Kerala High Court
Unaisa vs The District Collector on 7 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
THURSDAY, THE 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942
WP(C).No.16231 OF 2020(D)
PETITIONER:
UNAISA
AGED 43 YEARS
W/O. ABDUL SALAM K M, MAROTTIKKAL HOUSE,
THOPPIL PADANATTUPARAMBU, THRIKKAKARA P.O,
ERNAKULAM DISTRICT-682 021
BY ADVS.
SRI.K.N.ABHILASH
SRI.SUNIL NAIR PALAKKAT
SRI.M.A.AHAMMAD SAHEER
SRI.P.B.MUHAMMED AJEESH
RESPONDENTS:
1 THE DISTRICT COLLECTOR
ERNAKULAM DISTRICT, COLLECTORATE,
ERNAKULAM, PIN-682 030
2 DEPUTY COLLECTOR(LAND ACQUISITION)
KOCHI METRO RAIL PROJECT, CIVIL STATION,
KAKKANAD, ERNAKULAM-682 030
SMT SHEEJA CS SR GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
07.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.16231 OF 2020 2
"CR"
JUDGMENT
The Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as "Act 30
of 2013") was enacted by the Parliament to ensure a humane, participative,
informed and transparent process for land acquisition when the mighty state
exercises its powers under eminent domain for furthering infrastructural
development and urbanisation. An examination of the various provisions of
the Act would reveal that much emphasis has been given to ensure that least
disturbance is caused to the owners of the land affected by such acquisition
and to other affected families and they are provided a just and fair
compensation. The legislature also intended that there should be sufficient
measures to provide rehabilitation and resettlement to the affected families.
The Parliament wanted to ensure that the cumulative outcome of compulsory
acquisition should be that affected persons become partners in development
leading to an improvement in their social and economic status post
acquisition.
2. The grievance raised by the petitioner in this Writ petition
concerns one such acquisition made under Act 30 of 2013. Her grievance is
that the respondents acquired the shop room where she was conducting
business of bag manufacture for over a decade but she was deprived of the
compensation to which she was legally entitled.
3. To appreciate the exact grievance of the petitioner, the facts
need to be recapitulated in some detail.
4. The property comprised in Sy No. 208/4 and 209/7 of
Vazhakkala Village was required for the purpose of expansion of Kochi Metro
Rail from Jawaharlal Nehru Stadium to Vazhakkala. The husband of the
petitioner had commenced a bag manufacturing unit, "Spinz Bag Works" in a
shop room, taken on lease and having an area of 300 square feet and
bearing building No.32/1243 of the Thrikkakkara Municipality. The petitioner
states that she used to manage the business while her husband looked after
the marketing and sales. She states that the bag manufacturing unit was the
primary and only source of income for the family consisting of the husband
and wife, their two daughters and aged parents of her husband. Three
migrant labourers were also provided with employment in the said
establishment. To substantiate the fact that the unit was commenced in the
year 2004 and that it is having a license from the local authority even on the
date of filing of the Writ petition, the petitioner relies on Exhibit P 1 license
deed as well as Exhibit P2 receipt for payment of licence fee. While so, the
husband of the petitioner secured a job as a class IV employee as a sweeper
with the Cochin University of Science and Technology. Immediately
thereafter the license was transferred in the name of the petitioner herein
which fact is evident from Exhibit P3. The petitioner received notice of
acquisition under Section 11 (1) of Act 30 of 2013 from the office of the 2nd
respondent. Later she realised that she was not included in Exhibit P4
package issued by the respondent as one of the persons who are entitled to
compensation as an affected person. Being aggrieved the petitioner is stated
to have preferred Exhibit P5 before the second respondent. However without
even affording her an opportunity of being heard her request was rejected
by Exhibit P6 order. In Exhibit P6 it is stated by the respondent that the
petitioner is not entitled to any compensation as an affected person as her
primary source of livelihood does not stand affected by the acquisition of the
land as her husband has acquired the employment. The petitioner states that
the order passed by the respondent is arbitrary, illegal and clearly against
the provisions of Act 30 of 2013. It is in the aforesaid circumstances that
the petitioner is before this Court seeking the following reliefs:-
i) Issue a writ of certiorari or appropriate writ, order or
direction to call for the records leading to the Ext.P6 order
and quash the same.
ii) Issue a writ of mandamus or other appropriate writ, order
or direction commanding the respondents to grant the
petitioner adequate compensation under the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013.
5. A statement has been filed by the second respondent as
directed by this Court. It is stated that the property wherein the petitioner
herein was carrying out business on the strength of a lease arrangement was
the subject matter of acquisition proceedings for the purpose of expansion of
Kochi Metro Rail and the acquisition proceedings were initiated under Act
2013. It is stated that the petitioner failed to produce the relevant
documents before the authority to prove that she had been running the shop
for a period of three years prior to the acquisition of the land. On further
enquiry it was revealed that the license was transferred in favour of the
petitioner in the wake of appointment of the petitioner's husband as an
employee at the Cochin University of Science and Technology. According to
the respondent, since her husband has acquired employment, the primary
source of livelihood of the petitioner would not be affected by the acquisition
proceedings.
6. I have considered the submissions advanced by Sri Abhilash K.N,
the learned counsel appearing for the petitioner and Smt.Sheeja C.S, the
learned senior Government Pleader. I have also carefully gone through the
records.
7. It is undisputed that the husband of the petitioner had
commenced and was running a bag manufacturing unit in the shop room
which is proposed to be acquired for extension of Kochi Metro Rail. Ext.P1 is
the license issued by the Secretary, Thrikkakara Grama Panchayath in the
year 2004 under the provisions of the Panchayath Raj Act, 1994 granting
license to the husband of the petitioner to operate the bag manufacturing
unit within the panchayath limits. Ext.P2 receipt of license fee would show
that the husband of the petitioner was the licensee even on 23.2.2018. He is
stated to have secured employment as a Class IV employee (sweeper) in
Cochin University on 3.1.2019. Exhibit P4 is the approved rehabilitation and
settlement scheme published in the newspaper in terms of Section 18 of the
Act. Ext.P4 reveals that the notification under Section 11(1) was published
in the Gazette on 21.12.2018. Thus even on the date of issuance of 11(1)
notification, the husband of the petitioner was the licensee of the unit and
was running a bag manufacturing unit. Ext.P3 receipt shows that the license
was transferred in the name of the petitioner on 23.1.2019.
8. Section 31 of Act 30 of 2013 provides for grant of rehabilitation
and resettlement award for affected families by the Collector. The said
provision reads as follows:
Section 31 - Rehabilitation and Resettlement Award for affected families
by Collector
(1) The Collector shall pass Rehabilitation and Resettlement Awards for
each affected family in terms of the entitlements provided in the
Second Schedule.
(2) The Rehabilitation and Resettlement Award shall include all of the
following, namely:--
(a) rehabilitation and resettlement amount payable to the family;
(b) bank account number of the person to which the rehabilitation
and resettlement award amount is to be transferred;
(c) particulars of house site and house to be allotted, in case of
displaced families;
(d) particulars of land allotted to the displaced families;
(e)particulars of one time subsistence allowance and
transportation allowance in case of displaced families;
(f) particulars of payment for cattle shed and petty shops;
(g) particulars of one-time amount to artisans and small traders;
(h) details of mandatory employment to be provided to the
members of the affected families;
(i) particulars of any fishing rights that may be involved;
(j) particulars of annuity and other entitlements to be provided;
(k) particulars of special provisions for the Scheduled Castes and
the Scheduled Tribes to be provided:
Provided that in case any of the matters specified under clauses
(a) to (k) are not applicable to any affected family the same shall
be indicated as ''not applicable":
Provided further that the appropriate Government may, by
notification increase the rate of rehabilitation and resettlement
amount payable to the affected families, taking into account the
rise in the price index.
9. Section 31 states that the Collector is required to pass
rehabilitation and resettlement awards for each affected family and sub
clause (g) states that while passing awards, artisans and small traders are
also to be considered.
10. Affected family is defined under Section 3 (c) of the Act. The
said provision reads thus
(c) "affected family" includes--
(i) a family whose land or other immovable property has been
acquired;
(ii) a family which does not own any land but a member or members
of such family may be agricultural labourers, tenants including
any form of tenancy or holding of usufruct right, share-croppers
or artisans or who may be working in the affected area for three
years prior to the acquisition of the land, whose primary source
of livelihood stand affected by the acquisition of land;
(iii) the Scheduled Tribes and other traditional forest dwellers who
have lost any of their forest rights recognised under the
Scheduled Tribes and Other Traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006 (2 of 2007) due to
acquisition of land;
(iv) family whose primary source of livelihood for three years prior to
the acquisition of the land is dependent on forests or water
bodies and includes gatherers of forest produce, hunters, fisher
folk and boatmen and such livelihood is affected due to
acquisition of land;
(v) a member of the family who has been assigned land by the State
Government or the Central Government under any of its
schemes and such land is under acquisition;
(vi) a family residing on any land in the urban areas for preceding
three years or more prior to the acquisition of the land or whose
primary source of livelihood for three years prior to the
acquisition of the land is affected by the acquisition of such
land;
11. Section 3(c) (ii) clearly states that affected family would include
tenants of any form of tenancy or holding of usufruct right, sharecroppers or
artisans or who may be working in the affected area for three years prior to
the acquisition of the land, whose primary source of livelihood stand affected
by the acquisition of land.
12. Section 3 (m) of the Act defines 'family', which reads as follows:
3(m) 'Family' includes a person, his or her spouse, minor children, minor
brothers and minor sisters dependent on him:
Provided that widows, divorcees and women deserted by families shall
be considered separate families;
Explanation -- An adult of either gender with or without spouse or
children or dependents shall be considered as a separate family for
the purposes of this Act.
13. Therefore, to be entitled to rehabilitation and resettlement
compensation, the family of the petitioner will have to satisfy section 3 (c)(ii)
of the Act. That is to say,
(a) the affected should have been occupying the tenanted premises
prior to three years prior to the acquisition of the land.
(b) There must be materials to show that the primary source of
livelihood of the family has been affected by such acquisition.
14. Insofar as the first condition is concerned, there are cogent
materials to show that the husband of the petitioner and later the petitioner
was conducting bag manufacturing business in a tenanted premises for more
than 3 years prior to the acquisition of the land. The respondent has stated
that no materials were produced by the petitioner to substantiate the fact.
However the fact remains that the petitioner was not afforded an opportunity
to produce materials by the respondent.
15. The second condition is as to whether the primary source of
livelihood of the affected family was affected by such acquisition. Her
request for compensation was turned down on the sole ground that her
husband secured employment in the Cochin University subsequent to the
issuance of the notification. As stated above, there were no materials before
the respondent about the income which was being earned by the petitioner
from the bag manufacturing business. There were also no materials before
the respondent about the quantum of salary that was being received by her
husband from his employment. In P. Ramanatha Aiyar's 'The Law Lexicon',
Fourth Edition, 'Primary' has been defined to mean that which is first in
order, rank or importance, anything from which something else arises or is
derived. Primary as an adjective would mean main, principal, of first rank,
importance or value. Primary source of livelihood would mean the main or
principal source of livelihood. If the salary received by the husband was
meagre when compared to the income derived by the family from the
business, then it cannot be said that the income from the salary was the
primary source of livelihood of a family consisting of husband and wife, two
children and grandparents. The records do not reveal that an opportunity
was granted to the petitioner to produce records to show the details of
income derived by her from her bag manufacturing business or the salary
received by her husband. If the amount that was being received from the
business was the primary source of livelihood of the family, and if the said
source is taken away due to the acquisition, the family would fall within the
purview of the term 'affected family' and the family cannot be denied
compensation towards rehabilitation and resettlement.
16. There is yet another matter which merits consideration.
17. Section 108 of Act 30 of 2013 gives an option to the affected
families to avail better compensation and rehabilitation and resettlement.
Section 108 reads thus:
S. 108. Option to affected families to avail better compensation and
rehabilitation and resettlement.-
(1) Where a State law or a policy framed by the Government of a State
provides for a higher compensation than calculated under this Act for
the acquisition of land, the affected persons or his family or member
of his family may at their option opt to avail such higher
compensation and rehabilitation and resettlement under such State
law or such policy of the State.
(2) Where a State law or a policy framed by the Government of a State
offers more beneficial rehabilitation and resettlement provisions
under that Act or policy than under this Act, the affected persons or
his family or member of his family may at his option opt to avail such
rehabilitation and resettlement provisions under such State law or
such policy of the State instead of under this Act. (emphasis
supplied)
18. The State of Kerala taking note of the serious opposition faced in
the State to the acquisition of land invoking Act 30 of 2013, decided that it
was necessary to have a clear and transparent policy for rehabilitation and
resettlement. A committee was formed and the said committee in its meeting
took note of the stiff resistance from all corners from petty traders, shop
owners etc during this entire process. The Committee decided to slightly
deviate from those provided under the 2nd schedule of Act 30 of 2013 and
give more compensation to the affected parties considering the prevailing
conditions existing in the State. On serious and deliberate discussions, the
Committee unanimously came to the conclusion for providing more
assistance rather than included in the 2nd schedule of Act 30 of 2013. The
Government later examined the matter in detail and approved a
comprehensive Rehabilitation and Resettlement Policy for land acquisition in
the State by slightly deviating from those provided under the 2nd schedule
of Act 30 of 2013 and give more compensation to the affected parties
considering the prevailing conditions existing in the State. The draft package
which was approved by the Government is extracted below for easy
reference.
"DRAFT PACKAGE PREPARED FOR REHABILITATION AND
RESTORATION ON THE BASIS OF SCHEDULE No.2 TO RFCT in LARR
Act, 2013 AND ORDER OF THE REVENUE (B) DEPARTMENT G.O.(Ms)
446/2017/RD DATED 29-12-2017
A) Package for the owner who lost the house:
Condition: Should reside in the affected area continuously for three years
before the notification is issued and evicted from such area not his own.
Sl.No. In Details Amount (Rs)
State
Policy
1 Financial Assistance to construct the house for 3,00,000
the family evicted
4 One Time Financial Assistance for persons who 5,00,000
had not received compensation/employment
5 Maintenance Grant (5000 x 12 months) 60,000
6 Transportation charges for the family evicted 50,000
10 One Time Allowance for restoration 50,000
Total 9,60,000
B) Package for tenant who lost the house:
Condition: Should reside in the affected area continuously for three years
before the notification is issued and evicted from such area not his own.
Sl.No. In Details Amount(Rs)
State Policy
6 Transportation charges for the family 50,000
evicted
10 One Time Allowance for restoration 50,000
12 One Time Allowance for shifting 30,000
Total 1,30,000
C) Package for persons who lost commercial business establishments.
Condition: Individual or family who should function in the affected area
continuously for three years before the notification is issued and evicted
from such area not his own and thereby adversely affected their primary
means of livelihood.
i) Package for the owner conducting business
4 One Time Financial Assistance for persons 5,00,000
who had not received
compensation/employment
5 Maintenance Grant (5000 x 12 months) 60,000
6 One time financial assistance 50,000
10 One time allowance for restoration 50,000
Total 6,60,000
ii) Package for the tenant conducting business.
Including the shifting charges and other social expenses (Banks, other
financial institutions and big shops which is having an area of more than
2000 sq. feet is not entitled to get the benefit of this scheme)
4 One Time Financial Assistance for persons who 5,00,000
had not received compensation/employment
5 Maintenance Grant (5000 x 12 months) 60,000
10 One time allowance for restoration 50,000
11 One Time Allowance for shifting 2,00,000
Total 8,10,000
iii) Package for owners who lost their rent:
4 One Time Financial Assistance for persons who 5,00,000
had not received compensation/employment
8 One time financial assistance 50,000
Total 5,50,000
D) Package for the employees working in the commercial business
establishments.
Condition: Persons should work in the commercial business establishment
functioned in the affected area continuously for three years before the
notification is issued.
12 Financial Assistance for persons who lost 36,000
their means of livelihood (6000 x 6 months)
Total 36000
E) Package for persons who lost cattle shed/small petty shop
7 One Time Financial Assistance for 25,000/- to 50,000/-
restoration of cattle shed/small petty shops.
F) Package for shifting the prayer homes
15 Actual expense for shifting and restoration Up to a maximum of
Rs.1,00,000/-
G) Package for persons who lost their self employment/small business
establishment. One Time Package:
8 One Time Financial Assistance 50,000/-
H) Package for persons residing in Puramboke and conducting business:
Condition: Should reside in the affected area/conducted business
continuously for three years before the 4(1) notification is issued and
evicted from such area not his own.
14 Financial Assistance Rs.30,000/- apart from the value
of the building/ appurtenant
thereof. (5000x 6 months)
Administrator."
As per the package approved by the State, a tenant who is conducting
business is also entitled to get the benefit of the Scheme including shifting
and social expenses. However Banks or other financial institutions and big
shops which are having an area of more than 2000 sq. feet, who are
occupying the premises as tenants are excluded. There cannot be any doubt
that the bag manufacturing unit of the petitioner will not fall in the excluded
category. When the policy framed by the Government provides for better
benefits to the tenant towards rehabilitation and resettlement as against
what is provided under the Act, there is no justification on the part of the
respondents in excluding the petitioner. I am satisfied that while rejecting
the request of the petitioner, the respondents failed to take note of the
relevant aspects. I hold that Ext.P6 is irrational, vitiated by wednesbury
unreasonableness, arbitrary in all its facets and passed in violation of the
principles of natural justice. For all these reasons, Ext.P6 cannot be
sustained.
Resultantly, Exhibit P6 will stand quashed. The 2nd respondent shall
reconsider Ext.P5 application submitted by the petitioner in the light of the
observations made above and pass fresh orders, with notice to the petitioner.
Orders shall be passed within a period of eight weeks from the date of
receipt of a copy of this Judgment.
This writ petition is disposed of.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
ps
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE LICENSE DATED 25-06-
2004 ISSUED BY THE ERSTWHILE THRIKKAKARA
GRAMA PANCHAYATH IN FAVOUR OF THE HUSBAND
OF THE PETITIONER.
EXHIBIT P2 THE TRUE COPY OF THE CASH RECEIPT FOR
LICENSE FEE DATED 23-02-2018 ISSUED BY
THE THRIKKAKARA MUNICIPALITY IN FAVOUR OF
THE HUSBAND OF THE PETITIONER.
EXHIBIT P3 THE TRUE COPY OF THE CASH RECEIPT FOR
LICENSE FEE DATED 23-01-2019 ISSUED BY
THE THRIKKAKARA MUNICIPALITY IN FAVOUR OF
THE PETITIONER.
EXHIBIT P4 THE TRUE COPY OF THE NOTIFICATION
PUBLISHED IN KERALA KAUMUDY DAILY DATED
18-03-2020
EXHIBIT P5 THE TRUE COPY OF THE APPLICATION DATED
15-05-2020 FILED BY THE PETITIONER BEFORE
THE 2ND RESPONDENT.
EXHIBIT P6 THE TRUE COPY OF THE ORDE DATED 02-07-
2020 PASSED BY THE 2ND RESPONDENT.
RESPONDENTS' EXHIBITS:
NIL
