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Judgment
K. Surendra Mohan, J.—The petitioner is a company registered under the Companies Act, engaged in the generation of power. The petitioner is a ''Maharatna'' company. According to the petitioner, there are only seven ''Maharatna'' companies in India. In Kayamkulam, the company has set up a Combined Cycle Power Plant which uses Naphtha as fuel. The company has been generating power ever since Stage-I of the project was implemented. The plant was inaugurated by the then Prime Minister during 1999. An expansion of the facility was inaugurated in the year 2005 by the then Prime Minister of India who laid the foundation stone for Stage - II of the project. Liquefied Natural Gas (''LNG'' for short) is proposed to be used as fuel during its second stage. According to the petitioner, for setting up a Thermal Power Plant at Kayamkulam, 108.02 hectares of land was acquired by the Government of Kerala from various private persons. The land value including the enhancement ordered by the Court has been disbursed to the majority of the land owners by the Government.
While so, according to the petitioner, on 13.06.2013, some officials of the Revenue Department/Village Offices came to the premises of the petitioner and started measuring and demarcating a portion of the property located at Chingoli Village, Karthikappilly Taluk, Alapuzha District. On enquiry, it was revealed that they were doing so on the basis of a Government order dated 31.05.2013, by which the Government had accorded sanction for the acquisition of 10.53.40 hectares out of the land that is in the possession of the petitioner. The purpose mentioned is, for the setting up of a Medical College at Haripad. The petitioner also learnt that the proposed Medical College was to be established on Public Private Partnership (PPP) basis. The Government order referred to is Exhibit P1.
According to the petitioner, Exhibit P1 was passed without hearing the petitioner. No consent was given by the petitioner for the surrender of any portion of the land in their possession to the Government. No sanction for any such purpose has been obtained from the Board of Directors of the Company. A project to lay a pipeline from Kochi to Kayamkulam for carrying the required LNG for commissioning Stage-II of the project is on the anvil. Once Stage-II is implemented, there would be no surplus land available with the petitioner, it is contended. Therefore, the petitioner challenges Exhibit P1.
A counter affidavit has been filed on behalf of the third respondent refuting the contentions in the writ petition. According to the counter affidavit, the total extent of land acquired for setting up the Thermal Power Plant of the petitioner was 447.74 hectares and not 108.02 hectares as stated in the writ petition. Out of the total extent of land so acquired, 164.80.70 hectares of land remains unutilised. The same has been remaining unutilised for the past two decades. According to the counter affidavit, Exhibit P1 was preceded by a series of correspondences as well as meetings between the representatives of the Government as well as the petitioner, at the Government level. Exhibit R3(a) is the minutes of a meeting convened by the Chief Minister, which shows that the company had offered to part with 25 acres of land for setting up the Medical College. Thereafter, as per Exhibit R3(b) order, the first respondent had accorded Administrative Sanction for establishing a new Medical College at Haripad. Exhibit R3(c) is the minutes of yet another meeting held in the Chamber of the third respondent. As per Exhibit R3(e), the third respondent had addressed the General Manager of the petitioner seeking necessary sanction for the surrender of 25 acres of land. Exhibit R3(g) is the reply of the General Manager, declining the request. It was only thereafter that Exhibit P1 was issued.
A reply affidavit has been filed in answer to the counter affidavit reiterating the statements in the writ petition. It is pointed out that, as per the Articles and the Memorandum of Association of the petitioner company, sale, lease, disposal or otherwise dealing with the whole or substantially the whole of the undertaking of the NTPC is a matter reserved for the President of India. It is also contended that the acquisition that is proposed is not for a public purpose. Subsequently, as per a statement dated 07.10.2013, the petitioner has produced Exhibit P4 communication of the Chief Secretary requesting for either allotment of an amount of 150 crores for the construction of a Medical College in the area or the release of 25 acres of unutilised land.
An objection dated 10.10.2013 has been filed to the statement of the petitioner referred to above disputing the statements made in the reply affidavit. An additional document has subsequently been produced by the petitioner which is Exhibit P5, which is the minutes of the Project Subcommittee meeting of the Board of Directors of the petitioner held on 27.09.2013.
I have heard Sri K. Anand, Senior Counsel who appears for the petitioner and the learned Advocate General Sri. K.P. Dandapani who represents the respondents.
The essential question that arises for consideration is whether Exhibit P1 Government order is sustainable or not. As per Exhibit P1, the Government has accorded sanction for the acquisition of an extent of 10.53.40 hectares of land comprised in various survey numbers, presently in the possession of the petitioner. The acquisition is proposed for the purpose of establishing a new Medical College in Haripad, Alapuzha District. The Government has accorded sanction for the acquisition. The District Collector, Alapuzha has been directed to take urgent steps to acquire the land as per rules, subject to the conditions specified therein. The conditions are,
The Requisitioning Authority shall be the Special Purpose Vehicle (SPV) constituted for the purpose and
The Land Acquisition cost will be met by the Society constituted for the purpose.
According to Sri. K. Anand, Senior Counsel, Exhibit P1 is liable to be set aside for the following three reasons:-
The land in possession of the petitioner was acquired through land acquisition proceedings initiated under the Land Acquisition Act, 1894 (''the Act'' for short). The said land that was acquired for a public purpose cannot be subjected to another acquisition under the provisions of the Act.
The petitioner is proposing to implement Stage-II of its project. On implementation of Stage-II, 1050 Mega Watts (MW) of power would be generated everyday. For the purpose of commissioning Stage-II, the entire land that is alleged to be remaining unutilised would be required and additional land would be necessary.
The Medical College that is proposed is not a Government Medical College. The same is proposed to be implemented on Public Private Participation. The stake of the Government in the Medical College would be only 26%. In view of the above, there is no public purpose involved in the proposed acquisition.
The learned Advocate General on the other hand contends that Exhibit P1 has not decided on any particular mode of acquisition that would be followed for the purpose of acquiring the land required for setting up the Medical College. Exhibit P1 has been issued only after a long exchange of correspondence between the petitioner as well as the Government evidenced herein by Exhibits R3(b) to R3(g) documents. Since the petitioner was not willing to part with the required land voluntarily, the Government was left with no other alternative but, to initiate proceedings for compulsory acquisition. A total extent of 164.80 hectares of land has been remaining in the possession of the petitioner, unutilised for more than two decades. Only a small portion of the said land is proposed to be acquired and utilised for setting up a Medical College at Haripad. The said project is a public purpose. Only Administrative Sanction has been accorded for the said project. The modalities for implementing the project are yet to be worked out. If land acquisition proceedings are initiated, the petitioner would get ample opportunity to object to the same, in accordance with the provisions of the Land Acquisition Act. Therefore, the present challenge against Exhibit P1 is not maintainable. According to the learned Advocate General, there is no provision in the Land Acquisition Act prohibiting the acquisition of a land that has once been acquired. The decisions only interdict utilization of the land acquired for a public purpose for some private purpose. There is no bar against utilising the land acquired for one public purpose for a different public purpose. The learned Advocate General also places reliance on various decisions of this Court as well as the Hon''ble Supreme Court on the point, to support his contentions. Therefore, he seeks dismissal of this writ petition.
The proposal that is sought to be implemented is, the setting up of a Medical College at Haripad in Alapuzha District. It is not in dispute that the project is proposed to be implemented on Public Private Participation (PPP basis). For the purpose, the land that has been identified is a small portion out of an extent of 164.80 hectares of land that is remaining unutilised in the possession of the petitioner. It is not in dispute that the land is part of a larger extent that was initially acquired by the first respondent from various property owners for the petitioner, to set up the Thermal Power Plant at Kayamkulam. It is true that there is a dispute regarding the total extent of land that was actually acquired for the purpose of setting up the Thermal Power Plant, with the writ petitioner asserting that it was only an extent of 108.02 hectares of land and the third respondent asserting in his counter affidavit that the total extent was 444.74 hectares. However, there is no serious dispute regarding the fact that an extent of 164.80.70 hectares of land is remaining unutilised at present. The case of the petitioner is that the said land would also be utilised when Stage-II of the project is implemented. It is also contended that the balance land available at present would be insufficient to meet the requirements of the petitioner when Stage-II is implemented.
In the above context, the correspondence that has taken place between the petitioner and the Government is relevant. Exhibit R3(a) is the minutes of the meeting held by the Chief Minister on 06.12.2011. It is stated in Exhibit R3(a) minutes that the Chairman and Managing Director of the petitioner had clarified that their bye-laws do not allow them to partner with the Government of Kerala in establishing a Medical College. It is further stated that they were willing to part with 25 acres of land that had been acquired by the Government of Kerala for the project. Therefore, it is minuted that a decision to acquire 25 acres of land originally acquired for the Power Plant at Kayamkulam would be transferred to the Government of Kerala. Exhibit R3(c) minutes of a meeting held in the chambers of the third respondent on 17.04.2012 also reiterates that the Deputy General Manager of the petitioner had expressed the willingness of the petitioner to part with 25 acres of land that had been acquired for the project. He therefore appears to have informed that they had not taken a decision regarding which part of the land should be transferred and on what conditions the land could be transferred. It has been minuted that there were two plots available, one of which was a wet land while the other was a dry land facing the National Highway. As per Exhibit R3(e), the District Collector appears to have thereafter addressed a communication to the General Manager of the petitioner seeking transfer of 25 acres of dry land in preference to the wet land that was offered. Exhibit R3(f) is another communication of the District Collector to the petitioner in this regard. However, in Exhibit R3(g) dated 07.05.2012, what is stated by the petitioner is that the dry land is required for their own purposes. The relevant portion of Exhibit R3(g) is reproduced hereunder.
As far as dry land is concerned, the same is situated in between our old Township at Nangiarkulangara (TTS) and Permanent Township at Cheppad (PTS) along the National Highway (NH)-47. We are having future plans for using this land for constructing an integrated Township along with Stage-II expansion. This will also help us in connecting the PTS and TTS which are lying scattered in two locations, thereby to enhance the security of the Townships as well as provide safety to the residents who are now using NH-47 for daily commuting between TTS and work locations in the Plant. Media reports, of late, also voice against parting with the prime land close to NH-47 echoing the sentiment of the erstwhile land owners from whom we have acquired the land. Parting of acquired land may require formalities like de-notification etc. as the same was acquired by NTPC from various land owners as per Land Acquisition Act showing a public purpose, viz. establishing power project.
An examination of the above correspondence and minutes show that, the parties had initially been agreed on the proposal, that an extent of 25 acres could be transferred for the purpose of establishing a Medical College. In fact, the petitioner has informed the first respondent, as noticed earlier that two plots were available, one of which was wet land while the other was dry land by the side of the National High way. It was only regarding the identity of the land that could be surrendered or released that there was some dispute. The turn around in the stand of the petitioner has taken place as per Exhibit R3(g) dated 07.05.2012. In the said communication also, what is stated is that, the land was required for constructing an Integrated Township along with the Stage-II expansion of the project. The case of the petitioner in this writ petition that the land is required for the Stage-II expansion of the Thermal power Plant has not been put forward at any of the previous stages of discussion or correspondence between the parties. Inasmuch as the objection regarding release of the proposed land was only that it was necessary for developing an integrated Township, the same cannot be considered to be a serious one.
In the light of the stand taken by the petitioner, that it was not prepared to part with the land required for the proposed Medical College, the first respondent has taken a decision to acquire the land that is required. It is in the said context that Exhibit P1 order was issued on 31.05.2013. The only decision that is taken in Exhibit P1 is to acquire the land, for which sanction has been accorded to the District Collector, Alappuzha. The acquisition is to be done in accordance with law. Since this writ petition was admitted on 20.06.2013 and an interim stay of Exhibit P1 was granted, it is stated that no further action has been taken in the matter thereafter. Therefore, the present position is that, only a decision to acquire the necessary land has been taken. The modalities of the acquisition are yet to be finalised. Therefore, it is too early to consider whether the State has the power to acquire the land that has been made available to the petitioner pursuant to earlier Land Acquisition proceedings. However, it is conceded by the counsel on both sides that the land Acquisition Act does not contain any prohibition against acquisition of land that had been acquired by an earlier Land Acquisition proceedings. In the absence of any prohibition, the only conclusion possible is that a second acquisition cannot be found fault with.
I also take note of the fact that as and when proceedings are initiated under the Land Acquisition Act, the petitioner would get ample opportunity to object to the same and to ventilate all their grievances against not only such acquisition, but also against the manner in which the proceedings are initiated. Therefore, I refrain from considering the issue any further. Suffice it to hold that there is no infirmity in the decision contained in Exhibit P1 to acquire the land that is necessary and to authorise the third respondent to pursue further action in the matter subject to the conditions stipulated therein.
The second objection raised against Exhibit P1 is that Stage-II of the Thermal Power Plant at Kayamkulam is proposed to be implemented without much delay. Upon such implementation, the plant would be able to generate 1050 MWs of power everyday. The entire land remaining unutilised would be necessary for implementation of Stage-II of the project. In fact, the available land would be insufficient.
As already noticed above, Exhibits R3(a) to R3(g) documents that evidence the stand taken by the petitioner at the stage of the initial discussions clearly reveal that the petitioner had no such objection at that time. In fact, the initial response of the petitioner was to offer 25 acres of land by unequivocally expressing the availability of the necessary extent at two alternative sites. The petitioner preferred to offer 25 acres of wet land though another extent of 25 acres was available by the side of the National Highway also. However, the third respondent has expressed his preference for the 25 acres of land adjoining the National Highway, as evident from Exhibit R3(e). It is only thereafter that the needs of future expansion have been put forward by the petitioner in Exhibit R3(g). Even in Exhibit R3(g), the need projected is that the land was required for the construction of an integrated Township along with the Stage-II expansion. It is also stated that the said proposal would help in connecting the permanent Township at Cheppad and the Township at Nangiarkulangara "thereby to enhance the security of the Townships as well as provide safety to the residents" who are now using the NH-47 for daily commuting between the Townships and the work locations in the plant. It is clear from the above that, the land is proposed to be utilised not for implementation of the Stage-II of the project, but for providing an integrated Township, which cannot be described as an integral part of the implementation of Stage-II.
In spite of the above factual background discernible from the records produced, the case pleaded in the writ petition is totally different. It is stated that the petitioner was surprised to note that some officials from the Revenue Department as well as Village Office had come to measure and demarcate the property in their possession. It was only when they made enquiries thereafter that they had come to know of Exhibit P1. The said statements do not make any mention of the previous correspondences and discussions that are evidenced by Exhibits R3(b) to R3(g). The writ petition also does not contain any averment to the effect that the land in question was required for implementing Stage-II of the project. Such a case has been put forward only in the affidavit filed in support of I.A. No. 13775 of 2013, filed for the purpose of producing an additional document, Exhibit P5. Therefore, I am not satisfied that there is any material or evidence available in this case to justify a conclusion that the land sought to be acquired by Exhibit P1 is necessary for the implementation of Stage-II of the petitioner''s facility at Kayamluam. It is also clear that the petitioner has not disclosed the full facts, while filing this writ petition.
The other contention raised by the counsel for the petitioner is that, since a Medical College is proposed to be implemented with private participation, it cannot be said to be a public purpose. Therefore, the land acquired for a public purpose is about to be utilised for a private purpose, which is not permissible. It is contended that the acquisition proposed by Exhibit P1 being one for a private purpose, is unsustainable in law. The learned Senior Counsel has placed reliance on the decision of the Hon''ble Supreme Court in State of Kerala and others Vs. M. Bhaskaran Pillai and another, In the said decision, land had been acquired for the construction of a National Highway. After construction of the National Highway, the balance land that remained unused was available. The said balance land was sought to be sold by the Government. In paragraph 4 of the judgment, it has been held as follows:-
The question emerges: whether the Government an assign the land to the erstwhile owners? It is settled law that if the land is acquired for a public purpose, after the public purpose was achieved, the rest of the land could be used for any other public purpose. In case there is no other public purpose for which the land is needed, then instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount fetched in the public auction can be better utilised for the public purpose envisaged in the Directive Principles of the Constitution. In the present case, what we find is that the executive order is not in consonance with the provision of the Act and is therefore, invalid.
However, the above dictum cannot be of any help to the petitioner in the present case for the reason that there is no proposal here to sell the property to any private party. The proposal here is to acquire the land again. Therefore, the said dictum is held to have no application to the facts of this case.
The learned Advocate General has placed reliance on the decision in ITI Limited Vs. Tahsildar and Others, The said case involved a challenge against an order of resumption of an extent of land that had been acquired earlier. The land was remaining unutilised by the company for whose benefit the land had been acquired. The said land was also proposed to be resumed for the purpose of starting a Medical College. A single Bench of this Court found that the said proceedings were in order. The dictum of the Single Bench has been confirmed by a Division Bench by judgment dated 26.08.2013 in Writ Appeal Nos. 48 of 2013 and 309 of 2013.
In order to substantiate his contention that even when land is acquired for other agencies, the acquisition is for public purpose, the learned Advocate General has relied on the decision of the Hon''ble Supreme Court in Pandit Jhandu Lal and Others Vs. The State of Punjab and Others, a Five Bench decision. Sinha C.J. has laid down the essential condition for acquisition for a public purpose in the following passage at paragraph 8 of the said judgment.
Where acquisition is made for public purpose, the cost of acquisition for payment of compensation has to be paid wholly or partly out of Public Revenues, or some fund controlled or managed by a local authority. On the other hand, in the case of an acquisition for a Company, the compensation has to be paid by the Company.
A recent decision of the Apex Court in Sooraram Pratap Reddy and Others Vs. District Collector, Ranga Reddy Distt. and Others, is relied on by the learned Advocate General, where the question as to whether private participation would denude the acquisition of the content of ''public purpose'' which is an essential requirement, has been considered. C.K. Thakker, J. has held as follows in paragraph 132 of the said decision.
It is clearly established in this case that the infrastructure development project conceived by the State and executed under the auspices of its instrumentality (Apiic) is one covered by the Act. The joint venture mechanism for implementing the policy, executing the project and achieving lawful public purpose for realising the goal of larger public good would neither destroy the object nor vitiate the exercise of power of public purpose for development of infrastructure. The concept of joint venture to tap resources of private sector for infrastructural development for fulfillment of public purpose has been recognized in foreign countries as also in India in several decisions of this Court.
It is clear from the above that the element of private participation would not rob an acquisition proceedings of the element of public purpose, which is a necessary ingredient. A proposal to establish a Medical College is no doubt a public purpose, whether it is being implemented with private participation or not. To insist that the public exchequer should bear the entire financial burden of all developmental activities would only thwart the implementation of public conveniences and facilities in a welfare state. In the present case, it is not yet clear as to how and in what manner the first respondent is proposing to implement the project and to find the necessary funds for executing the same. Therefore, it is too early to decide whether private participation in the present case would in anyway affect the public purpose, as contended by the petitioner. The fact that there is a proposal to seek private participation for implementing the proposal does not militate against the concept of ''public purpose'', as held by the Apex Court. Therefore, the said contention of the petitioner also cannot be accepted.
For the above reasons, I am not satisfied that Exhibit P1 requires to be interfered with. This writ petition fails and is accordingly dismissed.