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J.B. Koshy, J.—All these writ petitions relate to the acquisition of land in Nedumbassery Village of Aluva Taluk in Ernakulam District, for the establishment of an International Airport. Emergency provision u/s 17(4) of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) was also invoked to dispense with issue of notice and hearing u/s 5A of the Act. There were three types of acquisitions: First group of acquisitions were for establishment of run way for the Airport; Second group of acquisitions relate to construction of terminals etc. and the third group of acquisitions were for rehabilitating the evicted persons. It is submitted before the Court that acquisition for the purpose of constructing the run way is over, construction of the run way is almost completed and trial run also is being planned. With regard to the other acquisitions also it is submitted that 80% of the acquisition was over and possession of the property was taken over and construction of the terminal is in progress. In view of the judgment in W.A. No. 449 of 1996 and connected cases, those petitioners who were residing in the property cannot be evicted and the buildings or structures belonging to the petitioners cannot be demolished pending disposal of the original petitions. Those writ appeals were filed against the judgment in O.P. No. 11841 of 1995 and other connected cases. Division Bench of this Court set aside the judgment of the learned Single Judge and remitted back the matter. The first group of writ petitions challenge the acquisition, of property for the construction of run-way as well as terminal buildings etc. Second group of writ petitions challenge acquisition for rehabilitating the evicted persons from the acquired property. In O.P. No. 12736 of 1996 it is the prayer of the petitioners that they should not be evicted from the residential houses unless they are rehabilitated by giving suitable housing lands and also providing for agricultural land-lost etc. as recommended by the Ministry of Environment and Forest while sanctioning the proposed project, for the establishment of an International Airport. In this case, however, no stay was granted and stay petition was dismissed by order dated 19.9.1996 in C.M.P. 22436 of 1996. The petitioners have accepted the compensation amount already awarded.
In the first two group of petitions acquisition has been challenged on various grounds. One of the major grounds is the invocation of emergency clause u/s 17(4) of the Act. Government of Kerala accorded administrative sanction for the acquisition of land for the Kochi International Airport at Nedumbassery. The establishment of the Airport was entrusted to a society called Kochi International Airport Society (hereinafter referred to as ''the Society'') which is a Society registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955. The Requisitioning Authority in these cases is the Society. In view of the invocation of emergency provision u/s 17(4) of the Act the benefit of enquiry u/s 5A of the Act is dispensed with. According to the petitioners, the Society is not a Corporation owned or controlled by the State as defined in Section 3(cc) of the Act. If Section 17(1) is to be applicable, the acquisition should be for a public purpose. Section 3(f) of the Act defines ''public purpose'' as including the acquisition of land for a Corporation owned or controlled by the State. Earlier, learned Single Judge of this Court held that the Society will not come within the definition of Corporation owned or controlled by the State. The Division Bench of this Court in W.A. No. 449 of 1996 held as follows:
Section 3(cc) of the Act defines as to what is a Corporation owned or controlled by the State. It means (1) any body corporated established by or under a Central, Provincial or State Act; (2) a Government Company as defined in Section 617 of the Companies Act, 1956; (3) a society registered under the Societies Registration Act, 1860 or under any corresponding law for the time being in force in a State, being a society established or administered by Government; and (4) a Co-operative Society within the meaning of any law relating to Co-operative Societies for the time being in force in any State, being a Co-operative Society in which not less than fifty-one per cent of the paid up share capital is held by the Central Government, or by any State Government, etc. On going through the definition of Corporation u/s 3(cc) of the Act, it is Clear that a Society registered under the Societies Registration Act, 1860, or under any corresponding law for the time being in force in a State established or administered by Government will come within the definition ''Corporation''. In case of such Societies, it is not necessary that the Central Government or the State Government should have held not less than 51% of the paid up share capital. That is necessary only in the case of a Cooperative Society within the meaning of any law relating to Co-operative Societies for the time being in force in any State. The Society is not a Co-operative Society formed under the Kerala Co-operative Societies Act or any other similar Act. It is a Society ''registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act''. If that be so, then the only requirement to come within the definition of the expression u/s 3 (cc) is that the Society should be established or administered by Government. Hence, we are of the view that the learned single Judge went wrong in holding that the Society will not come under the expression ''Corporation'' owned or controlled u/s 3(cc), since the Central Government or the State Government is not holding not less than 51% of the paid up share capital.
Since the finding of the learned Single Judge was set aside the matter was remitted back to consider the other contentions raised by the petitioners. It was also held that the emergency provision can be invoked only if it is proved that the Society is a Society established or administered by the Government. It is the contention of the petitioners that the Society is not administered or established by the Government.
It is submitted on behalf of the respondents that considering the urgency of the acquisition Section 17(4) of the Act was invoked. Some of the persons voluntarily surrendered their lands and their lands were taken possession of. Some of the persons have received compensation under protest. It is also submitted that 85% of the land owners have executed agreements in Form 10-A u/s 10(2) of the Act, accepting compensation at negotiated rate of various categories of land and accepted compensation as per negotiated rate. It was also submitted by the respondents that for acquisition of land the negotiated prize was much more than that was fixed by the Land Acquisition Officer. Following is the comparison of the value fixed as per Land Acquisition Officer''s valuation and negotiated value proposed by the Society for the terminal area:
Category of Land
LAD''s Valuation Basic (inclusive of 30% value solatium + 12% interest)
Negotiated value proposed by the Society.
I.
Dry Land
1.
PWD Road
4251
6036
10125
2.
Municipal Tar Road
4049
5750
9500
3.
Municipal Road
3441
4886
8800
4.
Panchayath Road
3441
4886
8625
5.
Foot Path
2976
4226
7875
6.
Interior
2551
3622
7125
II
Wet Land
a.
Triple Crop Wet Land
1.
PWD/Municipal Tar Road
1437
2041
3000
2.
Panchayat/Municipal Cart Road
1275
1811
2700
3.
Foot Path/Canal Bund
850
1207
2475
4.
Interior
789
1120
2400
b.
Double Crop Wet Land
1.
Reclaimed having PWD Road Frontage
1093
1552
6000
2.
PWD/Municipal Road frontage
1093
1552
2700
3.
Panchayat Road Frontage
951
1350
2400
4.
Interior
688
977
2100.
Apart from the compensation, it was also submitted that the following other facilities were extended to the house owners who agreed to the negotiated value for the terminal:
PWD valuation for the building as per 1995 schedule, even though the notification was published in 1994. Depreciation will not be deducted from this value.
6 cents of land free of cost irrespective of the area of land owned by the house owners. For example, even if the house owners had only 2 cents of land he was eligible to get 6 cents of land.
The house owners were allowed to dismantle the house and take it for their use.
An amount of Rs. 10,000/- for dismantling and shifting of the old house.
Ext.P1 in O.P. No. 16355 of 1995 is the notification dated 30.4.1994 issued u/s 4(1) of the Act for acquisition of land for the purpose of construction of run-way for the Nedumbassery Cochin International Airport. Survey numbers, extent of land etc. are mentioned in the above notification. It is stated in the above notification that Section 17(4) of the Act is used in view of the urgency and provisions of Section 5A are dispensed with Ext.P2 is another notification dated 25.7.1994 issued u/s 4(1) read with Section 17(4) of the Act for the purpose of acquisition of land for construction of terminal for the Cochin International Airport at Nedumbassery. Ext.P1 notification was published in the Kerala Gazette dated 10.5.1994, the Veekshanam daily dated 10.5.1994 and Matnrubhoomi daily dated 7.5.1994. Ext.P2 notification dated 25.8.1994 was published in the Kerala Gazette dated 23.8.1994, Veekshanam daily dated 3.7.1994 and Mathrubhoomi daily dated 11.12.1994. Subsequently Section 6 declaration dated 5.7.1995 was published in Deshabhimani daily dated 7.7.1995. The declarations in respect of lands required for terminal and run-way are produced as Exts.P3 and P4 in O.P. No. 16355 of 1995. Ext.P4 in O.P. No. 9291 of 1996 is the Gazette publication u/s 4(1) of the Act regarding acquisition of land for the purpose of rehabilitation of the evictees whose lands were acquired for establishing International Airport. There also emergency provisions were invoked.
The main contentions raised are: Exts.P1 and P2 notifications-referred were not published in the locality, i.e. In Nedumbassery Village, as contemplated u/s 4(1) of the Land Acquisition Act read with Rule 7 of the Land Acquisition (Kerala) Rules 1990. Since such publications being mandatory, the entire acquisition proceedings pursuant to Exts.P1 and P2 are ultravires and therefore void and non est. It is also submitted that the alleged, local publication on 8.7.1994 was a cooked up document. It is the contention of the petitioners that since notices have been issued to the people of the locality under Rule 7 who are affected by the acquisition on 24.6.1994, the local publication could have been made before that date. If that is taken into account the declaration was made after one year from the date of notification. It is further contended that in any event publication should be immediately done and even if publication was done on 8.7.1994 the above notification are ultravires and delay of two months in publishing the notification is fatal especially when the notification is published invoking the emergency clause u/s 17(4) of the Act. Even in a case where no emergency clause is invoked the declaration u/s 6 has to be made within one year from the date of publication of the notification. Here that is not done.
It is also contended that acquisition is for a company and invocation of the emergency clause of Section 17(4) of the Act is void and non est. Since the acquisition is for a company, enquiry u/s 5(a) of the Act and under Rule 4 of the Land Acquisition (Companies) Rules 1963 are mandatory. It is the contention of the petitioners that the Airport is being established by the fourth respondent company and not by the fifth respondent. Fifth respondent is only a share holder of the fourth respondent company. Since it is not for a public purpose, Section 5A enquiry ought to have been conducted and without complying with the provisions of Section 5A acquisition acquisition will be continued. It is not mentioned in the notifications that who is establishing the Airport. If fifth respondent is acquiring the land and is transferring the same to the fourth respondent the entire acquisition proceedings will be a sham and pretence to defeat the provisions of the Land Acquisition Act.
It is also contended that the third respondent Society, even if the requisitioning authority is not established or administered by the Government. It is stated that Government has established the Society. It is not a Corporation owned or controlled by the State or it is not administered by the Government. So it cannot be treated as a Society established or administered by the Government as provided u/s 3(cc) of the Act.
It is further contended that rehabilitating people who are evicted is not a public purpose and in any event there is no necessity to evict those persons and then again provide them with another place for rehabilitation.
Section 4(1) of the Land Acquisition Act, 1894 reads as follows:
Whenever it appears to the appropriate Government or to the Board of Revenue or to the Collector that land in any locality in the State of Kerala or within the jurisdiction of the Collector is needed or is likely to be needed for any public purpose or for a company, a notification to that effect shall be published in the Official Gazette and in two daily newspapers circulating in that locality of which at least one shall be in the regional language and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the notification.
Therefore, it is clear that publication of preliminary notification as contemplated u/s 4(1) is mandatory. Notifications shall be published in the Official Gazette and in two daily newspapers circulating in the locality and Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality. Publication in the Official Gazette and two daily newspapers are not disputed. The first question in dispute is whether it was published in the locality. According to the petitioners, no such publication was made. It is averred in the counter affidavit filed in O.P. No. 16355 of 1995 that the notification was prepared on 24.6.1994 and was locally published on 8.7.1994 as can be seen from Ext.R4(a). It is also averred in the affidavit that the notification was published in the Official Gazette on 23.8.1994 and Ext.R4(b) was published in the locality on 29.9.1994. In the various counter affidavits filed evidence was produced to show that local publication was made. Ext.R4(a) will indicate that some of the petitioners are signatories in the publication. Ext.R4(b) shows that another public notice was issued on 29.9.1994. Ext.R4(c) and R4(d) in the above original petition are the affidavits filed by the Tahsildar and Chairman to prove that local publications were made.
It is true that provisions u/s 4(1) are mandatory. If no notice is published as required therein the acquisition is liable to be set aside as held by the Supreme Court in Travancore-cochin Chemicals (P.) Ltd. Vs. Commissioners of Wealth-tax, Kerala, and in Narindrajit Singh and Ranjit Singh and Others Vs. The State of U.P. and Others, . However, it is the averment of the respondents that proper publication was made in the locality. The Tahsildar as well as the Chairman have filed affidavits to show that local publication was made. Presumption u/s 114(e) of the Evidence Act has been raised that official acts have been properly done unless proved otherwise. On a reading of the affidavits as well as the copies of the notification I am satisfied that local publication was made as required u/s 4(1). In this connection I also refer to the decision of the Supreme Court in Ajay Krishan Shinghal, etc. etc. Vs. Union of India and Others, wherein it was held that it is not necessary that publication of the substance of the notification in the locality should be established beyond shadow of doubt especially in view of the presumption u/s 114(e) of the Evidence Act. It was held as follows:
It is not the law and could not and would not be the law that publication of the substance of Section 4(1) notification in the locality should be established beyond shadow of doubt and benefit should be extended to the owner or interested person of the land. Obvious thereto, presumption u/s 114(e) of the Evidence Act has been raised that official acts have been properly done unless proved otherwise. We are satisfied that it was properly done. It is futile to reiterate the settled legal position that the publication of the notification u/s 4(1) in the Gazette and substance thereof in the locality are mandatory requirements and the omission thereof renders the notification void.
From the records produced I am satisfied that local publication was made as provided u/s 4(1) of the Act.
The next question is regarding delay in local publication. It is the contention of the petitioners that under Rule 7 of the Land Acquisition (Kerala) Rules 1990 immediately after publication of the preliminary notification u/s 4(1) in the Official Gazette and in newspapers, the Land Acquisition Officer should issue public notice stating that the land is needed or is likely to be needed for the public purpose and such notice shall be published at convenient places in the locality and copies thereof should be fixed up in the Taluk Office, Village Office and offices of the District Collector and Land Acquisition Officer. It is also provided in Sub-rule (2) of Rule 7 that as soon as composite notification referred to in sub-rule (2) or (3) of Rule 6 is published in the case of urgency the Land Acquisition Officer shall issue public notice in Form No. 4B and such notice shall be published in convenient places in the locality and in the Taluk Office, Village Office and in the Office of the Land Acquisition Officer. So Rule 7(1) mentions about public notice immediately after publication of the preliminary notification. Rule 2 also mentions that as soon as the composite notification is published, public notice should be published; Therefore the word ''immediately'' under Rule 7(1) and the word ''as soon as'' mentioned in Rule 7(2) show that public notice should be issued immediately especially in a case where emergency provisions are invoked u/s 17 of the Act. It is contended that no public notice was issued as provided under Rule 7 and even if such a notice was issued, there is undue delay. In the counter affidavit it is stated that preliminary notification was published in the Official Gazette Ext.P1 on 10.5.1994 and Ext.P2 on 23.8.1994 and it was published in Veekshanam newspaper on 8.7.1994. On 8.7.1994 itself the local notice was published in the site (Ext.R4(a). Ext.R4(a) also indicates that some of the petitioners are signatories to the publication made by the Land Acquisition Officer. Another notice was published on 29.9.1994 (Ext.R4(b)). It is also stated that the notification was prepared on 24.6.1994. Ext.P2 was published in the Official Gazette on 23.8.1994 and Ext.R4(b) was published locally on 29.9.1994. It is explained that the delay occurred is usually due to the delay in publication in the Official Gazette. In any event it can be seen that Ext.R4(b) was published in the Official Gazette on 23.8.1994 and it was published locally on 29.9.1994 and there was no undue delay. According to me, there is no undue delay in publication locally. The word immediately under Rule 7 can only be interpreted as one within a reasonable time in accordance with the Rules. The notification was published in the Official Gazette on 23.8.1994 and local publication was made on 29.9.1994 and it cannot be stated that there was undue delay.
The next contention is that u/s 6 of the Act declaration has to be published within one year from the date of publication of the notification. Here Section 6 declarations were made by Exts.P3 and P4 respectively. The above are dated 5.7.1995. Since the publication of the notifications were made on 8.7.1994 and on 29.9.1994 respectively, the above declarations were also published within one year from the date of publication of the notifications. I am not able to accept the contention that public notice should be deemed to have been published on 24.6.1994. Ext.R4(b) was published only on 29.9.1994. Even the first publication was made only on 8.7.1994 by the Special Tahsildar as per the affidavits produced, Exts.R4(c) and R4(d). On a perusal of the documents produced I am satisfied that the declarations were made within one year from the date of publication of the notification and acquisition proceedings cannot be set aside on that ground.
The major contention raised by the petitioners is against the invocation of Section 17 emergency provisions. It is contended that urgency contemplated by the provisions of Section 17(1) and (4) of the Act must be of such a character that it cannot brook the delay of the period of inquiry u/s 5A of the Act. The urgency must be such that the period required for inquiry u/s 5A of the Act would cause great prejudice or inconvenience so as to defeat the very purpose of acquisition and the purpose of acquisition cannot be fulfilled. The urgency must be such that the purpose of acquisition cannot await the period of 30 days and the reasonable period of the inquiry u/s 5 A of the Act and the normal procedure cannot be adopted. Section 17(1) and (4) of the Act are exception to the normal procedure. Here in view of the delay in publication of the notifications and declaration itself, it is argued that there is no urgency and since the notifications are issued invoking Section 17(4), they are without authority and the entire acquisition proceedings without conducting inquiry u/s 5A should be set aside. A Division Bench of this Court in the decision in Damodara Menon v. Personal Assistant (L.A) To District Collector, Ernakulam (1975) KLT 537) held that urgency to invoke Section 17 must be such that it is not possible to allow the time that may be reasonably required for enquiry under-Section 5.
Here the acquisition is for the establishment of an International Airport. According to the authorities, the above Airport has to be established urgently and immediate steps have to be made. Therefore, Section 17(4) has to be invoked. In the notification it is stated that the Revenue Board had considered and came to the conclusion that Section 17(4) notification should be published. The same has been stated not only in Section 4(1) notification but also in Section 6 declaration. A perusal of the Revenue Board''s order would show that there was subjective satisfaction by the authorities concerned. In the decision reported in Raja Anand Brahma Shah Vs. State of Uttar Pradesh and Others, the Supreme Court held that the Court cannot substitute its own opinion, for the subjective opinion of the State Government. On the materials placed on the records of the case it is impossible to say that the authorities have not applied to the question of urgency or that the urgency provision has been invoked malafide. The question of urgency is not to be waived. It is for the authorities to decide whether urgency exists. If the Government applied its mind and acted in good faith and there is subjective satisfaction, this Court would be reluctant in examining the propriety and correctness of the satisfaction by scrutinising the same as a Court of appeal. Facts in this case are similar to the facts in the decision of the Supreme Court in State of U.P. v. Smt. Pista Devi and others and State of U.P. Vs. Smt. Pista Devi and Others, . In this case also there is no specific averment regarding malafides in issuing the notification by invoking Section 17(4) of the Act. It is not competent for the Courts to inquire into the sufficiency of the grounds which led to the formation of the opinion of the authority that the need for acquisition was urgent and accordingly inquiry u/s 5A of the Act should be dispensed with. Of course, the Court can interfere if it is shown that the authority never applied its mind to the matter or that the action of the authority is malafide. Question is not whether there was actual delay. Whether there is urgency or not in the circumstance will depend upon the facts of each case.
The Revenue Board had considered the facts of the case and found that there is urgency. From the averments in the original petitions it cannot be said that there is no urgency or that the view of the authority that there is such urgency so as to invoke Section 17(4) of the Act is based on no materials or perverse or based on extraneous considerations so as to attract jurisdiction of this Court to delay the public purpose: The question of existence and extent of urgency is a matter for the subjective satisfaction of the authority and it is not open for the Courts to examine the propriety or correctness of the satisfaction by scrutinising the same as a Court sitting in appeal over it. Judicial review is permissible only in a narrow and limited fields, that is, (1) on the materials available the appropriate authority cannot have satisfied about the urgency; (2) the basic facts on which the opinion as to urgency is stated to have been formed were admittedly non-existing; and (3) the declaration in question has been made malafide or for wholly extraneous reasons. None of these grounds are available, in this case. According to me, there are sufficient materials for the authority to invoke Section 17(4) in issuing Ext.P1 notification. There is no specific allegations of malafides which are proved. In Pista Devi''s case, earlier referred to, Supreme Court was considering whether urgency clause can be invoked for providing housing accommodation. Merely because there was some error on the part of the Officials or there was delay in publication of the notification or declaration was not by itself sufficient to held that the decision taken by the authorities to take emergent provision u/s 17(4) will become either improper of illegal. It cannot be accepted that there was no urgency and there was not necessity to invoke Section 17(4) of the Act for acquisition of land for establishing an International Airport.
The next contention raised was that there was no public purpose. Section 17(4) can be invoked only for public purpose. The expression ''public purpose'' is defined u/s 3(f) of the Act which specifically states that this will not include acquisition of land for companies. The Company is defined u/s 3(e) of the Act which reads as follows:
3(e) The expression "Company" means (i) a company as defined in Section 3 of the Companies Act, 1956, other than a Government Company referred to in clause (cc);
(ii) a society registered under the Societies Registration Act, 1860, or under any corresponding law for the time being in force in a State, other than a society referred to in clause (cc)
(iii) a Co-operative society within the meaning of any law relating to Co-operative Societies for the time being in force in any State, other than a co-operative society referred to in clause (cc).
One of the contentions raised by the petitioners is that the acquisition was made for the fourth respondent company, Cochin International Airport Ltd. and since it is not a Government Company and 51% of the share is not held by the State, the entire notification is illegal. The above contention is no more applicable in view of the Division Bench decision of this Court in W.A. No. 449 of 1996 wherein it was held that the requisitioning authority was not the fourth respondent but by the fifth respondent, Cochin International Society Ltd. Fifth respondent is not a company registered under the Companies Act. Therefore, Section 3(e)(i) is not applicable in this case. It was also held that it is not a co-operative society as contemplated u/s 3(e)(i). The question now to be considered is whether fifth respondent society is a society as referred under clause 3(cc) of the Act. Fifth respondent society is not a co-operative society. It is a society registered under the Travancore-Cochin Literary Scientific and Charitable Societies Registration Act. Acquisition for the same will be a public purpose. To bring it u/s 3(cc) it could be a society ''established or administered by the Government''. The question is whether fifth respondent society is a society established or administered by the Government. If fifth respondent society is established or administered by the Government invocation of Section 17(4) will be justified. It is contended by the petitioners that the word ''or'' actually means and (and if the society is established and administered by the Government then only the benefit can be claimed. Ext.R4(e) is the notification issued by the Government for establishment of the society for the purpose of constructing the Airport. The above notification published in the Official Gazette shows that Government had considered the proposal for construction of a new Airport. It reads as follows:
Vide reference cited, the District Collector, Ernakulam has forwarded a Preliminary Project Report for the construction of a new Airport at Nedumbassery near Cochin.
Government have considered the project proposals and are pleased to accord approval for the Project.
Government are also pleased to accord sanction for registering a Society for implementing the Project. The Society will consist of any Government nominees. The Chief Minister of Kerala will be the Chairman and Minister (Transport) will be the Vice-Chairman of the Society. It is not necessary to have a separate Executive Committee for the proposed Society.
Thereafter Memorandum of Association and Rules and Regulations were submitted to the Government. In the Memorandum of Association there were provisions to include persons other than Government. That Memorandum was considered and approved by the Government by Ext.R4(f). The Government Order approving the Memorandum of Association and Rules and Regulations reads as follows:
The Memorandum of Association and Rules and Regulations of Kochi International Airport Society appended to this Government Order is approved.
The Special Officer, Kochi Airport Project is authorised to register the Society.
Ext.R4(e) as well as Ext.R4(f) shows that the society was established by the Government.
It is contended by the petitioners that Constitution of the Society shows that it is not established or administered by the Government. That is also not correct. A reading of the Memorandum of Association shows that the Society is not only established but also administered by the Government. The Airport Society was constituted after considering the project report submitted by the then District Collector. The Society was registered by the Government and its control is with the Government. The membership of the Society is 40% are EX-officio members, 20% Institutional members, 20% Eminent persons nominated by Government and 20% Donor members. Governing Body of the Society consists of Chairman,- Chief Minister of Kerala, Vice-Chairman - Minister for Transport. Secretary who is an Ex-officio Managing Director to be appointed by Government and members of the governing Body consists of Chief Secretary and various other secretaries of the various Departments. Out of the 21 members 7 members are Secretaries including Chief Secretary in the State and remaining members most of them are Directors of various Government organisations/Departments.
The members are as follows:
Chief Secretary.
Secretary, Finance.
Secretary, Revenue.
Secretary, Transport.
Secretary, Tourism
Secretary, Industries.
Secretary, Irrigation.
Chief Engineer (Roads & Bridges).
District Collector, Ernakulam.
A representative of the National Airports Authority.
Chairman, Kerala State Electricity Board.
Chairman, Greater Cochin Development Authority.
Director, Kerala State Nirmithi Kendra.
Director, Centre for Management Development.
Mayor of the Corporation of Kochi.
Member of Parliament from Mukundapuram.
Member of Parliament from Ernakulam.
Members of Legislative Assembly representing Aluva, Angamaly, Vadakkekara.
President, Cochin Chamber of Commerce.
Six representatives of donors.
Ministers of State Government from Ernakulam District.
It cannot be stated that merely because six representatives of donors are in the Governing Body it is not governed or administered by the Government. In any event, Ext.R4(e) shows that the Society was established by the Government and Ext.R4(f) shows that the control is with the Government. The files regarding establishment of the Society was also handed over. A reading of the files clearly convinced that the Society is established by the Government and it is controlled by the Government.
Now I will examine whether the word ''or'' mentioned in the Section actually means ''and'' and the Society should not only be established but also be administered by the Government is correct or not. In Travancore-cochin Chemicals (P.) Ltd. Vs. Commissioners of Wealth-tax, Kerala, Supreme Court had considered the meaning of the word ''established''. In that case a private partnership firm was formed between two public limited companies in 1949 but it could not function due to lack of finance. Government of Travancore being approached, it entered the company and subscribed a large capital. The new Company took over the plant, machinery, buildings, etc. at different stages of erection and also all book debts and liabilities. The erection and construction of the factory was completed in December 1953 and production commenced from 1st January, 1954. The Supreme Court held that the assessee was established within Section 45(d) of the Wealth Tax Act in December 1953 or January 1, 1954, and therefore entitled for exemption. It was held that there is a clear distinction between the word registered'' or ''incorporated'' or ''established''. It was held that the word ''set up'' in the principal clause is equivalent to the word ''established''. It was held that the word ''established'' cannot be equated with the word ''incorporated''. Exts.R4(e) and (f) show that the Society was established by the Government.
The next decision cited is the Division Bench decision of this Court in John v. State (1996(2) KLT 315) wherein it was held that only when a Unit is ready to go into business and to start production it can be considered as set up. Here the Society was established by the Government and steps are being carried on for construction of an Airport. The question emphasised by the petitioners is that whether the word ''or'' mentioned in Section 3(cc) of the Act actually means ''and'' and the Society should not only be established but also be administered by the Government. For this proposition the decision of the Supreme Court in State of Bihar Vs. S.K. Roy, is relied on. In that case Supreme Court was considering the meaning of Section 2(b) of the Coal Mines Provident Fund and Bonus Schemes Act which defines ''Coal mine'' as any excavation where any operation for the purpose of obtaining coal has been or is being carried on in or adjacent to or belong to a coal mine. It was held that the word ''or'' occurring before the expression ''belonging to a coal mine'' in the main definition has to be read to mean ''and'' and any other interpretation would lead to an anomalous and starting consequence. It was held by the Supreme Court that the word ''belonging to a coat mine'' is the controlling expression governing all aspects of the activities of the coal mine. Therefore, if ''or'' is not read as ''and'' an anomalous result will follow.
In The State of Bombay Vs. R.M.D. Chamarbaugwala, the Supreme Court was considering the definition of Prize Competitions'' in the Bombay Lotteries and Prize Competitions Control and Tax Act. Section 2(1)(d) of that Act defines Prize Competition as follows:
2(1)(d) "Prize Competition" includes (i) cross-word prize competition, missing words prize competition, picture prize competition, number prize competition, or any other competition for which the solution is prepared before hand by the promoters of the competition or for which the solution is determined by lot;
(ii) any other competition success in which does not depend to a substantial degree upon the exercise of skill, but does not include a prize competition contained in a newspaper printed and published outside the Province of Bombay.
The qualifying clause was consisted of two parts separated from each other by the disjunctive word ''or''. Both parts of the qualifying clause indicated that each of the five kinds of prize competitions which they qualified were of a gambling nature. Thus a prize competition for which a solution was prepared beforehand was clearly a gambling prize competition, for the competitions were only invited to guess what the solution prepared beforehand by the promoters. After considering the various contentions Supreme Court held that:
Considering the nature, scope and effect of the impugned Act, we entertain no doubt whatever that the first category of prize competitions. Such is what we conceive to be the clear intention of the legislature as expressed in the impugned Act read as a whole and to give effect to this obvious intention as we are bound to do, we have perforce to read the word ''or'' appearing in the qualifying clause after the word ''promoter'' and before the word ''for'' as ''and'', Well-known canons of construction of Statutes permit us to do so. (See Marwell on the Interpretation of Statutes, 10th edition, page 238).
In this case, I do not think that the circumstances warrant that the word ''or'' mentions in between established and administered means ''and''. It is the well accepted principle of interpretation that where the language is plain and admits of but one meaning, that alone can be taken. The elementary rule of construction is that it is to be assumed that the words and phrases used by the legislature should be literally constructed and what they have meant is what they have actually expressed. For any word or expression used in the Act Court cannot read something which is not so held by the Supreme Court in Suresh Lohiya v. State of Maharashtra and another ((1996) SCC 397). Unlike the cases reported in State of Bihar Vs. S.K. Roy, and in The State of Bombay Vs. R.M.D. Chamarbaugwala, no absurd result will follow if the word ''or'' is read as ''or'' itself. There is nothing to show that the intention of the Legislature was to read ''or'' as ''and''. In fact it is the clear intention of the Legislature that the word ''or'' is read as ''or'' itself and it cannot be read as ''and''.
While considering the validity of the acquisition Court has to take a pragmatic approach. The main question to be looked into here is whether the acquisition was for public purpose and whether Section 17(4) was rightly invoked. The Supreme Court in S.S. Darshan v. State of Karnataka and others had considered a similar case. The challenge made in that case was regarding the validity of the notification issued u/s 4(1) read with Section 17 of the Land Acquisition Act, 1894 for acquisition of land for the purpose of setting up a Technological Park. The Technological Part was being constructed by a private limited company known as Information Technology Park (Pvt.) Ltd. The Court found that it was a joint venture project of the Karnataka Industrial Areas Development Board by the Karnataka Government as well as the Information Technology Park (Pvt.) Ltd. It was held that the acquisition was not merely for the purpose of the company but for public purpose. In this case the Society itself was established by the Government of Kerala for the purpose of constructing an International Airport which is a public purpose. Thereafter the Government has established the Society and with the help of the fourth respondent company the construction is being carried out. The Society being established and administered by the Government and the construction of an International Airport is a public purpose, according to me, invocation of urgency provision u/s 17 cannot be questioned.
Learned counsel for the respondent Society also argued that since disputed questions are being argued the writ petition cannot be the remedy. The above contention cannot be accepted. In Laxmi Chand and others Vs. Gram Panchayat, Kararia and others, it was held by the Supreme Court that the scheme of the Land Acquisition Act is complete in itself. Civil Court has no jurisdiction to give declaration on invalidity of acquisition and award. Section 9 of the Civil Procedure Code, 1908 gives jurisdiction to the civil court to try all civil suits, unless barred. The cognizance of a suit of civil nature may either expressly or impliedly be barred. The scheme of the Act is complete in itself and thereby the jurisdiction of the civil court to take cognizance of the cases arising under the Act, by necessary implications, stood barred. The civil court thereby is devoid of jurisdiction to give declaration on the invalidity of the procedure contemplated under the Act. The only right an aggrieved person has is to approach the constitutional courts, viz. the High Court and the Supreme Court under Articles 226 and 136 respectively with self-imposed restrictions on their exercise of extraordinary power. Therefore, I hold that the writ petitions maintainable. However, merely because the writ petitions are maintainable it is subject to other restrictions. While exercising the discretionary powers the Court cannot delay the project for public purpose. The Supreme Court in Ramniklal N. Bhutta and another Vs. State of Maharashtra and others, held that the power under Article 226 is discretionary and it will be exercised only in furtherance of interests of justice and Court shall not interfere with acquisition proceedings unless there are compelling circumstances. The Court held as follows:
The means of transportation, power and communications are in dire need of substantial improvement, expansion and modernisation. This things very often call for acquisition of land and that too without any delay. It is, however, natural that in most of these cases, the persons affected challenge the acquisition proceedings in courts. These challenges are generally in the shape of writ petitions filed in High Courts. Invariably, stay of acquisition is asked for and in some cases, orders by way of stay or injunction are also made. Whatever may have been the practices in the past, a time has come where the courts should keep the larger public interest in mind while exercising their power of granting stay/injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in a civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The courts have to weigh the public interest vis-a-vis the private interest while exercising the power under Article 226--indeed any of their discretionary powers. It may even be open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non-compliance with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lump sum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceedings is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interests. Beyond this, it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the courts while dealing with challenges to acquisition proceedings.
From the above discussions it is clear that acquisition of the land was for public purpose and grounds of attack for invoking emergency provisions u/s 17 of the Act are not tenable. The contentions raised by the petitioners questioning invocation of urgency provisions u/s 17(4) of the Act for acquiring land for rehabilitation of evicted persons also cannot be accepted. For enabling the acquisition of land for the construction of run-way and terminal for the International Airport, rehabilitation of those people who are residing there has to be done. As per the Scheme, six cents of land free of cost irrespective of the area of land owned by the house owners were to be given. This has to be given on urgent basis and immediately on evicting those persons they should be given land for rehabilitation. Therefore, acquisition of land for rehabilitating the evictees also is a public purpose and urgency provision can be rightly invoked.
The contention of the petitioners that evictees can be accommodated in other places also cannot be accepted. When persons are evicted from their residential houses for the purpose of construction of Airport, they have to be accommodated near the village itself. In any event, selection of land is to be done by the authorities especially in the absence of any malafides on the part of the authorities. In State of Punjab and Another Vs. Gurdial Singh and Others, the Supreme Court bid as follows:
......This power to select is left to the responsible discretion of Government under the Act, subject to articles 14, 19 and 31 (then). The Court is handcuffed in this jurisdiction and cannot raise its hand against what it thinks is a foolish choice. Wisdom in administrative action is the property of the executive and judicial circumspection keeps the court look-jawed save where power has been polluted by oblique ends or is otherwise void on well-established grounds. The constitutional balance cannot be upset.
The same view was reiterated by the Supreme Court in the decision in Subhashgir Khushalgir Gosavi and others Vs. Special Land Acquisition Officer and others, .
The contention by some of the petitioners whose lands are acquired for rehabilitating the evictees is that they should be allowed to stay in their residential houses. It is pointed out by counsel for the Society that those petitioners who are actually residing in the house on the date of notification will be rehabilitated. There is no benefit in evicting them and then giving them another alternative land. Petitioners whose lands were acquired for rehabilitating the evictees should not be evicted from their residential houses if they were actually residing in the residential houses on the date of notification and the house with six cents of land should be spared and only balance can be acquired. Some of the petitioners submit that they were planning to construct the houses there at the time of issuance of notification and they purchased land for the same. In view of the rehabilitation scheme and other contentions raised, I am of the opinion that six cents of land each of the petitioners, whose lands were acquired for rehabilitating the evictees, should be spared from acquisition so that they can construct the houses therein without providing them other plots. But there is no valid ground for interfering with the acquisition proceedings. With regard to compensation etc. those who are not accepting the negotiated value, it is for them to take usual procedure for enhancement of compensation. In O.P. No. 12736 of 1996 it is the contention of the petitioners that all conditions imposed by the Minister of Environment and Forests should be complied with before evicting them. The main contentions raised by the petitioners were dealt with while disposing of the stay petition, C.M.P. No. 22436 of 1996 and no stay was granted. I am in respectful agreement with the observations made by my learned brother Justice Radhakrishnan in the order in C.M.P. No. 22436 of 1996. Hence I am not repeating the same. Since the petitioners in O.P. No. 12736 of 1996 surrendered possession and the lands were already been taken over, they cannot challenge the acquisition proceedings. The conditions prescribed for sanction said to have been given by the Environment Ministry is not produced. It is submitted by the respondents that discussions are going on and they offered six cents of land for rehabilitating the persons who are actually evicted from their residential houses apart from the usual land value and other benefits. Since the petitioners are entitled to for the negotiated value or the land value as fixed under the provisions of the Act and six cents of land and other benefits offered by the respondents, they are not entitled to question the acquisition proceedings. If they are entitled to get equivalent agricultural land etc. as per the directions of the Environmental Ministry and they are denied the benefits, they have to approach that Ministry for implementation of the Scheme. Thereafter they can approach the appropriate forum for redressal of their remedies. It is not stated that they have approached that Ministry for redressal of their grievances. It is for them to approach that Ministry before approaching the Court for redressal of their grievances.
Subject to the observations made in this judgment the writ petitions are devoid of merit and are dismissed.