Tainted Company Involved In Sabarimala Airport Feasibility Study
While the Kerala government has decided to go ahead with land acquisition for its 5th international airport in Central Travancore, social activists allege that the US company, which carried out the detailed feasibility report (DFR) is a tainted one.
“Louis Berger, the American construction company, which carried out the feasibility study for Kerala’s 5th airport had admitted to violations of the Foreign Corrupt Practices Act (FCPA) in the United States in 2015 itself,” PG Sunil Kumar, a social activist and financial analyst, told The Lede.
“Then the company had paid a $17.1 million criminal penalty to resolve charges that it bribed foreign officials in India, Indonesia, Vietnam and Kuwait to secure government construction management contracts in 2015,” the social activist said.
The case was probed by FBI’s Newark Division in the US.
Bribery In Goa And Guwahati
Meanwhile, the Indian Central Investigation of Bureau FIR (in possession with The Lede) also claims that it is probing a case against Louis Berger on bribery charges in Goa and Guwahati.
The FIR dated 2017 reads that the company had bribed government officials to win two water projects in Goa and Guwahati.
According to media reports, in Goa, former Chief Ministers Churchill Alemao and Digambar Kamat and other government officials were accused of allegedly accepting bribes in 2010 itself from the officials of Louis Berger consultancy firm to secure implementation rights of a multi-billion dollar water and sewerage project in the state worth Rs 1031 crore, funded by the Japan International Co-operation Agency (JICA).
Senior top officials linked to the JICA project as well as a few Louis Berger employees, besides Alemao, were arrested by the Crime Branch. Kamat was charged with criminal conspiracy.
The FIR was first filed in the US. Subsequently, the Enforcement Directorate (ED) started a separate probe in the case under the Prevention of Money Laundering Act 2002 and in 2017 the ED attached properties belonging to Kamat and Alemao worth Rs 1.95 crore, which were purchased around the time the scam occurred.
And in Assam, the allegations were raised against then Assam Finance Minister Himanta Biswa Sarma by the BJP itself in a booklet entitled “Water Supply Scam 2010 in Goa and Guwahati” on 21 July 2015.
However, within a year, right before the Assam legislative assembly polls in 2016, Sarma joined the BJP and now holds the state Health and Finance portfolios. Even though CBI is probing many officials, in connection with the scam, it has kept Sarma out of the probe.
L Narayan, a financial analyst in Kerala, told The Lede that there is no surprise in learning that the current government in Kerala has given the job to a tainted company.
“During the end period of previous Congress-led government, there were allegations that the government was totally immersed in corruption. But now we see that this Communist government is worse than them,” Narayan said.
“Didn’t this government know that this company is a tainted one? They might be aware of it. But they ignore such things. Even in many other projects we can see that tainted and inexperienced firms are given the job. This is where corruption happens,” Narayan added.
The Kerala government had decided to build the 2263 acre Sabarimala Greenfield international airport in Cheruvally Estate, near Erumely, in Central Travancore in 2017 and Louis Berger was entrusted to carry out the feasibility study.
Cheruvally Estate is 2.5 km from the Theni-Kottarakara National Highway and close to Erumely town in Kottayam district and is located on the way to the Ayyappa temple at Sabarimala, 136 km from Thiruvananthapuram and 113 km from Kochi.
The airport will ease the travel of Sabarimala pilgrims because the Cheruvally Estate is just 40 kilometres from Sabarimala. When built, the airport will ease the travel woes of pilgrims coming from Tamil Nadu and Andhra Pradesh.
Additionally, the airport will help Non-Resident Keralites (NRK) in Pathanamthitta district on the travel front. Pathanamthitta has a high density of NRKs and currently they depend on either Thiruvananthapuram airport or Kochi airport.
Earlier there was a plan to build an airport in Aranmula, a temple town near Thiruvalla. Thiruvalla is often called the ‘Vatican’ of the NRKs. However, as the proposed airport site was a wetland and paddyland near a river where the famous Aranmula Boat race is held, agitation from the people and green activists forced the government to drop the project.
It was then that the Sabarimala airport project was reconsidered.
Some two years ago, there was a move to take over the land under the possession of Cheruvally estate and a court case is being fought in connection with the ownership of Cheruvally Estate.
The land is ‘owned’ by Believers Church. In 2005, they had bought the land from Harrison Malayalam Limited.
And last week, a meeting chaired by Chief Minister Pinarayi Vijayan has decided to take over the land by depositing an amount equivalent to the value of the acquired land in the court, in accordance with 2013 Land Acquisition Act Section 77. The amount will be handed over to the owner based on final court order.
Move To Help Believers Church?
Susheela Bhatt, former government pleader, told The Lede that the government’s move is to help Believers Church.
“When I was the government pleader, Kerala High Court’s Single Bench had given a verdict stating that the land belongs to the state government. I fought the case and won. However I was removed from the post. After that, the Believers Church appealed, and they got a favourable verdict from a Division Bench. In fact, the government didn’t put forward their points. I strongly believe that they didn’t want to win the case,” the former government pleader said.
Additionally, “for the sake of appearances”, the government moved the Supreme Court and again “deliberately” lost the case, the former government pleader alleged.
“In the Supreme Court, those who represented the government were not learned counsel and they failed the case. Eventually, the Believers Church secured a position that the land belongs to them,” said the former government pleader.
In 2017, Kerala Chief Minister Pinarayi Vijayan had stated in a written reply in State Assembly that the Cheruvally Estate is government land.
Pinarayi had said the Settlement Register, the basic revenue document, reveals the estate is government land.
“The ownership dispute is currently before the Kerala High Court. The Special Officer had issued orders for recovering the plantation on May 28, 2015,” the reply reads.
However, as the former government pleader alleges, the case failed before the Division Bench of the High Court.
“Now when the government says that it will acquire the land through Kerala Land Acquisition Act 2013 by depositing the money, then the government is deliberately agreeing that the land belongs to Believers Church, which is a contradiction of its own statement made in Assembly,” the former government pleader alleged.
Meanwhile, the move from the Kerala government to acquire the Cheruvally Estate has been opposed by the Believers Church authorities.
Believers Church spokesperson Fr. Sijo Pandappallil said that they have no knowledge about the government’s procedures regarding the proposed airport in Cheruvally estate and that the church owns the estate. He added that the Supreme Court had already given a verdict in favour of the church regarding the ownership of the estate, dismissing all the claims by the government.
“There is no case as on date in any of the courts in our country regarding the ownership of the estate. Special Officer MG Rajamanickam IAS had said that this land could be taken over by the government. Following that we approached the courts and got a favourable verdict,” Pandappallil said.
The Special Officer was appointed by the government to probe the land owned by big plantation groups and retrieve it.
Even though Rajamaickam ordered the retrieval of a good amount of land, especially from Harrison Malayalam Limited, on the basis of his findings from land deeds, the Kerala High Court stayed his proceedings.
In April 2018, the High Court Division Bench issued a ban on retrieving the land.
The verdict came in response to a petition filed by Harrisons Malayalam Limited (HML). The Division Bench has also rejected the pleas questioning the ownership of Harrisons Land.
The government had taken over three estates of Harrisons on May 28 in 2015.
On the basis of Kerala Land Conservancy Act, 1957, the government had retrieved 5170 acres of land including Riya Resorts & Properties (207 acres) in Kollam owned and sold by Harrison Malayalam Plantations, Kollam Travancore Rubber & Tea Ltd (2700 acres), Cheruvally Estate (2263 acres) in Kottayam.
The government had argued in court that Harrison Malayalam authorities had usurped land, by forging documents and they sold it to several persons later and hence the government is entitled to the land.
However, the court accepted Harrison's argument that appointment of special officers and procedures were against law. After this it stayed the taking over of land.
According to Pandappallil, there is no case in any court regarding the ownership dispute of the land.
“So the question of depositing money in the court and taking over the land has to be probed later on. The church is not against the government or the developmental plans of the state government. The church would extend all possible support for any project which honours the verdict of the judiciary of the nation regarding the ownership of the land,” Pandappallil said, adding that the Holy Synod of the Church would meet and decide upon any further proceedings as and when they get any official communication regarding the same from the government.
History Of HML
According to the 2018 court papers, in the later part of 1800s, Malayalam Rubber & Produce Co Ltd (MPRL), a company incorporated and registered in London, held large extents of land in the erstwhile Princely State of Travancore.
On 14 July 1921, a new company, called 'Malayalam Plantations Ltd' (MP (UK) Ltd) was incorporated and registered in England by way of a special resolution and all estates and assets held by MRPL were transferred to the newly incorporated company.
The MP (UK) Ltd was a company recognised by the erstwhile Travancore government to do business in the State of Travancore vide document No 1600/1923 registered at the Sub Registrar’s Office, Quilon, by which the estates and assets held by the MRPL was formally transferred to MP (UK) Ltd.
Even after Indian independence, MP (UK) Ltd continued to hold lands and there were also proceedings initiated for exemption under the Kerala Land Reforms Act, which were granted by the Land Board of Kerala.
Subsequently, on introduction of the Foreign Exchange Regulation Act, 1973, MP (UK) Ltd applied for and obtained permission under Section 29(2)(a) and (c) of the Act for continuing business in India.
MP (UK) Ltd continued their business in India as per the approval granted by the Reserve Bank of India and held lands within the State of Travancore-Cochin and then, the State of Kerala paying tax or lease rent in accordance with the laws applicable.
The lands thus held by MP (UK) Ltd were freehold, leasehold and lands on which fixity of tenure was obtained.
On 15 January 1978, Malayalam Plantations India Ltd (MP (India) Ltd) was registered in India as an Indian company under the Companies Act, 1956.
Since there was foreign holding, necessary approval was obtained by MP (India) Ltd. from the RBI and there was a scheme formulated for amalgamation with the MP (UK) Ltd.
The RBI communication dated 20 February 1979, agreed to the transfer of the entire business undertaking in India of MP (UK) Ltd to MP (India) Ltd with effect from 01 April 1978 and approved a scheme of amalgamation, which was to be then approved by the High Court of Kerala.
The court, on 04 April 1979 approved the amalgamation as per the Scheme of Arrangement of Amalgamation.
On 05 May 1979, the RBI approved the takeover of MP (UK) Ltd by MP (India) Ltd with effect from 01 April 1978 and also permitted issuance at par of equity shares under Section 19(1)(a) of FERA to Malayalam Plantation (Holding) Limited (UK); again a company incorporated in the United Kingdom (MP (Holdings) Ltd).
Meanwhile, Harrisons & Crossfield (India) Ltd, a company was incorporated in 1978 in Cochin, Kerala, and in 1984 it was amalgamated with MP (India) Ltd based on a Scheme of Arrangement, which was approved by the High Court of Kerala in C.P.No.13/1984.
Harrisons was engaged in various businesses including tea, rubber cardamom and cocoa plantations; structural, civil mechanical and electrical engineering, trading in tea, coffee and spices and exporting them; estate supplies and trading clearing, shipping, air travel and air cargo.
And the company took over the assets of a number of smaller companies - The East India Tea & Produce Co Ltd, Wynaad Tea Co Ltd, Mooply Valley Tea Co Ltd, Malayalam Rubber & Produce Co Ltd and Wallardie Tea Estate Ltd.
Later, a fresh Certificate of Incorporation was issued by the Registrar of Companies, Ernakulam on 29 October 1984 and there was uninterrupted ownership, possession, enjoyment and payment of taxes due from then on by the new company so formed on amalgamation; Harrisons Malayalam Limited (HML).
Rs 4.6 Cr For Louis Berger
On the Sabarimala airport project, Louis Berger had submitted the report to Kerala State Industrial Development Corporation (KSDIC) in November 2018, with a three-month delay, which was forwarded to the government in December 2018 by KSDIC.
And in August the government had set up a panel to move forward. However, the RTI document dated 24 September 2019, states that the report is still under government consideration.
Additionally, the RTI reply (in possession with The Lede) reveals that Louis Berger was given the job by discarding RITES Ltd, a Government of India Enterprise established in 1974, under the aegis of Indian Railways.
The RTI also reveals that Rs 4.6 crore was paid to Louis Berger to conduct the feasibility study.
K Govindan Nampoothiry, the RTI activist who secured the timeline and price details of Sabarimala airport feasibility report, told The Lede that for unknown reasons the government is taking a go-slow attitude on the airport project.
“Additionally, still we don’t know what kind of study was conducted. Everything is in the dark,” Govindan added.
The Lede has requested the chief minister's office for a response on the issue and will update this story if and when a response is provided.