W.P.(C) Nos.19893 & 23656 of 2007 and W.P.(C) No.18503/2006

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR** **TUESDAY, THE 26TH FEBRUARY 2008 / 7TH PHALGUNA 1929** **WP(C).No. 18503 of 2006(C)** **-----------------------------------------** **PETITIONER:** **--------------------** **N.RAMACHANDRAN, S/O.S.VASUDEVA RAO, SREEPADAM, H.NO.180A/17, TRIPUNITHURA, THE MANAGER, SREE VENKITESWARA ENGLISH MEDIUM HIGH SCHOOL, TRIPUNITHURA.** **BY ADV. SRI.N.ANILKUMAR** **RESPONDENTS:** **------------------------** **1. THE DISTRICT COLLECTOR, ERNAKULAM.** **2. THE SPECIAL TAHSILDAR (LA GENERAL), ERNAKULAM.** ## **3. STATE OF KERALA,** **REP. BY SECRETARY P.W.D. WORKS, THIRUVANANTHAPURAM.** **BY ADDL.ADVOCATE GENERAL SRI.VENGANOOR CHANDRASEKHARAN NAIR BY GOVERNMENT PLEADER SRI.BENNY VARGHESE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/02/2008 ALONG WITH WPC NO. 19893 OF 2007 AND WPC NO. 23656 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _Kss_ ## **WPC.NO.18503/2006 C** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE NOTIFICATION ISSUED ON 30/07/2004. EXT.P2: COPY OF THE ROUGH SKETCH SHOWING THE IRON BRIDGE AND THE PROPERTY OWNED BY THE SCHOOL.** - **EXT.P3: COPY OF THE JUDGMENT DTD. 7/11/2005 IN WP(C) 21716/2005. EXT.P4: COPY OF THE NOTIFICATION WAS PUBLISHED IN DESABHIMANI DAILY DTD. 9/06/2006.** - **EXT.P5: COPY OF THE APPLICATION SUBMITTED BEFORE THE GOVERNMENT ON 13/03/1981.** - **EXT.P6: COPY OF THE REPRESENTATION SUBMITTED ON 3/07/1981. EXT.P7: COPY OF THE LETTER DTD. 25/05/1981 ISSUED FROM THE OFFICE OF THE COMMISSIONER FOR LINQUSTIC MINORITIES IN INDIA.** - **EXT.P8: COPY OF THE SALE DEED NO.517/89 DTD. 9/03/89 OF THRIPUNITHURA SUB REGISTRAR OFFICE.** - **EXT.P8: COPY OF THE APPLICATION DTD. 14/03/2007 BEFORE KANAYANNOOR TALUK OFFICE.** - **EXT.P9: COPY OF THE TAX RECEIPT DTD. 4/01/2006.** ## **2ND RESPONDENT'S EXHIBITS:** - **EXT.R2(A): COPY OF THE G.O.NO.1178/2005/PWD DTD. 23/12/2005. EXT.R2(B): COPY OF THE G.O.(RT0 NO.217/2006/PWD DTD.1/03/2006.** - **EXT.R2(C): COPY OF THE PROCEEDINGS NO.LRC.6-15902/2006 D.DIS. DTD. 6/04/2006.** - **EXT.R2(D): COPY OF THE NEWSPAPER CUTTING OF MADYAMAM DAILY DTD. 12/06/2006.** _Kss_ **..2/-** **...2.....** ## **WPC.NO.18503/2006 C** ## **3RD RESPONDENT'S EXHIBITS:** - **EXT.R3(A): COPY OF THE REPORT SUBMITTED BY SUPERINTENDING ENGINEER TO THE CHIEF ENGINEER DTD. 15/10/2003.** - **EXT.R3(B): COPY OF THE JUDGMENT IN WP(C) NO.21716/2005.** - **EXT.R3(C): COPY OF THE REVISED GOVERNMENT ORDER NO.G.O.(RT) 217/2006/PWD DTD. 01/03/2006.** - **EXT.R3(D): COPY OF THE SKETCH SHOWING THE PROPOSED BRIDGE AND THE LOCATION OF THE SCHOOL.** - **EXT.R3(E): COPY OF THE PHOTOGRAPHS OF THE CONSTRUCTION OF BRIDGE.** - **EXT.R3(F): COPY OF THE PHOTOGRAPHS OF THE CONSTRUCTION OF THE SMALL BRIDGE.** - **EXT.R3(G): PHOTOGRAPHS OF THE EXISTING OLD IRON BRIDGE.** ## **/TRUE COPY/** ## **P.A.TO JUDGE** _Kss_ ## **K.PADMANABHAN NAIR, J.** ------------------------------- W.P.(C) Nos.19893 & 23656 of 2007 and W.P.(C) No.18503/2006 ------------------------------- Dated this the 26[th] February, 2008. ## **J U D G M E N T** W.P.(C) No.18503/2006 is filed by a Minority Educational Institution which is running a High School at Tripunithura. Some properties which was in the possession of the petitioner were sought to be acquired invoking urgency clause, for the purpose of construction of a Bridge. That acquisition was challenged raising various grounds. It was contended that there was no need to invoke Section 17(4) of the Land Acquisition Act, (for short 'the Act'). During the pendency of the writ petition, the same was amended claiming protection, on the ground that properties sought to be acquired is owned by a Minority Educational Institution. Petitioner claims the benefit in view of the decision rendered in **Society of St.Joseph's College v. Union of India** (2002 (1) KLT 438 (SC). At that stage, the Government thought it fit to enter into a compromise between the petitioner in this writ petition, and it was agreed that equal extent of land which was sought to be acquired from the land owned by the school authorities will be acquired, and handed over to the School. **W.P.(C) No.18503/2006 etc.** 2 Thereafter, the Government issued a notification under Section 4(1) read with Section 17(4) of the Act, for acquisition of 0.2307 Hectares of land owned by the petitioners in W.P.(C) Nos.19893 & 23656 of 2007. 2. The owners of the properties in W.P(C) Nos.19893 & 23656 of 2007 have filed the writ petitions challenging the notification issued by the Government under Section 4(1), read with Section 17(4) of the Act. The main grounds raised in these two writ petitions are that there is no bona fides in the compromise arrived between the Government and the petitioner in W.P.(C) No.18503/2006. It is also contended that the entire action is actuated by mala fides and though only a lesser extent of land belonging to the school was sought to be acquired, the notification issued later contains a larger extent. It is also contended that, apart from the plot in which the school is situated, some other plots belonging to the school were also acquired and the respondent Government is trying to acquire the land belonging to other persons and handed over to the school to compensate that property acquired also. It is contended that on the southern side of the school compound, petitioners are having enough properties. **W.P.(C) No.18503/2006 etc.** 3 Instead of acquiring the properties from the western side, respondents could have very well acquired the property on the southern side, if the intention was bonafide. 3. The learned Additional Advocate General appearing for the State had argued that the Iron Bridge, which is now situated at Tripunithura, is in a dilapidated condition and is in a very dangerous condition, and it may collapse causing loss of life and property and as such, the formation of a new road and construction of a new bridge is absolutely essential to avoid loss of life and property. There cannot be any dispute that the purpose in that notification is a public one. For that purpose, the property owned by an educational institution run by a minority community is sought to be acquired. It is also true that in view of the principles laid down in Society of St.Joseph's College's case (supra), it will be very difficult for the respondents to initiate the proceedings under the Land Acquisition Act, for acquisition of school property, owned by an educational institution run by a minority community. In the above stated decision, a Constitutional Bench had given time to the States as well as the Central Government, to enact necessary laws within a time limit. It is further made clear that until **W.P.(C) No.18503/2006 etc.** 4 then, if no laws are formulated, the notification will have to lapse. When there is a genuine need, it cannot be stopped on account of lack of statutory provisions. That is the reason why the State was forced to enter into a compromise with the petitioner in W.P.(C) No.18503/2006. 4. The petitioners in the other two writ petitions are challenging the validity and genuineness of that. So, the questions which will have to be considered is whether for compensating the land, which was acquired from the school property of a Minority Educational Institution, the Government can acquire land owned by others invoking the provisions under the Land Acquisition Act. The second question that arises for consideration is whether what exactly is the extent of land acquired from the possession of the school, and what is the property now proposed to be acquired from others to hand over to the school. 5. The learned counsel appearing for the petitioners in W.P(C) Nos.19893 & 23656 of 2007, have argued that even though in the counter filed in the earlier writ petition, the Government has taken 5 ## **W.P.(C) No.18503/2006 etc.** a stand that only a lesser extent of property was acquired from the school property, now the respondents are trying to acquire 0.2307 hectares of land. The learned Additional Advocate General submits that, in the notification issued under Section 4(1) of the Act, the probable extent of land required was stated, but the same is likely to be altered after actual measurements. It is stated that the exact area of the registered holding acquired from the school property, alone will be acquired from others. 6. It is also argued by the counsel for the petitioner that instead of acquiring the property on the west, the petitioners property which is situated on the south of the school compound, could have been acquired. It is also argued that the school is situated in a plot, and some portion of that plot along with another plot, which is situated away from the plot in which school buildings are situated was also acquired, and the school is not entitled to get any protection in respect of that property. **W.P.(C) No.18503/2006 etc.** 6 7. Advocate Sri.N.Anil Kumar, appearing for the 4[th] respondent in W.P.(C) No.19893/2007, has argued that there is no law in the KER or other Acts which states that the property which is used as a school property shall lie as a compact plot. It is argued that under the provisions of KER, for running a school, minimum extent of property is required and there is no provisions in that Act or Rules, which provides that such land shall lie as a compact plot. In view of the order which is passed in this case, it is not necessary to consider that point on its merits. Considering the contentions raised in W.P (C) Nos.19893 & 23656 of 2007, I am of the view that it is only just and proper that the respondents conducts an enquiry under Section 5A of the Act, so far as the petitioners in these two writ petitions alone are considered, because the land of these petitioners are acquired to compensate the land acquired from the petitioner in W.P.(C) No.18503/2006. Considering the importance of the contentions raised, it is only just and proper that the enquiry be conducted by the District Collector himself, instead of entrusting the same with the Land Acquisition Officer. **W.P.(C) No.18503/2006 etc.** 7 8. In the result, the writ petitions are disposed of. I make it clear that I am not entering into any decision regarding the compromise or consensus entered into by the State and the petitioner in W.P.(C) No.18503/2006. The various interim orders passed in that writ petition accepting or acting upon the compromise will continue to be in force. In case, ultimately, the decision adverse to the petitioners in W.P.(C) 18503/2006 is taken, this judgment will not be a bar for the petitioners to approach this Court again. 9. W.P.(C) Nos. 19893 & 23656 of 2007 are also disposed of with a direction to the petitioners in this cases, to file their objections before the Land Acquisition Officer, within a period of two weeks from the date of receipt of a copy of this judgment. They are entitled to raise all their contentions which they have raised in the writ petitions in those applications. As and when those petitions are filed, the Land Acquisition Officer shall hand over the file to the District Collector, who shall conduct an enquiry under Section 5A of the Act and take a decision, after issuing notices to the requisitioning 8 ## **W.P.(C) No.18503/2006 etc.** authority, the petitioner in W.P.(C) N.18503/2006 and the petitioners in other two writ petitions, as expeditiously as possible, at any rate, within another six weeks thereafter. I make it clear that regarding the property of the petitioner in W.P.(C) No.18503/2006, the status quo which exist on today will continue until decisions are taken. I further make it clear that I am not expressing any opinion regarding the merits of the contentions raised by both sides in these writ petitions. Petitioners in all three writ petitions will be free to challenge any decision entered into by the District Collector, if they are aggrieved by the same. ## **K.PADMANABHAN NAIR, JUDGE** **nj.**