IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE MONDAY, THE 6TH OCTOBER 2008 / 14TH ASWINA 1930 WP(C).No. 7608 of 2008(E) ------------------------- PETITIONER(S): --------------- KADUNA PROPERTIES PRIVATE LTD., CHERAMAIL BUILDING, SRIKANDATH ROAD, COCHIN, REPRESENTED BY ITS DIRECTOR, JACOB CHERIAN. BY ADV. SRI.BECHU KURIAN THOMAS SRI.NAVEEN SHERRY LUKOSE RESPONDENT(S): --------------- 1. UNION OF INDIA, REPRESENTED BY SECRETARY, DEPARTMENT OF MINISTRY OF SHIPPING AND ROAD TRANSPORT. 2. NATIONAL HIGHWAYS AUTHORITY OF INDIA, (MINISTRY OF SHIPPING AND ROAD TRANSPORT) PLOT NO.65, SECTOR 10, DWARAKA, NEW DELHI - 11075. 3. STATE OF KERALA, TRANSPORT DEPARTMENT, REPRESENTED BY ADDITIONAL CHIEF SECRETARY. ADDL. RESPONDENTS: 4. THE DISTRICT COLLECTOR, ERNAKULAM. 5. SPECIAL TAHSILDAR, LAND ACQUISITION, ICTT, VALLARPADAM, OFFICIAL QUARTERS, FACT TOWNSHIP UDYOGAMANDAL, ELOOR. 6. PROJECT DIRECTOR, PROJECT IMPLEMENTATION OFFICE, HOUSE NO.29/1298-A, MANGALODAYA, VYTTILA P.O.682019 7. COCHIN PORT TRUST, WELLINGTON ISLAND, COCHIN REPRESENTED BY ITS CHAIRMAN. ADDL. R4 TO R7 ARE IMPLEADED AS PER ORDER DT. 10-3-08 IN IA. 3483/08. ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR FOR R1-2 SRI.THOMAS ANTONY FOR ADDL.R6 SRI.E.K.NANDAKUMAR FOR ADDL.R7 SRI.A.K.JAYASANKAR NAMBIAR FOR ADDL.R7 SRI.K.JOHN MATHAI FOR ADDL.R7 SRI.P.BENNY THOMAS FOR ADDL.R7 SRI.ANIL D. NAIR FOR ADDL.R7 SR. GOVT. PLEADER SRI.D.ANILKUMAR FOR R3, R4 & R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE, J. - - - - - - - - - - - - - - - - - - - - - W.P.(c).No. 7608 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of October, 2008 JUDGMENT In this writ petition under Article 226 of the Constitution, the petitioner-M/s.Kaduna Properties (P)Ltd challenges Ext.P4 combined notification issued by the Government under section 4(1) and section 17(4) of the Land Acquisition Act invoking the emergency provisions of the Land Acquisition Act for acquisition of the properties mentioned therein including that of the petitioner directing that the enquiry under section 5A need not be conducted. The first respondent is Union of India in the Department of Shipping and Road Transport. Second respondent is the National Highway Authority of India. Third respondent is the State of Kerala. The District Collector, Ernakulam, Special Tahsildar ( Land Acquisition Officer ICTT) Vallarpadam, The Project Director and the Cochin Port Trust were respectively impleaded as additional respondents 4 to 7. According to the petitioners their predecessor Narayanan and Babu owned two Acres of land in Mulavukadu village out of which 1.37 Acres of land were proposed to WPC.No.7608/08 2 be acquired for the purpose of providing NH 47 connectivity to the International Container Transshipment Terminal at Vallarpadom on the basis of negotiation with the District Level Purchase Committee, the extent of 1.37 Ares of land were sold by Narayanan and Babu in favour of the National Highway Authority by Ext.P1 sale deed dated 16-8-2007 No. 6277/07 and Ext.P1(a) sale deed dated 22-8-2007 No.6425/07. The National Highway 47 connectivity to ICTT was finalised and flags were planted demarcating the Highways and Ext.P3 is the sketch showing the national highway connectivity in the said area. The petitioner purchased the balance extent of 63 cents of land in R.S.No. 12/4, 17/3 and 17/4 of Mulavukad village as per Ext.P2 sale deed dated 26-09-2007. It is alleged by the petitioners that Ext.P4 has now been issued for enabling a highly influential real estate developer to have road frontage to his property. It is contended that the land acquisition Act has no application since the acquisition is for highway and only the National Highway Act has application. Ext.P4 is challenged by the petitioner on various grounds including the following two main grounds: WPC.No.7608/08 3 1) The Land Acquisition Act 1894 has no application since the acquisition of land is for a National Highway and only National Highways Act 1956 applies. 2) The acquisition is made changing the alignment under the influence of land mafia in order that there will be road access to the properties of persons who have acquired lands without road frontage in the locality. 2. The following are the reliefs sought for in the writ petition. 1) Issue a writ of certiorari quashing Ext.P4. 2) Issue other appropriate writs. 3. On behalf of the 7th respondent Cochin Port Trust, the Chief Engineer has filed a detailed counter affidavit. Inter alia, it is contended therein that Ext.P4 notification has been issued by the State of Kerala on the basis of the requisition made by the Port Trust to the District Collector as per Ext.R7(a) dated 17-10-2008 under Rule 4(1) of the Land Acquisition Kerala Rules 1990. In terms of Rule 5(2) of WPC.No.7608/08 4 Land Acquisition Kerala Rules, the Collector recommended acquisition and the Government in pursuance of the District Collector's recommendations approved the request and accordingly Ext.P4 was issued. It is submitted that an extent of 1.3911 hectares of land is notified for acquisition from Mulavukadu village since the same is required to suit the alignment prior to obtaining EIA clearance and on the basis of that proposal, the land was acquired as per earlier notification under section 4(1) dated 9-9-2005 and 29-11-2005. Pursuant to those notifications proceedings were initiated for acquisition under the Land Acquisition Act in respect of some properties while certain properties were purchased by National Highway Authority by direct purchase on mutually agreed terms. Exts.P1 and P1(a) produced by the petitioners are instances of such mutual agreement purchases. The EIA ( Environmental Impact Assessment) clearance was obtained on 26-07-2006 and in Mulavukadu area it was found that the EIA plan of the road alignment had certain changes from the originally proposed alignment. Though attempt was made to avoid further acquisition in Mulavukadu area by WPC.No.7608/08 5 proceeding with the originally proposed alignment, subject to EIA clearance, this was objected to by the people in the locality and thus left with no other alternative Ext.R7(a) requisition had to be given. It was to comply with the EIA approved plan of the alignment that it was decided to acquire more land in Mulavukadu area as per Ext.P4. It is submitted that acquisition of land covered by Ext.P4 is highly necessary for continuing the construction of the road through the alignment as per the EIA plan. Deviation of the alignment is not possible as even certain initial works done through the earlier proposed alignment was objected by the people in the locality. Ext.R7(b) has been produced as a copy of the plan showing the originally proposed alignment and the revised alignment as per EIA plan in Mulavukad area and it is submitted that the green coloured alignment in Ext.R7(b) is the originally proposed alignment which is now deviated as per EIA plan and shown by lines in red colour. As regards the contention that acquisition is permissible only under the National Highways Act and not under the Land Acquisition Act, the 7th respondent has produced Ext.R7(c) dated 24-12-2007 declaring the proposed national highway WPC.No.7608/08 6 connectivity as NH 47 . It is pointed out that the requisition in respect of Ext.P4 had been given much prior to Ext.R7(c). The counter affidavit points out that the lands proposed to be acquired as per Ext.P4 are not fit for any commercial activity and are well within Coastal Regulation Zone and are fish ponds which are actually being used for agricultural purposes only. The change in the alignment became necessary for complying with the terms of the EIA clearance which was mandatory for accomplishing the indispensable purpose of providing road connectivity to the prestigious ICTT project. The counter affidavit denies the allegation that alignment of the highway has already been finalised and therefore the same cannot be deviated at this distance of time. It is pointed out that the alignment of the EIA can be said to be finalised only after Ext.R7(b) alignment plan of the EIA is implemented. The allegations of influence of land mafia are refuted in the counter affidavit. The change in the alignment has been made for complying with Environment Impact Assessment for lessening the damages to the environment and the Government has got every power to issue Ext.P4 invoking the powers under the Land Acquisition Act WPC.No.7608/08 7 notwithstanding the circumstance that the ICCT is constructed on BOT basis. Counter affidavit goes on to deny all the grounds raised in the writ petition. 4. The petitioner has filed a reply affidavit on 10/04/2008. The contention of the Cochin Port Trust that further acquisition has become necessary for complying with EIA clearance as per Ext.P4 is stoutly denied. It is pointed out that EIA clearance was obtained on 26/07/2006 and that it was subsequent to that clearance that the National Highway Authority of India purchased land from Babu and Narayanan and that if more lands were required for complying with the EIA clearance, the respondents would certainly have acquired these properties in the first instance itself. Reiterating the argument that it is the provisions of the National Highway Act which should be invoked for acquiring the properties, it is contended that what is important in land acquisition matters is the date of the notification for acquisition and that in this case Ext.P4 is dated 10/01/2008 which is much later than 24/07/2007, the date on which the connectivity road was declared by the Ministry of Transport as NH 47 C. It is then contended that EIA WPC.No.7608/08 8 clearance dated 26/07/2006 has been obtained by the Port Trust with reference to the original alignment and then if any subsequent change in the alignment is to be made, the same will also require further EIA clearance which is yet to be obtained by the respondents. It is contended that since EIA clearance for the original alignment was obtained much prior to Ext.P4 notification and the work on the original alignment was smoothly going on, the only reason for the present shift in the alignment and the proposal to acquire additional properties as per Ext.P4 is to safeguard certain vested interests. It is specifically contended that the person who has purchased property to an extent of 6 acres behind the petitioner's property is known to be a very influential and politically connected person. It is stated that due to the influence of that person, the petitioner is unable to get copy of the sale deeds relating to the lands purchased by him. It is submitted that if the present proposal is accepted the entire property purchased by that person will come to have road frontage. The reply affidavit denies the contention that finalisation of the alignment can be done only after Ext.R7(b) is executed and contends that EIA clearance dated WPC.No.7608/08 9 26/07/2006 has been obtained only after finalisation of the originally proposed road alignment. It is reiterated that it is only that alignment which is having EIA clearance and the present alignment does not have the required clearance. Lastly it is contended that even if it is assumed that provisions of the Land Acquisition Act 1894 can be invoked, then also the appropriate Government to issue notification in this case is the central government and not the State Government. 5. The 4th respondent District Collector has also filed a counter affidavit. It is stated therein that the contention that acquisition ought to be taken under the National Highways Act is unsustainable. It is pointed out that declarations under section 3 A (1) are issued upon satisfaction of the Central Government, that a public purpose exists for building, maintenance, management and operation of National Highways. In the instant case the Cochin Port Trust requested the Kerala Government for acquisition of additional land for the purpose of road connectivity from Kalamassery to Vallarpadom. The said request was a valid one and the purpose was pre-eminently of public nature. This was why Ext.P4 notification under the Land Acquisition Act was WPC.No.7608/08 10 issued. Answering the claim of the petitioner that he has expended a lot on development work on his land, it is contended that the land purchased by the petitioner comes under the CRZ area and the petitioner has to obtain special sanction from CRZ authority before filling up the land. Since the land is situated at a depth of two meters, petitioner has to obtain permission from the RDO under the Land Utilisation Order since the land is wet land. It is contended that the claim of the petitioner of having developed the land is incorrect and it is alternatively contended that if at all the petitioner has carried out developments, the same were done in violation of the provisions of the KLU order and CRZ Rules. The counter affidavit of the District Collector denies the allegation that the proposed acquisition is made at the behest of owners of lands presently without road frontage to have frontage for their lands. The allegation that highly influential real estate developer has purchased/agreed to purchase large extent of land behind the petitioner's property is also emphatically denied. These allegations are vague and it is highlighted that the acquisition is for a genuine and bona fide public purpose and that the same is vitiated by WPC.No.7608/08 11 no mala fides whatsoever. The District Collector's counter affidavit denies the averments made in the writ petition regarding the maintainability of acquisition under the provisions of the Land Acquisition Act. It is contended that section 3 (j) of the National Highway Act only states that nothing in Land Acquisition Act 1894 shall apply to the acquisition under the Act since the acquisition under the present case is proceeding not under the National Highway Act. Thus section 3 (j) does not have any application. Lastly it is contended that construction of the four line road is in progress in the entire sketch of 17 Km from the Kalamassery to Vallarpadom and if the acquisition process is delayed, the entire project will be delayed. 6. In view of the reply affidavit filed by the petitioner, a statement was filed by the 7th respondent Cochin Port Trust producing the Environmental clearance dated 26-07-2006 obtained for the road connectivity to ICTT project as Annexure A1. 7. The petitioner has filed a further reply affidavit on 14/07/2008. In this reply affidavit also the petitioner reiterates his contention that the present proceedings for acquisition under the Land Acquisition Act WPC.No.7608/08 12 are unsustainable in view of the provisions in the National Highway Act. As Ext.P7, the petitioner has produced what he describes as true copy of the sketch of the portion of the alignment approved by NHAI on 01/04/2005 and produced before the Ministry of Environment for environmental clearance. It is submitted that it is Ext.P7 alignment which has been approved by the Ministry while issuing environmental clearance. Referring to Annexure A1, it is contended that three hectares from out of the additional extent of 4.44931 hectares presently proposed to be acquired is puzha and the change proposed substantially changes the profile of the project in terms of the impact on the environment and necessarily a fresh environmental clearance should be obtained. The reply affidavit contends that Ext.R7(b) , the revised alignment marked by red lines has not been approved by the Ministry of Environment and that the same is not the final plan. It is contended that the alternate alignment proposed were not approved by the Ministry because of the need for reclaiming extra area. By issuing Ext.P4 the proposal is to acquire land for construction of highway without obtaining clearance from the authorities such as Kerala Coastal WPC.No.7608/08 13 Zone Management Authority whose clearance is necessary since additional reclamation of back water area will be required for constructing the highway through the lands covered by Ext.P4. Ext.P8 copy of the letter from the Member Secretary of the Kerala Coastal Zone management Authority to Ministry of Environment and Forests, Govt. of India and Ext.P8(a) minutes of the 18th meeting of the Kerala Coastal Zone Management Authority are relied on in this context. Ext.P9 produced is a copy of the notification under section 17(4) issued pursuant to Ext.P4 and it is contended on the basis of Ext.P9 that the endeavour of the respondents to bypass the provisions of the National Highways Act on the reason that the requisition is earlier to the date of declaration of the road as National Highway cannot succeed. It is contended that vast portion of land locked area lying behind the petitioner's property was purchased by a real estate company which is nothing but a facade for a very influential person by name Fariz Aboobacker. The company by name M/s Uthiramerur Realtors (P)Ltd which has purchased an extent of around 6 acres and the road access to those 6 acres was only through the narrow long stretch pathway. M/s WPC.No.7608/08 14 Uthiramerur Realtors (P)Ltd is a subsidiary company of M/s Parrot Grove (P)Ltd. The paid up capital of M/s Uthirameroor Realtors (P) Ltd is only Rs. 500/-. On the contrary, M/s Parrot Grove (P)Ltd has 10,002 shares of which Fariz Aboobacker owns 10,000 shares while Sri.T.K.A.Nair holds 1 share and Sri.Renji Panicker holds the other share. It is accordingly contended that M/s Parrot Grove (P) Ltd wholly belongs to Sri.Fariz Aboobacker and M/s Uthirameroor Realtors belongs to M/s Parrot Grove (P)Ltd.. Ext.P10 , copy of Form 23 A C filed by M/s.Uthiramerur Realtors Pvt. Ltd and Ext.P10(a), the Memorandum and Articles of Association of M/s. Parrot Grove (P)Ltd are relied on in this context. 8. On behalf of the first respondent Union of India the second respondent National Highway Authority of India and 6th respondent Project Director, a counter affidavit was filed by the Project Director on 14/07/2008. The Assistant Solicitor General of India Sri.P.Parameswaran Nair submitted that the Project Director has been authorised to file the affidavit on behalf of the Union of India as well as the concerned Ministries and that the Government is adopting all the WPC.No.7608/08 15 contentions raised through that counter affidavit and the submissions to be addressed in the case by Sri.Thomas Antony, standing counsel for the National Highway Authority of India. It is contended in the counter affidavit that providing 4 line road connectivity for ICTT at Vallarpadom to National Highway 47 by March 2009 is one of the conditions precedent attached to the agreement between the Dubai Port International (Licensee) and the Cochin Port Trust for the development of the prestigious ICTT at Vallarpadom. It is stated that NHAI has been entrusted with the construction of the new 4 lane highway having a length of 17.20 km in which the Cochin Port Trust is involved in various pre-construction activities such as Land Acquisition, Shifting of Utilities, Reclamation of Coastal Land etc. Once the land is available, the Contractor engaged by NHAI will construct the 4 lane road and the contract has already been signed with the contractor and acquisition of land has thus become a critical activity for construction of the road. Produced as Ext.R6(a) along with this counter affidavit is a map showing the approved alignment of the new 4 lane NH connectivity to ICTT from Kalamassery. It is stated that environmental WPC.No.7608/08 16 clearance has been issued by the Ministry of Environment and Forest of the Central Government by Annexure A order in respect of this alignment. It is reiterated that the project is a time bound one and that is why the emergency clauses of the Land Acquisition Act have been invoked. The road formation which passes through Ernakulam Kayal, kilometres 8.40 to 15.10 will be developed by the Cochin Port Trust by doing reclamation work and constructing the side walls. It is only after the completion of the work of Cochin Port Trust that the reach will be handed over to NHAI for construction of the road. The counter affidavit goes on to deny the various grounds raised in the writ petition and through the reply affidavit. Meeting the ground that acquisition proceedings under the Land Acquisition Act 1894 are not maintainable, it is contended that there is no statutory requirement that land required for construction of NH shall be acquired only under the National Highway Act 1956. Referring to section 13 of the National Highway Authority of India Act 1988 it is submitted that the said provision gives option to the NHAI and the provision is only an enabling one and that other modes of acquisition are not foreclosed. It is also pointed out that WPC.No.7608/08 17 the requisitioning authority is the CPT and that at the time of requisitioning, the road in question was yet to be notified as national highway. It is contended that no legal right of the petitioner is infringed by the proposed acquisition since the land acquisition Act assures him adequate compensation for the acquired property. Lastly it is contended that the beneficiaries of the project are the general public and any delay would cause huge loss to the entire country and will have serious contractual and financial consequences for both the Cochin Port as well the NHAI. 9. When it was noticed that the controversy as to which is the final approved alignment on the basis of which NH47 C is being constructed, is continuing, I directed Sri.Thomas Antony to clarify things further if necessary by filing further documents. Accordingly, a further counter affidavit is filed on 23/07/2008 by the Project Director. It is reiterated therein that the alignment of the road produced as Ext.R6 (a) is prepared, checked and approved by the Centre for Earth Science Studies and forwarded to the Ministry of Environment and Forest through the Kerala Coastal Zone Management Authority and that the WPC.No.7608/08 18 said Authority forwarded Ext.R6(a) only after their studies. It is submitted that the two alignments mentioned in Exts.P8 and P8(a) are those shown in Ext.P7. The alignment mentioned as new alignment in Ext.P7 was the one which was shifted towards east requiring additional reclamation of back water area towards eastern side. Therefore the alignment marked as the old alignment in Ext.P7 was approved and the same is Ext.R6(a). The affidavit denies the contention that Ext.R6(a) is not the alignment which was approved by the Ministry of Environment and that it is Ext.P11 alignment which was approved as the final alignment. Ext.P11 it is pointed out, is only a key map, one among the several prepared by the Consultant of NHAI and the same is not the final or the alignment approved by the Ministry of Environment and Forest. It is reiterated that Ext.R6(a) is the alignment which was approved by the Ministry by their order No. 5-32/2005-IA-III dated 26/07/2006 . Ext.R6(b) true photocopy of the map stating that Ext.R6 (a) is the approved alignment of the new 4 lane NH connectivity to ICTT from Kalamassery issued by the Addl. Director of Ministry of Environment and Forest dated 18-07-2008 is produced. It is reiterated WPC.No.7608/08 19 that Ext.P11 is not the alignment and is only a key plan which does not reflect the details of the property through which the road is to be constructed. The counter affidavit also produces Ext.R6(c) stating that the same will give a proper understanding of the disputed area. Ext.R6 (C) is the group sketch of survey Nos. 11,12,13, 17, 18 ,22 and 23 of Mulavukad village prepared by Superintendent, Surveys and Land Records, Collectorate, Ernakulam. It is submitted that in Ext.R6(c) the red line is the alignment of the road approved by the Ministry of Environment and Forest and the blue lines shows the alternate one which was suggested as the new alignment in Ext.P7. The properties within the green lines are those which were purchased under the DLPC scheme. The portions shown in green stripes are the extents that will be out side the carriage way of the road but the same is needed for the purpose of providing amenities for the highway. The brown shaded portions are the properties that are required for the construction of the road following Ext.R6(b) approved alignment and now notified under Ext.P4. 10. It was very extensive