Kerala High Court
Messrs. Chembra Peak Estates Limited vs State Of Kerala on 10 March, 2011
Author: T.R.Ramachandran Nair
Bench: T.R.Ramachandran Nair
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 3022 of 2008(I)
1. MESSRS. CHEMBRA PEAK ESTATES LIMITED,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. THE SECRETARY TO GOVERNMENT,
3. THE DISTRICT COLLECTOR, WAYANAD.
4. THE KERALA INDUSTRIAL INFRASTRUCTURE
5. UNION OF INDIA,
6. KERALA STATE BIODIVERTING BOARD,
For Petitioner :SRI.K.RAMAKUMAR (SR.)
For Respondent :ADVOCATE GENERAL
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :10/03/2011
O R D E R
T.R. Ramachandran Nair, J.
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W.P.(C) Nos.3022/2008-I, 22552/2007-I &
32508/2007-T
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Dated this the 10th day of March, 2011.
JUDGMENT
These writ petitions concern a common issue and therefore they are considered together for disposal.
2. The challenge is against acquisition of a coffee estate, called 'Wariyat' estate, of which the petitioner in W.P.(C) No.3022/2008 is the owner. W.P.(C) No. 22552/2007 is filed by the leader of a trade union representing the workers of the estate and W.P.(C) No.32508/2007 is filed by another trade union leader. W.P.(C) No.3022/2008 is taken as the leading case and the pleadings and exhibits are mentioned and discussed as available therein.
3. The fourth respondent in W.P.(C) No.3022/2008 is the Kerala Industrial Infrastructure Development Corporation (shortly known as "KINFRA") who is the requisitioning authority. The extent of land involved is 392 acres which belongs to the petitioner company. The purpose of acquisition is for establishing a Mega Agro Food Park in Wayanad district which is a project being funded by the Government of wpc 3022/08, 22552/07 & 32508/2007 2 India. It envisages setting up of basic infrastructure necessary for industries that could be set up by Private entrepreneurs and/or Governmental agencies which will be engaged in the processing of food products.
4. Ext.P2 is the proposal forwarded by the KINFRA to the Government dated 28.9.2006 wherein a request is made to grant administrative sanction for acquiring the estate in question. The purpose shown is "setting up of the proposed Mega Agro Food Park, Wayanad."
5. The case of the petitioner, shortly, is the following: It is pointed out that several other suitable lands are available in Wayanad district which could be utilised for the purpose. A well run coffee plantation need not be acquired. It is further pointed out that the purpose is extremely malafide. It is one of the best coffee estates in the whole of South India. Administrative sanction was granted by the Government without taking into consideration various aspects and there is total non application of mind. The company is 74 years old and is listed in the Madras and Bangalore Stock Exchanges. It has got 1200 shareholders. 350 acres out of 392 acres is planted with Robusta Coffee, 10 acres with Arecanut and 5 acres with cardamom. The wpc 3022/08, 22552/07 & 32508/2007 3 split up of the number of plants are as follows:
a. Coffee 1,40,000 plants b. Cardamom 2,000 plants c. Arecanut 4,000 plants d. Pepper 3,000 plants e. Shade trees More than 5,000 Nos.
It is pointed out that the shade trees include rose wood. Muttil river flows by the rear boundary of the estate. It is also pointed out that the shade trees and the other planted trees have immensely contributed to the greenery that is available to the area.
6. It is the case of the petitioner that the estate is one of the best in the whole of State going by the productivity of coffee per acre, as the average productivity of Wariyat Coffee Estate is 1000 kgs. per acre and in other places it is around 300 kgs. per acre. There are 62 permanent workers, 30 temporary workers and it employs about 400 workers during the season. Thus, nearly 1500 persons are directly depending upon the estate for their livelihood. The petitioner company contributes large amounts to the State exchequer by way of agricultural income tax, sales tax, plantation tax, wpc 3022/08, 22552/07 & 32508/2007 4 building tax, etc.
7. One of the contentions raised by the petitioner is that the park only offers the basic infrastructure for setting up industries by Private Entrepreneurs and Governmental agencies. But as a first step the entire plantation will have to be decimated in anticipation of such industries and there are no materials available with regard to the future projects and therefore the entire exercise may become futile. In this context, it is further pointed out that the KINFRA has proposed to acquire 67.19 acres of land in Kalpetta Village for expansion of the existing KINFRA Small Industries Park in Wayanad District and the Government permitted the same as per G.O.(Rt) No.901/2005/ID dated 7.9.2005. After the steps for acquisition advanced much, it was not proceeded with once the KINFRA knew about the financial aspects of acquisition. It is pointed out that ignoring all these, the proposal for acquisition as per Ext.P2, was forwarded to the Government.
8. Learned Senior Counsel for the petitioner placed reliance upon Ext.P3 report forwarded by the District Collector to the Government after assessing the viability of the project and according to the petitioner, the wpc 3022/08, 22552/07 & 32508/2007 5 observations are against the acquisition of the estate. Ext.P4 is the representation submitted by the petitioner to the Government, to drop the project, wherein a personal hearing was sought. Ext.P5 is the report of the Committee appointed by the District Collector consisting of various officers including the General Manager, District Industries Centre, Principal Agricultural Officer, Joint Director (Extn), Coffee Board, Kalpetta, etc. wherein they have gone into the propriety of establishing a mega agro food park in the area and they have expressed their reservation in the matter. Ext.P6 is the communication addressed by the Chairman of the Coffee Board, to the District Collector requesting to relocate the proposed project to some other place, in view of the importance of the Estate.
9. Initially, after the Government granted administrative sanction as per Ext.P8 order, the urgency clause was invoked under Section 17(4) of the Land Acquisition Act. This was challenged before this Court in W.P. (C) No.798/2007 by the petitioner which was disposed of by Ext.R4(a) judgment. The writ petition was closed leaving open the remedy of the petitioner to challenge the acquisition proceedings once the notification is issued. But subsequently, the urgency clause was not invoked and wpc 3022/08, 22552/07 & 32508/2007 6 notification under Section 4(1) of the Act was issued on 11.6.2007 as evidenced by Ext.R4(c). Pursuant to the notice issued to the petitioner as per Ext.P10, objections were submitted before the District Collector as per Ext.P11. KINFRA filed their counter affidavit to the said objection as per Ext.P12. Thereafter, the Deputy Collector, Kalpetta conducted a hearing and forwarded the report to the Land Revenue Commissioner. It is at that stage this writ petition was filed since the petitioner felt that the newspaper report showed that the Government had already taken a decision in the matter.
10. Initially, the main prayer sought in the writ petition was to quash Exts.P8 and P9 and to direct the Government to take a fresh decision in the light of Ext.P3 report of the District Collector and Ext.P4 representation of the petitioner. In the counter affidavit filed on behalf of the KINFRA, as well as respondents 1 and 2, the order passed by the Land Revenue Commissioner after the enquiry under Section 5A, has been produced. Exts.R3(c) is the order and R3(d) is the declaration under Section 6 of the Act. Therefore, by way of amendment, the petitioner has added a prayer to quash those proceedings also, apart from Exts.P15 and P16 produced along wpc 3022/08, 22552/07 & 32508/2007 7 with I.A. No.7227/2008.
11. Heard Shri K. Ramakumar, learned Senior Counsel for the petitioner, Shri M.K. Damodaran, learned Senior Counsel appearing for KINFRA and Shri K.V. Majonkumar, learned Govt. Pleader appearing for the State.
12. Learned Senior Counsel Shri K. Ramakumar appearing for the petitioner mainly submitted that the respondents have erred in taking a decision to acquire the estate in question, as the suitability of the land for the purpose has not been established at all. Great emphasis was made on the contents of the report submitted by the District Collector, Ext.P3, of the Technical Committee appointed by the District Collector, Ext.P5 and the communication by the Coffee Board objecting the proposal for acquisition. It is submitted that the Land Revenue Commissioner has not considered any of these aspects on merits. These reports have thus been ignored. Therefore, the decision is taken without any application of mind and is unreasonable. It is pointed out that even the report of the District Collector points out various other locations including the land held by a co-operative society, which are available and which are suitable. None of these aspects wpc 3022/08, 22552/07 & 32508/2007 8 have been considered. It is further pointed out that the acquisition at the instance of KINFRA itself is a colourable exercise. They are not running the food park and they want only to acquire the land and allot to other entrepreneurs. Conversion of large items of agricultural lands for industrial purpose will create ecological imbalance. It is pointed out that even in the industrial and commercial policy of 2007 emphasis is given for the industrial development without affecting ecology and environment. It is further pointed out with reference to the provisions of the Kerala Industrial Infrastructural Development Act, 1993 that industrial area alone can be developed by KINFRA and there is no provision therein for conversion of agricultural area. It is pointed out that no notification has been issued under the said Act also.
13. One of the main contentions raised by the learned Senior Counsel appearing for the petitioner is by relying upon Ext.P14 which is a report submitted by the Kerala State Biodiversity Board and it is pointed out that the said report also supports the case of the petitioner, as they have stated that it is one of the Asia's best coffee plantations with very high yield, rich in biodiversity and therefore they were of the view that the estate will have wpc 3022/08, 22552/07 & 32508/2007 9 to be retained in the present condition and some other less productivity area within Wayanad may be acquired.
14. Learned Senior Counsel for the petitioner further submitted that the enquiry under Section 5A of the Act was only an eye wash. The Deputy Collector heard the matter and it is not known when the report was forwarded to the Land Revenue Commissioner. A copy of the report was also not furnished to the petitioner, before taking decision and the Land Revenue Commissioner did not offer any personal hearing to the petitioner. It is submitted that the same violates the principles of natural justice. It is also pointed out that the objections raised by the petitioner even though were comprehensive, none of the objections have been considered on the merits. It is therefore pointed out that the entire exercise is a colourable exercise of power. It is also pointed out that the entire extent of land is not required for the project, as the scheme of the Central Government will not show that such large extents of lands are required.
15. Thus, it is contended that there is clear refusal to consider material facts and the administrative sanction granted by the Government is without taking due note of the relevant aspects including the reports of the wpc 3022/08, 22552/07 & 32508/2007 10 various functionaries. Heavy attack is thus made on the decision making process. By relying upon the decision of the Supreme Court in Chairman, Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd. and others {(2007) 8 SCC 705}, it is contended that right to property is not only a constitutional right but human right also, and no person can be deprived of it without any authority of law.
16. These contentions are opposed by the learned Senior Counsel Shri M.K. Damodaran, appearing for the KINFRA, who pointed out that as far as public purpose is concerned, there cannot be any dispute that the public purpose has been clearly established. Therefore, it is up to the Government to take a decision after considering various aspects. The preference of the petitioner cannot have any value at all, if the Government feels that the purpose is for the establishment of a mega agro food park and that the land proposed is suitable. It is further pointed out that once the Land Revenue Commissioner who is the authority under Section 5A has rejected the objections after due enquiry, Ext.P3 report of the District Collector relied upon by the learned Senior Counsel for the petitioner or the objections by the Coffee Board, have no real value. The location of the wpc 3022/08, 22552/07 & 32508/2007 11 mega food park was fixed by the technical committee of the KINFRA after assessing various aspects including the accessibility from National Highway and proximity to town. The entire area is required for establishing the food park including for cultivation of the agricultural produces and for other allied activities. It is further pointed out that there is no violation of the procedure prescribed under Section 5A of the Act as the Act only envisages hearing of objections by the Deputy Collector and for forwarding a report and the Land Revenue Commissioner will have to take a decision in the matter. It is pointed out that once the declaration has been published by the Government, it is the conclusive evidence as regards the public purpose and it cannot be successfully attacked in a writ petition like this. The petitioner has not established any grounds like malafides or colourable exercise of power. Learned Senior Counsel relied upon various decisions of the Apex Court in support of the above contentions.
17. The above contentions were supported by the learned Govt. Pleader who submitted that a second opportunity is not envisaged under the provisions of the Act. It was argued that Exts.P3 and P5 are not authentic reports.
wpc 3022/08, 22552/07 & 32508/2007 12
18. The first contention therefore to be considered is whether there is any violation of Section 5A of the Act. The procedure for hearing objections shows that under Section 5A(1), the objections will have to be submitted within 30 days of the date of publication of the notification under Section 4(1) of the Act. Sub-section (2) is important for the purpose of this case which is extracted below:
"(2) Every objection under sub-section (1) shall be made to the Collector in writing and the Collector shall give the objector an opportunity of being heard either in person or by any person authorised by him in this behalf or by counsel and shall, after hearing all such objections and after making such further enquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under sub-section (1) of Section 4 or make different reports in respect of different parcels of such land.--
(i) to the Government where the notification under sub-
section (1) of Section 4 was published by the Government;
(ii) to the Board of Revenue, where the notification under sub-section (10 of Section 4 was published by the Board of Revenue or by himself containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of the Government or the Board of Revenue, as the case may be. The decision of the Government wpc 3022/08, 22552/07 & 32508/2007 13 or the Board of Revenue, as the case may be, shall be final." Going by sub-section (2), objections will have to be submitted to the Collector in writing and the Collector will have to give an opportunity of being heard and after hearing the objector and after conducting due enquiry, he shall make a report to the Government wherein the notification under Section 4(1) was published by the Government or to the Board of Revenue (now the Land Revenue Commissioner) wherein the notification under Section 4(1) is published by the Board of Revenue, containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of the Government or the Board of Revenue, as the case may be.
19. The main argument raised by the learned Senior Counsel for the petitioner is that no personal hearing was offered by the Land Revenue Commissioner. The proceedings of the Land Revenue Commissioner has been produced as Ext.R3(c). A reading of Ext.R3(c) shows that in order to conduct Section 5A enquiry, Form No.4(c) notices were issued and the hearing was posted to 27.9.2007. As both parties requested to postpone the hearing date, the hearing was held on 27.10.2007. After referring to the wpc 3022/08, 22552/07 & 32508/2007 14 objections made by the petitioner and the statement filed by the KINFRA, it is mentioned in the report that the District Collector as per reference cited 6, has recommended the report of the Land Acquisition Officer and the District Collector, Wayanad and the remarks of the requisition authority and connected records, and considering the importance and public interest of the land acquisition, rejected the objection.
20. Evidently, no second opportunity was given to the petitioner. There is serious dispute whether a second opportunity is contemplated at all. Obviously, Section 5(2)(ii) of the Act does not contemplate a second opportunity of personal hearing to the objector. It is therefore pointed out by learned Senior Counsel Shri Damodaran that there is no non compliance of any procedural provisions of Section 5A of the Act. Evidently Section 5A(2) allows hearing by the Collector who will have to forward a report containing his recommendations on the objections, together with record of the proceedings for the decision of the Government or the Land Revenue Commissioner. This being the statutory scheme, it is evident that no second opportunity of personal hearing after the recommendations have been made by the District Collector, is envisaged under the Act. wpc 3022/08, 22552/07 & 32508/2007 15
21. Heavy reliance was placed by the learned Senior Counsel for the petitioner Shri Ramakumar, of the decision of the Apex Court in Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai and others {(2005) 7 SCC 627} in this context. It is pointed out that Section 5A confers a valuable right. Therein, the Apex Court, after referring to the statutory scheme, held in para 6 thus:
"6. It is not in dispute that Section 5-A of the Act confers a valuable right in favour of a person whose lands are sought to be acquired. Having regard to the provisions contained in Article 300- A of the Constitution, the State in exercise of its power of "eminent domain" may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefor must be paid."
In para 8 it was held that "the court in a case, where there has been total non-compliance or substantial non-compliance with the provisions of Section 5-A of the Act, cannot fold its hands and refuse to grant a relief to the writ petitioner." In para 9 their Lordships held as follows:
"It is trite that hearing given to a person must be an effective one and not a mere formality. Formation of opinion as regards the public purpose as also suitability thereof must be preceded by application of mind as regards consideration of relevant factors and wpc 3022/08, 22552/07 & 32508/2007 16 rejection of irrelevant ones. The State in its decision-making process must not commit any misdirection in law. It is also not in dispute that Section 5-A of the Act confers a valuable important right and having regard to the provisions contained in Article 300-A of the Constitution it has been held to be akin to a fundamental right."
Their Lordships, have analysed the provision in para 15 which is extracted below:
"15. Section 5-A of the Act is in two parts. Upon receipt of objections, the Collector is required to make such further enquiry as he may think necessary whereupon he must submit a report to the appropriate Government in respect of the land which is the subject matter of notification under Section 4(1) of the Act. The said report would also contain recommendations on the objections filed by the owner of the land. He is required to forward the records of the proceedings held by him together with the report. On receipt of such a report together with the records of the case, the Government is to render a decision thereupon. It is now well settled in view of a catena of decisions that the declaration made under Section 6 of the Act need not contain any reason (See Kalumiya Karimmiya v. State of Gujarat - (1977) 1 SCC 715 and Delhi Admn. v. Gurdip Singh Uban - (2007) 7 SCC 296."
Finally in para 16, it was held on the scope of exercise of power by the wpc 3022/08, 22552/07 & 32508/2007 17 Government, that "However, considerations of the objections by the owner of the land and the acceptance of the recommendations by the Government, it is trite, must precede a proper application of mind on the part of the Government." In para 22, it was further held that "A declaration contained in a notification issued under Section 6 of the Act need not contain any reason but such a notification must precede the decision of the Government." Therefore, as held by the Apex Court therein, hearing will be done by the Collector, who will have to give a report to the State Government.
22. There are decisions of the Apex Court which lay down that a second opportunity is not envisaged under Section 5A of the Act. They are: Abdul Hussain Tayabali v. State of Gujarat and others (AIR 1968 SC 432) and Bai Malimabu v. State of Gujarat and others (AIR 1978 SC
515) which were relied upon by the learned Senior counsel for KINFRA, Shri Damodaran and by the learned Govt. Pleader. In Abdul Hussain Tayabali's case (AIR 1968 SC 432) it was held as follows:
"Under Section 5A, the Collector has to hear the objections, of the owner, take them on record and then submit his report to the Government. The section also requires him to send along with his wpc 3022/08, 22552/07 & 32508/2007 18 report the entire record of his enquiry which would include the objections. ............ Neither S.5A nor any other provision of the Act lays down that a second opportunity has to be given before the issuance of Section notification. This contention also therefore cannot be sustained."
23. In Bai Malimabu's case (AIR 1978 SC 515) in para 5 the statutory scheme was examined and it was held as follows:
"It was not the requirement of the law to give any further opportunity after a report was made to the State Government. It is the function of the State Government to consider the report of the Collector and proceed further in the matter as they think fit and proper to do."
Even in the decision relied upon by the learned Senior Counsel for the petitioner in Hindustan Petroleum Corpn. Ltd.'s case {(2005) 7 SCC
627) it is not laid down that a second opportunity will have to be given. In Ext.R4(a) judgment also there is no direction to give a second opportunity of hearing. Therefore, Ext.R3(c) is not vitiated for not giving of a second opportunity of personal hearing to the petitioner and the said contention is rejected.
24. The next question is whether there is any non application of mind wpc 3022/08, 22552/07 & 32508/2007 19 to the relevant aspects by the Land Revenue Commissioner. Heavy reliance was placed by the learned Senior Counsel for the petitioner Shri Ramakumar on Ext.P3 report of the District Collector, Ext.P5 Technical Feasibility Report and Ext.P6 communication by the Chairman of the Coffee Board. It is pointed out that none of the points raised therein have been considered. Going by the chronology of events, it can be seen that the third respondent KINFRA made the requisition as per Ext.P2 dated 28.9.2006 which is addressed to the Government. Therein, administrative sanction for acquisition of 398 acres of land was sought. Ext.P3 is a report dated 15.11.2006 forwarded to the Government by the District Collector. Reference therein shows that it is in answer to a letter dated 19.10.2006 of the Government. Various aspects are pointed out in it including the details about the cultivation, existence of a Marianmman Temple and other details. It is mentioned that the estate is a well maintained one. The compensation payable will be a staggering amount. It is also evident that three other properties, viz. Priyadarsini Estate, of the Mananthavady Tribal Corporation Farmers Society, Makkimala - 173 acres and Lakkidi - 200 acres as well as Glen Leven Estate - 242 acres have been pointed out wpc 3022/08, 22552/07 & 32508/2007 20 as suitable for establishing the mega food park. Ext.P4 representation by the petitioner to the Government is dated 15.12.2006 wherein the petitioner has raised objection to the project. Administrative sanction was given by the Government evidently, as per Ext.P8 dated 28.12.2006. A reading of the order shows that therein the Government took a decision to invoke the urgency clause. The references therein include Ext.P3 letter of the District Collector. Therefore, it is evident that the administrative sanction was given by the Government after considering the said document also. Ext.P5 report of the Technical committee is also prior to Ext.R4(b) dated 7.5.2007, as the same is dated 15.2.2007. Of course, the urgency clause was invoked by the Government as per Ext.P8 dated 28.12.2006, but that was subsequently withdrawn and by Ext.R4(b) sanction was accorded for acquisition under the ordinary provisions of the Land Acquisition Act.
25. While considering the question whether there is any non application of mind to the contentions raised by the petitioner, reference may have to be made to the contents of the order itself, viz. Ext.R3(c). A reading of the order in its entirety shows that objections of the petitioner have been narrated. The reply by the KINFRA to the objection also was wpc 3022/08, 22552/07 & 32508/2007 21 discussed. Thereafter, the report of the Land Acquisition Officer has been mentioned. The order proceeds to state that the particular land is identified by KINFRA taking into consideration the suitability of land for providing basic infrastructure and setting up the park as such this land is most suitable where least amount of problem is present. It is observed that Mariamman Temple does not come under the proposed acquisition. It is further mentioned that the land is required for an important public purpose. The mega agro food park to be developed at Wayanad is a centrally assisted scheme and the State Government is committed to provide the balance funds from the State Budget. In regard to the contention raised by the petitioner that industrial park at Kalpetta is not sought to be used by the KINFRA, the finding in Ext.R3(c) is that the park is aimed at the promotion of small scale sector and setting up of mega agro food park will provide large scale employment opportunities in the locality. The land in question is required for a very important public purpose. The setting up of a mega agro food park in Wayanad announced in the Budget speech 2006-2007 is therefore a policy decision of the Government intended to achieve a purpose. Finally, it is concluded that it is an ideal wpc 3022/08, 22552/07 & 32508/2007 22 location due to availability of raw materials, pollution free atmosphere and high potential for organic cultivation. The project is proposed to be implemented in 2 phases, the first phase is the establishment of the Central park and the second phase is establishment of the linkage. Finally, it is observed as follows:
"On the basis of the report of the LAO and District Collector, Wayanad and the remarks of the requisition authority and connected records, and considering the importance and public interest of the L.A., it is convinced that the objections raised by the petitioners cannot be sustainable, and adequate compensation will be paid to the Land acquired as per the Land Acquisition Act, 1894. Hence, all the objections raised by the above petitioners against this acquisition are overruled in exercise of the power conferred under section 5(A) sub-section 2(ii) of the Land Acquisition Act, 1894."
Therefore, it cannot be said that the Land Revenue Commissioner has not considered the objections of the petitioner on its merits. The land was found to be suitable depending upon the location and other aspects. The contentions of the petitioners have been really adverted to, and all aspects have been discussed. It is a reasoned order and therefore it cannot be said that the objections were not considered on its merits. The relevant aspects wpc 3022/08, 22552/07 & 32508/2007 23 were considered and it cannot be said that there is total non application of mind also.
26. Learned Senior Counsel Shri Ramakumar submitted that the operative portion of the order alone gives the reasons which are not elaborate and they are arrived at without going into the details of the objections and merits of the objections and the previous portions of the order are only narration of the facts. It is therefore pointed out that there is total non application of mind.
27. It is explained by the learned Govt. Pleader that actually after referring to the statement filed by KINFRA, discussion starts at page 7 of the order and all the objections have been separately considered. The said contention appears to be correct. The Land Revenue Commissioner has itemised the objections raised by the petitioner and has narrated the statement by KINFRA and then after referring to the report of the Land Acquisition Officer, entered into the conclusions. Therefore, it cannot be said that the details have not been gone into by the Land Revenue Commissioner.
28. The scope of judicial review in these matters was argued in detail wpc 3022/08, 22552/07 & 32508/2007 24 by the learned Senior Counsel for the petitioner Shri Ramakumar and Shri Damodaran, learned Senior Counsel for KINFRA. By referring to the principles stated in various decisions, learned Senior Counsel for the petitioner submitted that the petitioner has no quarrel with the public purpose, viz. establishment of the mega agro food park, but the petitioner disputes the suitability of the land on various aspects. It is pointed out that when large extent of agricultural lands are acquired, it will affect the ecology as well as it will result in deprivation of life of the persons depending upon the same. It is pointed out that the alternate sites pointed out by the District Collector in Ext.P3, the contents of the letter by the Chairman of the Coffee Board with regard to the peculiar aspects of the coffee produced by the estate as being best variety and the requirement to maintain the same as a coffee estate, etc. have not been considered by the Land Revenue Commissioner. It is in that context learned Senior Counsel for the petitioner submitted that the suitability of the land will have to be gone into by this Court.
29. Shri Damodaran, learned Senior Counsel for the KINFRA argued that the Government has taken a decision in the matter overruling the wpc 3022/08, 22552/07 & 32508/2007 25 objections under Section 5A and once the declaration has been made under Section 6, unless and until it is established that there is a malafide exercise of power as well as colourable exercise of power, this Court cannot interfere with the matter. It is further pointed out that for challenging Exts.R3(c) and R3(d), no elaborate grounds have been made out by the petitioner in the amendment application also. My attention was invited to the grounds stated in the application for amendment in this context.
30. The scope of judicial review in such matters has been laid down by various decisions of the Apex Court and this Court. This Court will be justified only in going into the decision making process alone. Only if there is illegality, irrationality and procedural impropriety and the power is exercised for a malafide purpose and the entire exercise is a colourable one, then this Court will be justified in interfering with it. The decision of the Government regarding the public purpose and the suitability of the land will be clearly beyond the scope of judicial review. Learned Senior Counsel Shri Damodaran relied upon a catena of decisions in support of his pleas. The decisions of the Apex Court in Province of Bombay v. Khushaldas S. Advani (AIR 1950 SC 222), State of Bihar v. Sir wpc 3022/08, 22552/07 & 32508/2007 26 Kameshwar Singh (AIR 1952 SC 252) and Smt. Somawanti and others v. State of Punjab (AIR 1963 SC 151) were relied upon in this context. In Province of Bombay's case (AIR 1950 SC 222), it was held in paragraphs 10 and 11 that "the decision of the Provincial Government about public purpose is not a judicial or quasi- judicial decision, there is no scope for an application for a writ of certiorari." This legal position was reiterated in Sir Kameshwar Singh's case (AIR 1952 SC 252). It is the contention of the learned Senior Counsel Shri Damodaran that the declaration by the Government amounts to conclusive evidence of the public purpose and therefore there cannot be any attack thereafter.
31. The decision of the Apex Court in Smt. Somawanti's case (AIR 1963 SC 151) is elaborate on the scope of expression "conclusive evidence"
and "conclusive proof" under Section 4 of the Evidence Act while discussing Section 6(3) of the Land Acquisition Act. Section 6(3) of the Land Acquisition Act States that "the declaration shall be conclusive evidence that the land is needed for a public purpose or for a Company, as the case may be and after making such declaration, the appropriate Government or the Board of Revenue, as the case may be, may acquire the wpc 3022/08, 22552/07 & 32508/2007 27 land in manner hereinafter appearing.". It was held in para 19 of the judgment that "there is thus no difference between the effect of the expression 'conclusive evidence' from that of 'conclusive proof, the aim of both being to give finality to the establishment of the existence of a fact from the proof of another." With regard to the conclusiveness of the declaration by the Government under Section 6 of the Act, their Lordships held as follows in paragraphs 26, 27 and 28:
"The declaration under S.6 that a particular land is needed for a public purpose or for a company is not to be made by the Government arbitrarily, but on the basis of material placed before it by the Collector. The provisions of sub-s. (2) of S.5A make the decision of the Government on the objections final while those of sub-s. (1) of S.6 enable the Government to arrive at its satisfaction. sub-section (3) of S.6 goes further and says that such a declaration shall be conclusive evidence that the land is needed for a public purpose or for a company. The conclusiveness or finality attached to the declaration of Government is not only as regards the fact that the land is "needed" but also as regards the question that the purpose for which the land is needed is in fact a public purpose or what is said to be a company is really a company."
Their Lordships further held in paragraphs 36 and 40 that the declaration of wpc 3022/08, 22552/07 & 32508/2007 28 the Government will be final subject, however, to one exception. That exception is that if there is a colourable exercise of power the declaration will be open to challenge at the instance of the aggrieved party. If it appears that what the Government is satisfied about is not a public purpose but a private purpose or no purpose at all, the action of the Government would be colourable as not being relatable to the power conferred upon it by the Act and its declaration will be a nullity. To such a declaration the protection of S.6(3) will not extend.
32. I am not going into the sufficiency of public purpose herein, in the light of the fact that herein the public purpose is not disputed at all. What is disputed is the suitability of the land. Evidently, with regard to the alleged malafides, no elaboration has been made in the pleadings and no particulars have been shown also. Therefore, the action is not hit by allegations of malafides.
33. One of the contentions raised by the learned Senior Counsel for the petitioner Shri Ramakumar is that the proposal is to allot the land to different Entrepreneurs for which the KINFRA will be selling and distributing the lands. Thus, it is pointed out that private motive will be the wpc 3022/08, 22552/07 & 32508/2007 29 result of the action by the KINFRA. Herein, the decision of the Apex Court in Bharat Singh and others v. State of Haryana and others {(1988) 4 SCC 534} relied upon by the respondents is relevant. It has been held that once the public purpose is established, the further question whether how the land is to be utilised, cannot be a matter for objection by the parties concerned. Therein in paragraphs 11 and 12 their Lordships held as follows:
"11. In the writ petitions, the point was taken as an abstract point of law. There was no attempt on the part of the appellants to substantiate the point by pleading relevant facts and producing relevant evidence. It is apparent that there was no material in the writ petitions in support of the contention of the appellants that the impugned acquisition was nothing but a profiteering venture. The contention was not also advanced before the High Court at the hearing of the writ petitions. The facts stated in the said application of the HSIDC do not, in our opinion, support the contention of the appellants. It is true that, as stated in the said application, HSIDC paid a sum of Rs.1074 crores to HUDA, but nothing turns on that. The land was acquired by the government for the purpose of development and industrialisation. The government can do it itself or through other agencies. In the instant case, the land was acquired at the instance of HUDA and, thereafter, HUDA had transferred the wpc 3022/08, 22552/07 & 32508/2007 30 same to HSIDC. It is not that the land was transferred in the same condition as it was acquired. But, we are told by the learned counsel appearing on behalf of HUDA and HSIDC that before transferring, HUDA had made external developments incurring considerable cost and HSIDC in its turn has made various internal developments and in this way the land has been fully developed and made fit for industrialisation. Our attention has been drawn by the learned counsel for HUDA and HSIDC to the various external developments made by HUDA at a total cost of Rs.1,66,200 per acre before it was transferred to HSIDC and the cost that was incurred for external developments was included in the price. Thus, there was no motive for HUDA to make any profit.
12. The "public purpose" in question, already noticed, is development and industrialisation of the acquired land. The appellants have not challenged the said "public purpose". In the absence of any such challenge, it does not lie in the mouth of the appellants to contend that the acquisition was merely a profiteering venture by the State Government through HUDA............"
34. Therefore, if the purpose of establishment of a mega agro food park cannot be disputed as a public purpose, then how and in what manner the entire extent will have to be utilised, are for the authorities concerned to consider and this Court cannot suggest any other alternative method with regard to the utility of the land. This Court evidently, cannot go into such wpc 3022/08, 22552/07 & 32508/2007 31 details in this writ petition also. This legal position is further clear from the decision of the Apex Court in Subhashgir Khushalgir Gosavi and others v. Special Land Acquisition Officer and others {(1996) 8 SCC 282}. Of course, the contention therein was with regard to an alternate suggestion, but the Apex Court held that it is for the Government to take a decision and it is not for the Court to give any finding in that behalf. Therefore, whether the entire extent is required and whether other entrepreneurs will be allotted land, etc. cannot be a matter for consideration by this Court at this stage. It is well settled that the Government has the sole and absolute discretion in the matter to take a decision. Of course, the Supreme Court in Boudu Ramaswamy v. Bangalore Development Authority {(2010) 7 SCC 129}, had occasion to consider the travails of land-losers, and the complaint against the prevailing system of acquisition, in para 150.
35. The other important contention raised by the learned Senior Counsel for the petitioner Shri Ramakumar is with regard to the suitability of the land. It is pointed out that in Ext.P3 report the District Collector has pointed out three alternate places. What are mentioned in Ext.P3 is Priyadarsini Estate owned by Mananthavady Tribal Corporation Farmers wpc 3022/08, 22552/07 & 32508/2007 32 Society, Makkimala, Lakkidi and Glen Leven Estate. Evidently, Ext.P3 report, as noted already, was submitted before the administrative sanction was given by the Government. The said report was considered while granting administrative sanction for the project, as already noted. Learned Govt. Pleader submitted that Priyadarsini Estate is under a Girijan co- operative society and therefore the Government cannot divest the beneficiaries of the estate for establishment of the mega agro food park. It is pointed out that the estate in question is found the most suitable after considering various aspects pointed out by KINFRA in their objections also.
36. In this context, the decision of the Apex Court in Union of India v. K. Balaji Jaya Rama Rao and others {(2007) 15 SCC 791} is relevant. Therein, the right of the owner of the land to point out other suitable sites was discussed and it was held that once the purpose is found to be public purpose, it is up to the Government to decide the suitability of the property. Para 19 lays down the principle thus:
"Requirement for the purpose of post office would be public purpose. The High Court is not holding that the acquisition is not for a public purpose. It is for the Government to decide whether this property is to be acquired or some other property is to be acquired. It wpc 3022/08, 22552/07 & 32508/2007 33 is not open to an owner to say that some other property is more suitable. If that were to be permitted then every owner will say that some other property is better and that that property must be acquired instead of his own. So long as the property was required for a public purpose, the mere fact that some other property could have been acquired is not a ground on which the High Court can say that the reasoning for acquisition is not sufficient."
In the light of the above principles, this Court in this jurisdiction cannot direct the alternate choices of petitioner to be considered, as the Land Revenue Commissioner has accepted the case of the third respondent that the present land is more suitable.
37. It is not a case where malafides have been established and it is further evident that unless colourable exercise is also established, this Court cannot interfere in the matter. The scope of judicial review has been laid down by the decision of the Apex Court in Sooraram Pratap Reddy and others v. District Collector, Ranga Reddy District and others {(2008) 9 SCC 552}. Therein, paragraphs 57 to 59 deals with the scope of judicial review, thus:
"No doubt there is a role for courts to play in reviewing a legislature's judgment of what constitutes a public use, even when the eminent wpc 3022/08, 22552/07 & 32508/2007 34 domain power is equated with the police power. But such scope is "extremely narrow". Any departure from this judicial restraint would result in courts deciding on what is and what is not a governmental function and in their invalidating legislation on the basis of their view on that question. And the court would not substitute its judgment for a legislature's judgment as to what constitutes a public use unless the use be palpably without reasonable foundation. When the legislature's purpose is legitimate and its means are not irrational, empirical debates over the wisdom of other kinds of socio-economic legislation are not to be carried out in courts. Public end may be as well or better served through an agency of private enterprise than through a department of Government."
38. A Division Bench of this Court in Dr. Jamaluddin v. District Collector and others (ILR 2010 (3) Ker. 93), considered a similar question and it was held that the "Court can grant relief, if only it is found that either the notification is not for any public purpose or that it was issued with any malafide intention.......It is always not necessary nor is the requirement of law that some alternate land proposed ought to be accepted in preference to the land now proposed to be acquired."
39. Thus, this Court will not be justified in going into the suitability of alternate sites pointed out by the petitioner. The only question is wpc 3022/08, 22552/07 & 32508/2007 35 whether the same has been considered. A reading of Ext.R3(c) shows that all the aspects with regard to the location of the land was considered.
40. Shri Ramakumar, learned Senior Counsel for the petitioner referred to various provisions of the Kerala Industrial Infrastructure Development Act, 1993 to contend that unless the area is notified as industrial area, under Section 3 of the Act, the third respondent cannot indulge in various functions provided under the Act. Herein, the thing to be noticed is that the acquisition is at the initial stage and the competent authority has overruled the objections under Section 5A of the Land Acquisition Act which is followed by a declaration. It is further explained that except the steps to take possession, all other procedures have been completed also. It cannot be said that the third respondent has no power to implement the project, even going by the provisions of the said Act.
41. Great emphasis was given by the learned Senior Counsel for the petitioner about the profitability of the estate as well as the quality of the coffee produced by it as evident from Exts.P3, P5 and P6. Ext.P6 is a letter by the Chairman of the Coffee Board wherein it is stated that the Wariyat Coffee Estate is one of the most productive coffee estates in the State of wpc 3022/08, 22552/07 & 32508/2007 36 Kerala. It is pointed out that it is a unique coffee plantation and it produces robesta coffee as well as allied products. My attention was invited to the objections by KINFRA in this context by Shri M.K. Damodaran, learned Senior Counsel that the estate is running in loss and therefore the contention raised by the petitioner cannot be accepted. Evidently, this Court cannot adjudicate on such disputed questions. I am not going into the details of the contentions raised by the respondents also that the claim of the petitioner that it is a profit making estate is doubtful. Therefore, I am not discussing the details of the income tax returns, agricultural income tax assessments or the alleged loss in the functioning of the estate. It is also the contention of the learned Senior Counsel for the petitioner that for some time the price of the coffee was less, but at various times it reached the maximum and therefore the alleged loss is not a pointer to decide the real issue. Evidently, this Court will not be justified in arriving at conclusions based on the various contentions raised by the parties, as the scope of judicial review in such matters is very limited.
42. It is the contention of learned Senior Counsel for the petitioner that KINFRA has failed to develop the existing estate one at Kalpetta and wpc 3022/08, 22552/07 & 32508/2007 37 in other parts of the state and therefore the establishment of the present project was only a toll claim by them. It is therefore contended that vast extent of agricultural lands need not be destroyed for establishment of a mega agro food park, the credentials of which have not been established at all. It is pointed out that once the estate is decimated, the thing cannot be restored at all. Of course, the argument is that the third respondent will not be able to proceed with the project. It is explained by the learned Senior Counsel for the third respondent that the food park will be established once the land is taken possession of and there will be assistance from the Central Government also. It is also stated that various agricultural activities will be launched at various parts for utilisation of the food park and therefore there will not be any let up in these matters. It is pointed out that the entire district was under the impact of fall in the prices for the agricultural products and therefore it has affected the lives of the agriculturists in that area and therefore the project is envisaged to offer job opportunities to large sections of the people.
43. The decision of the Government in such matters cannot be a matter for this Court to sit in appeal. Once the public purpose has been wpc 3022/08, 22552/07 & 32508/2007 38 established, this Court will not be justified in going into the various details of the project and to find out whether the project may fail on a future occasion. Therefore, the said contention also has to fail.
44. It is evident, therefore, that the administrative sanction by the Government as per Ext.R3(a) and the order passed by the Land Revenue Commissioner, Ext.R3(c) and the declaration Ext.R3(d) do not suffer from any infirmities, as the public purpose is clearly established and there is no violation of the provisions of Section 5A of the Land Acquisition Act.
45. One of the major contentions by Shri Ramakumar, learned Senior Counsel for the petitioner is regarding the ecological aspects. It is pointed out in the writ petition that there are different items of trees including shade trees in the area and it provides substantial greenery and the decimation of the estate including 140000 coffee plants and other items of cultivation will cause ecological imbalance. In fact, the petitioner has raised these contentions in Ext.P11 also. In answer to the said contentions, KINFRA has pointed out in Ext.P12 that the tree growth in the estate is just like in any other areas in the district. In the counter affidavit filed by KINFRA also, the same contention is repeated in para 17.
wpc 3022/08, 22552/07 & 32508/2007 39
46. In this context, learned Senior Counsel for the petitioner relied upon Ext.P14 report made by the Kerala State Biodiversity Board. The report is a preliminary report after conducting a field visit. Under the heading "Flora", and "Fauna" the details have been shown which are extracted hereunder:
" Flora The other major ecologically important cash crops planted within the Estate include.
1. Pepper - over 5000 wines
2. Cardamom - 5 acres
3. Arecanut - 5 acres All the above crops are also yielding well. The tree crops within the Estate include Gravelia, which is planted originally as a shade tree to the coffee plantation. The total number of trees would be a few thousands. At least 5000 trees are used as pepper stands. A small area is also planted up with Cadamba (Anthocephalus cadamba) and is of 2 years old (Flg.3). There are many old rose wood trees in the estate and they are seen in groups (Flg. 4). There are also some teak and other hardwood species.
There are few Orchid species found and a good collection of Mosses and Ferns. The trees are within many terrestrial algal species, fungi and lichens. The undergrowth is covered with ground vegetation and a few miscellaneous species, outside the coffee wpc 3022/08, 22552/07 & 32508/2007 40 planted area. There is no vacant or barren area within the Estate and the whole estate looks like a forested area with sand vegetation.
Fauna The whole area possesses rich faunal diversity. They include several species of birds, wild rabbits, porcupine and wild bore. The Estate is also an abode of a group of monkeys (Bounnet Maquaque) and also many different types of snakes and other reptiles. There is also a good butterfly fauna in the area, in addition to several other groups of insects. A number of colonies of wild bees are also present. The spider fauna is also rich. Quantified data on the floral and faunal diversity of this area is lacking and a systematic study to understand the living wealth is to be undertaken. The area is also blessed with lot of resources. A good pond is available to store water during rainy season and also there are streams (Flg.5)"
It is further mentioned in the preliminary observations that the "Estate is rich in biodiversity, but detailed studies would require to bring out quantified data on these aspects. Several economically important trees are present in the estate, especially rosewood trees which cannot be cut and removed." Therefore, it is recommended that the Estate may be retained in its present condition and some other less productive area within Wayanad may be considered for the proposed KINFRA food park.
47. Evidently, this report is not seen considered by the Land Revenue wpc 3022/08, 22552/07 & 32508/2007 41 Commissioner while overruling the objections under Section 5A of the Land acquisition Act, as it was not placed. In the additional counter affidavit filed by the third respondent, it is mentioned in para 2 that the petitioner has failed to exhibit the report of the Kerala Biodiversity Board, but the contents of the said report have not been disputed. Learned Govt. Pleader, while disputing the contentions of the learned Senior Counsel for the petitioner, submitted that the Government has got power under Section 37 of the Biological Diversity Act, 2002 to notify areas of biodiversity importance, as biodiversity heritage sites and the estate has not been declared as a biodiversity heritage site for the purpose of the said Act and therefore there cannot be any objection for its acquisition.
48. Learned Senior Counsel for the petitioner relied upon a decision of the Apex Court in Bombay Dyeing & MFG Co. Ltd. (3) v. Bombay Environmental Action Group {(2006) 3 SCC 434} to contend for the position that environmental and ecological aspects and the maintenance of ecological balance are important. It is pointed out that such considerations are relevant when large items of agricultural lands are being acquired for industrial purposes. It is also pointed out that if large number of trees and wpc 3022/08, 22552/07 & 32508/2007 42 coffee plants are removed and destroyed for developing the mega agro food park, it will affect the ecological balance of the area.
49. In the above decision of the Apex Court, such aspects were considered in the context of Town Planning Act. Of course, their Lordships considered the importance of sustainable development and its scope and application of the principle thereof and the ecological balance required therein. While considering the scope of Articles 21, 48-A and 51A(g) of the Constitution, it was held thus in paragraphs 251, 252 and 256:
"It is often felt that in the process of encouraging development the environment gets sidelined. However, with major threats to the environment, such as climate change, depletion of natural resources, the eutrophication of water systems and biodiversity and global warming, the need to protect the environment has become a priority. At the same time it is also necessary to promote development. The harmonisation of the two needs has led to the concept of sustainable development, so much so that it has become the most significant and focal point of environment legislation and judicial decisions relating to the same. Sustainable development, simply put, is a process in which development can be sustained over generations. the Brundtland Report defines "sustainable development" as development that meets the needs of the present generations without compromising the ability of the future generations to meet their own wpc 3022/08, 22552/07 & 32508/2007 43 needs. Making the concept of sustainable development operational for public policies raises important challenges that involve complex synergies and trade offs. The Indian judiciary has time and again recognised this principle as being a fundamental concept of Indian law. The MRTP Act does not exclude these principles. Unless they are so excluded, they are to be read into the statute both in the substantive legislation as also in the delegated legislation."
50. Shri Damodaran, learned Senior Counsel for the KINFRA contended that under the law of acquisition, the Government has to exercise the power of "eminent domain" and therefore the consideration of public purpose and the requirement of industrialisation as well as maintenance of sustainable development are of prime importance. It is therefore, pointed out that once the Government has decided to establish a mega agro food park and fixed the suitable land for that purpose, such consideration of any ecological imbalance may not come in the way of the establishment of the food park itself.
51. Evidently, Ext.P14 is a preliminary report submitted by the State Biodiversity Board. The Board has got power to advise the Government, as evident from Section 23 of the Biological Diversity Act, 2002. The functions of the State Board are contained in Section 23 of the said Act wpc 3022/08, 22552/07 & 32508/2007 44 which is extracted below:
"23. Functions of State Biodiversity Board.- The functions of the State Biodiversity Board shall be to.-
(a) advise the State Government, subject to any guidelines issued by the Central Government, on matters relating to the conservation of biodiversity, sustainable use of its components and equitable sharing of the benefits arising out of the utilisation of biological resources;
(b) regulate by granting of approvals or otherwise requests for commercial utilisation or bio-survey and bio-
utilisation of any biological resource by Indians;
(c) perform such other functions as may be necessary to carry out the provisions of this Act or as may be prescribed by the State Government."
Section 24 confers power on the State Biodiversity Board to restrict certain activities violating the objectives of conservation, etc.
52. I am not going into the merits of the arguments on either side, since the report is yet to be considered by the Government as evident from the pleadings also. Since Ext.P14 is a preliminary report before proceeding further with respect to the completion of acquisition proceedings, the Government can seek the advice of the State Biodiversity Board. wpc 3022/08, 22552/07 & 32508/2007 45
53. The challenge against Exts.P8 and P10, P15 and P16 as well as Exts.R3(c) and R3(d) fail, as the petitioner has failed to establish the grounds for interfering with the public purpose for the acquisition as well as violation of any of the provisions of Section 5A of the Land Acquisition Act.
54. W.P.(C) Nos.22552/2007 and 32508/2007 are filed by the respective leaders of two trade unions. Of course, their rights are very limited as the provisions of Section 5A of the Land Acquisition Act will not help them to advance their objections as regards acquisition proceedings, in writ petitions like these. Since I am not interfering with the proceedings at the instance of the petitioner in W.P.(C) No.3022/2008, I need not go into the merits of the contentions raised in the other two writ petitions, as the said writ petitions also will have to fail in the light of the conclusions arrived at already.
55. Therefore, the writ petitions are dismissed, subject to the observations made in para 52 of the judgment. Before proceeding further in the matter, the Government will consider the effect of Ext.P14 and get the advice of the State Biodiversity Board and will finalise the matter wpc 3022/08, 22552/07 & 32508/2007 46 accordingly. The same will be done expeditiously, and at any rate, within a period of two months from the date of receipt of a copy of this judgment. No costs.
(T.R. Ramachandran Nair, Judge.) kav/