JUDGMENT : 1. The petitioner is a Private Limited Company registered under the Companies Act having its registered office at Mumbai. In furtherance of its business activities, the petitioner purchased an extent of 493.11 cents of land situated in Vizhinjam Village, Neyyattinkara Taluk, for the purpose of starting a Holiday Resort. The petitioner states that they had entered into a joint venture with the Inter Continental Hotels Group for establishing a Resort as "Holiday lnn" in the property. Ext. P1 is the Building permit issued to the petitioner for the above purpose by the Vizhinjam Grama Panchayat. 2. While so, the Government of Kerala decided to develop a deep water Multipurpose Greenfield Port at Arabian Sea coast at Vizhinjam through its special purpose Government Vizhinjam International Seaport Ltd (VISL). As per G.O.(MS)No.74/08/F&PD dated 25.11.2008, the Government have ordered that the extent of land to be required for the construction of rail/road connectivity, container yard, work area etc. and activity beneficial necessary/incidental for the Vizhinjam Port Project will be 120 hectares. Vizhinjam Port Project was declared as a fast track project as per G.O.(MS)No.72/09/F&PD dated 7.11.2009 and a special team under the leadership of Tahsildar and staff of Revenue and Survey Departments was also constituted for acquisition of 120 hectares of land for the project. 3. The 5 th Respondent, the Vizhinjam International Seaport Ltd., forwarded a requisition for acquisition of 45.56 ??ctares of land in various survey numbers in Vizhinjam Village and the Commissioner of Land Revenue, by order dated 21.12.2009, sanctioned permission to invoke urgency clause under Section 17(4) of the Land Acquisition Act, 1894. Thereafter, Section 4(1) Notification was published on 12.03.2010 and a declaration notification of intended acquisition was issued on 21.12.2010. 4. As per the declaration notification, an extent of 1.7266 hectares of land was to be acquired from the petitioner's total holding of 493.11 cents, leaving behind 55.43 cents. Thereafter, vide communication dated 06.12.2010, the Special Tahsildar, the 4 th respondent, called for original title deeds and other necessary documents and by 2012, major portion of the petitioner's property was acquired. Thus, an extent of 34.811 cents in Survey Nos. 282/16-1 and 282/17 and an extent of 20.620 cents in Survey Nos.287/6 and 287/6-1 (total 55.431 cents) were left behind. As a result of the acquisition proceedings, almost 90% of the petitioner's land was declared to be acquired, leaving behind only 10%. Thus, an extent of 34.811 cents in Survey Nos. 282/16-1 and 282/17 and an extent of 20.620 cents in Survey Nos.287/6 and 287/6-1 (total 55.431 cents) were left behind. As a result of the acquisition proceedings, almost 90% of the petitioner's land was declared to be acquired, leaving behind only 10%. The petitioner states that this remaining land is landlocked and lacks access to the public road, making it impossible for the petitioner ingress to or egress from the said property. In the said circumstances, the petitioner submitted Exts.P3 and P4 representations to the Vizhinjam International Seaport Ltd., the requisitioning authority, requesting acquisition of the entire extent of 493.11 cents of the property including the leftover 55.43 cents, as severance would cause substantial damage and significantly diminish the value of the remaining property as a whole. 5. In furtherance of the above representations, the Special Tahsildar, the 4 th respondent, on inspection of documents and on enquiry, filed Ext.P5 report dated 30.05.2011 with a recommendation to the District Collector, the 3 rd respondent to consider the petitioner's request by including an extent of 0.0235 Hectares and 0.0600 Hectares in Survey Nos. 287/6 and 287/6-1 respectively in the alignment area of acquisition by the requisitioning authority and fresh requisition for acquiring 0.0298 Hectares and 0.1045 Hectares of land comprised in Sy. No.282/16-1 and 282/17. In Ext.P5 report, the Special Tahsildar has stated as follows:- “1. Nearly 90% of the land owned by the company is proposed for acquisition excluding 10% of land owned by the Company. 2. Even though the land comprised in Survey Nos. 287/6, 287/6-1 owned by the company mentioned in the representation has been included in the notification, the requisitioning department has excluded the above land in the alignment area. But the land comprised in Survey Nos. 282/16-1 and 282/17 has not been included in the notification. 3. The land comprised in Survey Nos. 287/6, 287/6-1, 282/16-1 and 282/17 is lying adjacent to the remaining land owned by the Company proposed for acquisition. 4. If the land now proposed for acquisition has been taken possession, there will be no direct entrance to the remaining property owned by the Company resulting which the Requisitioning Authority has to give land from the acquired property for entrance to the remaining property. 5. As per Case Law reported in AIR 1982 Kerala 191 (O.K. Sreedharan Nambiar Vs. 4. If the land now proposed for acquisition has been taken possession, there will be no direct entrance to the remaining property owned by the Company resulting which the Requisitioning Authority has to give land from the acquired property for entrance to the remaining property. 5. As per Case Law reported in AIR 1982 Kerala 191 (O.K. Sreedharan Nambiar Vs. Government of Kerala) "a small bit of land left out from acquisition which is unusable for the land owner can also be acquired." 6. The District Collector confirmed the report of the 4th respondent. On finding that approval of the Government is necessary to include the balance land of the petitioner in the acquisition proceeding, the District Collector issued Ext.P6 communication dated 23.06.2011 to the Secretary to Government, Department of Ports, the 2 nd respondent for issuance of necessary direction to the 5 th respondent to include Survey Nos.287/6 and 287/6-1 (for an extent of 0.0835 Hectares) in the alignment of acquisition and to issue necessary Government Order sanctioning acquisition of an extent of 0.1343 Hectares of land comprised in Sy. Nos. 282/16-1 and 282/17 of Block 14 of Vizhinjam Village. 7. However, despite Exts.P5 and P6, respondents 1 and 5 did not take any action. Therefore, the petitioner approached this Court by filing W.P. (C) No.27102/2013, and this Court, vide Ext.P7 judgment dated 08.11.2013, directed respondents 2 and 5 to consider the petitioner's representations in this regard within a time-bound manner. 8. The petitioner states that, in furtherance of the directions in Ext.P7, the 5 th respondent, without even considering Exts.P5 and P6 and without assigning any valid reason, rejected the petitioner's representation by Ext.P8 order, solely on the ground that the remaining area of 55.43 cents does not form part of the Fast Track Scheme. The 2 nd respondent also rejected the petitioner’s request on similar grounds by Ext.P9 order. 9. Aggrieved by Exts.P8 and P9, the petitioner made representations to respondents 2 and 5 to reconsider the petitioner's case and grant permission as recommended in Exts.P5 and P6. However, the requests are not considered so far. The petitioner states that, by the arbitrary action of respondents, the petitioner is not able to enter the 55.43 cents of land consequent to the acquisition as the said extent has become landlocked with no right to access. However, the requests are not considered so far. The petitioner states that, by the arbitrary action of respondents, the petitioner is not able to enter the 55.43 cents of land consequent to the acquisition as the said extent has become landlocked with no right to access. Since the petitioner's requests for issuance of appropriate orders for acquiring the remaining land as per the recommendation in Exts.P5 and P6 have not been granted till date, the petitioner made Exts.P10 to P12 representations to the 5 th respondent requesting to include the 34.811 cents in Survey Nos.282/16-1 and 282/17 and 20.620 cents in Survey Nos.287/6 and 287/6-1 in the alignment area of acquisition and to issue orders sanctioning requisition of the said land. The petitioner also submitted Ext.P13 request before the respondents to grant right of access to the unacquired 55.43 cents of land comprised in Sy. Nos.287/6 and 287/6-1 and Sy. Nos.282/16-1 and 282/17 of Block 14 of Vizhinjam Village through the land already acquired for the Vizhinjam International Sea Port. However, the respondents have not responded to Exts.P10 to P13 representations. Accordingly, the petitioner has filed this writ petition seeking to quash Exts.P8 and P9 and for direction to respondents 1, 2 and 5 to issue necessary orders to acquire an extent of 55.43 cents comprised in Sy. Nos. 287/6 and 287/6-1 and Sy. Nos. 282/16-1 and 282/17 of Block 14 of Vizhinjam Village belonging to petitioner as recommended by respondents 3 and 4 in Exts.P5 and P6. In the alternative, a direction is sought to the respondents to grant right to way to petitioner's 55.43 cents comprised in Sy. Nos. 287/6 and 287/6-1 and Sy. Nos. 282/16-1 and 282/17 of Block 14 of Vizhinjam Village through an extent of 1.7266 Hectares of land in Survey Nos. 284/2, 284/3, 284/4-1, 284/9-1,9-1-1, 284/11, 284/12, 284/13, 284/18, 18-1, 18-2, 18-3, 283/8-3, 8-4, 283/9,9-1, 286/7, 283/6-2, 283/7, 286/1, 286/2-2, 286/3, 286/4-1, 2865-1, 286/11, 287/9-1, 9-2, 9-3, 9, 284/15-3, 284/10 already acquired by the respondents. 10. A counter affidavit has been filed on behalf of the 5 th respondent stating that after the Government issued administrative sanction for acquiring 120 hectares of land for the project, a large extent of land was procured by invoking the provisions of the Land Acquisition Act, 1894. Subsequently, vide G.O. (MS) No.72/2009/F&PD dated 07.11.2009, the Government ordered acquisition of the said land under the Fast Track Scheme. Subsequently, vide G.O. (MS) No.72/2009/F&PD dated 07.11.2009, the Government ordered acquisition of the said land under the Fast Track Scheme. Further, vide G.O. (MS) No.11/2010/F&PD dated 03.03.2010, the Government had ordered that the land could be acquired under both the Fast Track scheme and the urgency clause contained in the then relevant statute, namely the Land Acquisition Act, 1894. Hence acquisitions with respect to the land owners who were willing to execute the respective sale deeds at negotiated price as per the land value fixed by the District Level Purchase Committee were included under Fast Track Scheme and such sale deeds were directly executed in favour of the 5 th respondent. The purchase price of the acquired land was determined only after following the due process elaborated under the Land Acquisition Act, 1894, and was set at a reasonable and fair value, with due consideration given to the prevailing market rates. For easing the process of these purchases, the District Level Purchase Committee made specific category-wise recommendations after negotiating with the land owners. The remaining land belonging to land owners who were unwilling to sell under the Fast-Track scheme was acquired by invoking the provisions of the Land Acquisition Act, 1894. It is further stated that VISL had purchased 17.889 Ares of land from the petitioner in Re Survey Nos. 284/11,12,13, 283/8-3,8-4, 284/15-2,9,10, 284/2,3,4-1,4-2,286/11, 283/9,9-1,286/7,3,5-1, 287/9,9-1,9-2,9-3, 284/18,18-1,18- 2,18-3, 283/6, 286/1,4-1, 283/7, 286/2-1,286/2-2 in block 14 of Vizhinjam Village in Neyyattinkara Taluk, through Negotiation Purchase under the Land Acquisition Act, 1894. Hence, a total of 437.680 cents of the petitioner's land was validly acquired by the 5 th respondent for the Vizhinjam International Deep Water Multipurpose Seaport Project. The master plan of the said project doesn't include Survey Nos. 287/6,6-1, & 282/16- 1,17 belonging to the petitioner and hence it was excluded from being acquired under the Fast-Track Scheme. It is stated that the 5 th respondent can acquire only the land needed for its project, as per the approved master plan. Acquiring land not useful to the 5 th respondent would only result in a loss to the public exchequer as well as a waste of time and money for the authorities entrusted with important development functions and projects. Acquiring land not useful to the 5 th respondent would only result in a loss to the public exchequer as well as a waste of time and money for the authorities entrusted with important development functions and projects. It is further stated that the entire acquisition between the 5 th respondent and the petitioner occurred on a consensual basis with adequate consideration, and the petitioner never raised any complaints during the acquisition procedures. It is stated that, as per Ext.P7 judgment, the 5 th respondent duly considered the petitioner’s representations and issued Ext.P8 order stating that the remaining land of the petitioner, not being part of the master plan of the project, could not be acquired. 11. A counter affidavit has been filed on behalf of the 3 rd respondent, the Special Tahsildar, wherein it is stated that, as per the revenue records, land with an extent of 1.9539 hectares was under the ownership of the petitioner. In order to acquire the land for Vizhinjam International Seaport and Container Terminal, a notification was issued under the Land Acquisition Act, 1894. Later, authority decided to purchase the property by invoking Fast Track Scheme. Consequently, land having an extent of 01.7266 hectares belonging to the petitioner was purchased as per Exts.P14 to P16 sale deeds. It is stated that the aforesaid property was purchased by the respondents without following all the provisions of the Land Acquisition Act, 1894. It is stated that the petitioner unconditionally executed Exts.P14 to P16 sale deeds; therefore, the petitioner's demand to acquire the remaining portion of the property is not enforceable by invoking writ jurisdiction, as the property covered by Exts.P14 to P16 sale deeds was purchased under the provisions of the Transfer of Property Act. Moreover, there is no award with respect to the property. Referring to Section 49(2) of the Land Acquisition Act, 1894, it is stated that the aforesaid provision makes it clear that any claim under Section 49(2) should be brought before the authority before passing an award. The authority, without conducting enquiry under Section 11 of the Land Acquisition Act, 1894 purchased the property vide Exts.P14 to P16 sale deeds, and therefore the request of the petitioner to acquire the balance portion of the property is not legally tenable. 12. The authority, without conducting enquiry under Section 11 of the Land Acquisition Act, 1894 purchased the property vide Exts.P14 to P16 sale deeds, and therefore the request of the petitioner to acquire the balance portion of the property is not legally tenable. 12. A reply affidavit has been filed by the petitioner stating that even before the sale deeds were executed, they had expressed their term to have the remaining property acquired. The respondent authorities assured them that the said property was already included in the acquisition process, which was ongoing and awaiting orders. Thus, a consensus ad idem was reached between the petitioner and the respondent authorities regarding the acquisition of the remaining extent of the petitioner's land. It is further stated that the acquisition proceedings cannot nullify the right of access to the property and the petitioner is entitled to be compensated for the damage and loss caused. 13. The petitioner’s grievance is that although about 90% of their land (1.7266 hectares out of 1.9539 hectares) was acquired for the Vizhinjam Port Project, the remaining 55.43 cents of land was excluded, leaving it landlocked and devalued due to lack of access. The petitioner submitted Exts.P3 and P4 representations, and the Special Tahsildar reported that the leftover land was adjacent to the acquired land and would lose direct access after acquisition. The District Collector endorsed this and sought Government approval to acquire the remaining land. However, respondents 1 and 2 took no action prompting the petitioner to approach this Court, and this Court vide Ext.P7 judgment directed consideration of Exts.P3 and P4 representations. In response, the 5 th respondent rejected the request of the petitioner by Ext.P8 order, citing that the land was neither in the acquisition notification nor part of the master plan or fast-track scheme. The Government also rejected the petitioner’s request by Ext.P9, stating that there was no obligation to acquire the leftover land. The petitioner contends that Exts.P8 and P9 are illegal and arbitrary and amount to deprivation of the petitioner's right to property under Article 300A of the Constitution of India. The petitioner contends that the respondents are bound to acquire the leftover land under Section 49(2) of the Land Acquisition Act, 1894. In the counter affidavit, the 5th respondent stated that land was acquired either under the Land Acquisition Act, 1894, or through the fast-track scheme, for those willing to sell. The petitioner contends that the respondents are bound to acquire the leftover land under Section 49(2) of the Land Acquisition Act, 1894. In the counter affidavit, the 5th respondent stated that land was acquired either under the Land Acquisition Act, 1894, or through the fast-track scheme, for those willing to sell. A total of 437.680 cents of the petitioner’s land was acquired under the fast-track scheme, and the excluded portion was deemed unnecessary for the project. The stand of the 2 nd respondent in their counter affidavit is that the land was purchased through Exts.P14 to P16 sale deeds and not through formal acquisition proceedings, and no award under Section 11 was passed in respect of the said land. Therefore, the petitioner cannot invoke Section 49(2) of the Act to compel acquisition of the remaining land. 14. Heard Sri. S. Sreekumar, the learned senior counsel for the petitioner assisted by Sri. Liju V.Stephen, Smt. Deepa Narayanan, learned Senior Government Pleader and Sri. Vipin P. Varghese for the 5 th respondent. 15. It is contended by Sri. Sreekumar, the learned Senior Counsel for the petitioner, that even if the property was purchased through negotiation under the fast-track scheme, the petitioner is still entitled to invoke a claim under Section 49(2) of the Land Acquisition Act, 1894, for the acquisition of the remaining property. It is further contended that the negotiated purchase of the petitioner's property would not change the character of the acquisition from compulsory acquisition to a voluntary sale. Sri. Sreekumar submits that it is pursuant to the notification under Section 4(1) and declaration under Section 6 that the negotiated purchase took place. Therefore, it is contended that even if there is no enquiry or award under Section 11, the provisions of the Land Acquisition Act, 1894 will apply and the petitioner is entitled to invoke a claim under Section 49(2) for the acquisition of the remaining property. In this context, Sri. Sreekumar relied on the decision of this Court in Balakrishnan v. Union of India and Others , 2017 KHC 2982 : 2017 (3) SCC 634 . It is further contended that the negotiated purchase was solely for the purpose of compensation, and for all other purposes, the provisions of the Land Acquisition Act, including Section 49, will apply. Finally, Sri. Sreekumar relied on the decision of this Court in Balakrishnan v. Union of India and Others , 2017 KHC 2982 : 2017 (3) SCC 634 . It is further contended that the negotiated purchase was solely for the purpose of compensation, and for all other purposes, the provisions of the Land Acquisition Act, including Section 49, will apply. Finally, Sri. Sreekumar would contend that the petitioner is entitled to compensation under the fourth clause of Section 23(1) of the Land Acquisition Act, 1894. 16. Smt. Deepa, the learned Senior Government Pleader contended that the petitioner's property covered under the notification was purchased through negotiation, as evidenced by Exts.P14 to P16 sale deeds. No enquiry was conducted and no award was passed, under Section 11. Therefore, it is contended that Section 49(2) will not apply, as Section 49(2) applies only in cases where an award has been passed. Smt.Deepa pointed out that in Balakrishnan 's case (supra), an award was passed pursuant to the notification and therefore, that decision does not apply to the facts of the present case. 17. The property of the petitioner was purchased by the 5 th respondent as per Exts.P14 to P16 sale deeds dated 29.12.2011 under the fast-track scheme. Ext.P5 report of the Special Tahsildar and Ext.P6 communication of the District Collector are dated 30.05.2011 and 23.06.2011 respectively. Once the property was purchased by the 5 th respondent through negotiated purchase, Ext.P5 report and Ext.P6 proceedings have lost relevance. The petitioner unconditionally executed Exts.P14 to P16 sale deeds and fully aware that the remaining 55.43 cents of land was not included for purchase under the fast-track scheme. If the petitioner had not opted for negotiated purchase under the fast track scheme, the respondents would have acquired the land under the Land Acquisition Act, 1894, in which case the petitioner could have raised a claim under the third clause of Section 23(1) read with Section 49(2). 18. Section 23 of the Land Acquisition Act, 1894 reads as under:- “23. 18. Section 23 of the Land Acquisition Act, 1894 reads as under:- “23. Matters to be considered on determining compensation - (1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration first , the market-value of the land at the date of the publication of the [notification under section 4, sub-section (1); Secondly, the damage sustained by the person interested, by reason of the taking of any standing crops trees which may be on the land at the time of the Collector's taking possession thereof; Thirdly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of serving such land from his other land; fourthly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings; fifthly , in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change, and sixthly, the damage (if any) bona resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of the land. (1A) In addition to the market value of the land, as above provided, the Court shall in every case award an amount calculated at the rate of twelve per centum per annum on such market value for the period commencing on and from the date of the publication of the notification under section 4, sub-section (1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier. Explanation. - In computing the period referred to in this sub-section, any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any Court shall be excluded. Explanation. - In computing the period referred to in this sub-section, any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any Court shall be excluded. (2) In addition to the market value of the land as above provided, the Court shall in every case award a sum of [thirty per centum] on such market value, in consideration of the compulsory nature of the acquisition.” The third clause of Section 23(1) provides that in determining the compensation to be awarded for land acquired under the Act, the Court shall consider the damage (if any) sustained by the person interested at the time of the Collector’s taking possession of the land, by reason of the severance of such land from his other land. 19. Section 49(2) of the Land Acquisition Act, 1894 reads as follows:- " If, in the case of any claim under Section 23, sub-section (1) thirdly by a person interested, on account of the severing of the land to be acquired from his other land, the [appropriate Government] is of opinion that the claim is unreasonable or excessive, it may, at any time before the Collector has made his award, order the acquisition of the whole of the land of which the land first sought to be acquired forms a part." Section 49(2) provides that if a person claims compensation under the third clause of Section 23(1) on account of severance, and the appropriate Government consider the claim to be unreasonable or excessive, then, before the Collector makes his award, the Government may opt to acquire the entire land, rather than only the portion originally proposed. Section 49(2) thus confers an option upon the Government to acquire the entirety of a landholding, but only in cases where a claim for severance compensation made under the third clause of Section 23(1) is considered excessive or unreasonable. The reference to the third clause of Section 23(1) makes it clear that such a claim arises from the severance of the acquired land from the owner’s remaining land. In such situations, the acquisition of the remaining land under Section 49(2) serves a fiscal purpose, allowing the Government to avoid a potentially higher compensation claim for severance, thereby safeguarding the public exchequer. 20. In such situations, the acquisition of the remaining land under Section 49(2) serves a fiscal purpose, allowing the Government to avoid a potentially higher compensation claim for severance, thereby safeguarding the public exchequer. 20. The question to be considered is whether, for a claim under the third clause of Section 23(1) read with Section 49(2) of the Land Acquisition Act, 1894, an enquiry or an award under Section 11 is necessary. 21. The third clause of Section 23(1) pertains to compensation for damage caused by the severance of land. Section 49(2) permits the Government to acquire the whole land, before the Collector makes his award, if a claim of severance is made and considered excessive. Section 11 involves an enquiry by the Collector to determine compensation and is the stage at which the land owner can raise claim under Section 23. A claim under the third clause of Section 23(1) is procedurally linked to the Section 11 enquiry as compensation claims have to be assessed as part of the award process. Section 49(2) clearly says that the Government can act only before the Collector gives his award, which shows that this process applies only in a formal land acquisition and not in case where the land is bought through negotiation. In cases of negotiated purchases under fast track schemes where no enquiry or award is made under Section 11, the application of Section 49(2) does not arise. Therefore, for a claim under the third clause of Section 23(1) read with Section 49(2) of the Land Acquisition Act, 1894, an award or an enquiry under Section 11 is necessary. Since the petitioner’s property was purchased through Exts. P14 to P16 sale deeds under the fast track scheme by negotiation, and no award was passed, the petitioner cannot raise a claim under the third clause of Section 23(1) read with Section 49(2) of the Land Acquisition Act, 1894, seeking acquisition of the remaining land by the respondents. 22. As regards the contention of Sri. Sreekumar that the petitioner is entitled to compensation under the fourth clause of Section 23(1) of the Land Acquisition Act, 1894, I am afraid the said clause has no application. 22. As regards the contention of Sri. Sreekumar that the petitioner is entitled to compensation under the fourth clause of Section 23(1) of the Land Acquisition Act, 1894, I am afraid the said clause has no application. The fourth clause deals with compensation for damage to other property or to earnings caused by the acquisition in any other manner, whereas the third clause of Section 23(1) specifically deals with compensation for damage sustained due to the severance of the acquired land from the owner’s remaining land. 23. I find no merit in the writ petition. However, it appears that respondents 2 and 5 have not addressed the petitioner’s alternative prayer for a right of way to the remaining property. Therefore, it will be open to the petitioner to submit a suitable representation in this regard to respondents 2 and 5. If such a representation is submitted within one month from today, the competent among respondents 2 and 5 shall consider and dispose of the same in accordance with law within a period of two months thereafter. 24. The writ petition is disposed of with the said direction.