IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 29TH SEPTEMBER 2011 / 7TH ASWINA 1933 WP(C).No. 25418 of 2011(S) -------------------------- PETITIONER: -------------- CITIZENS NETWORK FOR SOCIAL DEFENCE, REG.NO. T/787/11, REP. BY ITS VICE CHAIRPERSON INDIRA BALACHANDRAN, AGED 48 YEARS, W/O. BALACHANDRAN, MEKATTUNADAYIL THOTTUPARAMBIL HOUSE, PONNUMANGALAM, NEMAM.P.O., THIRUVANANTHAPURAM. BY ADV. SRI.A.X.VARGHESE SRI.A.V.JOJO RESPONDENTS: ----------------- 1. UNION OF INDIA, REP. BY ITS SECRETARY, DEPARTMENT OF SCIENCE & TECHNOLOGY, CENTRAL SECRETARIAT, NEW DELHI. 2. STATE OF KERALA, REP. BY CHIEF SECRETARY SECRETARIAT, THIRUVANANTHAPURAM. 3. THE ADDTIONAL CHIEF SECRETARY, REVENUE DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM 4. THE PRINCIPAL SECRETARY(EX-OFFICIO) SCIENCE AND TECHNOLOGY(A) DEPARTMENT, SASTHA BHAVAN, PATTOM,THIRUVANANTHAPURAM. 5. THE CONTROLLER OF ADMINISTRATION, RAJIV GANDHI CENTRE FOR BIO TECHNOLOGY, DEPARTMENT OF BIO TECHNOLOGY,MINISTRY OF SCIENCE AND TECHNOLOGY, GOVT. OF INDIA, POOJAPURA, THIRUVANANTHAPURAM. WP(C).No. 25418 of 2011(S) 6. THE DIRECTOR, RAJIV GANDHI CENTRE FOR BIO TECHNOLOGY POOJAPURA, THYCADU.P.O., THIRUVANANTHAPURAM. 7. THE COMMISSIONER LAND REVENUE, THIRUVANANTHAPURAM. 8. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 9. THE ASSISTANT COMMISSIONER(LA) AND SPECIAL OFFICER, LAND BANK, OFFICE OF THE COMMISSIONER, LAND TRIBUNAL, THIRUVANANTHAPURAM. 10. THE TAHSILDAR, THIRUVANANTHAPURAM. R1 BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 25418/2011 APPENDIX PETITIONER'S EXHIBITS : EXT.P1: TRUE COPY OF THENOTIFICATION PUBLISHED IN MALAYALA MANORAMA DAILY DATED 3/2/2009. EXT.P2 : TRUE COPY OF THE PROCEEDINGS OF THE 8TH RESPONDENT DISTRICT COLLECTOR DATED 9-7-2009 OBTAINED UNDER RIGHT TO INFORMATION ACT. EXT.P3 : TRUE COPY OF THE LOCATION SKETCH OF THE PROPOSED SITE GIVEN BY THE ORGANIZATION AYYER AND MAHESH. EXT.P4 :TRUE COPY OF THE G.O.(MS) NO.2/2009/S&T DATED 7/11/2009. EXT.P4(A) : TRUE VOPY OF THE ENGLISH TRANSLATION OF EXHIBIT-P4. EXT.P5 : TRUE COPY OF THE LETTER DATED 31-7-2010 OBTAINED UNDER RIGHT TO INFORMATION ACT. EXT.P6 : TRUE COPY OF THE GAZETTE OF INDIA, WHICH IS OBTAINED UNDER RIGHT TO INFORMATION ACT. EXT.P7 : TRUE COPY OF THE LETTER DATED 18-3-2011 OBTAINED UNDER RIGHT TO INFORMATION ACT. EXT.P8 : TRUE COPY OF THE LETTER BY THE M.L.A. TO CHIEF MINISTER. EXT.P9 : TRUE COPY OF THE REPORT DATED 10/7/2011. EXT.P10 : TRUE COPY OF THE G.O. (MS) 279/2011/RD THIRUVANANTHAPURAM DATED 27/7/2011. EXT.P11 : TRUE COPY OF THE SURVEY SKETCH OF THE LANDS COMPRISED IN SY.NO.651,652,647 AND 671 OF CHERUVAKKAL VILLAGE. /TRUE COPY/ PA TO JUDGE J.Chelameswar, C.J. & P.R.Ramachandra Menon, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 25418 OF 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of September, 2011 JUDGMENT J.Chelameswar, C.J. The writ petition is filed with the prayer as follows: “i) Call for the records pertaining to Exhibit P-10 and quash the same by issuing a Writ of Certiorari; ii) Issue a Writ of Mandamus or any other writ, order or direction, directing the respondents to proceed with the acquisition of land at Kalliyoor Village, Thiruvananthapuram Taluk as purposed for setting up a new campus the Rajiv Gandhi Centre for Bio Technology in public interest; iii) Issue such other reliefs that this Hon'ble Court deems fit and proper in the facts and circumstances of the case.” 2. The writ petition is allegedly filed in public interest. By the impugned Government Order, G.O.(MS) No.279/2011/RD dated 27.07.2011 (Ext.P10), the 2nd respondent accorded sanction for assignment of 20 Acres of land comprising in various survey numbers in Cheruvakkal Village of Thiruvananthapuram District, for a lease rent of `1000/- per Acre per annum to the 6th respondent. It is stated in the writ petition that the 5th respondent is a body which was originally formed by the W.P.(C) NO.25418 of 2011 -:2:- Government of Kerala as one of the units under the Science and Technology Department and it was later “taken over by the Government of India” with effect from 01.04.2007 and upgraded into the National Research Institute under the administrative control of the Government of India. What exactly is the legal status of the body is not either described in the writ petition nor otherwise available on record. We will proceed on the assumption (for the purpose of the judgment) that the 5th respondent is a body functioning under the administrative control of the Union of India. 3. The facts leading to the litigation are as follows. Initially a press release was issued by the 5th respondent on 02.02.2009, which was published in the Malayala Manorama daily. The relevant portion reads as follows: “Rajiv Gandhi Centre for Biotechnology (RGCB) as part of its developing a Second Campus would require land between 20-25 acres within a 20 Km radius of Thiruvananthapuram City. The proposed land must have proper road accessibility ad provisions for electricity, water, etc. Interested individuals or institutions may contact the institute at the address mentioned above and submit signed proposals which should provide all details on ownership deeds, W.P.(C) NO.25418 of 2011 -:3:- non encumbrance certification and all other associated records within 15 days of this advertisement. The acquisition procedures will be as per Government norms and rules.” 4. Pursuant to the above press release, certain persons, it appears, indicated their willingness for transferring their respective properties in favour of the 5th respondent. The further details of such communication are not available on record except a statement in paragraph 3 which reads as follows: “In response to Exhibit P-1 notification the agriculturists in and around Vellayani padasekharam at Kalliyoor Village, wherein suitable land is situated submitted their willingness as per Exhibit P-1 notification.” 5. Thereafter, the 8th respondent District Collector, Thiruvananthapuram issued proceedings dated 09.07.2009 Ext.P2. The relevant portion of which reads as follows: “The Controller of Administration, Rajiv Gandhi Centre for Biotechnology(RCGB) has forwarded a requisition for acquisition in Sy.Nos.262, 263, 264, 265, 266, 267, 274, 275, 276 & 277 Block No.29 of Kalliyoor Village in Thiruvananthapuram Taluk and District. The Special Tahsildar, LA General Unit, Civil Station Building, is designated as the Land Acquisition Officer for the above acquisition. He is directed to complete the Land Acquisition as per the Central Land Acquisition Act.” W.P.(C) NO.25418 of 2011 -:4:- 6. On 31.07.2010, the 8th respondent addressed a communication to the ex-officio Principal Secretary to the Government in Science and Technology(A) Department, Thiruvananthapuram. The relevant portion reads as follows: “The Director, Rajiv Gandhi Centre for Bio-technology vide reference 6th cited has informed that they have identified the proposed land since the land is generally plain, lying almost on the road level and has definite advantages on the construction process, the proposed land is very near to Thiruvananthapuram Airport, Central Stadium and existing Rajiv Gandhi Centre for Bio-Technology Campus which has a very distinct advantage. Rajiv Gandhi Centre for Bio- Technology has programmes in Agriculture, Bio Technology and low lying land provides a natural area of planting experimental plants and different rice varieties. The proposed land is partly dry land and partly wet and this characteristic meets our requirement. Even after their best efforts to identify a suitable land qualifying at least the basic criteria for research activities and distances from communication centre through all means of advertising and liaison, they could only identify the above mentioned land. From the facts and circumstances it is seen that petitioners who are complaining against the acquisition hold hardly 10% of the total land that has to be acquired and the grievances seems to be based mainly on unfounded fears of inadequate compensation. It is further pointed out that Rajiv Gandhi Centre for Bio-Technology being a Research Institute, they would be in the best position to understand what kind of W.P.(C) NO.25418 of 2011 -:5:- land they require. The role of the District Collector in this aspect is limited to that of a Land Acquisition Officer only and the District Collector is not technically qualified to comment on the land needs of Rajiv Gandhi Centre for Bio-Technology Director of Rajiv Gandhi Centre for Bio-Technology vide his letter dated 26.7.2010 has made it very clear that the land identified by them is the most appropriate for their purpose.” The substance is that the land which was proposed to be acquired as evidenced by Ext.P2(supra) has certain distinct advantages for the purposes of the 5th respondent. 7. The case of the petitioner is that notwithstanding the abovementioned facts, the impugned order came to be issued proposing to handover to the 5th respondent, other parcels of land other than the ones identified in the earlier mentioned proceedings. According to the petitioner, such deviation from the initial proposal was due to the interference by a member of the Legislative Assembly (who is not even made a party to the instant writ petition therefore we desist from naming the person). 8. It appears from the record that the abovementioned member of the Legislative Assembly addressed a letter dated 28.06.2011(Ext.P8) to the Chief Minister of Kerala in substance proposing an alternative parcel of land for the use W.P.(C) NO.25418 of 2011 -:6:- of the 5th respondent institution. The said piece of land, according to Ext.P8, is Government land admeasuring about 45 Acres, some portion of which was alloted earlier by the Government in favour of the Sports Council and also the Housing Department. From a copy of the abovementioned letter it appears that the Chief Minister made an endorsement calling upon the Chief Secretary to look into the proposal and do the needful. Eventually Ext.P11 order came to be issued. From the said order it appears that an extent of 35 Acres of land in Cheruvakkal Village, is classified as revenue puramboke, of which some portion was assigned earlier leaving 24 Acres with the Government; of which 20 Acres was proposed to be transferred in favour of the 5th respondent. Such a transfer is by way of a lease for a period of 30 years and subject to certain conditions specified in the said order. 9. The learned counsel for the petitioner, Sri.A.X. Varghese argued that the decision as to the suitability of a particular piece of land for the purpose of the 5th respondent is required to be taken primarily by the said respondent on an W.P.(C) NO.25418 of 2011 -:7:- objective assessment of all the relevant factors, but not on the basis of the opinion of an individual member of the Legislative Assembly. In view of the fact that at an earlier point of time, the Controller of Administration, after some enquiry into the matter opined that the lands in Kalliyoor village(the details of which are mentioned in Ext.P2) are suitable for the purpose of the 5th respondent institution, and State having taken steps to initiate proceedings for the acquisition of the said lands, the State cannot simply abandon the proposal merely because an individual member of the Legislative Assembly intervenes in the matter. 10. In principle, we have no disagreement with the submission made by the learned counsel for the petitioner. However, the question whether the alternative piece of land now being made available by the State of Kerala is suitable for the purpose of the 5th respondent institution is essentially a matter for the 5th respondent institution to decide. If the 5th respondent institution has any objection regarding the suitability of the proposal, it is always open for them to seek appropriate legal remedy in the matter. The fact that at an earlier point of time W.P.(C) NO.25418 of 2011 -:8:- some officer of the administration opined that a particular parcel of land was suitable for the use of the 5th respondent, does not mean that such piece of land is the 'only the piece of land' suitable for the purposes of the 5th respondent. Therefore, we are not inclined to entertain the writ petition at the instance of a third party filed purportedly in public interest. 11. The learned counsel for the petitioner further submitted that as the 5th respondent is an organisation run by the Union of India spending public money, this Court should examine the legality and propriety of the decision taken by the State especially in the background of the facts narrated earlier in this writ petition. Even the said submission of the learned counsel for the petitioner, in our view, is required to be rejected for the reason that between the two proposals, one which is being supported by the petitioner and the one which is being challenged by the petitioner, the earlier proposal would result in greater liability on the exchequer when compared to the proposal contained in the impugned order. As it is already noticed, the proposal to transfer the land is only by way of lease at a very W.P.(C) NO.25418 of 2011 -:9:- nominal annual rent. Therefore, the economic factor projected by the petitioner is also, in our opinion, not sufficient to prompt an examination of the impugned decision of the State by this Court in a public interest litigation. 12. The other submission made by the learned counsel for the petitioner is that the land which is proposed to be handed over to the 5th respondent by virtue of the impugned proceedings falls within the area where construction activity is prohibited by the Government of India by notification dated 13.01.2010, issued under the provisions of 'Works of Defence Act, 1903' (Ext.P6). Therefore the land sought to be given under the impugned order does not sub-serve the purpose for which it is sought to be given to 5th respondent. We do not propose to examine the factual correctness of the assertion. 13. Under Sections 3 and 7 of the Works of Defence Act, 1903, various activities such as construction of buildings or variation in the ground levels etc. can be restricted in the notified area. Such a restriction is required to be made after following an elaborate procedure and also on payment of compensation to the W.P.(C) NO.25418 of 2011 -:10:- persons effected by such restriction. But, we are of the opinion that the very fact that such restriction can be imposed in exercise of the statutory power, necessarily takes within its sweep, by virtue of Section 24 of the General Clauses Act, the power to vary or alter such restrictions. It is up to the 5th respondent which is said to be a body functioning under the administrative control of the Government of India and the Government of India to take appropriate decision in this regard and a third party cannot be heard to say that in view of the restriction under the abovementioned notification, the decision of the Government of Kerala is required to be interfered. We do not see any merits in the writ petition. The same is dismissed at the admission stage. J.Chelameswar, Chief Justice. P.R.Ramachandra Menon, Judge. ttb