{"id":164893,"date":"2010-03-15T00:00:00","date_gmt":"2010-03-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sulaiman-m-s-vs-the-state-of-kerala-on-15-march-2010"},"modified":"2018-06-29T11:23:52","modified_gmt":"2018-06-29T05:53:52","slug":"sulaiman-m-s-vs-the-state-of-kerala-on-15-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sulaiman-m-s-vs-the-state-of-kerala-on-15-march-2010","title":{"rendered":"Sulaiman.M.S vs The State Of Kerala on 15 March, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
Sulaiman.M.S vs The State Of Kerala on 15 March, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWP(C).No. 24031 of 2008(J)\n\n\n1. SULAIMAN.M.S, S\/O. MOHAMMED SALI,\n                      ...  Petitioner\n2. ABIDA BEEGOM, W\/O. SHAHUL HAMEED,\n3. ANNIE EAPEN, W\/O. V.G. EAPEN,\n4. KUNJITHY KOCHUPAL,\n\n                        Vs\n\n\n\n1. THE STATE OF KERALA,\n                       ...       Respondent\n\n2. THE DISTRICT COLLECTOR,\n\n3. THE SPECIAL TAHSILDAR,\n\n4. LAND REVENUE COMMISSIONER,\n\n5. THE EXECUTIVE ENGINEER,\n\n6. N. RAMACHANDRAN, MANAGER,\n\n                For Petitioner  :SRI.GEORGE CHERIAN (THIRUVALLA)\n\n                For Respondent  :SRI.N.ANILKUMAR\n\nThe Hon'ble MR. Justice ANTONY DOMINIC\n\n Dated :15\/03\/2010\n\n O R D E R\n                       ANTONY DOMINIC, J.\n              --------------------------------------------------\n                 W.P.(C) NO.24031 OF 2008 (J)\n              --------------------------------------------------\n            Dated this the 15th day of March, 2010\n\n                           J U D G M E N T\n<\/pre>\n
      Prayers sought in this writ petition are to quash            Ext.P1<\/p>\n
notification issued under Section 4(1) of the Land Acquisition Act<\/p>\n
and require respondents 1 to 3 not to acquire or take possession<\/p>\n
of land    in Sy.No.1\/8 of Thekkumbhagam Village, Kanayannur<\/p>\n
Taluk owned by the petitioners. Petitioners own 0.2307 hectors<\/p>\n
(56.98 cents) of land. By Ext.P1, notification issued under Section<\/p>\n
4(1) of the Land Acquisition Act, the land is sought to be acquired<\/p>\n
for the purpose of handing it over              to the 6th respondent in<\/p>\n
exchange of the land acquired from them.\n<\/p>\n
      2.  Facts of the case are that, in order to widen the access<\/p>\n
road to a bridge that was proposed to be constructed across the<\/p>\n
Thattapillikattu river, part of the land belonging to the 6th<\/p>\n
respondent was proposed to be acquired and Ext.P2 notification<\/p>\n
under Section 4(1) of the Land Acquisition Act was issued on<\/p>\n
5.5.2004.    The    6th   respondent       challenged      the  acquisition<\/p>\n
proceedings by filing W.P(c).No.21716\/2005 before this Court.<\/p>\n
That writ petition was disposed of by Ext.P4 judgment dated<\/p>\n
WPC.No. 24031\/08
\n                                  :2 :<\/span><\/p>\n
7.11.2005 quashing Ext.P2 notification and the declaration under<\/p>\n
Section 6 of the Act, with liberty to the respondents to issue a<\/p>\n
fresh notification.\n<\/p>\n
      3. Accordingly, a fresh notification under Section 4(1) was<\/p>\n
issued on 9.6.2006. That notification was again challenged by the<\/p>\n
6th respondent by filing WP(c).No.18503\/2006, a copy of which is<\/p>\n
Ext.P3. Ext.P10 is the counter affidavit filed by the respondents.<\/p>\n
Subsequent to the filing of the writ petition, the 6th respondent got<\/p>\n
the writ petition amended and contended that the school was a<\/p>\n
linguistic minority educational institution and therefore in view of<\/p>\n
the Apex Court judgment in Society of St. Joseph’s College V.<\/p>\n
Union of India<\/a> (2002(1)KLT 438), the acquisition proceedings<\/p>\n
are illegal.    Ext.P6 is the counter affidavit   filed by the State<\/p>\n
disputing the minority status claimed by the 6th respondent. It<\/p>\n
would appear that during the pendency of the writ petition,<\/p>\n
realizing the difficulty in acquiring the land of the 6th respondent<\/p>\n
in the      light of the Apex Court judgment relied on by them, it<\/p>\n
was decided by the respondents to arrive at a consensus on the<\/p>\n
issue.      Accordingly a consensus was arrived at and Exts.P7<\/p>\n
and P8 statements were filed before this Court. In Ext.P7<\/p>\n
WPC.No. 24031\/08
\n                                 :3 :<\/span><\/p>\n
statement it was stated that, the acquisition proceedings were<\/p>\n
initiated to acquire an extent of 15.58 ares of property of the 6th<\/p>\n
respondent and that the respondents were willing to acquire and<\/p>\n
hand over to the 6th respondent, an equal extent of property, on<\/p>\n
the western side of the compound wall of the school, situated in<\/p>\n
Sy. No.1.8 of Thekkumbhagam Village, if the 6th respondent<\/p>\n
surrenders 15.58 ares of property situated in Sy. No.1\/21 and<\/p>\n
1\/23 of Thekkumbhagam Village. It was further stated that if the<\/p>\n
6th respondent was amenable to the above suggestion, the<\/p>\n
respondents were ready to proceed with the acquisition invoking<\/p>\n
Section 17(4) of the Land Acquisition Act and compensate the 6th<\/p>\n
respondent.      Ext.P8 is a further statement incorporating more<\/p>\n
details of the proposal referred to above.\n<\/p>\n
      4. Based on the above developments, this court passed an<\/p>\n
interim order in WP(c).No.18503\/2006, recording the statements<\/p>\n
filed by the parties as also the submission of the Government<\/p>\n
Pleader that steps will be taken to acquire 23.07 ares without any<\/p>\n
delay. A copy of the order is Ext.P9. It was pursuant to the above<\/p>\n
that Ext.P1 notification under Section 4(1) of the Land Acquisition<\/p>\n
Act was issued on 19.5.2007 dispensing with Section 5A enquiry<\/p>\n
WPC.No. 24031\/08
\n                                   :4 :<\/span><\/p>\n
and notification was to acquire 0.2307 hectors of land of the<\/p>\n
petitioners and 2 others. Ext.P1 notification was challenged by the<\/p>\n
affected land owners in W.P(c).Nos.19893\/2007 and 23656\/2007.<\/p>\n
      5. Those two writ petitions filed by affected land owners and<\/p>\n
WP(c).No.18503\/06 filed by the 6th respondent were disposed of<\/p>\n
by Ext.P13 common judgment rendered on 26.2.2008. In that<\/p>\n
judgment, it was held that it is only proper that respondents<\/p>\n
therein should conduct an enquiry under Section 5A        of the Act<\/p>\n
because the land of the petitioners in WP(c).Nos.19893\/07 &<\/p>\n
23656\/07 were to be acquired to compensate the land acquired<\/p>\n
from the 6th respondent and that considering the importance of<\/p>\n
the contentions raised, it is only appropriate that an enquiry<\/p>\n
should be conducted by the District Collector himself.<\/p>\n
Accordingly, the writ petitions were disposed of directing the land<\/p>\n
owners to file their objections before the Land Acquisition Officer<\/p>\n
and the Land Acquisition Officer was directed to hand over the<\/p>\n
files to the District Collector for conducting enquiry under Section<\/p>\n
5A of the Act. It was clarified that this court did not express any<\/p>\n
opinion on the merits of the contentions and that until decision is<\/p>\n
taken in the matter, status quo which was already ordered to be<\/p>\n
WPC.No. 24031\/08
\n                                 :5 :<\/span><\/p>\n
maintained, shall continue.\n<\/p>\n
      6.   Accordingly the petitioners therein, the affected land<\/p>\n
owners, submitted Ext.P14 representation to the Land Acquisition<\/p>\n
Officer, the files were handed over to the District Collector and<\/p>\n
finally the District Collector issued Ext.P15 order excluding the<\/p>\n
land of Smt. Annamma Thomas & Smt. Leesa Prasad from the<\/p>\n
acquisition proceedings and holding that the request of others,<\/p>\n
viz, the petitioners herein, is rejected, since the acquisition of<\/p>\n
their land was inevitable for the purpose of the bridge across the<\/p>\n
Thattapallikattu river. It was accordingly that seeking to quash<\/p>\n
Exts.P1 and P15 that this writ petition was filed on 17.8.2008 and<\/p>\n
while admitting the writ petition on 11.8.2008, this court directed<\/p>\n
that status quo be maintained and the position continues even as<\/p>\n
on date.\n<\/p>\n
      7. Learned counsel for the petitioners contended that the<\/p>\n
land acquisition proceedings are illegal. According to the learned<\/p>\n
counsel, though the purpose of acquisition of the land, viz, the<\/p>\n
construction of the bridge and its access, are public purposes<\/p>\n
that is achieved with the property of the school. The proceedings<\/p>\n
for acquisition were challenged by the school claiming minority<\/p>\n
WPC.No. 24031\/08
\n                                  :6 :<\/span><\/p>\n
status and that though the minority status claimed was disputed<\/p>\n
by respondents, they entered into a private agreement with the<\/p>\n
school,   agreeing   to compensate them by acquiring the land<\/p>\n
belonging to the petitioners. It was contended that the purpose of<\/p>\n
acquisition therefore was only        to compensate for the land<\/p>\n
acquired from the 6th respondent and that such a purpose, is not a<\/p>\n
public purpose and in such circumstances, the exercise of power<\/p>\n
under the Land Acquisition Act is a colourable exercise, which is<\/p>\n
illegal and unconstitutional. It was further contended that the 6th<\/p>\n
respondent is not a linguistic minority and Exts.P5 and P6, apart<\/p>\n
from the counter affidavit filed by the respondent themselves,<\/p>\n
were relied on. On this basis, counsel argued that Apex Court<\/p>\n
judgment in St. Joseph’s College case, (supra) is relevant, in<\/p>\n
so far as the 6th respondent is concerned and that therefore, the<\/p>\n
acquisition was illegal for that reason as well.<\/p>\n
      8. The learned Additional Advocate General who appeared<\/p>\n
on behalf of the State contended that the 6th respondent is a<\/p>\n
linguistic minority. He referred me to Exts.R6(2) and R6(3) and<\/p>\n
also the Apex Court judgment in Ammad V. Emjay High School<\/a><\/p>\n
(1998(2) KLT 828). According to him, there is no provision in the<\/p>\n
WPC.No. 24031\/08
\n                                 :7 :<\/span><\/p>\n
KER providing for declaration that a particular school is a minority<\/p>\n
school and that any declaration on minority status is only a<\/p>\n
recognition of an existing fact. He therefore contended that the<\/p>\n
status of the 6th respondent as a linguistic minority educational<\/p>\n
institution is one which has to be accepted by all concerned.<\/p>\n
      9. According to him, in view of the Supreme Court judgment<\/p>\n
in St. Joseph’s College case (supra) and as the Central or the<\/p>\n
State legislatures have not legislated any special law            for<\/p>\n
acquisition of the property of a minority educational institution, as<\/p>\n
required under Article 30(1-A) of the Constitution of India, it was<\/p>\n
impossible for the State to acquire the school property. Referring<\/p>\n
to the sketch annexed to the writ petition and also to          one<\/p>\n
produced during the course of the submissions, he contended that<\/p>\n
for the purpose of the bridge which has already been constructed,<\/p>\n
the land of the 6th respondent school was inevitable. According to<\/p>\n
him since the acquisition of the property of the 6th respondent is<\/p>\n
not possible and as the land belonging to the 6th respondent was<\/p>\n
inevitable for the public purpose, the only course open to the<\/p>\n
State was to have arrived at a consensus with the 6th respondent.<\/p>\n
WPC.No. 24031\/08
\n                                 :8 :<\/span><\/p>\n
      10.      Accordingly, an  attempt was made and         the 6th<\/p>\n
respondent agreed to make available the required extent of land,<\/p>\n
but however insisted that they should be compensated with equal<\/p>\n
extent of land either adjacent to their existing property or<\/p>\n
elsewhere. It is stated that it was in these circumstancess that<\/p>\n
the land of the petitioners was identified for acquisition and<\/p>\n
Exts.P7 and P8 statements were filed        before this court. It is<\/p>\n
stated that though the purpose for which the land is acquired<\/p>\n
from the petitioners is to compensate the 6th respondent, in the<\/p>\n
context in which it is so done, the said purpose         is a public<\/p>\n
purpose under the Land Acquisition Act. It is also stated that the<\/p>\n
Government was willing for a          negotiated purchase of the<\/p>\n
petitioners’ property and that pursuant to the order dated 6th<\/p>\n
December, 2009 passed in this case, the petitioners appeared<\/p>\n
before the District Collector . However, they were unwilling even<\/p>\n
to negotiate with the District Collector, which has been reported<\/p>\n
to this court in the District Collector’s report dated 4.1.2010 and<\/p>\n
that it was therefore that it has become necessary for the State<\/p>\n
to proceed with the acquisition proceedings. He contended that<\/p>\n
the fact that there is absence of law enabling the State to acquire<\/p>\n
WPC.No. 24031\/08
\n                                 :9 :<\/span><\/p>\n
land from a minority educational institution cannot defeat a public<\/p>\n
purpose and therefore the State       is justified in invoking the<\/p>\n
proceedings for acquisition of land belonging to the petitioners.<\/p>\n
     11. On behalf of the 6th respondent it was contended that<\/p>\n
being a linguistic minority educational institution, their property<\/p>\n
cannot be acquired in view of Article 30(1-A) of the Constitution of<\/p>\n
India and the law laid down by the Apex Court in Society of St.<\/p>\n
Joseph’s College V. Union of India<\/a> (2002(1)KLT 438).<\/p>\n
According to them,     they cannot part with any extent of their<\/p>\n
land, as they are having only the minimum required land in their<\/p>\n
possession and any reduction in the extent of their land will affect<\/p>\n
the   future expansion of their school.      It was therefore that<\/p>\n
according to them,    they insisted on being compensated with<\/p>\n
equal extent of land, either adjacent to the existing school<\/p>\n
property or elsewhere.\n<\/p>\n
     12. I have considered the submissions made by both sides.<\/p>\n
     13. The question to be considered is whether the purpose<\/p>\n
for which the petitioner’s land is proposed to be acquired is a<\/p>\n
public purpose. This necessarikly calls for an examination whether<\/p>\n
the 6th respondent is a minority educational instutition. The 6th<\/p>\n
WPC.No. 24031\/08
\n                                 :10 :<\/span><\/p>\n
respondent, Sree Venkadeswara English Medium High School has<\/p>\n
been established by the Thrippunithura Thulu Brahmana Yogam,<\/p>\n
the bye-law of which is Ext.R6(1). Ext.R6(2) is the application<\/p>\n
submitted by the 6th respondent for recognition of their school, in<\/p>\n
which they have described themselves as a linguistic minority. In<\/p>\n
Ext.R6(3) is a representation submitted by them to the then<\/p>\n
Minister for Education, where they have reiterated their plea that<\/p>\n
they are a religious and linguistic minority. As against this, in<\/p>\n
Ext.P5, the Deputy Director of Education has stated that there are<\/p>\n
only two recognized linguistic minority schools in Ernakulam<\/p>\n
District and this does not include the 6th respondent’s school. In<\/p>\n
Ext.P6 counter affidavit filed against the application made by the<\/p>\n
6th respondent in WP(c).No.18503\/06, the respondents herein<\/p>\n
had disputed the status of the 6th       respondent as a minority<\/p>\n
educational institution. Ext.P5 does not show that on what basis,<\/p>\n
the public Information Officer has stated that there are only two<\/p>\n
linguistic minority schools in the District. Similarly, Ext.P6 counter<\/p>\n
affidavit also does not state on what basis the minority status of<\/p>\n
the 6th respondent has been disputed. On the other hand, the<\/p>\n
minority is a status    which a linguistic minority or a religious<\/p>\n
WPC.No. 24031\/08
\n                                 :11 :<\/span><\/p>\n
minority is entitled to enjoy    and the Kerala Education Act or<\/p>\n
the Rules do not contain any provision providing for conferment<\/p>\n
of such status. As held by the Apex Court in Ammad V. Emjay<\/p>\n
High School<\/a> (1998(2) KLT 828), even if a declaration is made<\/p>\n
either by Government or by some           other authority, such   a<\/p>\n
declaration is only an open acceptance of a legal character which<\/p>\n
has already existed antecedent to such a declaration. Therefore<\/p>\n
it will be incorrect for this court to assume that the status of an<\/p>\n
educational institution as a minority institution, entitled to the<\/p>\n
protection of Article 30 of the Constitution of India, is dependent<\/p>\n
upon any declaration of it as a minority educational institution. If<\/p>\n
the 6th      respondent is otherwise       a minority educational<\/p>\n
institution, it will remain as such and will continue to enjoy the<\/p>\n
protection of Article 30. Apart from these facts, the learned<\/p>\n
Additional Advocate General was also categoric that the 6th<\/p>\n
respondent is a linguistic minority educational institution. Further<\/p>\n
in Ext.P13 judgment, this court has proceeded on the basis that<\/p>\n
the school a linguistic minority educational institution. In the<\/p>\n
light of these, I am inclined to accept the case of the respondents<\/p>\n
that the 6th respondent is a linguistic minority educational<\/p>\n
WPC.No. 24031\/08
\n                                :12 :<\/span><\/p>\n
institution.\n<\/p>\n
       14. Once the status of the 6th respondent as a minority<\/p>\n
educational institution is accepted, it is entitled to the benefit of<\/p>\n
article 30 of the Constitution of India, which provides that for<\/p>\n
compulsory acquisition of any property of            an educational<\/p>\n
institution established and administered by a minority, the State<\/p>\n
shall make a law ensuring that          the amount       fixed by or<\/p>\n
determined under such law for the acquisition of such property is<\/p>\n
such as would not restrict or abrogate the right guaranteed under<\/p>\n
Article 30(1A) of the Constitution of India. It is in the context of<\/p>\n
this provision of the Constitution, that the Apex Court in its<\/p>\n
judgment in Society of St. Joseph’s College V. Union of India<\/a><\/p>\n
(supra) held that Article 30(1-A) was introduced by               the<\/p>\n
Parliament as a safeguard to obviate the violation of the right<\/p>\n
conferred by Article 30 of the Constitution and that clause(1-A)<\/p>\n
clearly states that after the date of its introduction, if property of<\/p>\n
a minority educational institution is to be compulsorily acquired,<\/p>\n
there must be a law specifically providing for such acquisition and<\/p>\n
that such        law must make provisions that ensure that the<\/p>\n
amounts       that are fixed or determined thereunder for the<\/p>\n
WPC.No. 24031\/08
\n                                 :13 :<\/span><\/p>\n
acquisitions do not restrict or abrogate the right guaranteed<\/p>\n
under article 30. Proceeding further, taking note of the absence<\/p>\n
of any legislation in this behalf the Apex Court held that it is<\/p>\n
appropriate that Parliament and the State legislatures should<\/p>\n
have time up to 31st May 2002 to make such laws, if they so<\/p>\n
choose and that all uncompleted acquisitions of the properties<\/p>\n
of minority educational institutions shall lapse at the end of such<\/p>\n
period, provided the Statues under which the acquisitions have<\/p>\n
been commenced have not been duly amended and that if they<\/p>\n
are duly amended, the amounts payable for such acquisitions<\/p>\n
shall be determined thereunder.\n<\/p>\n
      15. Even as on date, a law as contemplated under Article<\/p>\n
30(1-A) and as held by the Apex Court has not been legislated<\/p>\n
either by the Central or the State Legislature. Therefore it would<\/p>\n
not have been possible for the State to acquire the property of<\/p>\n
any minority educational institution. If that be so, the notification<\/p>\n
dated 9.6.2006, issued by the State for acquiring the property of<\/p>\n
the 6th respondent School was illegal and WP(c).No.18503\/2006<\/p>\n
challenging the Section 4(1) notification     would certainly have<\/p>\n
been allowed on that ground. It was on account of this difficulty<\/p>\n
WPC.No. 24031\/08
\n                                 :14 :<\/span><\/p>\n
and as the land belonging to the school was essential for the<\/p>\n
project,   that a consensus was arrived at between the State and<\/p>\n
the 6th respondent. However, the school authorities agreed to<\/p>\n
part with their property on     condition that they shall be duly<\/p>\n
compensated by providing an equal extent of land. In fact they<\/p>\n
had even generously agreed to be satisfied if an equal extent of<\/p>\n
land elsewhere is given to them. It was in this background that<\/p>\n
the land of the petitioners situated on the western side of the<\/p>\n
school property was identified and Ext.P1 notification was issued<\/p>\n
under Section 4(1) of the Land Acquisition Act, invoking the<\/p>\n
urgency clause and dispensing with Section 5A enquiry.<\/p>\n
     16. Ext.P1 notification is challenged mainly on the ground<\/p>\n
that it was a colourable exercise of power, in as much as the<\/p>\n
acquisition is not for a public purpose. Where power is conferred<\/p>\n
to achieve a purpose, it must be exercised reasonably and in<\/p>\n
good faith to carry out the purpose. In this context, `in good faith’<\/p>\n
means `for legitimate reasons’ and where power is exercised for<\/p>\n
extraneous or irrelevant considerations or reasons, it          is a<\/p>\n
colourable exercise of power or fraud on power and              that<\/p>\n
exercise of power is vitiated. Therefore, if power to acquire land is<\/p>\n
WPC.No. 24031\/08
\n                                :15 :<\/span><\/p>\n
exercised, for an extraneous or irrelevant considerations, the<\/p>\n
authority can be charged with legal mala fides. In such situation,<\/p>\n
there is no question of any personal illwill or motive. It has been<\/p>\n
held by the Apex Court in State of Punjab V. Gurudayal Singh<\/p>\n
(1980 SC 319) that the action of a statutory authority is bad,<\/p>\n
where the true object is to reach an end different from the one for<\/p>\n
which power is entrusted, goaded by extraneous considerations,<\/p>\n
good or bad, but irrelevant to the entrustment. It was also held<\/p>\n
that when the custodian of power is influenced in its exercise by<\/p>\n
considerations outside those for     the promotion, of which the<\/p>\n
power is vested, the court calls it a colourable exercise and is<\/p>\n
undeceived by illusion.\n<\/p>\n
      17. Applying these principles, in The Collector(District<\/p>\n
Magistrate) Allahabad V. Raja Ram Jaiswal (AIR<\/a> 1985 SC<\/p>\n
1622) the Apex Court interfered with the land acquisition<\/p>\n
proceeding which were initiated for the acquisition of a plot of<\/p>\n
land as being needed for a public purpose mainly for extension of<\/p>\n
Hindi Sangrahalaya of the Hindi Sahitya Sammellan, Prayag. It<\/p>\n
was found that the acquisition proceedings were initiated only for<\/p>\n
the reason that the authorities of the Sammelan           could not<\/p>\n
WPC.No. 24031\/08
\n                                  :16 :<\/span><\/p>\n
tolerate the existence of a cinema theater in its vicinity. It was<\/p>\n
held that the Sammelan was actuated by irrelevant and<\/p>\n
extraneous considerations in seeking acquisition of land and the<\/p>\n
statutory authority having known this fact, yet proceeded to<\/p>\n
exercise statutory power and initiated the process of acquisition<\/p>\n
which was held to be illegal.\n<\/p>\n
         18.    In this context, reference  was also made to the<\/p>\n
judgment in Devinder Singh and Ors. V. State of Punjab and<\/p>\n
Others (2008(1) SCC 728),           where it was held that if  the<\/p>\n
acquisition made is not relateable to public purpose, then a<\/p>\n
question may well arise whether in making declaration, on the<\/p>\n
part of the Government there has been a fraud on the power<\/p>\n
conferred on it under the Land Acquisition Act. According to the<\/p>\n
learned counsel for the petitioners, Ext.P1 notification     is  a<\/p>\n
colourable exercise of power       and  by entering into a private<\/p>\n
agreement with the 6th respondent, the State was seeking to<\/p>\n
achieve something which it could not otherwise do. However I do<\/p>\n
not find any substance in this argument.        As I have already<\/p>\n
noticed petitioners have no case that the purpose for which the<\/p>\n
school property was sought to be acquired is not a public<\/p>\n
WPC.No. 24031\/08
\n                                :17 :<\/span><\/p>\n
purpose. Once it is accepted        that the acquisition of school<\/p>\n
property was for a public purpose, taking into account the fact<\/p>\n
that the acquisition of the school property was inevitable for the<\/p>\n
implementation of the project, one must recognize that in the<\/p>\n
given circumstances, the only option available to the State was to<\/p>\n
enter into an agreement with the School authorities for taking<\/p>\n
over the land. It was during such a negotiation that the school<\/p>\n
authorities expressed their willingness to part with their property<\/p>\n
on condition that they should be compensated with equal extent<\/p>\n
of land for the reason that what they now hold is only the<\/p>\n
minimum required land and that any reduction in the land will<\/p>\n
adversely affect their future expansion programmes. Therefore, it<\/p>\n
is in   this factual background of the matter, that one should<\/p>\n
evaluate whether the purpose for which the land is sought to be<\/p>\n
acquired by Ext.P1 notification, is a public purpose or not.<\/p>\n
     19. Public purpose has been given an inclusive definition<\/p>\n
in Section 3(f) of the Land Acquisition Act . This means the<\/p>\n
Legislature wanted to ensure           maximum flexibility while<\/p>\n
incorporating the said provision. The concept of public purpose is<\/p>\n
bound to vary with times and prevailing conditions in the<\/p>\n
WPC.No. 24031\/08
\n                                 :18 :<\/span><\/p>\n
community and locality and it was therefore that the legislature<\/p>\n
has left it to the State to decide what is a public purpose and the<\/p>\n
sole and absolute discretion in the matter is vested with the<\/p>\n
Government. It      has    been   held that the expression public<\/p>\n
purpose is not capable of a precise definition and does not have a<\/p>\n
rigid meaning and that it can be defined by a process of judicial<\/p>\n
inclusion and exclusion and that the definition of the expression<\/p>\n
is logistic and takes its colour from the statute in which it occurs.<\/p>\n
It has been repeatedly held that public purpose will include a<\/p>\n
purpose in which the general interest of the community as<\/p>\n
opposed to the interest of an individual is directly or indirectly<\/p>\n
involved and in such a situation the interest of the individual<\/p>\n
must gave way to public interest.\n<\/p>\n
      20. The point to be determined in each case is whether<\/p>\n
acquisition is in the general interest of the community as<\/p>\n
distinguished from the private interest of the individuals and the<\/p>\n
facts and circumstances of each case will require to be closely<\/p>\n
examined in order to determine whether a public purpose has<\/p>\n
been established. The Government is the best judge to decide<\/p>\n
whether public purpose is served by issuing a requisition, but is<\/p>\n
WPC.No. 24031\/08
\n                                :19 :<\/span><\/p>\n
not the sole judge and that courts have the jurisdiction and it is<\/p>\n
their duty to determine the matter. I do not think it necessary to<\/p>\n
burden this judgment with all the precedents judgments that were<\/p>\n
cited, except to mention the judgments of the Apex Court in<\/p>\n
Daulat Singh Surana V. First Land Acquisition Collector<\/p>\n
(AIR<\/a> 2007 SC 471) and in Suraram Krishna Reddy V. District<\/p>\n
Collector (2008(4) KLT short note 33). Once meaning of the<\/p>\n
expression `public purpose’ has been understood as above, I<\/p>\n
should mention certain other judgments which were citied at bar.<\/p>\n
Varkey Devassy V. State of Kerala & Ors.<\/a> (1966KLT 805), is a<\/p>\n
case were following the earlier judgment in A.P. Mohammed<\/p>\n
Nooho V. State & ORS. (1952 KLT 498) this court upheld a<\/p>\n
notification for the acquisition of property for the purpose of a<\/p>\n
temple. Similar acquisition    was upheld by the Apex Court in<\/p>\n
Bajirao T. Kote & Anor. V State of Maharashytra & Ors.<\/p>\n
(1995(2)SCC 442) and also by         this court in Gopakumar V.<\/p>\n
State of Kerala<\/a> (2009(3) KHC 361. In The Forane Church,<\/p>\n
Chalakudy V. State of Kerala & Ors.<\/a>(1971 KLT 733), a<\/p>\n
Division Bench of this court upheld land acquisition proceedings<\/p>\n
for acquiring land for the expansion of a school. Reference was<\/p>\n
WPC.No. 24031\/08
\n                                :20 :<\/span><\/p>\n
also made to the Apex Court judgment in Mrinalini Roy Ratna<\/p>\n
Prova Mondal & Ors. V. State of West Bengal & Ors.<\/a> (1997<\/p>\n
(9) SCC 113) where acquisition for rehabilitation of evictees was<\/p>\n
held to be for a public purpose. There cannot be an argument<\/p>\n
that land needed for a school is not for the general interest of the<\/p>\n
community. Having regard to he inclusive definition of purpose<\/p>\n
and in the light of the other facts noticed, the acquisition of the<\/p>\n
school property has to be held as one for a public purpose. As<\/p>\n
already held it was inevitable to acquire school property and this<\/p>\n
could not have been done except by an agreement with the 6th<\/p>\n
respondent. In such a case, if land is acquired under the Land<\/p>\n
Acquisition Act for compensating the school, applying the<\/p>\n
principles laid down in the judgments noticed above,           such<\/p>\n
acquisition cannot be said to be a colourable exercise of power.<\/p>\n
      21. In the result I do not find any merit in the contentions<\/p>\n
raised. It is well known that the iron bridge at Trippunithura is a<\/p>\n
narrow, antique one, which cannot meet the present day traffic<\/p>\n
requirements and there has to be another bridge. It is with this<\/p>\n
purpose that a new bridge has been constructed. However due to<\/p>\n
successive litigations, even today the project remains incomplete<\/p>\n
WPC.No. 24031\/08
\n                                :21 :<\/span><\/p>\n
and the agony of the general public continues. I hope and trust<\/p>\n
that with this judgment, the disputes will be given a quietus and<\/p>\n
that the authorities will be able to proceed with the<\/p>\n
commissioning of the project.\n<\/p>\n
     Writ petition only to be dismissed and I do so.\n<\/p>\n<\/p>\n
                                         (ANTONY DOMINIC)
\n                                                JUDGE
\nvi\/<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Sulaiman.M.S vs The State Of Kerala on 15 March, 2010 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-164893","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nSulaiman.M.S vs The State Of Kerala on 15 March, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sulaiman-m-s-vs-the-state-of-kerala-on-15-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sulaiman.M.S vs The State Of Kerala on 15 March, 2010 - 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