IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 24031 of 2008(J)
1. SULAIMAN.M.S, S/O. MOHAMMED SALI,
... Petitioner
2. ABIDA BEEGOM, W/O. SHAHUL HAMEED,
3. ANNIE EAPEN, W/O. V.G. EAPEN,
4. KUNJITHY KOCHUPAL,
Vs
1. THE STATE OF KERALA,
... Respondent
2. THE DISTRICT COLLECTOR,
3. THE SPECIAL TAHSILDAR,
4. LAND REVENUE COMMISSIONER,
5. THE EXECUTIVE ENGINEER,
6. N. RAMACHANDRAN, MANAGER,
For Petitioner :SRI.GEORGE CHERIAN (THIRUVALLA)
For Respondent :SRI.N.ANILKUMAR
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :15/03/2010
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NO.24031 OF 2008 (J)
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Dated this the 15th day of March, 2010
J U D G M E N T
Prayers sought in this writ petition are to quash Ext.P1
notification issued under Section 4(1) of the Land Acquisition Act
and require respondents 1 to 3 not to acquire or take possession
of land in Sy.No.1/8 of Thekkumbhagam Village, Kanayannur
Taluk owned by the petitioners. Petitioners own 0.2307 hectors
(56.98 cents) of land. By Ext.P1, notification issued under Section
4(1) of the Land Acquisition Act, the land is sought to be acquired
for the purpose of handing it over to the 6th respondent in
exchange of the land acquired from them.
2. Facts of the case are that, in order to widen the access
road to a bridge that was proposed to be constructed across the
Thattapillikattu river, part of the land belonging to the 6th
respondent was proposed to be acquired and Ext.P2 notification
under Section 4(1) of the Land Acquisition Act was issued on
5.5.2004. The 6th respondent challenged the acquisition
proceedings by filing W.P(c).No.21716/2005 before this Court.
That writ petition was disposed of by Ext.P4 judgment dated
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7.11.2005 quashing Ext.P2 notification and the declaration under
Section 6 of the Act, with liberty to the respondents to issue a
fresh notification.
3. Accordingly, a fresh notification under Section 4(1) was
issued on 9.6.2006. That notification was again challenged by the
6th respondent by filing WP(c).No.18503/2006, a copy of which is
Ext.P3. Ext.P10 is the counter affidavit filed by the respondents.
Subsequent to the filing of the writ petition, the 6th respondent got
the writ petition amended and contended that the school was a
linguistic minority educational institution and therefore in view of
the Apex Court judgment in Society of St. Joseph’s College V.
Union of India (2002(1)KLT 438), the acquisition proceedings
are illegal. Ext.P6 is the counter affidavit filed by the State
disputing the minority status claimed by the 6th respondent. It
would appear that during the pendency of the writ petition,
realizing the difficulty in acquiring the land of the 6th respondent
in the light of the Apex Court judgment relied on by them, it
was decided by the respondents to arrive at a consensus on the
issue. Accordingly a consensus was arrived at and Exts.P7
and P8 statements were filed before this Court. In Ext.P7
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statement it was stated that, the acquisition proceedings were
initiated to acquire an extent of 15.58 ares of property of the 6th
respondent and that the respondents were willing to acquire and
hand over to the 6th respondent, an equal extent of property, on
the western side of the compound wall of the school, situated in
Sy. No.1.8 of Thekkumbhagam Village, if the 6th respondent
surrenders 15.58 ares of property situated in Sy. No.1/21 and
1/23 of Thekkumbhagam Village. It was further stated that if the
6th respondent was amenable to the above suggestion, the
respondents were ready to proceed with the acquisition invoking
Section 17(4) of the Land Acquisition Act and compensate the 6th
respondent. Ext.P8 is a further statement incorporating more
details of the proposal referred to above.
4. Based on the above developments, this court passed an
interim order in WP(c).No.18503/2006, recording the statements
filed by the parties as also the submission of the Government
Pleader that steps will be taken to acquire 23.07 ares without any
delay. A copy of the order is Ext.P9. It was pursuant to the above
that Ext.P1 notification under Section 4(1) of the Land Acquisition
Act was issued on 19.5.2007 dispensing with Section 5A enquiry
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and notification was to acquire 0.2307 hectors of land of the
petitioners and 2 others. Ext.P1 notification was challenged by the
affected land owners in W.P(c).Nos.19893/2007 and 23656/2007.
5. Those two writ petitions filed by affected land owners and
WP(c).No.18503/06 filed by the 6th respondent were disposed of
by Ext.P13 common judgment rendered on 26.2.2008. In that
judgment, it was held that it is only proper that respondents
therein should conduct an enquiry under Section 5A of the Act
because the land of the petitioners in WP(c).Nos.19893/07 &
23656/07 were to be acquired to compensate the land acquired
from the 6th respondent and that considering the importance of
the contentions raised, it is only appropriate that an enquiry
should be conducted by the District Collector himself.
Accordingly, the writ petitions were disposed of directing the land
owners to file their objections before the Land Acquisition Officer
and the Land Acquisition Officer was directed to hand over the
files to the District Collector for conducting enquiry under Section
5A of the Act. It was clarified that this court did not express any
opinion on the merits of the contentions and that until decision is
taken in the matter, status quo which was already ordered to be
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maintained, shall continue.
6. Accordingly the petitioners therein, the affected land
owners, submitted Ext.P14 representation to the Land Acquisition
Officer, the files were handed over to the District Collector and
finally the District Collector issued Ext.P15 order excluding the
land of Smt. Annamma Thomas & Smt. Leesa Prasad from the
acquisition proceedings and holding that the request of others,
viz, the petitioners herein, is rejected, since the acquisition of
their land was inevitable for the purpose of the bridge across the
Thattapallikattu river. It was accordingly that seeking to quash
Exts.P1 and P15 that this writ petition was filed on 17.8.2008 and
while admitting the writ petition on 11.8.2008, this court directed
that status quo be maintained and the position continues even as
on date.
7. Learned counsel for the petitioners contended that the
land acquisition proceedings are illegal. According to the learned
counsel, though the purpose of acquisition of the land, viz, the
construction of the bridge and its access, are public purposes
that is achieved with the property of the school. The proceedings
for acquisition were challenged by the school claiming minority
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status and that though the minority status claimed was disputed
by respondents, they entered into a private agreement with the
school, agreeing to compensate them by acquiring the land
belonging to the petitioners. It was contended that the purpose of
acquisition therefore was only to compensate for the land
acquired from the 6th respondent and that such a purpose, is not a
public purpose and in such circumstances, the exercise of power
under the Land Acquisition Act is a colourable exercise, which is
illegal and unconstitutional. It was further contended that the 6th
respondent is not a linguistic minority and Exts.P5 and P6, apart
from the counter affidavit filed by the respondent themselves,
were relied on. On this basis, counsel argued that Apex Court
judgment in St. Joseph’s College case, (supra) is relevant, in
so far as the 6th respondent is concerned and that therefore, the
acquisition was illegal for that reason as well.
8. The learned Additional Advocate General who appeared
on behalf of the State contended that the 6th respondent is a
linguistic minority. He referred me to Exts.R6(2) and R6(3) and
also the Apex Court judgment in Ammad V. Emjay High School
(1998(2) KLT 828). According to him, there is no provision in the
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KER providing for declaration that a particular school is a minority
school and that any declaration on minority status is only a
recognition of an existing fact. He therefore contended that the
status of the 6th respondent as a linguistic minority educational
institution is one which has to be accepted by all concerned.
9. According to him, in view of the Supreme Court judgment
in St. Joseph’s College case (supra) and as the Central or the
State legislatures have not legislated any special law for
acquisition of the property of a minority educational institution, as
required under Article 30(1-A) of the Constitution of India, it was
impossible for the State to acquire the school property. Referring
to the sketch annexed to the writ petition and also to one
produced during the course of the submissions, he contended that
for the purpose of the bridge which has already been constructed,
the land of the 6th respondent school was inevitable. According to
him since the acquisition of the property of the 6th respondent is
not possible and as the land belonging to the 6th respondent was
inevitable for the public purpose, the only course open to the
State was to have arrived at a consensus with the 6th respondent.
WPC.No. 24031/08
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10. Accordingly, an attempt was made and the 6th
respondent agreed to make available the required extent of land,
but however insisted that they should be compensated with equal
extent of land either adjacent to their existing property or
elsewhere. It is stated that it was in these circumstancess that
the land of the petitioners was identified for acquisition and
Exts.P7 and P8 statements were filed before this court. It is
stated that though the purpose for which the land is acquired
from the petitioners is to compensate the 6th respondent, in the
context in which it is so done, the said purpose is a public
purpose under the Land Acquisition Act. It is also stated that the
Government was willing for a negotiated purchase of the
petitioners’ property and that pursuant to the order dated 6th
December, 2009 passed in this case, the petitioners appeared
before the District Collector . However, they were unwilling even
to negotiate with the District Collector, which has been reported
to this court in the District Collector’s report dated 4.1.2010 and
that it was therefore that it has become necessary for the State
to proceed with the acquisition proceedings. He contended that
the fact that there is absence of law enabling the State to acquire
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land from a minority educational institution cannot defeat a public
purpose and therefore the State is justified in invoking the
proceedings for acquisition of land belonging to the petitioners.
11. On behalf of the 6th respondent it was contended that
being a linguistic minority educational institution, their property
cannot be acquired in view of Article 30(1-A) of the Constitution of
India and the law laid down by the Apex Court in Society of St.
Joseph’s College V. Union of India (2002(1)KLT 438).
According to them, they cannot part with any extent of their
land, as they are having only the minimum required land in their
possession and any reduction in the extent of their land will affect
the future expansion of their school. It was therefore that
according to them, they insisted on being compensated with
equal extent of land, either adjacent to the existing school
property or elsewhere.
12. I have considered the submissions made by both sides.
13. The question to be considered is whether the purpose
for which the petitioner’s land is proposed to be acquired is a
public purpose. This necessarikly calls for an examination whether
the 6th respondent is a minority educational instutition. The 6th
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respondent, Sree Venkadeswara English Medium High School has
been established by the Thrippunithura Thulu Brahmana Yogam,
the bye-law of which is Ext.R6(1). Ext.R6(2) is the application
submitted by the 6th respondent for recognition of their school, in
which they have described themselves as a linguistic minority. In
Ext.R6(3) is a representation submitted by them to the then
Minister for Education, where they have reiterated their plea that
they are a religious and linguistic minority. As against this, in
Ext.P5, the Deputy Director of Education has stated that there are
only two recognized linguistic minority schools in Ernakulam
District and this does not include the 6th respondent’s school. In
Ext.P6 counter affidavit filed against the application made by the
6th respondent in WP(c).No.18503/06, the respondents herein
had disputed the status of the 6th respondent as a minority
educational institution. Ext.P5 does not show that on what basis,
the public Information Officer has stated that there are only two
linguistic minority schools in the District. Similarly, Ext.P6 counter
affidavit also does not state on what basis the minority status of
the 6th respondent has been disputed. On the other hand, the
minority is a status which a linguistic minority or a religious
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minority is entitled to enjoy and the Kerala Education Act or
the Rules do not contain any provision providing for conferment
of such status. As held by the Apex Court in Ammad V. Emjay
High School (1998(2) KLT 828), even if a declaration is made
either by Government or by some other authority, such a
declaration is only an open acceptance of a legal character which
has already existed antecedent to such a declaration. Therefore
it will be incorrect for this court to assume that the status of an
educational institution as a minority institution, entitled to the
protection of Article 30 of the Constitution of India, is dependent
upon any declaration of it as a minority educational institution. If
the 6th respondent is otherwise a minority educational
institution, it will remain as such and will continue to enjoy the
protection of Article 30. Apart from these facts, the learned
Additional Advocate General was also categoric that the 6th
respondent is a linguistic minority educational institution. Further
in Ext.P13 judgment, this court has proceeded on the basis that
the school a linguistic minority educational institution. In the
light of these, I am inclined to accept the case of the respondents
that the 6th respondent is a linguistic minority educational
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institution.
14. Once the status of the 6th respondent as a minority
educational institution is accepted, it is entitled to the benefit of
article 30 of the Constitution of India, which provides that for
compulsory acquisition of any property of an educational
institution established and administered by a minority, the State
shall make a law ensuring that the amount fixed by or
determined under such law for the acquisition of such property is
such as would not restrict or abrogate the right guaranteed under
Article 30(1A) of the Constitution of India. It is in the context of
this provision of the Constitution, that the Apex Court in its
judgment in Society of St. Joseph’s College V. Union of India
(supra) held that Article 30(1-A) was introduced by the
Parliament as a safeguard to obviate the violation of the right
conferred by Article 30 of the Constitution and that clause(1-A)
clearly states that after the date of its introduction, if property of
a minority educational institution is to be compulsorily acquired,
there must be a law specifically providing for such acquisition and
that such law must make provisions that ensure that the
amounts that are fixed or determined thereunder for the
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acquisitions do not restrict or abrogate the right guaranteed
under article 30. Proceeding further, taking note of the absence
of any legislation in this behalf the Apex Court held that it is
appropriate that Parliament and the State legislatures should
have time up to 31st May 2002 to make such laws, if they so
choose and that all uncompleted acquisitions of the properties
of minority educational institutions shall lapse at the end of such
period, provided the Statues under which the acquisitions have
been commenced have not been duly amended and that if they
are duly amended, the amounts payable for such acquisitions
shall be determined thereunder.
15. Even as on date, a law as contemplated under Article
30(1-A) and as held by the Apex Court has not been legislated
either by the Central or the State Legislature. Therefore it would
not have been possible for the State to acquire the property of
any minority educational institution. If that be so, the notification
dated 9.6.2006, issued by the State for acquiring the property of
the 6th respondent School was illegal and WP(c).No.18503/2006
challenging the Section 4(1) notification would certainly have
been allowed on that ground. It was on account of this difficulty
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and as the land belonging to the school was essential for the
project, that a consensus was arrived at between the State and
the 6th respondent. However, the school authorities agreed to
part with their property on condition that they shall be duly
compensated by providing an equal extent of land. In fact they
had even generously agreed to be satisfied if an equal extent of
land elsewhere is given to them. It was in this background that
the land of the petitioners situated on the western side of the
school property was identified and Ext.P1 notification was issued
under Section 4(1) of the Land Acquisition Act, invoking the
urgency clause and dispensing with Section 5A enquiry.
16. Ext.P1 notification is challenged mainly on the ground
that it was a colourable exercise of power, in as much as the
acquisition is not for a public purpose. Where power is conferred
to achieve a purpose, it must be exercised reasonably and in
good faith to carry out the purpose. In this context, `in good faith’
means `for legitimate reasons’ and where power is exercised for
extraneous or irrelevant considerations or reasons, it is a
colourable exercise of power or fraud on power and that
exercise of power is vitiated. Therefore, if power to acquire land is
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exercised, for an extraneous or irrelevant considerations, the
authority can be charged with legal mala fides. In such situation,
there is no question of any personal illwill or motive. It has been
held by the Apex Court in State of Punjab V. Gurudayal Singh
(1980 SC 319) that the action of a statutory authority is bad,
where the true object is to reach an end different from the one for
which power is entrusted, goaded by extraneous considerations,
good or bad, but irrelevant to the entrustment. It was also held
that when the custodian of power is influenced in its exercise by
considerations outside those for the promotion, of which the
power is vested, the court calls it a colourable exercise and is
undeceived by illusion.
17. Applying these principles, in The Collector(District
Magistrate) Allahabad V. Raja Ram Jaiswal (AIR 1985 SC
1622) the Apex Court interfered with the land acquisition
proceeding which were initiated for the acquisition of a plot of
land as being needed for a public purpose mainly for extension of
Hindi Sangrahalaya of the Hindi Sahitya Sammellan, Prayag. It
was found that the acquisition proceedings were initiated only for
the reason that the authorities of the Sammelan could not
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tolerate the existence of a cinema theater in its vicinity. It was
held that the Sammelan was actuated by irrelevant and
extraneous considerations in seeking acquisition of land and the
statutory authority having known this fact, yet proceeded to
exercise statutory power and initiated the process of acquisition
which was held to be illegal.
18. In this context, reference was also made to the
judgment in Devinder Singh and Ors. V. State of Punjab and
Others (2008(1) SCC 728), where it was held that if the
acquisition made is not relateable to public purpose, then a
question may well arise whether in making declaration, on the
part of the Government there has been a fraud on the power
conferred on it under the Land Acquisition Act. According to the
learned counsel for the petitioners, Ext.P1 notification is a
colourable exercise of power and by entering into a private
agreement with the 6th respondent, the State was seeking to
achieve something which it could not otherwise do. However I do
not find any substance in this argument. As I have already
noticed petitioners have no case that the purpose for which the
school property was sought to be acquired is not a public
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purpose. Once it is accepted that the acquisition of school
property was for a public purpose, taking into account the fact
that the acquisition of the school property was inevitable for the
implementation of the project, one must recognize that in the
given circumstances, the only option available to the State was to
enter into an agreement with the School authorities for taking
over the land. It was during such a negotiation that the school
authorities expressed their willingness to part with their property
on condition that they should be compensated with equal extent
of land for the reason that what they now hold is only the
minimum required land and that any reduction in the land will
adversely affect their future expansion programmes. Therefore, it
is in this factual background of the matter, that one should
evaluate whether the purpose for which the land is sought to be
acquired by Ext.P1 notification, is a public purpose or not.
19. Public purpose has been given an inclusive definition
in Section 3(f) of the Land Acquisition Act . This means the
Legislature wanted to ensure maximum flexibility while
incorporating the said provision. The concept of public purpose is
bound to vary with times and prevailing conditions in the
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community and locality and it was therefore that the legislature
has left it to the State to decide what is a public purpose and the
sole and absolute discretion in the matter is vested with the
Government. It has been held that the expression public
purpose is not capable of a precise definition and does not have a
rigid meaning and that it can be defined by a process of judicial
inclusion and exclusion and that the definition of the expression
is logistic and takes its colour from the statute in which it occurs.
It has been repeatedly held that public purpose will include a
purpose in which the general interest of the community as
opposed to the interest of an individual is directly or indirectly
involved and in such a situation the interest of the individual
must gave way to public interest.
20. The point to be determined in each case is whether
acquisition is in the general interest of the community as
distinguished from the private interest of the individuals and the
facts and circumstances of each case will require to be closely
examined in order to determine whether a public purpose has
been established. The Government is the best judge to decide
whether public purpose is served by issuing a requisition, but is
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not the sole judge and that courts have the jurisdiction and it is
their duty to determine the matter. I do not think it necessary to
burden this judgment with all the precedents judgments that were
cited, except to mention the judgments of the Apex Court in
Daulat Singh Surana V. First Land Acquisition Collector
(AIR 2007 SC 471) and in Suraram Krishna Reddy V. District
Collector (2008(4) KLT short note 33). Once meaning of the
expression `public purpose’ has been understood as above, I
should mention certain other judgments which were citied at bar.
Varkey Devassy V. State of Kerala & Ors. (1966KLT 805), is a
case were following the earlier judgment in A.P. Mohammed
Nooho V. State & ORS. (1952 KLT 498) this court upheld a
notification for the acquisition of property for the purpose of a
temple. Similar acquisition was upheld by the Apex Court in
Bajirao T. Kote & Anor. V State of Maharashytra & Ors.
(1995(2)SCC 442) and also by this court in Gopakumar V.
State of Kerala (2009(3) KHC 361. In The Forane Church,
Chalakudy V. State of Kerala & Ors.(1971 KLT 733), a
Division Bench of this court upheld land acquisition proceedings
for acquiring land for the expansion of a school. Reference was
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also made to the Apex Court judgment in Mrinalini Roy Ratna
Prova Mondal & Ors. V. State of West Bengal & Ors. (1997
(9) SCC 113) where acquisition for rehabilitation of evictees was
held to be for a public purpose. There cannot be an argument
that land needed for a school is not for the general interest of the
community. Having regard to he inclusive definition of purpose
and in the light of the other facts noticed, the acquisition of the
school property has to be held as one for a public purpose. As
already held it was inevitable to acquire school property and this
could not have been done except by an agreement with the 6th
respondent. In such a case, if land is acquired under the Land
Acquisition Act for compensating the school, applying the
principles laid down in the judgments noticed above, such
acquisition cannot be said to be a colourable exercise of power.
21. In the result I do not find any merit in the contentions
raised. It is well known that the iron bridge at Trippunithura is a
narrow, antique one, which cannot meet the present day traffic
requirements and there has to be another bridge. It is with this
purpose that a new bridge has been constructed. However due to
successive litigations, even today the project remains incomplete
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and the agony of the general public continues. I hope and trust
that with this judgment, the disputes will be given a quietus and
that the authorities will be able to proceed with the
commissioning of the project.
Writ petition only to be dismissed and I do so.
(ANTONY DOMINIC)
JUDGE
vi/