O.P. No. 12801 of 2000 (Y) and W.P.(C). No. 8400 of 2006, High Court of Kerala (Ernakulam Division)

## **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 4[th] 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 4[th] 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 4(1) and the declaration under section 6 have been issued within the statutory period is correct. The file will also show that the Government's version regarding the proportionate extent of the school building to be acquired is correct. 10. Sri.T.M.Abdul Latiff would draw my attention to the pleadings raised by the parties in this case and to documents placed on record by the petitioners, particularly Exts.P9, P13, P14, P15 and P16. WP(C)N0. 12801/2000 etc. -17- Learned counsel also referred to the various statutory provisions including Section 3A of the National Highway Act, 1988 and the provisions of the National Commission for Minorities Act 1992. Very strong reliance was placed by Mr.Latiff on the judgment of the Constitution Bench of the Supreme Court in Society of St. Joseph's College v. Union of India, 2002(1) KLT 438 (SC). Mr. Latiff also placed reliance on the judgment of the Supreme Court in Ammad v. Emjay High School, 1998 (2) KLT 828 (SC) wherein the Supreme Court held that there is no provision in the Kerala Education Act which enables the Government to declare a school as a minority school and that declaration by the Government at best is only giving recognition to an existing fact. 11. The learned Additional Advocate General Mr.Chandrasekharan Nair would resist all the submissions of Mr.Latiff very forcefully. The learned Additional Advocate General would endeavour to distinguish the judgment of the Constitution Bench of the Supreme Court from the present case on facts. Learned Additional Advocate General submitted that even if it is assumed that the schools in question are entitled for the benefits conferred by Article 30 and clause 1A of that article then also it cannot be said that the proposed WP(C)N0. 12801/2000 etc. -18- acquisition obviates the fundamental right guaranteed under Article 30 for establishment and administration of the educational institutions since it is only a small portion of one of the school buildings which is going to be acquired. The educational agency has very extensive areas of land and will continue to have extensive areas of land in their possession and it will always be possible for the agency to construct new buildings in place of the building they are being deprived of under the acquisition. Learned Additional Advocate General submitted that it is not disputed that a new building is already constructed by the management in anticipation of the acquisition and that though it is contended in the additional reply affidavit that the new building is for accommodating the higher secondary school no material has been placed on record by the school management in support of that contention. The Additional Advocate General submitted that the building a small portion of which will have to be demolished on account of the acquisition is a very old one and that in the award to be passed full compensation for the entire building will be given. With that amount it will be possible for the petitioner to construct a new building in substitution of the old one. The Additional Advocate General highlighted that in these villages, out of 222 cases, award was passed WP(C)N0. 12801/2000 etc. -19- and possession could be taken in 220 cases and because of the stay granted in these cases and in another case the long cherished urgent need to have the N H 17 widened and upgraded to National Highway standards is remaining unaccomplished. The N.H.17 from Edappallay to Moothakunnam by the side of which the properties of the petitioners proposed to be acquired lies very narrow and full of curves, and if the respondents are able to take possession of the properties proposed to be acquired, it will be possible to start and complete the work which had been pending for years. The Additional Advocate General also submitted that the respondents do not agree that the schools in question are educational institutions established and administered by minorities and is entitled to the protection of Article 30. Minority status has to be conferred by the Government. The National Judicial Commission for Minorities would have jurisdiction only after the Government is moved without success. The learned additional advocate general referred to the judgment of the Division Bench in Evan's U.P.School v. State of Kerala, 2001(1)KLT 849 wherein the Bench has taken the view that the Government is the most competent authority to determine the disputes or claims raised with regard to the minority status of an educational institution. WP(C)N0. 12801/2000 etc. -20- 12. I have considered the rival pleadings raised in this case and I have carefully perused the file placed before me by the learned additional advocate general. I have considered the rival submissions in the light of the documents placed on record and the precedents cited at the Bar. I am not impressed at all by the allegations of the petitioner that re-fixation of the alignment deviating from the alignment originally proposed necessitating acquisition of the properties of the petitioners in the manner now proposed has been done illogically, improperly or with oblique motives. In fact no convincing materials are forthcoming from the side of the petitioners to substantiate the allegations raised by them in this context. On the contrary the available materials would show that the alignment has been fixed in the manner proposed, by the Ministry of Surface Transport on the basis of the technical advice received by them and investigations conducted by the technically qualified persons. There is absolutely nothing to show that there has been any mala fides vitiating the decision of fixing the alignment in the proposed fashion. Any proposal for road widening is likely to cause some hardships to persons whose properties are taken for the purpose and necessarily widening of an existing road is possible only by utilising the properties WP(C)N0. 12801/2000 etc. -21- abutting the existing road. Even the petitioners do not dispute that the purpose of the acquisition is not a genuine public purpose. They also do not contend that the purpose of the acquisition is not an urgent one. In fact in response to the notice under section 9(3) the respondent entered appearance and filed a detailed claim statement interalia raising claims regarding the correct compensation to be paid in the event of the acquisition. Turning down the allegations of malafides and impropriety in the context of shifting of the alignment I hold that the proposal to acquire the petitioners property is also made as part of accomplishment of the genuine public purpose of widening / straightening and upgrading of the N.H. 17 from Edappally to Moothakunnam. 13. The main thrust in the submissions of the learned counsel for the petitioner was on Article 30(1) and 1(A) of the Constitution which provide as follows: “Article 30(1) – Right of minorities to establish and administer educational institutions – (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. “(1A) – In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is WP(C)N0. 12801/2000 etc. -22- such as would not restrict or abrogate the right guaranteed under that clause”. In fact the writ petition was got amended and grounds founded on Article 30(1) were incorporated after the Constitution Bench of the Supreme Court pronounced its judgment in Society of St.Joseph's College v. Union of India ( 2002(1) KLT 438 (SC). The ratio decidendi of the above judgment of the Supreme Court is contained in paragraphs 5, 6 and 7 of the judgment. It is held therein that Article 30 is part of the Chapter on fundamental rights in the Constitution which guarantees to the minorities religious or linguistic, a right to establish and administer educational institutions of their choice it is held that clause (1A) of Article 30 requires that the State while making law for providing compulsory acquisition of any property of a minority educational institution shall ensure that the amount fixed by or determined under such law as payable to the educational institution for acquisition of the property is such as would not restrict or abrogate the right (underlining supplied). It is also held that clause (1A) of article 30 requires that Parliament or State Legislature shall make a specific law to provide for compulsory acquisition of property of minority educational institutions the provisions of which law should ensure that the amount payable to the institution for acquisition of the property WP(C)N0. 12801/2000 etc. -23- should be such as will not in any manner impair the functioning of the educational institution. The Supreme Court has further held that it will suffice if the existing general law relating to land acquisition, i.e., the L.A.Act is amended so as to incorporate a provision which ensures that when the property belonging to minority educational institutions are acquired the amount payable for the acquisition will not in any manner impair the right conferred upon the minorities by Article 30 (underlining supplied). In paragraph 7 of the judgment, the Supreme Court rules that the intendment of the Parliament which underlies Article 30 as it obtains now and Article 30(1) which was repealed by the 44[th] amendment which only introduced Article 30(1A) is that a situation where minority educational institutions are compelled to be closed down or to curtail their activities by the expediency of acquiring their properties and payment of inadequate amounts in exchange should be averted. The Supreme Court in Paragraph 8 of the judgment did certainly turn down the Union Government's submission that the general law relating to land acquisition in the country, L.A. Act 1894 (as amended by Act 68/84) itself provides assurance for adequate compensation for the property of the minority educational institutions and held that the Constitution mandates that a law that specifically WP(C)N0. 12801/2000 etc. -24- relates to the compulsory acquisition of the property of the minority institutions should be there and that law should make provisions which ensure that the amounts that are fixed or determined thereunder for the acquisitions are such as do not restrict or abrogate the right guaranteed under Article 30. So holding, the Supreme Court granted time to the Parliament and the State Legislatures to make special law providing for acquisition of properties of minority educational institutions till 31-5-2002 and held that pending and uncompleted acquisitions of properties of minority educational institutions will lapse only at the end of such time. 14. Thus a plain reading of the judgment of the Supreme Court will certainly show that the Supreme Court has held that proceedings for acquisition of properties belonging to minority educational institutions will lapse by 31-5-2002 unless in the meanwhile the Land Acquisition has been amended so as to incorporate provisions in tune with Article 30(1)A or any new law for acquisition of properties of the minority institutions is enacted. 15. The first question therefore to be decided in these cases is whether the educational institutions which are subject matter of these two writ petitions are institutions which are established and WP(C)N0. 12801/2000 etc. -25- administered by religious minorities covered by Article 30(1) and 30 (1A) of the Constitution of India. The strenuous submissions of the learned Additional Advocate General notwithstanding, I am not prepared to hold that the educational institutions which are subject matter of these writ petitions are not established and administered by minority communities coming within the purview of Article 30 of the Constitution. The documents Exts.P13, P14 and P15 establish to the very hilt that the institutions are minority institutions enjoying the protection and benefits of Article 30 of the Constitution. True a Division Bench of this Court has held in Evan's U.P.School's case (2001 (1) KLT 849) that the Government, the highest executive authority in the State is the competent authority to settle the disputes regarding the minority status of the institution and the scheme of the National Commission for Minorities Act, 1992 and the rules thereunder provide for resolution of the issue in the first instance by the Government and then only by the Commission. But as held by the Supreme Court in Ammad's case (998(2) KLT 828 (SC) there is no provision in the Education Act which enables the Government to declare the school as a minority school. Declaration by the Government at best can only be giving recognition to an existing fact. The materials placed on record WP(C)N0. 12801/2000 etc. -26- by the petitioner are sufficient in my opinion to recognise the minority status of the petitioner schools as an existing fact for the purposes of Article 30(1) and 30(1A) of the Constitution. The question therefore is answered in the positive. 16. So also I am not impressed by the submission of the learned Additional Advocate General, that it is not the minority community which is now in possession of the property and that the community has now leased out the property to another person. The above submission was made on the basis of the entries in the encumbrance certificate which shows that the provincial superior of the congregation has executed a lease in respect of school properties in favour of the superior of the local convent which is locally managing the school. Both the lessor and the lessee are members of the same congregation and the so called lease deed I find has been executed only for completion of records in the context of the Kerala Education Rules. 17. Now the question to be examined is whether it should be held following the judgment of the Supreme Court that all proceedings for acquisition of the properties which are subject matter of these two writ petitions have lapsed in view of the admitted position that neither WP(C)N0. 12801/2000 etc. -27- the Central Government nor the State Government have amended the Land Acquisition Act so as to incorporate provisions in tune with Article 30(1)A or come out with new legislations providing for acquisition of properties of minority educational institutions. I am inclined to answer the above question in the negative, imbibing the legislative objectives underlying Article 30 and 30(1)A as explained by the Constitution Bench in its judgment. The convent which owns the two educational institutions which are subject matter of these two writ petitions have at their disposal extensive areas of land and at any rate enough land for accommodating one or two buildings of the size of the school building which is going to be affected by the proposed acquisition. The materials show that it is only a portion of the one of the school buildings having an extent of 260 Sq. metres corresponding to 2600 sq. feet alone which is being acquired for the project of widening the National Highway 17. The total plinth area of the buildings where the school is presently functioning comes to 1500 sq. ft. In other words it is only a small fraction of the building which is required to be acquired. The acquisition in my opinion does not per se result in a situation of impairing the functioning of the schools completely. At any rate, the acquisition will not result in a situation of the institutions being WP(C)N0. 12801/2000 etc. -28- compelled to be closed down. It is seen that the school management which has got considerable extent of land at their disposal have already constructed a new building on the school premises. Though it is contended that the new building is intended to accommodate the higher secondary wing, no material is forthcoming from the side of the petitioner to show that the new building is earmarked only for the higher secondary wing of the school. At any rate, it is beyond dispute that it will be possible for the management to construct another building of the same specifications since they are having land at their disposal. As interpreted by the Constitution Bench, the intendment behind article 30(1A) is only that there should be a specific law providing for acquisition of the property of minority educational institutions, the provisions of which should ensure that the amount payable to the educational institution for the acquisition of its property will be such that, the same will enable the educational institution to continue to run the institution. True, the Constitution Bench had granted time till 31-5-2002 to the Parliament or State Legislatures to enact appropriate law which conforms to the requirements of Article 30(1)A. It is also true that such a law is yet to be made. I am of the view that on the facts of these cases where the genuine and urgent WP(C)N0. 12801/2000 etc. -29- need of widening of the National Highway 17 from Edappally to Moothakunnam is being held up only on the reason that the authorities are not able to take possession of the properties belonging to the petitioners and the petitioners in another writ petition which is being disposed of today by a separate judgment, it is enough if it is ensured that the the amounts which the petitioners would receive in exchange for the properties they are deprived of, is equal to the amount they would have received if the same was determined under the legislation which was suggested by the Supreme Court. The amount under the legislation suggested by the Supreme Court in its judgment is to be an amount in conformity with Article 30(1)A. The amount should be such as to enable the petitioners to continue to enjoy the rights conferred on them under Article 30, i.e., an amount sufficient to conduct the educational institution in the same manner as they have been conducting prior to the acquisition. In other words, the awarding officer will have to bear in mind while passing the award that the compensation to be awarded to the petitioners should be special and the same is to be determined not on the para metres of section 23 of of the L.A. Act alone. Apart from those parametres the land acquisition officer will have to take into account considerations WP(C)N0. 12801/2000 etc. -30- regarding the probable amount necessary for the educational institution if it were to construct another new building of the same specifications as the building which they are losing on account of the acquisition. In other words, the principle of “reinstatement” which is not often followed in Indian law relating to land acquisition compensation should also be kept in mind by the Land Acquisition Officer while passing the awards in this case. It is seen from the draft award seen in the file that land value is being determined at the rate of Rs.121213/- per are . It is also seen from the draft award that a total amount of Rs.3,56,640/- has been determined as value of the whole of the building which is being affected by the proposed acquisition. The determination of the value of the building has been done as per PWD norms and the guidelines provided by the Land Acquisition Manual. 18. According to me, valuation of buildings strictly in accordance with PWD schedule of rates will not be a realistic approach. In the instant case the consideration should be as to what is the reasonable cost for the construction of the building portion which is being acquired if the construction is taken up now immediately after the acquisition. 19. The result of the above discussion is that I am inclined to WP(C)N0. 12801/2000 etc. -31- permit continuance of the proceedings for acquisition under the Land Acquisition Act itself. The Land Acquisition Officer is directed to hear the petitioners regarding the correct amount to be paid to the petitioners in exchange of the properties which are being acquired and to pass an award determining an amount which will be sufficient for enabling the petitioner to continue to conduct the educational institutions as they used to, prior to the acquisition. The determination of the amount shall be made in terms of Article Article 30(1A) taking into account observations in this judgment regarding the applicability of the parametres provided in section 23 of the Land Acquisition Act or any guideline contained in the Land Acquisition Manual. These cases should be treated as special cases and the Land Acquisition Officer while passing award shall bear in mind that he is expected to award not ordinary compensation under the Land Acquisition Act but sufficient amount as envisaged by the Constitution Bench of the Supreme Court in its judgment. 20. The Government's request to have immediate possession of the properties in these cases is perfectly justified. However, f the Government wants to take possession of the properties immediately even before award is passed as directed above the respondents are WP(C)N0. 12801/2000 etc. -32- permitted to do so on condition that the petitioners are paid tentative compensation for the acquired property reckoning the land value to be two times the basic land value proposed as per the draft award (121213 X 2 per are) kept in the file, and calculating the value of the buildings as per PWD schedule of rates itself but without deducting any amount towards depreciation. The tentative compensation so paid to the petitioners at the time of taking possession can be adjusted against the compensation / amount which will be ultimately determined in the award to be passed pursuant to this judgment. It is clarified immediately that this judgment should not be understood as deciding the correct market value of lands in the area at the relevant time to be two times the value determined as per the BVR or in the draft award kept in the file. This judgment shall also not be understood as deciding that the correct amount to be paid to the petitioners as compensation for the buildings acquired is the amount determined presently under the draft award towards building value + the amount deducted towards depreciation. The award to be passed pursuant to this judgment shall be passed having due regard to Article 30(1A) of the Constitution and the observations of the Supreme Court in the judgment of the Constitution Bench in Society of St.Joseph's WP(C)N0. 12801/2000 etc. **==> picture [21 x 9] intentionally omitted <==** College's case (2002(1) KLT 438 SC) and my own observations in this judgment. Award shall be passed after hearing the petitioners early and at any rate within six weeks of receiving copy of this judgment. 21. It is further clarified that nothing stated in this judgment regarding market value of the land or regarding value of the buildings payable to the petitioners will apply to any other case pertaining to other properties covered by the present notification under section 4 (1) pursuant to which this acquisition is proceeding or to any other land acquisition proceedings. Writ petitions are disposed of as above. No costs. **(PIUS C.KURIAKOSE, JUDGE)** ksv/