K.K. Omanakuttan and K.K. Raveendran Nair v. District Collector, Ernakulam and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR TUESDAY, THE 29TH JANUARY 2008 / 9TH MAGHA 1929 WP(C).No. 14362 of 2007(I) -------------------------- PETITIONER: ------------ 1. K.K.OMANAKUTTAN, KAIPADAPARAMBIL VEEDU, PERINGARAKAZHA, HMT COLONY (PO), KALAMASSERY, PIN-683 503. 2. K.K.RAVEENDRAN NAIR, KAIPADAPARAMBIL VEEDU, PERINGARAKAZHA, HMT COLONY (PO), KALAMASSERY, PIN-683 503. BY ADV. SRI.M.RAJASEKHARAN NAYAR SMT.MANJUSHA MOHANDAS SMT.ANIL PETER RESPONDENTS: ------------- 1. THE DISTRICT COLLECTOR, ERNAKULAM. 2. THE SPECIAL TAHSILDAR (LA) FOR COCHIN REFINERY LIMITED, VYTTILA, TRIPUNITHURA. 3. KERALA INFRASTRUCTURAL DEVELOPMENT CORPORATION, KINFRA HOUSE, ELANKAM LANE, THIRUVANANTHAPURAM-695 010, REPRESENTED BY THE MANAGING DIRECTOR. - ADDL.4. LAND REVENUE COMMISSIONER, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM - 695 033. (IMPLEADED AS ADDL. 4TH RESPONDENT AS PER DATED 13/6/2007 IN I.A.NO.7730/2007) BY ADV. SRI.G.S.REGHUNATH GOVERNMENT PLEADER SRI.ANIL KUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.14362/2007 ## **APPENDIX** ## PETITIONER'S EXHIBITS: - Ext.P1 TRUE COPY OF THE NOTIFICATION NO.A2/661/05 DATED 25.1.2006 PUBLISHED IN MATHRUBHUMI DAILY DATED 29.1.2006. - EXT.P2 TRUE COPY OF THE PLAN. - EXT.P3 TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE FIRST RESPONDENT DATED 18.10.2006. - EXT.P4 TRUE COPY OF THE LETTER NO.C-4-20291/05 DATED 23.3.2007. - EXT.P5 TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE FIRST RESPONDENT DATED 4.4.2007. - EXT.P6 TRUE COPY OF THE NOTIFICATION PUBLISHED IN MANGALAM DAILY DATED 3.5.2007. ## RESPONDENT'S EXHIBITS: - EXT.R2(A) TRUE COPY OF THE LETTER NO.KIN-PLG-58/06-07 DATED 13.12.2006. - EXT.R3(A) TRUE COPY OF THE SKETCH SHOWING THE PROPERTY PROPOSED TO BE ACQUIRED AND THE NEIGHBOURING PROPERTIES. //TRUE COPY// P.A. TO JUDGE. ## **K.PADMANABHAN NAIR, J.** ------------------------------- W.P.(C) No. 14362 OF 2007 ------------------------------- Dated this the 29[th] January, 2008. ## **J U D G M E N T** On 16.8.2007, I allowed this writ petition in part, quashing that part of Ext.P6 notification invoking Section 17(4) of the Land Acquisition Act, for short 'the Act', of the petitioner. Subsequently, the State filed R.P.No.978/2007 to review the order, on the ground that in paragraph 12 of the judgment, it was recorded that the Land Revenue Commissioner did not file counter affidavit and he did not produce the file. I allowed the review petition and posted the writ petition for re-hearing. 2. The land owned by the petitioners were proposed to be acquired for construction of an access road from KINFRA High Tech Park, Kalamassery, to airport-sea port road. A notification under Section 6 of the Survey and Boundaries Act was published, and subsequently, the Land Acquisition Officer has issued Ext.P6 combined notification under Section 4(1) read with Section 17(4) of the Act. Challenging that notification, this writ petition is filed. **W.P.(C) No.14362/2007** 2 3. Petitioners have raised mainly the following contentions. The proposed acquisition was not bonafide, but initiated with a view to help the employees who had purchased the property near the proposed road. It was also contended that the first respondent did not apply his mind, but simply accepted the opinion given by the 3[rd] respondent. It was also averred that the land was already acquired and handed over to the possession of the M/s.Hindustan Machine Tools Ltd., was available and the HMT was ready and willing to give the land free of cost. Subsequently, the writ petition was amended contending that there was no need to invoke Section 17(4) of the Act. 4. Initially, 3[rd] respondent KINFRA filed a counter contending that petitioners have no right to request the first respondent to change the alignment of the access road, and the first respondent has also got no right to change the alignment. It was also contended that various technical enquiries were conducted, and considering the technical and economic viability, the alignment was fixed and requisition was made to the Collector to acquire the land necessary for construction of access road. It was further contented that KINFRA is in possession of 240 Acres of land at Kalamassery **W.P.(C) No.14362/2007** 3 adjoining to the HMT lands. The present land was assigned to KINFRA for setting up of H-Tech Industries Park with all infrastructure facilities. It was further contended that M/s.FEDO had prepared a master plan and the entire 240 acres of land was divided into different zones by connecting well developed road from the proposed airport-sea port road. The entry to the H-Tech Park is mainly from the above airportsea port road, located near the HMT office, which is approximately 2 Kms. away from the KINFRA land. It was further contented that since the KINFRA land is located approximately 400 metres away from the 2[nd] phase development of airport-sea port road, an alternate entry has been proposed in the master plan. 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 metres length and 45 metres width, between KINFRA park and airport-sea port road. It was contented that the proposed link road is very essential to provide access to the airport-sea port road from the H-Tech park. Hence, the request was made for acquisition of 4.5 Acres of land. It was contended that if the alignment is changed, more land would be required for the smooth merger. It was also contended that shifting of alignment of proposed road will necessitate the acquisition of land from the temple and pond of the Devaswom Board and acquisition of **W.P.(C) No.14362/2007** 4 residential house in the area. It was further contended that 3[rd] respondent is a statutory corporation of the Government of Kerala formed under the Kerala Industrial Infrastructure Development Act, 1993, and the need for development of such an authority is a public purpose. 5. The 2[nd] respondent, Special Tahsildar (LA), has filed a counter affidavit contending that 3[rd] respondent had submitted the requisition for the acquisition of 4.5 Acres of land in Thrikkakara North Village for the development of an access road to KINFRA High Tech Park, Kalamassery. It was averred that petitioners had filed a petition to the requisitioning authority to shift the alignment. It was contended that it is for the 3[rd] respondent to take a decision regarding the alignment, and, on receipt of such a request, the views of the 3[rd] respondent was ascertained. The 3[rd] respondent has informed that the alignment proposed cannot be changed. It was contended that in view of the urgency clause pointed out by the 3[rd] respondent, a combined notification under Section 4(1) read with Section 17(4) of the Act was published. **W.P.(C) No.14362/2007** 5 6. The Commissioner of Land Revenue has filed a counter affidavit contending that 3[rd] respondent made a requisition for acquisition of land for development of an access road to KINFRA High Tech Park, Kalamessery, before the District Collector, Ernakulam. The District Collector forwarded the same to the Land Revenue Commissioner. The Collector had reported that the proposed road is very essential to provide an access road to the proposed seaportairport road from KINFRA High Tech Park. The then Land Revenue Commissioner after going through the file found that the above stated reason for urgency was sufficient to dispense with the enquiry contemplated under Section 5A of the Act. Administrative sanction was accorded for invoking urgency clause. The averment in the writ petition that it was not necessary to invoke urgency clause because seaport airport road is yet to be formed was not admitted. It was admitted that seaport airport road has become fully functional from Karingachira to South Kalamassery, and thereafter, the road has not been fully developed. It was further contended that there was a narrow road which is catering to the need for carrying goods and other things to KINFRA park. It was further averred that when the KINFRA park become fully operational, a lot of movement of good and transportation will be needed and at that point of time, fully developed **W.P.(C) No.14362/2007** 6 road will have to be made. It was contended that there is no move to drop the proposed construction of seaport-airport road. The averment that such an alignment was fixed to help some of the employees was denied. It was contended that the alignment was fixed by the 3[rd] respondent and the same was executed. 7. The petitioners have also filed a reply affidavit denying the averments in the counter affidavit and reiterating the averments in the writ petition. 8. The learned Government Pleader has made available the file of the Land Revenue Commissioner for my perusal and I have perused it. The file shows that initially, the Managing Director, KINFRA, had requested the Government to accord administrative sanction for acquisition of 4.5 Acres of land under the urgency provision of the Land Acquisition Act for the development of the access road. When the sanction was accorded, the District Collector, Ernakulam, informed the Government that proposed road is very essential to provide access to proposed seaport-airport road. He further requested that necessary Government Orders may be issued in consultation with KINFRA authorities. **W.P.(C) No.14362/2007** 7 9. I have perused the copy of the original requisition made by the Managing Director of KINFRA. Form No.2 forwarded by the requisitioning authorities is available in the file. Column 5(b) &(c) reads as follows:- - “5(b) Whether it is necessary to take possession of the land in advance by invoking the urgency clause Section 17 of the Land Acquisition Act. Yes. - (c) If so, the special reasons to be given to enable the Government have Government to decide upon given top priority the question for the development of an access road to Kinfra Hi-Tech Park Kalamassery.” 10. So, the only reason stated by the Managing Director, KINFRA, for making a requisition to invoke the urgency clause under sub section (4) of Section 17 of the Act was that Government had given top priority for the development. There is absolutely no material on file to show that at any point of time, the Government had put forward a proposal of construction of an access road to KINFRA park. On the other hand, it was based on the requisition made by the **W.P.(C) No.14362/2007** 8 KINFRA, the Government had accorded sanction. So, the statement contained in the requisition that such a request was made in view of the decision of the Government is not true. 11. I have also perused the letter written by the District Collector to the Commissioner of Land Revenue. All that is stated is that to complete the land acquisition proceedings within the shortest possible time, it is necessary to invoke the urgency clause. So, going by the above letter of Collector, the only reason noted is that to cut short the time required for acquisition, it is necessary to invoke the urgency clause. So, the reasons stated by the District Collector in his letter to Land Revenue Commissioner for invoking urgency clause were not the reasons stated by the Managing Director, KINFRA, in his requisition. On receipt of this requisition, the office of the Commissioner prepared a note. Paragraph 1 of the office note file contains the reasons for invoking the urgency clause. Clause 9 reads as follows:- - “9. If so, have sufficient reasons In requisition form, it is have been adduced to show specifically stated that the such urgency that it cannot Government have given top wait for even a couple of priority for the development months for completing the access road to KINFRA Hiobjection hearing u/s 5A Tech Park, Kalamassery.” which is a valuable right of the persons interested: **W.P.(C) No.14362/2007** 9 When exactly such a decision was taken by the Government and when was that decision communicated to the KINFRA etc. are not discernible from the file. So, it is evidently clear that the reasons stated by Land Revenue Commissioner for according sanction to invoke urgency clause was an imaginary one. The reason put forward by the Collector for invoking urgency was yet another one. I have carefully gone through the entire file. In clause 17 of the office note prepared by the office of Land Revenue Commissioner, it is recorded that urgency clause is to be invoked. But no reason what so ever was stated for making such a recommendation. The Assistant Commissioner had written that in view of the recommendation of the District Collector, Section 17(4) of the Act is to be invoked. The Land Revenue Commissioner had simply initialed the note. She did not apply her mind and write any thing of her own. A perusal of the file shows that there is absolutely no need to invoke the urgency clause. No reason what so ever is stated for invoking the urgency clause. The record shows that KINFRA park is functioning and there is already an access road from the public road to the KINFRA park. The present proposal is for an additional access road. Going by the file, it is seen that proposed road will join the seaport-airport road at a point which yet to be developed. Admittedly, the seaport-airport road has not been **W.P.(C) No.14362/2007** 10 fully developed. So, even if the the access road is completed, it will not help to solve the imaginary problem. It is pertinent to note that requisitioning authority has no case that it is impossible to cater the needs of the customers with the existing road. So, there is no factual foundation to invoke Section 17(4) of the Act. 12. The learned Government Pleader, relying on **Union of India v. Praveen Gupta** _(AIR 1997 SC 170)_ , has aruged that there was no need to pass any reasoned order to reach the conclusion that there is urgency so as to dispense with the enquiry under Section 5A in exercise of power under Section 17(4) of the Act. It is settled position that decision to invoke urgency clause is an administrative decision and is a matter of subjective satisfaction of the appropriate Government on the basis of the material available on record. ## 13. In **Narayanan Govind Gavate v. State of** **Maharashtra and others** (AIR 1977 SC 183), the Apex Court has held that Section 17(4) of the Act cannot be read in isolation from Sections 4(1) and 5A of the Act. It was further held that considering **W.P.(C) No.14362/2007** 11 the nature of the objections which are capable of being successfully taken under Section 5A of the Act, it is difficult to explain why summary enquiry could not be concluded quite expeditiously. ## 14. **In Union of India and Others v. Mukesh Hans** _(2004 (8) SCC 14)_ , it was held that an inquiry under Section 5A can be dispensed with only after the appropriate Government forms an opinion that along with the existence of urgency under S.17(1) or unforeseen emergency under Section 17(2) of the Act, there was also a need to dispense with Section 5A of the Act. It was further held that mere existence of an emergency or unforeseen emergency not by itself is not sufficient. It was further held that the limited right of an owner/person interested under Section 5A to object to the acquisition proceedings is not an empty formality, but is a substantive right which can be taken away only for good and valid reason and within the limitations prescribed under Section 17(4) of the Act. It was also held that Section 17(4) is an exception to the normal mode of acquisition contemplated under the Act. It was also held as follows:- “The limited right given to an owner/person interested under Section 5-A of the Act to object to the acquisition proceedings is not an empty formality and is a substantive right, which can be taken away for good **W.P.(C) No.14362/2007** 12 and valid reason and within the limitations prescribed under Section 17(4) of the Act. Therefore, if the appropriate Government decides to take away this minimal right then its decision to do so must be based on materials on record to support the same and bearing in mind the object of Section 5-A.” 15. So, in this case, even accepting the argument of the learned Government Pleader that it is not necessary to pass an reasoned order, there are no materials available on file to justify the action of the Land Revenue Commissioner according sanction to invoke urgency clause under Section 17(4) of the Act. The Land Revenue Commissioner had only put her initials in the order. Of course, in the order issued subsequently, it is stated that the Land Revenue Commissioner had examined the proposal and satisfied with the same. The material on record shows that there was no perusal or application of mind. Hence, I have no other option but to quash that part of Ext.P1 notification invoking urgency clause under Section 17(4) of the Act. I do so. The Land Acquisition Officer shall conduct an enquiry under Section 5A of the Act, in accordance with the provisions contained in the Land Acquisition Act, with due notice to the affected persons. Since, I am directing the Land Acquisition Officer to conduct an enquiry under Section 5A of the Act, I am not considering other arguments raised by the learned counsel for the petitioners on its **W.P.(C) No.14362/2007** 13 merits. It is open to the petitioners to raise all those contentions before the Land Acquisition Officer, and if such contentions are raised, the same shall be considered in accordance with law. The Land Acquisition Officer shall conduct an enquiry, with due notice to the petitioners, as well as the 3[rd] respondent, KINFRA. 16. It is seen that the Collector, as well as the KINFRA have taken a stand that regarding the alignment fixed, it is only with the satisfaction of the KINFRA, and that cannot be interfered with. The decision of KINFRA is not the last word. It is amenable to judicial review. If the petitioners raise a contention regarding any defect in the proposed alignment, the Land Acquisition Officer will have to consider that issue independently and render a decision of his own on that point. In the result, writ petition is allowed in part. That part of Ext.P6 notification invoking Section 17(4) of the Act is quashed. Petitioners are given two weeks time from the date of receipt of the judgment to file detailed objections before the Land Acquisition Officer to Section 4(1) notification. If such objection are filed, the Land Acquisition Officer shall conduct an enquiry under Section 5A of the Act **W.P.(C) No.14362/2007** 14 within another two months. The Land Acquisition Officer shall take a decision, with due notice to the petitioners, as well as the 3[rd] respondent, Kerala Infrastructural Development Corporation, and after giving them a reasonable opportunity to submit their representations before it. Such a decision shall be taken by the Land Acquisition Officer untrammeled and uninfluenced by the view taken by the District Collector in Ext.P4 letter. **K.PADMANABHAN NAIR, JUDGE.** nj.