P.M.Basheerudeen vs Union Of India
2021 Latest Caselaw 18854 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
 FRIDAY, THE 10TH DAY OF SEPTEMBER 2021 / 19TH BHADRA, 1943
                   WP(C) NO. 5946 OF 2021
PETITIONER:

         P.M.BASHEERUDEEN
         AGED 63 YEARS
         S/O. MOHAMMED KUNJU, POLAKKULAM HOUSE,
         PUNNAPRA P.O, ALAPPUZHA 688 004

         BY ADVS.
         P.A.MOHAMMED SHAH
         SRI.C.R.SYAMKUMAR
         SHRI.ABDUL RASAK A.
         SHRI.MUNAS K.P
         shri.MUHAMMED JANAISE V.
         SHRI.ASWIN KUMAR M J
         SRI.SHAHIR SHOWKATH ALI
         SHRI.ARUN ROY
         SMT.HELEN P.A.



RESPONDENTS:

    1    UNION OF INDIA
         REPRESENTED BY SECRETARY, MINISTRY OF ROAD
         TRANSPORT AND HIGHWAYS, NEW DELHI 110 001

    2    STATE OF KERALA,
         REPRESENTED BY SECRETARY, REVENUE DEPARTMENT,
         SECRETARY, THIRUVANANTHAPURAM 695 001

    3    NATIONAL HIGHWAY AUTHORITY OF INDIA
         G-586, SECTOR-10, DWARAKA, NEW DELHI 110 075
         REPRESENTED BY ITS CHAIRMAN

    4    PROJECT DIRECTOR,
         NATIONAL HIGHWAY AUTHORITY OF INDIA, TC-29/1539/1,
         RAJASREE KAIRALI, PERUMTHANNI, VALLAKKADAVU P.O,
         THIRUVANANTHAPURAM 695 008

    5    SPECIAL DEPUTY COLLECTOR AND COMPETERNT AUTHORITY,
         LAND ACQUISITION, NTIONAL HIGHWAY AUTHORITY OF
         INDIA, COLLECTORATE, ALAPPUZHA 688 001
 WP(C) NO. 5946 OF 2021          2

    6       ENVIRONMENTAL ENGINEER,
            KERALA STATE POLLUTION CONTROL BOARD,
            THATHAMPALLY, ALAPPUZHA DISTRICT 688 013

    7       INSPECTOR FOR FACTORIES AND BOILDERS,
            OFFICE OF FACTORIES AND BOILERS DEPARTMENT, CIVIL
            STATION ANNEXE, THATHAMPALLY, ALAPPUZHA DISTRICT
            688 013

    8       DIVISIONAL FOREST OFFICER,
            RANNI, PATHANAMTHITTA DISTRICT PIN 689 672

            BY ADVS.
            DR.K.P.SATHEESAN (SR.)
            SRI.P.MOHANDAS (ERNAKULAM)
            SRI.K.SUDHINKUMAR
            SRI.S.K.ADHITHYAN
            SRI.SABU PULLAN
            SRI.GOKUL D. SUDHAKARA SHRI.P.VIJAYAKUMAR ASG
            SHRI.T.NAVEEN -SC
            SHRI.T.P. SAJIN




     THIS     WRIT   PETITION   (CIVIL)   HAVING   COME    UP    FOR
ADMISSION    ON   10.09.2021,   THE   COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 WP(C) NO. 5946 OF 2021         3

                          JUDGMENT

The petitioner says that he was the owner of an

extent of 4.15 Ares of property comprised of in

Survey No.526/10 of Punnappra Village, Ambalapuza,

which has been now acquired for the purpose of a

National Highway by the 3rd respondent - National

Highway Authority of India (NHAI).

2. The petitioner says that he was running a

sawmill in the property in question, on the

strength of Exts.P3 to P7 licences and clearances

and that he apprehends that when he shifts to a new

place, as part of the rehabilitation process, the

competent Authorities are likely not to allow him

to function there on the strength of these

licences.

3. The petitioner, therefore, prays that the

respondents be directed to 'transfer' Exts.P3 to P7

licences and permissions to the premises, where he

is now proposing to relocate his business.

4. I have heard Shri.P.A.Mohammed Shah, learned

counsel for the petitioner; Shri.P.Vijayakumar,

learned Assistant Solicitor General appearing for

the 1st respondent; Shri.Sudhin Kumar, learned

Standing Counsel for respondents 3 & 4;

Shri.T.Naveen, learned Standing Counsel for

respondent No.6; Shri.T.P.Sajin, learned Standing

Counsel appearing for the 8th respondent and the

learned Government Pleader, Shri.Aswin

Sethumadhavan, appearing for the other respondents.

5. As is clear from the averments in the writ

petition and the submissions made by Shri.Mohammed

Shah, the petitioner's sole claim now is that he

should be allowed to set up his business in an area

to which he intends to relocate, without any legal

impediments; and he says that he is entitled to the

reliefs sought for in this writ petition, based on

the provisions under the Right to Fair Compensation

and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013

(hereinafter referred to as 'the Act' for short).

6. According to the petitioner, the

Commissioner for Rehabilitation and Settlement, has

a duty to help him in resettling his business,

since his property has been acquired for a public

purpose; and thus prays that the competent

Authority be directed to adequately assist him in

relocating his business in the new area.

7. Shri.Sudhin Kumar, learned Standing Counsel

appearing for the National Highway Authority of

India, however, submitted that his client has no

role in the reliefs sought for by the petitioner,

because the licences in question have been issued

by respondents 6 to 8. He submitted that,

therefore, the petitioner must approach the said

respondents and seek 'transfer of the licences to

the new area' and that the Commissioner for

Rehabilitation and Settlement cannot help him,

since the request made before by him does not fall

within the ambit of Schedules 1, 2 and 3 of the

Act.

8. The learned Government Pleader, Shri.Aswin

Sethumadhavan, submitted that the petitioner's

request in this writ petition appears to be an

omnibus one and that his plea for 'transfer' of his

licences to the new place can only be considered by

the competent Authorities, taking into account the

totality of the circumstances. He submitted that,

therefore, the petitioner must be directed to

approach the competent Authorities, namely,

respondents 6 to 8, for consideration of his

request; and he prayed that no further orders be

issued against the official respondents.

9. Shri.T.P.Sajin, learned Standing Counsel

appearing for the 8th respondent and Shri.T.Naveen,

learned Standing Counsel for respondent No.6, both

submitted that if the petitioner approaches the

competent officials of their clients appositely,

they will consider his request sympathetically,

taking note of the fact that he claims

rehabilitation because of his property having been

acquired by the National Highway Authority of

India. They submitted that, however, it will not be

possible for them to affirmatively undertake that

the petitioner's request will be granted, since he

will have to first convince the Authorities that

his requests are within the ambit and parameters of

the applicable Rules and Regulations.

10. In reply, Shri.P.A.Mohammed Shah, learned

counsel for the petitioner submitted that his

client is entitled to seek that he be rehabilitated

in terms of the Act, because his property has

already been acquired by the NHAI and because he

has already preferred Ext.P10 request before the

Secretary to the Government of Kerala. He thus

asserted that the said Authority is obligated to

assist his client in obtaining proper

rehabilitation and that the said Authority be not

allowed to take the stand that the prayers sought

for in this writ petition do not fall within the

ambit of the Act.

11. As is evident from the above narrative, the

petitioner in fact seeks 'transfer' of his licences

to the new place, consequent to the acquisition of

his property, where a sawmill had been earlier

established. I am afraid that the submissions of

the petitioner, that the Commissioner for

Rehabilitation has a role to play in this, cannot

appeal to me because, going by Schedules 1, 2 and 3

of the Act, the request of the petitioner does not

fall into any of the enumerated categories therein.

12. That said, however, certainly the

petitioner obtains a right to seek that he be

properly rehabilitated and I am certain that

respondents 6 t 8 must consider his applications in

terms of law without any avoidable delay, affording

him the necessary empathy required, taking note of

the fact that his earlier property has been

acquired for a public purpose by the NHAI.

Resultantly, I order this writ petition and

leave liberty to the petitioner to approach

respondents 6 to 8 with appropriate applications

for transfer of his licences and permissions; and

if this is done within a period of one week from

the date of receipt of a copy of this judgment, the

said Authorities will consider the same, after

affording necessary opportunities of being heard to

him; thus culminating in appropriate orders

thereon, as expeditiously as is possible; but not

later than one month from the date on which the

request is made.

Needless to say, while completing the exercise

as afore, the competent Authorities of respondents

6 to 8 will offer all empathy to the petitioner,

taking into account the fact that his earlier

premises has been acquired for a public purpose by

the NHAI and will also consider whether his

requests can be acceded to as part of

rehabilitation which he is entitled to under the

Act; but which the Commissioner of Rehabilitation

cannot advert to, on account of technical reasons,

namely that they do not fall within Schedules 1, 2

and 3 of the said Act.

It is also needless to say that since the

petitioner has already preferred Ext.P10 before the

Government, its competent Authority will consider

the same within the ambit of the Act and then

decide the measures that can be offered in his

favour for such purpose. This shall be done by the

sad Authority without any avoidable delay, but not

later than three months from the date of receipt of

a copy of this judgment, after affording necessary

opportunity of being heard to the petitioner.

This Writ Petition is thus ordered.

Sd/-

DEVAN RAMACHANDRAN JUDGE MC/23.9

APPENDIX OF WP(C) 5946/2021

PETITIONER EXHIBITS

EXHIBIT P1 THE TRUE COPY OF THE TAX RECEIPT ISSUED TO THE PETITIONER DATED 29-05-2020

EXHIBIT P2 THE TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED TO THE PETITIOENR DATED 23-10-2019

EXHIBIT P3 TRUE COPY OF THE LICENSE ISSUED BY THE 8TH RESPONDENT DATED 06-06-2017

EXHIBIT P4 TRUE COPY OF THE LICENSE ISSUED BY THE 7TH RESPONDENT DATED 23-03-2016

EXHIBIT P5 TRUE COPY OF THE CONSENT TO OEPRATE ISSUED BY THE 6TH RESPONDENT DATED 25- 06-2018

EXHIBIT P6 THE TRUE COPY OF THE LICENSE ISSUED BY THE PUNNAPRA SOUTH GRAMA PANCHAYATH DATED 01-04-2020

EXHIBIT P7 THE TRUE COPY OF THE CERTIFICATE ISSUED BY MINISTRY OF MICRO SMALL AND MEDIUM ENTERPRISES DATED 10-03-2016

EXHIBIT P8 THE TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER TO THE DISTRICT COLELCTOR DATED 19-11-2018

EXHIBIT P9 THE TRUE COPY OF THE RELEVANT PAGE OF THE NOTIFICATION ISSUED UNDER 3G (3) OF THE NATIONAL HIGHWAY ACT, 1956 PUBLISHED ON 18-04-2019

EXHIBIT P10 THE TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 22-02-

RESPONDENT'S EXHIBIT

EXHIBIT R4(A) TRUE COPY OF THE GAZETTE NOTIFICATION PUBLISHED BY GOVERNMENT OF KERALA SRO

NO.503/2020 DATED 17.8.2020.

EXHIBIT R4(B) TRUE COPY OF THE GAZETTE NOTIFICATION PUBLISHED AS SRO NO.504/2020 DATED 17.8.2020.

EXHIBIT R4(C) TRUE COPY OF THE GAZETTE NOTIFICATION PUBLISHED AS SRO NO.505/2020 DATED 17.8.2020.