Kerala High Court
Fathima P.P vs Union Of India on 12 April, 2024
WP(C) No.38747/2023 1/8
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
Friday, the 12th day of April 2024 / 23rd Chaithra, 1946
WP(C) NO. 38747 OF 2023
PETITIONERS:
1. FATHIMA P.P., AGED 60 YEARS, D/O. LATE MAHMOOD, PAPPADAM HOUSE,
KAVARATTI, UNION TERRITORY OF LAKSHADWEEP, PIN - 682555.
AND 6 OTHERS
RESPONDENTS:
1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT,
MINISTRY OF HOME AFFAIRS, GOVERNMENT OF INDIA, NEW DELHI, PIN -
110001.
AND 5 OTHERS
Writ petition (civil) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(C) the High Court be
pleased to pass an interim order staying operation of Exhibit P1 and P8,
pending consideration of the writ petition.
This petition again coming on for orders upon perusing the petition
and the affidavit filed in support of WP(C) and this Court's order dated
03.04.2024 and upon hearing the arguments of M/s. LAL K.JOSEPH,
P.K.SALEEM, P.MURALEEDHARAN (THURAVOOR), T.A.LUXY, SURESH SUKUMAR, ANZIL
SALIM, KOYA ARAFA MIRAGE and SANJAY SELLEN, Advocates for the petitioners,
DEPUTY SOLICITOR GENERAL OF INDIA & K.S.PRENJITH KUMAR(CENTRAL GOVERNMENT
COUNSEL)for R1 and SRI.SAJITHKUMAR.V., STANDING COUNSEL for R2 to R5 and
of DEPUTY SOLICITOR GENERAL OF INDIA and SRI.T.C.KRISHNA(CENTRAL
GOVERNMENT COUNSEL) for R6, the court passed the following:
p.t.o
WP(C) No.38747/2023 2/8
VIJU ABRAHAM, J.
.................................................................
W.P.(C) Nos.38565 & 38747 of 2023
.................................................................
Dated this the 12th day of April, 2024
ORDER
W.P.(C) No.38565 of 2023 is filed challenging Exts.P3, P4 and P14 and W.P.(C) No.38747 of 2023 is filed challenging Exts.P1 and P8. By the impugned orders, a decision was taken by the Lakshwadeep Administration to utilize the land covered by these writ petitions for placement of a radar for the Indian Air Force and on a finding that the subject lands are pandaram lands and proprietary rights vest with the Government, decided to take possession of the land after disbursement of compensation for improvements. The stand taken by the writ petitioners in these writ petitions is that going by Tenancy Regulations and Survey Regulations, the definition of the 'land owner' will take in also persons who is shown as holding pandaram land as a cowledar in the government records and therefore, the petitioners have proprietary rights over the property and the same can be taken over only after following the provisions of the the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 by awarding compensation for both land value and for improvements made. It is contended that on earlier occasions when land was required for WP(C) No.38747/2023 3/8 W.P.(C) Nos.38565 & 38747 of 2023 2 government purpose, same was acquired as evidenced from Ext.P5 (a). It is also contended that as per Ext.P6 communication issued by the Government of India, it is clarified that cowledars should be given full ownership of the lands with permanent, heritable and transferable rights and that they are entitled to full compensation subject to the limits laid down under the Land Acquisition Act.
2. The stand of the Lakswadeep Administration in their counter affidavit is that it is the Government who has the proprietary rights over the property and cowledars of pandaram lands are mere leaseholders of Government land. Learned standing counsel for the Lakshwadeep Administration relies on the judgment in W.P.(C) No.28018 of 2006 and Ext.P1 judgment in support of their contention and contended that the petitioners are not the title holders of the property, they are not entitled for any compensation towards the value of the land. The Government of India by Ext.R3(a) communication dated 20.12.2023 clarified that Ext.P6 communication issued earlier should be treated as withdrawn.
3. This Court while admitting these matters passed an order staying the impugned orders and the same is in force till date. Similar matters also came before this Court and in all those matters interim orders were granted staying the operation of the impugned orders.
WP(C) No.38747/2023 4/8W.P.(C) Nos.38565 & 38747 of 2023 3
4. In the present case, the 5th respondent, the Indian Air Force has filed an affidavit seeking to vacate the interim order contending that the subject land is an isolated land mass near the solar field of Kavaratty and it is more suitable for placement of IAF, Air Defence assets, a transportable radar. Learned Central Government counsel appearing for the 5th respondent as well as learned counsel appearing for the Lakshadeep Administration sought for vacating the interim order for the purpose of installation of a transportable radar in the subject property. The learned Senior counsel appearing for the petitioners in W.P.(C) No.38565 of 2023 and the learned counsel appearing for the petitioners in W.P.(C) No.38747 of 2023 submits that the intention of the administration and of the Government of India is to grab their land without following the provisions of the Act 2013 and without paying compensation for the land. Thereupon, the learned Central Government counsel appearing for the 5th respondent as well as learned counsel appearing for the Lakshadeep Administration would submit that they may be permitted to install a transportable radar in the subject property and since the radars are transportable in nature, in the event of any further orders from this Court regarding the relocation of such radar, the Indian Airforce will be able to transport the radar and other connected equipments within a period of 30 WP(C) No.38747/2023 5/8 W.P.(C) Nos.38565 & 38747 of 2023 4 days of the said order and that the constructions proposed to be done by the Indian Air Force on the subject properties are of a temporary nature.
5. Admittedly, interim orders have been granted in these cases and also in a batch of similar writ petitions pending before this Court. I am of the view that as interim orders have been granted in all the writ petitions pending consideration before this Court on the very same subject matter, all these writ petitions are to be heard and disposed of together. But taking into consideration the importance of installation of a radar system in the subject property in national security point of view, I am of the opinion that respondents in these writ petitions could be allowed to install a transportable radar in the subject property temporarily without vacating the interim orders granted in these writ petitions on the following conditions:
A. The installation of transportable radars in the subject property shall be strictly provisional and subject to the final outcome of the writ petitions.
B. A permission is granted for the installation of transportable radars taking into consideration the interest of national security and not as a matter of right for the respondents including the Lakshwadeep Administration and Indian Air WP(C) No.38747/2023 6/8 W.P.(C) Nos.38565 & 38747 of 2023 5 Force and the inter se right over the subject property will be decided in these writ petitions.
C. The permission now granted by this Court for the installation of transportable radar is without prejudice to the contentions of the petitioners in these writ petitions.
D. The undertaking of the 5th respondent in W.P.(C) No.38565 of 2023 that on orders being issued by this Court in these writ petitions, the transportable radar installed and the constructions made will be removed from the property within a period of 90 days of such order, is recorded. E. The respondents will not be able to raise any contention in their favour at the time of final disposal of the writ petition on the strength of the permission now granted by this Court for installation of transportable radars and the rights of the parties will be decided on its own merits at the time of final disposal of these writ petitions.
F. The respondents i.e., Lakshwadeep Administration and Indian Air Force will put the petitioners with a notice in writing their intention to install a transportable radar in the subject property on the basis of the permission now granted by this order and WP(C) No.38747/2023 7/8 W.P.(C) Nos.38565 & 38747 of 2023 6 only thereafter further steps shall be taken for installation of the same.
G. Before any such installation is carried out in the subject property, the valuation of the damage caused to the improvements in the subject property shall be duly ascertained and a detailed valuation statement including the amount of compensation determined shall be intimated in writing to the petitioners and the amount of compensation assured shall be disbursed to the petitioners, and the petitioners will be free to receive the same, under protest, subject to the outcome of the writ petitions.
The interim order granted will continue to be in force till the next posting date.
Post along with connected cases.
Sd/-
VIJU ABRAHAM
JUDGE
cks
12-04-2024 /True Copy/ Assistant Registrar
WP(C) No.38747/2023 8/8
APPENDIX OF WP(C) 38747/2023
Exhibit P1 THE TRUE COPY OF THE ORDER F.NO.34/52/2016-
LR(PART)/1086 DATED 7/11/2023 PASSED BY THE 4TH RESPONDENT.
Exhibit P6 THE TRUE COPY OF THE REVIEW PETITION AND THE STAY PETITION DATED 16/11/2023 SUBMITTED BY THE PETITIONERS 1 TO 6 BEFORE THE 4TH RESPONDENT.
Exhibit P8 THE TRUE COPY OF THE ORDER F.NO.3/1/2023-DC (KVT) DATED 17/11/2023 PASSED BY THE 5TH RESPONDENT.
12-04-2024 /True Copy/ Assistant Registrar