IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE FRIDAY, THE 20TH JUNE 2008 / 30TH JYAISHTA 1930 OP.No. 12801 of 2000(Y) ---------------------------------- PETITIONER: ------------------- SISTER SUPERIOR, ST. TERESA'S CONVENT, (MANAGER, ST. JOSEPH'S SCHOOLS), KOONNAMMAVU, ERNAKULAM. BY ADV. SRI.T.M.ABDUL LATHEEF. RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, ERNAKULAM. 3. SUPERINTENDING ENGINEER, NATIONAL HIGHWAY-17, OFFICE OF THE SUPERINTENDING ENGINEER, N.H.17, TRICHUR. *ADDL.R4. SPECIAL TAHSILDAR (L.A), N.H. NO. III, VYTTILA, ERNAKULAM - 682 019. *ADDL. R4. IMPLEADED VIDE ORDER DATED 28/03/2007 ON I.A. NO. 1229/07. R1 TO R4 BY ADDL. A.G. SRI. VENGANOOR CHANDRASEKHARAN NAIR, GOVT. PLEADER SRI. BENNY VARGHESE. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 20/06/2008, ALONG WITH W.P.(C). NO.8400/2006,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P. NO. 20962/2000 AND I.A. NO. 1228/2007 IN O.P. NO.12801/2000 DISMISSED 20/06/2008. SD/- PIUS C.KURIAKOSE, JUDGE. APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PHOTOGRAPH SHOWING THE MAIN HIGH SCHOOL BUILDING. EXT.P.2: COPY OF THE PHOTOGRAPH SHOWING THE MAIN BUILDING OF THE CHAVARA SPECIAL SCHOOL. EXT.P.3: COPY OF THE PHOTOGRAPH SHOWING THE LOWER PRIMARY SCHOOL BUILDING. EXT.P.4: COPY OF THE PHOTOGRAPH SHOWING THE PICTURE OF THE CONVENT. EXT.P.5: COPY OF THE PHOTOGRAPH SHOWING THE STATUE OF CHAVARA ACHAN. EXT.P.6: COPY OF THE PHOTOGRAPH SHOWING AREA WHICH IS LIABLE TO BE DEMOLISHED. EXT.P.7: COPY OF THE PHOTOGRAPH SHOWING THE SINGLE STORIED HIGH BUILDING WITH THE STONE PLANTED. EXT.P.8: COPY OF THE PHOTOGRAPH SHOWING LOCATION OF WATER TANK AND BATH ROOMS. EXT.P.9: COPY OF THE SKETCH SHOWING EXACT LOCATION OF THE SCHOOL BUILDING, THE PROPOSED ALIGNMENT AND ALSO THE EXISTING ROAD. EXT.P.10: COPY OF THE PETITION DTD. 18/04/2000 SUBMITTED BY THE PETITIONER BEFORE R.1. EXT.P.11: COPY OF THE PETITION DTD. 18/04/2000 SUBMITTED BY THE PETITIONER BEFORE R.2. EXT.P.12: COPY OF THE PETITION DTD. 18/04/2000 SUBMITTED BY THE PETITIONER BEFORE R.3. EXT.P.13: COPY OF THE CERTIFICATE OF THE REGISTRATION OF INSTITUTIONS NO.12/1995 THIRUVITHAMKOOR-KOCHI DTD. 3RD APRIL 1991. O.P. NO. 12801/2000-Y: EXT.P1.4: COPY OF THE RELEVANT PORTION OF THE CONSTITUTION OF THE CONGREGATION OF THE MOTHER OF CARMEL (C.M.C). EXT.P.15: COPY OF THE CONSTITUTION OF THE CORPORATE EDUCATIONAL AGENCY VIMALA PROVINCE OF THE CONGREGATION OF THE MOTHER OF CARMEL, ERNAKULAM. EXT.P.16: COPY OF THE LETTER C. NO. 3/06 DTD. 20/02/2006 SUBMITTED BY THE PETITIONER BEFORE THE CHAIRMAN, NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTION. EXT.P.17: COPY OF THE LETTER F. NO. 107/2006/4999 DTD. 21/03/2006 ISSUED BY THE CHAIRMAN, NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTION, TO THE PRESIDENT, CONGREGATION OF MOTHER OF CARMEL, ALONG WITH ITS ENCLOSURE. EXT.P.18: COPY OF THE ENCUMBRANCE CERTIFICATE NO. 3053/07 DTD. 07/03/2007. //TRUE COPY// prv. PIUS C. KURIAKOSE, J. ----------------------------------------------- O.P. No. 12801 & OF 2000 & WP(C) No. 8400 of 2006 ------------------------------------------------------------- Dated this the 20th day of June, 2008 J U D G M E N T O.P. 12801 of 2000 is filed by Rev. Sr. Superior of St.Teresa's Convent, Koonammavu , who is also the local manager of St.Joseph's Schools run by the convent. WP(C).8400 of 2006 is filed by the Principal, Chavara Special School for Mentally Retarded, Koonammavu under the management of Sisters of Modonna Convent. The St.Terasa's Convent and Sisters of Modonna Convent are both Convents affiliated to the Vimala Province of C.M.C. (Congregation of the Mother of Carmel) which is a prominent congregation of Catholic nuns. The respondents in WP(C). No. 8400 of 2006 are the Union of India represented by Secretary to Government, Ministry of Surface Transport, New Delhi, the District Collector, Ernakulam, the Executive Engineer, National Highway, Trichur and the Tahsildar, Parur. In O.P. No. 12801/2000, the State of Kerala represented by the Secretary to Government, Public Works Department, the District Collector, Ernakulam, and the Superintending Engineer, National Highway, N.H. 17 are respectively the respondents. Special Tahsildar (LA), N.H. No.III, Vyttila was impleaded as additional respondent No.4. These writ petitions raise identical grounds and hence they are being WP(C)N0. 12801/2000 etc. -2- considered together. 2. The petitioners are aggrieved by the proceedings initiated for acquisition of the properties of the St.Joseph's High School and the Chavara Special School for the purpose of widening of/formation of National Highway 17 from Edappally to Moothakunnam. It is averred in O.P. No. 12801 of 2000 that the St.Terasa's Convent runs several prestigious educational institutions including the St. Joseph's Schools and the Chavara Special School for mentally retarded children and a total number of 4000 students are studying in these institutions. The St.Joseph's High School is functioning in a double storied building and another building situated close to that building. A row of bathrooms have been constructed for convenience of the students and the water tank is located near to the bathrooms. Referring to the provisions of the Kerala Education Act and Rules it is submitted that every school is to have a prescribed mandatory area and since various educational institutional institutions are functioning in the very same compound the area of each educational institution is to be earmarked separately. The educational institutions are functioning for public welfare and interest, and acquisition of school property will result in reduction in the mandatory minimum area required for the schools. The WP(C)N0. 12801/2000 etc. -3- accomplishment of one public purpose, i.e., road widening should not be at the cost of another public purpose, that is the continued running of educational institutions and it is accordingly contended that property of the educational institutions cannot be acquired for accomplishing the purpose of National Highway widening. It is claimed that in the Land Acquisition Manual there are specific directions to the effect that properties of public institutions are to be excluded from land acquisition. It is further averred in O.P. No. 12801/2000 that as per the original alignment proposed a width of less than 50 metres alone from the margin of the existing road would have been acquired, in which case only the compound wall of the St.Joseph's School would have been affected. It is alleged that for the purpose of saving some private persons' property from acquisition the original alignment has been deviated and a new alignment has now been fixed. As per the new alignment portion of the High School building, basement of the Lower Primary School, statue of the blessed Chavara Achan installed in front of the special school will have to be acquired. Portions of the school building will have to be demolished and the statue of Chavara Achan and the row of bathrooms constructed for the students will have to be demolished completely. It is alleged that extensive areas of land WP(C)N0. 12801/2000 etc. -4- belonging to the convent will also have to be acquired if the revised alignment is being implemented. Photographs Exts.P1 to P8 are relied on in this context. It is pointed out in this context that as per the original proposal it would have been necessary to acquire only 15 metres width of land from the convent property lying adjacent to the existing Paravoor – Varapuzha Road. But as per the present proposal the existing Paravoor – Varapuzha Road and a strip of another property having width of 7 metres lying adjacent to the existing road will be left out from acquisition. The result of the formation of the highway as per the present alignment is that the educational institutions and the convent will come to be located very close of the high way thereby the serenity which the convent and the educational institutions presently enjoy will be lost for ever. As instituted originally the reliefs sought for in W.P.(C) No. 12801/2000 were the following: 1) To call for the records relating to Exts.P1 to P13 and to issue a writ of mandamus commanding the respondents to avoid the present proposed alignment of National Highway 17 forming part of the School compound and also to direct the respondents to carry out and to acquire the property for the formation of N.H. 17 as per the original proposal by which the existing road and a space having a width of 15 metres adjoining the existing road in front of the school compound alone be acquired. 2) To issue a writ of mandamus commanding the respondents 1 to 3 to exclude the school buildings and other buildings and WP(C)N0. 12801/2000 etc. -5- other buildings of the petitioner from acquisition by keeping 15 metres space in between the school building and the edge of proposed N.H. 17. 3) To issue a writ of mandamus commanding the respondents 1 to 3 to consider and pass orders in Exts.P10 to P12 and also not to carry out or implement the proposed alignment of N.H. 17 at the area of the school compound. 4) Any other appropriate writ, order or direction also may be granted to meet out justice under the above circumstances of the above case. 3. Later the above writ petition was got amended and as per the amendment the following additional relief also has been incorporated. To issue a writ of mandamus declaring that the entire acquisition proceedings initiated against the school property which is a minority institution is arbitrary, unjust, illegal and offence the constitutional right guaranteed under Article 30(1)A of the Constitution of India and also to declare that the State Government does not have the competence to acquire the property of the school under the Land Acquisition Act. 4. The above additional relief is based on ground No.D introduced obviously on the basis of the judgment of a Constitution Bench of the Honourable Supreme Court in Society of St.Joseph's College v. Union of India, 2002(1) KLT 438 (SC), a judgment which was pronounced by the Honourable Supreme Court during the pendency of the writ petition. On the basis of this judgment it is urged under ground No.D that the writ petitioner institution is a minority WP(C)N0. 12801/2000 etc. -6- institution and that as per Article 30(1A) of the Constitution any law which provides for compulsory acquisition of the minority institution's property shall ensure that the amount fixed under that law for payment to the institution for acquisition of the property should be such as do not restrict or abrogate the right guaranteed under that clause. It is contended that neither the State Government nor the Union Government have introduced any such special legislation for acquisition of the properties of the minority institution and therefore the present proceedings initiated under the ordinary land acquisition law offends the constitutional guarantee under Article 30(1A). 5. On behalf of the second respondent a counter affidavit is filed and it is contended therein that as per Ext.P9 produced by the petitioner itself it will be seen that the St.Teresas Convent has sufficient space at their disposal for accommodating all their institutions. It is contended further that the new alignment of NH 17 from Moothakunnam to Edappally was approved by the Ministry of Surface Transport as per Ministry's order No.RW/NH/7/KR/8/88 part dated 12-12-1995. A portion of the new alignment which is subject matter of the writ petition comes in between the two already fixed ends viz. Varapuzha and Cheriappilly bridges for which planting of WP(C)N0. 12801/2000 etc. -7- boundary stones has already been done and construction of Varapuzha bridge is nearing completion. Hence this portion being the portion in between the two above fixed ends is joined by means of three numbers of curves and straight line as per the plan approved by the Ministry of Surface Transport. Also, the approved alignment in the alleged portion is straight and during the actual transferring of alignment to ground it is found that the existing road is actually five metre away from the boundary of the approved alignment. It is then pointed out that the existing National Highway 17 is full of sharp curves, bends etc. and the proposal of the Ministry is to have a new National Highway 17 which need not necessarily pass through the existing N.H.17 at all points. While constructing National Highways, certain road geometrics are to be followed and hence unwanted small curves, bends etc. are to be avoided. In the acquisition in the alleged portion (which takes in the petitioner's property) the alignment is straight and that is why the same does not take in the existing road. The counter affidavit denies the allegation that it is for the purpose of saving some private property that the alignment has been approved in the present fashion. It is submitted that the Lower Primary School is not at all affected by the proposed acquisition and it is only one-third WP(C)N0. 12801/2000 etc. -8- of the portion of the basement of Chavara Achan's statue which will be affected. The site where the actual statute stands is not affected by the present proposal. It is then submitted that if by the acquisition a part of any building, or the safety of any structure is affected compensation will be given for the entire structure. The allegation that about four acres of land belonging to the convent is to be acquired is described as an exaggerated one and it is pointed out that the actual extent is far less. It is reiterated in the counter affidavit that no major deviation has been made from the original proposal as the petitioner alleges. Only certain corrections in angle of deviation at curves, so that the approved alignment could be transferred to the ground have been made. Ultimately it is submitted that in any type of acquisition for the construction / widening of a road, property belonging to some individuals will inevitably be affected. Change of alignment cannot be a solution for the complaints raised by the persons whose properties are affected by the acquisition. 6. After the amendment, a detailed additional counter affidavit has been filed by the 4th respondent. It is contended therein that the petitioner has not produced any documents for substantiating the contention that the petitioner is a minority educational institution. The WP(C)N0. 12801/2000 etc. -9- property under acquisition in thandaper No.901 of Kottuvally Village is in the name of the convent (Mutt). A total extent of 0.79.96 ares of property belonging to the convent is proposed to be acquired. It is not established that St.Joseph's School, Koonammavu has any property in thandaper No.901 of Kottuvally Village or any other thandapper number. Petitioner has to first establish that it is a minority institution for claiming protection of the judgment rendered by the Supreme Court. Thereafter it has to be proved that the properties sought to be acquired belongs to the institution. It is submitted that accepting a requisition forwarded in form No.2 by the Executive Engineer PWD National Highway Division, Kodungallur to the second respondent the Government accorded sanction to the second respondent for acquiring 10.896 hectares of land in Kodungallur, Alangad and Varapuzha Villages of Parur Taluk for the purpose of widening of National Highway 17 passing through those villages as per Government Order No. G.O. (Rt). 286/04/PWD dated 12-3-2004. Pursuant to that G.O. the second respondent appointed the 4th respondent as the L.A. Officer. Thereafter notification under section 6(1) of the Kerala Survey and Boundaries Act was published on 16-12-2003 inviting persons having any interest in the land or in the boundaries of which the survey is WP(C)N0. 12801/2000 etc. -10- ordered and subsequently the first respondent Government approved a combined notification in Form 3(d) and under sections 4(1) and 17 (4) of the L.A. Act in respect of the land in Alangad and Kottuvally Villages. Accordingly the composite notification was published in Mathrubhumi daily and Deshabhimani daily, in the Taluk Office and in the locality. It is submitted that the last date of publication of the above composite notification was on 23-8-2004. It is further submitted that draft declaration was approved by first respondent on 3-8-2005 regarding Alangad and Kottuvally Villages and thereafter declaration in form No.5(b) under section 6 of the L.A. Act and Rule 8 (5) of the Land Acquisition Rules was duly published on 16-8-2005. It was also pointed out that Government had accorded sanction for invoking the emergency provision under section 17 on being satisfied that this is a fit case for such invocation. Thereafter a public notice under section 9(1) of the Act in form No.9(a) was issued on 31-8-2005 stating that the Government intends to take immediate possession and also inviting all interested persons to appear before the L.A. Officer and to file claim statements. This public notice was duly published. It is highlighted in the counter affidavit that out of 222 L.A.cases in respect of Alangad and Kottuvally Villages land in 220 cases had been WP(C)N0. 12801/2000 etc. -11- handed over to the requisitioning authority. Property in only two cases within the limit of Kottuvally Village remains to be handed over to the requisitioning authority and one case is that of the petitioners. It is submitted that the basic valuation report in respect of the properties in Kottuvallay Village belonging to the petitioner stands already approved by the second respondent. Pursuant to notice under section 9(3) regarding the award enquiry Sr.Jessy, Rev. Superior of the St.Thomas Convent appeared and after the award enquiry award has been passed in 221 cases. It is then contended that part of the building which is proposed to be acquired was constructed 41 years ago and the proposal is to award compensation for the entire building as per valuation by the PWD authorities. Thus even though a small portion only of the building is being taken over, compensation is going to be awarded for the entire building. As regards Chavara Achan's statue, it is contended that the statue will not come within the alignment. As regards the bathrooms and the water tank it is contended that they have been constructed only after the final alignment was fixed. Fixation of alignment was done by the National Highway authorities and the land acquisition officer is expected to acquire land as per the alignment fixed by the National Highway WP(C)N0. 12801/2000 etc. -12- Authorities. The counter affidavit denies the allegations in the writ petition regarding procedural irregularities in the context of issuance and publication of various notices under the statute and claims that proceedings have continued perfectly in accordance with law. It is further contended that the allegation that this acquisition will affect a chain of buildings belonging to the convent is incorrect. It is stated that out of a total plinth area of 1500 sq. metres in the school buildings the portion to be evicted by the acquisition for NH 17 widening is only 260 sq. metres. It is pointed out that at present the school authorities are constructing a new building so that the same can be used when the old building is removed for the purpose of the acquisition. Rule 15(3) notice demanding possession was issued on 15-1-2007. N.H. 17 is a narrow road where accidents occur quite often and hence widening of NH 17 is a very urgent public purpose. Declaration under section 6 has been made within a period of one year from 23-8-2004 which in this case was the last date of publication of notification under section 4(1). Emergency clauses were invoked and section 5A enquiry was dispensed with considering the genuine emergency of the matter. 7. The petitioner has filed a reply affidavit on 14-11-2007 WP(C)N0. 12801/2000 etc. -13- reiterating the averments in the writ petition and it is stated that the school is a very ancient school established years ago by Christian Nuns belonging to minority Christian Community and is maintained by the said community under Article 30 of the Constitution of India. The property where the school is located is the property of the school itself. Though in Ext.P15 it is stated that the property is standing in the name of Mother Superior of St. Joseph's Convent, the schools have been established by the Convent on Convent's property by utilising convent property for establishment of the school and the school is governed by the provisions of the Kerala Education Act and Rules and therefore the property where the school is established is school property itself. As regards the construction of the new building it is contended that the purpose of that construction is not to accommodate the students who will be deprived of their class rooms because of the acquisition. The school has a higher secondary wing also and it is to accommodate the higher secondary wing that the new building is being constructed. It is also contended that the entire land acquisition proceedings have become lapsed since the award has not been passed with the statutory period after the passage of section 6 declaration. It is pointed out that the stay granted was only in respect WP(C)N0. 12801/2000 etc. -14- of the passage of dispossession and not regarding passage of award. 8. An additional reply affidavit was also filed by the petitioner on 17-3-2008. Ext.P13 produced along with the additional reply affidavit is the registration certificate issued under Act 12 of 1955 to the congregation of Mother of Carmel, the corporate educational agency which has established the school in question. Ext.P14 is the relevant extract of the Code of Canons of Eastern Churches dealing with the C.M.C.( Congregation of Mother of Carmel). Ext.P14 shows that the C.M.C is a religious and charitable association of a religious minority group within the purview of the Constitution of India. Ext.P15 is copy of the relevant portions of the Constitution of the Corporate Educational Agency (Vimala Province of the CMC) which owns and runs the school. Ext.P16 is copy of the application submitted by the Corporate Educational Agency to the Chairman, National Commission for minority educational institutions seeking minority status certificates for the various educational institutions established and conducted by the Corporate Educational Agency. Serial Nos. 4 and 15 inExt.P16 are the schools which are subject matter of these two writ petitions. Ext.P17 is copy of the letter issued by the Chairman of the National Commission in response to Ext.P16. Under Ext.P17 the corporate WP(C)N0. 12801/2000 etc. -15- manager is directed to approach the State Government first and to prefer appeal to the Commission in the prescribed format in case the State Government declines minority status certificate. P17 annexes a copy of the prescribed format of appeal. Ext.P18 is copy of encumbrance certificate pertaining to the property of the school and the same is relied on to show that the school is a pre K.E.R. School and the properties are under the possession of the school. Property shown in Ext.P18 is owned by the educational agency and as per the constitution of the agency every school is to have a local manager. This is why a lease of the property is given by the corporate manager in favour of the local manager and the Government was not expected to take a misleading contention that the educational agency has parted with possession of the school property. The contention that minority status has not been established by the petitioner is incorrect. Minority status is obtained by virtue of the establishment of the school by the congregation of mother of Carmel. Even without any certificate regarding minority status issued by anybody the institution enjoys minority status. 9. Very extensive arguments were addressed before me by Sri.T.M.Abdul Latiff, learned counsel for the petitioner and WP(C)N0. 12801/2000 etc. -16- Sri.Vengannoor Chandrasekharan Nair, learned Additional Advocate General. The learned Additional Advocate General placed before me for perusal the entire file relating to the acquisition proceedings in question. The file reveals that an award enquiry was conducted pursuant to notice under section 9(3) and that in the same the petitioner in writ petition No. 12801/2000 filed objections – claim statement. The draft award prepared by the awarding officer proposing to award a total amount of Rs.1,62,81,039.47 for the acquired property is kept in the file. The file will show that the draft award is yet to be approved by the District Collector since the approval from the Government is necessary since the total compensation is more than Rs.1 crore. The file will reveal that the Government's contention that notification under section