acquires the land. So long as the exercise of the power is for public purpose, the individual's right as an owner must yield place to the larger public interest. 5. As requested by Mr.Rajasekharan Nayar, I directed Mr.Raghunath to produce the master plan prepared by M/s.FEDO as well as the sketch showing the alignment of the proposed link road in relation to the adjoining properties. Both the documents were made available by Mr.Raghunath and they are made part of the records of this case. It was clarified by Mr.Raghunath that the master plan prepared by M/s.FEDO is the master plan in respect of the KINFRA Hi- Tech Park and that the plan does not show the details of the lands W.P.C.No.20244/08 - 15 - identified by FEDO people for the proposed connecting road though the lands were actually identified by them. As directed by me the learned Government Pleader placed before the file relating to the subject land acquisition. The learned Senior Government Pleader Mr.D.Anilkumar would refer to the judgment of the Supreme Court in M/s.Girias Investment Pvt. Ltd. v. State of Karnataka (JT 2008 (4) S.C. 242) and argue that the allegations of malafides levelled by the petitioners in the context of employees and workers of KINFRA are to be ignored in the absence of those individuals before this court. 6. The petitioners seek the relief of quashing Exts.P9 and P10 mainly on the following grounds: 1. The acquisition is for helping the employees of the 5th respondent. 2. Ext.P9 does not disclose a bonafide purpose and there has been no application of mind independently by the 2nd respondent. 3. The second respondent did not hear the petitioners before passing Ext.P9. 4. The question whether the HMT prepared to surrender their land free of cost has not been considered. 5. Respondents are not considered whether alternate lands are available. W.P.C.No.20244/08 - 16 - 6. Ext.P9 is based on irrelevant and extraneous considerations. 7. The approach road proposed by the 5th respondent need not have a width of 45 metres. 8. Ext.P9 is invalid since it has been passed in the same line in which the earlier order Ext.P2 was issued. During the submissions Mr.Rajasekharan Nayar would give thrust to the grounds of malafides on the part of the respondents in acquiring the petitioners properties, the real intention being to confer the properties of the 5th respondent's employees with the frontage or access of the proposed link road. Mr.Rajasekharan Nayar would also highlight that if HMT lands are available for acquisition on free of cost, there is no need at all to acquire the properties of the petitioners since such a course will not be economically viable. Learned counsel would point out that even the M.G.Road at Ernakulam does not have more than 20 metres of width, therefore it is absolutely unnecessary to have a 45 metre wide road for connecting the Seaport-Airport road with their Hi-Tech Park. 7. The next point for consideration in this Writ Petition is whether the contentions raised by the petitioners are tenable and whether the power of this court under Article 226 of the Constitution W.P.C.No.20244/08 - 17 - can be invoked for quashing Exts.P9 and P10. The above question in my opinion can be decided only in the negative. 8. It is not disputed by the petitioners that the Land Acquisition Officer did not hear them before submitting the report to the District Collector. This is clear from paragraph 12 of the Writ Petition. Ext.P7 is the statement of objections filed by them before the Land Acquisition Officer and Ext.P8 is the written argument notes submitted by them. Thus, obviously opportunities were given to the petitioners pursuant to Ext.P6 judgment. This is clear from Ext.P9 also. I have no doubt in my mind that enquiry under Section 5A has been conducted in this case in compliance with the directions of this court in Ext.P6 judgment. 9. The question which arises next is whether the acquisition is for a public purpose or it is for achieving the private need of the employees of the 5th respondent as the petitioners alleged. The allegations of malafides are stoutly denied by respondents 2 and 5. Ext.P5 is the counter affidavit filed by the Land Revenue Commissioner in Ext.P6 Writ Petition. In paragraph 5 of Ext.P5 it is specifically contended that the allegations of malafides are baseless. The Land Revenue Commissioner was the 4th respondent and KINFRA W.P.C.No.20244/08 - 18 - was the 3rd respondent in Ext.P6 case and KINFRA has also filed a counter affidavit in that case as is seen from paragraph 4 of Ext.P6 judgment. I have incorporated the judges papers pertaining to Ext.P6 case and gone through them. It will be noticed immediately that the allegations of malafides are vague. It is not stated as to who are the officers who will be benefited and as to who are the officers responsible for fixing the present alignment with malafide objectives. Importantly none of the employees or the responsible officers are made parties to the Writ Petition nor has made parties in Ext.P6 case. The 5th respondent is a statutory corporation which as such cannot have any malafides. If at all