Kerala High Court
State Of Kerala Represented By ... vs Sunil J Arackalan on 14 February, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 14TH DAY OF FEBRUARY, 2022 / 25TH MAGHA, 1943
WA NO. 169 OF 2022
[AGAINST THE ORDER DATED 20.01.2022 IN WP(C) NO. 351/2022]
APPELLANT/2ND RESPONDENT IN THE WRIT PETITION:
STATE OF KERALA,
REPRESENTED BY ITS CHIEF SECRETARY,
GOVERNMENT SECRETARIAT,
THIRUVANANRHAPURAM, PIN - 695001
BY ADVOCATE GENERAL, MR. K. GOPALAKRISHNA KURUP
BY SPECIAL GOVERNMENT PLEADER TO A.G. SHRI T.B.HOOD,
SHRI V.MANU, SENIOR G.P.(GP-46)
RESPONDENTS/PETITIONERS AND RESPONDENTS 1, 3, 4 INTHE WRIT PETITION:
1 BINU SEBASTIAN, AGED 45 YEARS
S/O. P.T DEVASIA, PUNCHAYIL HOUSE, ETTUMANOOR P.O,
KOTTAYAM, PIN - 686016.
2 SUNIL K.M., AGED 47 YEARS
S/O. BABY, THOTTAKKATTU HOUSE, PERUMBAIKAD P.O, ETTUMANOOR
VIA, KOTTAYAM, PIN - 686016.
3 P.E. THOMAS, AGED 66 YEARS
S/O. V.T. EAPEN, VALIYAPUNCHALPUTHANVEETTIL HOUSE,
ANIKKAL KAVALA, PERUMBAIKAD P.O, ETTUMANOOR VIA.,
KOTTAYAM, PIN - 686016.
4 MADHU J. THEKKANATTU, AGED 47 YEARS
S/O. MATHAI JOSEPH, THEKKANATTU HOUSE,
KIZHAKKUMBHAGAM KARA, ETTUMANOOR P.O,
KOTTAYAM DISTRICT, PIN - 686631.
5 UNION OF INDIA,
REPRESENTED BY ITS SECRETARY,
MINISTRY OF RAILWAYS, RAIL BHAVAN, 256-A,
RAISINA ROAD, RAJPATH AREA, CENTRAL SECRETARIAT,
NEW DELHI, PIN - 110001.
W.As.169, 176, 179 &
186 of 2022 -:2:-
6 KERALA RAIL DEVELOPMENT CORPORATION LIMITED,
REPRESENTED BY ITS MANAGING DIRECTOR,
TRANS TOWER, 5TH FLOOR, VAZHUTHACAUD,
THIRUVANANTHAPURAM, PIN - 695014.
7 THE RAILWAY BOARD,
REPRESENTED BY ITS CHAIRPERSON,
INDIAN RAILWAY, 256-A, RAIL BHAVAN,
RAISINA BOARD, NEW DELHI, PIN - 110001.
R1 TO R4 BY ADVS. SRI. BABU JOSEPH KURUVATHAZHA
R5 BY ADV. SRI. MANU S., ASG OF INDIA
R6 BY SENIOR ADVOCATE SRI. S. RAMESH BABU,
SRI. A DINESH RAO (SC)
R7 BY ADV. SRI. C. DINESH
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14.02.2022,
ALONG WITH WA. NO.176/2022, 179/2022 AND 186/2022, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
W.As.169, 176, 179 &
186 of 2022 -:3:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 14TH DAY OF FEBRUARY, 2022 / 25TH MAGHA, 1943
WA NO. 176 OF 2022
[AGAINST THE ORDER DATED 20/01/2022 IN WP(C) NO.1574/2022]
APPELLANTS/RESPONDENTS 4 AND 9 IN THE WRIT PETITION:
1 STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF TRANSPORT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001.
2 SPECIAL TAHSILDAR(L.A.), N.H. NO. 2 , ALUVA, PIN - 683101.
BY ADVOCATE GENERAL, MR. K. GOPALAKRISHNA KURUP
BY SPECIAL GOVERNMENT PLEADER TO A.G. SHRI T.B.HOOD,
SHRI V.MANU, SENIOR G.P.(GP-46)
RESPONDENTS/PETITIONER AND RESPONDENTS 1, 2, 3, 5, 6, 7 & 8
IN THE WRIT PETITION:
1 SUNIL J. ARACKALAN, AGED 47 YEARS,
S/O. JOSEPH, ARACKALAN HOUSE, ELAVUR KARA,
PAARAKKADAVU VILLAGE, ALUVA TALUK,
ERNAKULAM DISTRICT, PIN - 683101.
2 UNION OF INDIA,
REPRESENTED BY ITS SECRETARY,
MINISTRY OF RAILWAYS, RAIL BHAVAN, 256-A, RAISINA
ROAD,RAJPATH AREA,CENTRAL SECRETARIAT,
NEWDELHI, PIN - 110001.
3 THE RAILWAY BOARD,
RAIL BHAVAN, 256-A RAISINA ROAD, RAJPATH AREA,
CENTRAL SECRETARIAT, NEW DELHI, PIN - 110001.
REPRESENTED BY ITS CHAIRMAN.
W.As.169, 176, 179 &
186 of 2022 -:4:-
4 SOUTHERN RAILWAY, HEADQUARTERS OFFICE,
PARK TOWN, CHENNAI, PIN - 600003.
REPRESENTED BY ITS ZONAL MANAGER.
5 KERALA RAIL DEVELOPMENT CORPORATION LIMITED (K-RAIL),
5TH FLOOR, TRANS TOWER, VAZHUTHACAD, THYCAD P.
THIRUVANATHAPURAM, KERALA., PIN - 695014.
REPRESENTED BY ITS MANAGING DIRECTOR.
6 MANAGING DIRECTOR,
KERALA RAIL DEVELOPMENT CORPORATION LIMITED (K-RAIL),
5TH FLOOR, TRANS TOWER, VAZHUTHACAD, THYCAD P.
THIRUVANATHAPURAM, KERALA., PIN - 695014.
7 THE UNION TERRITORY OF PUDUCHERRY,
REPRESENTED BY ITS SECRETARY,
REVENUE DEPARTMENT, CHIEF SECRETARIAT,
PUDUCHERRY, PIN - 605001.
8 THE REGIONAL ADMINISTRATIVE OFFICER,
OFFICE OF THE REGIONAL ADMINISTRATOR,
GOVERNMENT HOUSE, MAHE, PIN - 673310.
R1 BY ADV. SMT. A.K.PREETHA
R2 BY ADV. S. MANU, ASGI,
R3 BY ADV. SRI. C. DINESH
R5 & R6 BY SENIOR ADVOCATE SRI. S.RAMESH BABU
BY STANDING COUNSEL SRI. A. DINESH RAO, SC
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14.02.2022,
ALONG WITH WA. NOS.169, 179 & 186 OF 2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.As.169, 176, 179 &
186 of 2022 -:5:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 14TH DAY OF FEBRUARY, 2022 / 25TH MAGHA, 1943
WA NO. 179 OF 2022
[AGAINST THE ORDER DATED 20/01/2022 IN W.P.(C) NO. 30567/2021]
APPELLANTS/RESPONDENTS 1, 3, AND 4 IN THE WRIT PETITION:
1 STATE OF KERALA,
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO
GOVERNMENT, REVENUE DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001.
2 SPECIAL TAHSILDAR (LA), SILVER LINE,
KOTTAYAM, PIN - 686001.
3 DIRECTOR GENERAL OF POLICE, POLICE HEADQUARTERS,
THIRUVANANTHAPURAM, PIN - 695010.
BY ADVOCATE GENERAL, MR. K. GOPALAKRISHNA KURUP
BY SPECIAL GOVERNMENT PLEADER TO A.G. SHRI T.B.HOOD,
SHRI V.MANU, SENIOR G.P. (GP-46)
RESPONDENTS/PETITIONERS AND RESPONDENTS 2, 5, 6 IN THE WRIT PETITION:
1 MURALIKRISHNAN, AGED 43 YEARS,
S/O. M.S. KRISHNAN POTTY, MADAMANA ILLOM,
VELLUTHURUTHY, KUZHIMATTOM P.O.,
KOTTAYAM DISTRICT, PIN - 686533.
2 KURIAN T. KURIAN, AGED 54 YEARS,
S/O. DR. THOMAS KURIAN, MAPPILACHERRY VILLA,
MAMOOD P.O., CHANGANACHERRY, PIN - 686536.
3 P. A. JOHNIKKUTTY,
S/O. ITTIAVIRA, KUNNASSERI PUTHENPURAYIL,
THOTTECADU,VAKATHANAM P.O., KOTTAYAM.
W.As.169, 176, 179 &
186 of 2022 -:6:-
4 KERALA RAIL DEPARTMENT CORPORATION LTD.,
TRANS TOWER, 5TH FLOOR, VAZHUTHACADU,
THIRUVANANTHAPURAM-695 054,
REPRESENTED BY THE MANAGING DIRECTOR.
5 THE RAILWAY BOARD,
INDIAN RAILWAYS, RAIL BHAVAN, RAISINA ROAD,
NEW DELHI-110001,
REPRESENTED BY ITS CHAIRMAN,
6 UNION OF INDIA,
REPRESENTED BY ITS SECRETARY TO GOVERNMENT OF INDIA,
MINISTRY OF RAILWAYS, RAIL BHAVAN, NEW DELHI- 110001
R1 TO R3 BY ADV. SRI. O.V. MANIPRASAD
R4 BY SENIOR ADVOCATE SRI. S. RAMESH BABU,
BY ADV. SRI. A DINESH RAO, STANDING COUNSEL FOR RAILWAYS
R5 BY ADV. SRI. C. DINESH,
R6 BY ADV. MANU S., ASG OF INDIA
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14.02.2022,
ALONG WITH WA.NOS.169/2022 176/2022 & 186/2022, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
W.As.169, 176, 179 &
186 of 2022 -:7:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 14TH DAY OF FEBRUARY, 2022 / 25TH MAGHA, 1943
WA NO. 186 OF 2022
[AGAINST THE ORDER DATED 20/01/2022 IN W.P.(C) NO.975 OF 2022]
APPELLANTS/RESPONDENTS 2, 5, 6 & 7 IN THE WRIT PETITION:
1 STATE OF KERALA, REPRESENTED BY
ADDITIONAL CHIEF SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM- 695001.
2 SPECIAL TAHSILDAR, LAND ACQUISITION (SILVER LINE),
COLLECTORATE, THRISSUR- 680001.
3 SPECIAL TAHSILDAR, LAND ACQUISITION(SILVER LINE),
COLLECTORATE, KOZHIKODE- 673001.
4 SPECIAL TAHSILDAR, LAND ACQUISITION (SILVER LINE),
COLLECTORATE, KOTTAYAM - 686001.
BY ADVOCATE GENERAL MR. K. GOPALAKRISHNA KURUP
ADV. SRI.T.B.HOOD, SPL.G.P. TO A.G.
ADV. SRI.V.MANU, SENIOR G.P.(GP-46)
RESPONDENTS/PETITIONERS AND RESPONDENTS 1, 3 & 4 IN THE WRIT PETITION:
1 V.V. VARMA, AGED 69 YEARS,
S/O. ARUMUGAN, VAZHAPPULLY HOUSE, AYNOOR,
PAZHANJI P O, THRISSUR - 680542.
2 MUJEEB RAHMAN A., AGED 39 YEARS,
S/O. KOYAKKUTTY, ATTIYEDATH, CHERUVANNUR,
FEROKE P O, KOZHIKKODE- 673631.
3 M.T. THOMAS, AGED 70 YEARS,
S/O. M. G . THOMAS, MURAMTHOOKIL, MULAKULAM SOUTH,
PERUVA P O, KOTTAYAM- 686610.
W.As.169, 176, 179 &
186 of 2022 -:8:-
4 V. M. JOSEPH, AGED 71 YEARS,
S/O. MATHAI THOMAS VAREECKAL, KUNNAPPILLY,
PERUVA.P.O, KOTTAYAM, PIN - 686610.
5 MATHEW KURIAN, AGED 65 YEARS,
S/O. KURIAN MATHEW, PUTHOOR THEEKARA, KUNAPPILLY,
PERUVA P. O., KOTTAYAM- 686610.
6 UNION OF INDIA, REPRESENTED BY SECRETARY,
MINISTRY OF RAILWAYS, RAIL BHAVAN, 256-A, RAISINA ROAD,
RAJPATH AREA, CENTRAL SECRETARIAT, NEW DELHI - 110001.
7 KERALA RAIL DEVELOPMENT CORPORATION LIMITED,
TRANS TOWER, 5TH FLOOR, VAZHUTHACAUD,
THIRUVANANTHAPURAM, PIN - 695001,
REPRESENTED BY ITS MANAGING DIRECTOR.
8 RAILWAY BOARD, RAIL BHAVAN, 256-A, RAISINA ROAD,
RAJPATH AREA, CENTRAL SECRETARIAT, NEW DELHI-110001,
REPRESENTED BY ITS CHAIRPERSON.
R1 TO R5 BY ADV. SRI. P.A.MOHAMMED SHAH
R6 BY ADV. SRI. S. MANU, ASG OF INDIA
R7 & R8 BY SENIOR ADVOCATE SRI. S. RAMESH BABU
BY ADV. SRI. A. DINESH RAO, SC, RAILWAYS
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14.02.2022,
ALONG WITH WA.169/2022, 176/2022 & 179/2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.As.169, 176, 179 &
186 of 2022 -:9:-
JUDGMENT
S. Manikumar, CJ
Instant writ appeals are filed against the interim order dated
20.01.2022 passed in W.P.(C) Nos. 30567/2021, 351/2022, 975/2022,
and W.P.(C) No. 1574/2022, by which the writ court directed that steps
for survey of the properties belonging to the writ petitioners/party
respondents herein shall stand deferred until the matters are considered
again on 7.2.2022.
2. It was also ordered that all other earlier interim orders issued
in the writ petitions will continue to be in operation and further that
every step, as is legally permissible under the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013, (hereinafter called LARR Act 2013) can
certainly be continued by the competent Authorities, scrupulously
complying with the statutory prescriptions, and that the afore
directions will not stop them from doing so.
3. By the impugned interim order, the learned single Judge has
kept in abeyance the proceedings initiated by the appellants to survey
W.As.169, 176, 179 &
the properties of the writ petitioners, invoking the powers conferred
under the Kerala Survey and Boundaries Act, 1961, in order to
undertake the Social Impact Assessment Study, as required under
Section 4 of the LARR Act, 2013.
4. Appellant in W.A No. 169/2022 is the 2 nd respondent in W.P.
(C) No. 351/2022; appellants in W.A. No. 176/2022 are respondents 4
and 9 in W.P.(C) No. 1574/2022; appellants in W.A. No. 179/202 are
respondents 1, 3 and 4 in W.P.(C) No. 30567/2021; and appellants in
W.A. No. 186/2022 are respondents 2, 5, 6, and 7 in W.P.(C) No.
975/2022.
5. Respondents/writ petitioners have filed the writ petitions to
quash G.O.(Ms.) No.163/2021/RD dated 18.08.2021 and G.O.(Rt.)
No.3643/ 2021/RD dated 30.10.2021, issued by the Chief Secretary to
the Government, State of Kerala, Thiruvananthapuram, and restrain
the respondents and their instrumentalities, from entering into the
properties of the writ petitioners/respondents, for the purpose of
demarcating the boundaries for acquiring the properties of the writ
petitioners, for Kerala Rail Development Corporation Limited,
W.As.169, 176, 179 &
Thiruvananthapuram, (hereinafter called 'KRDCL'), represented by its
Managing Director, until the Union of India and Railway Board or
their instrumentalities issue appropriate notification, as contemplated
under the provisions of the Railways Act, 1989, for the ends of justice.
6. The issues raised in the writ petitions are in relation to
installation of survey marks by the appellants under Kerala Survey and
Boundaries Act, 1961 (hereinafter referred to as the 'Act, 1961'),
engraving "K-Rail" in the properties belonging to the writ petitioners
and others, in order to conduct Social Impact Assessment (SIA) study
for the proposed Semi High Speed Railway Line Project (Silver Line
Project) between Thiruvananthapuram and Kasaragod districts, within
the State of Kerala.
7. The contention raised by the writ petitioners, who are the
owners of various parcels of properties in Kottayam, Ernakulam,
Thrissur and Kozhikode districts is that, concrete poles with the
marking "K-Rail" and the survey contemplated as per Notification
No.B2/2021 dated 12.10.2021 issued by the Special Tahsildar (LA)
(Silver Line), Kottayam, 2nd appellant in W.A. No.179/2022 under the
W.As.169, 176, 179 &
provisions of Act, 1961 and the rules framed thereunder (Exhibit-P7 in
W.P.(C) No.30567/2021) and similar notifications issued for other
districts in the writ petitions are illegal, in view of the fact that it
interferes with the provisions of LARR Act, 2013. Hence, they
have sought for removal of concrete poles erected with the marking
"K-Rail".
8. Writ petitioners have further contended that appellants are
attempting to take possession of the properties under the guise of land
acquisition, without following the mandatory requirements
contemplated under the LARR Act, 2013.
9. In fact, in W.P.(C) No.30567/2021, which is the subject matter
of W.A. No.179/2022, the learned single Judge has passed an interim
order dated 23.12.2021, directing that the survey shall be conducted in
strict compliance of the requirements under Rule 3 of the Kerala
Survey and Boundaries Rules, 1964 and to install survey marks of the
size, and in the manner provided therein.
10. Separate counter affidavits were filed by the State
Government, as well as KRDCL, represented by its Managing
W.As.169, 176, 179 &
Director, (4th respondent in W.A. No.179/2022), a company
incorporated under the Companies Act, 2013, with the Central
Government holding 51% share and State Government holding
49% share.
11. In the counter affidavit filed by the appellant State
Government, the allegation that appellants are attempting to take
possession of the properties belonging to the writ petitioners, is
specifically denied. It is further contended therein that they the survey
is conducted for the purpose of SIA study, as provided under Section 4
of the LARR Act, 2013. It is also contended that the survey mark
engraved as "K-Rail" is not opposed to Rule 3 of the Kerala Survey
and Boundaries Rules, 1961, in as much as, the said rule only provides
that survey marks shall ordinarily be of stones of durable quality.
12. It is further pointed out that going by the definition of
"survey marks" in Section 2(vii) of the Kerala Survey and Boundaries
Act, 1961, any other marks or objects can also be used. However, it is
contended that, without going into the real purport of the survey
conducted by the appellants and the purpose for which the survey
W.As.169, 176, 179 &
marks were laid, the learned single Judge has absolutely prohibited the
appellants to conduct survey of the lands and laying stones, which has
caused serious and adverse effects and impacts to the steps taken by
the State Government, in order to fructify and achieve its target to
introduce the Semi High Speed Rail Corridor connecting eleven
districts of State of Kerala. Hence, it is contended that unless and
until the impugned interim order is interfered with, it would seriously
hamper the project envisaged by the State Government.
13. Per contra, the contention advanced by the writ petitioners is
that LARR Act, 2013 is a self contained statute, having its own facets
and characteristics, and therefore, unless and until the procedure
contemplated under the said Act are carried out, appellants are not
entitled to enter into their properties, conduct survey, and lay the
concrete poles, by exercising the powers conferred under the Kerala
Survey and Boundaries Act, 1961 and the rules framed thereunder.
14. It is further contended that the survey could be conducted
only in terms of the provisions of Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement
W.As.169, 176, 179 &
Act, 2013, and that too, at the stage when acquisition is decided to be
proceeded under Section 12 of the said Act, and not by invoking the
provisions of Survey and Boundaries Act, 1961. Writ petitioners have
also contended that State Government is not the appropriate authority
to acquire land for the Silver Line Project.
15. In reply to the abovesaid contention of the writ petitioners,
referring to Section 20A of the Railways Act, 1989, appellants
submitted that Central Government can issue land acquisition
notification only for Special Railway Projects, and the provisions of
the Railways Act apply only when the Semi High Speed Rail Corridor
covers one or more States.
16. Before proceeding to adjudicate the issues raised by the rival
parties, it would be helpful to understand in brief, the steps taken by
the State Government to execute the Semi High Speed Railway
Corridor project, and for that purpose, the facts and documents
available in W.A. No.179/2022 are replied upon.
17. During December, 2014, Ministry of Railways, Government
of India, requested the State Government to partner with Indian
W.As.169, 176, 179 &
Railways, in its endeavour to develop railway network in the country
and to convey the consent of the State Government to form a Special
Purpose Vehicle for raising funds for the development of the network
in the State; on 23.12.2015, Government, as per G.O.(Ms.) No.
80/2015/Trans, accorded sanction to partner with the railways to form
a Special Purpose Vehicle with 50% equity participation, each by
Government of Kerala and Indian Railways for raising funds and to
implement railway project specifically selected by the State
Government; on 13.01.2016, Southern Railway informed the State, the
desire of the Ministry of Railways, to form a Joint Venture Company;
thereupon, State Government examined the proposal and accorded
sanction as per G.O.(Ms.) No.2/2016/Trans dated 13.01.2016 to
partner with Indian Railways, to form a JVC, with equity participation
by Indian Railways and Government of Kerala, for implementation of
the railway development project. Accordingly, on 25.01.2016, a
Memorandum of Understanding (MoU) was signed.
18. On 5.8.2016, State Government, as per G.O.(Ms.) No.52/
2016/Trans, accorded sanction for entering into the Joint Venture
W.As.169, 176, 179 &
Agreement between Government of Kerala and Ministry of Railways,
Government of India, for the infrastructure development of railways in
Kerala, with 51:49 equity partnership and on 1.9.2016, the Joint
Venture Agreement was signed between Government of Kerala and
Ministry of Railways; on 02.12.2016, by G.O.(Ms.) No.75/2016/
Trans, Government have accorded sanction for the formation of
KRDCL; and on 3.1.2017, KRDCL was incorporated, with the
objective, among other things, to build, construct, operate, develop,
finance, and maintain viable railway projects. On 26.08.2019, Semi
High Speed Rail Line Project (Silver Line Project) to construct the 3 rd
and 4th railway lines, in addition to the existing two railway lines
between Thiruvananthapuram and Kasaragod districts, covering a
distance of 540 kms., to facilitate train running at an average speed of
200 kms. per hour, was conceived by the State Government for
implementation through KRDCL. Accordingly, M/s. SYSTRA was
appointed as the General Consultant for preparation of the feasibility
report and as per G.O.(Ms.) No.43/2019/Trans dated 26.08.2019, State
Government has approved the feasibility report prepared by M/s.
W.As.169, 176, 179 &
SYSTRA for the Silver Line Project.
19. On 17.12.2019, as per Letter No.2019/JV Cell/KRDCL/
SHSRC dated 12.12.2019, addressed to the Chief Secretary,
Government of Kerala, Thiruvananthapuram, Ministry of Railways,
Government of India, informed that the proposal of KRDCL has been
examined and the competent authority has accorded "In-Principal
Approval" for taking up pre-investment activities for the above
mentioned project.
20. It is also pointed out that, in Exhibit-R1(a) letter dated
17.12.2019, reference is made to the Office Memorandum
No.24(35)/PF-II/2012 issued by the Ministry of Finance, Government
of India, Department of Expenditure [Exhibit-R1(b)] dated 5.8.2016,
and as per clause 10 of Exhibit-R1(b), pre-investment activities
include preparation of Feasibility Reports, Detailed Project Reports,
Pilot Experiments/Studies for Schemes, Survey/Investigation required
for large projects, payment for land acquisition in accordance with the
orders of a competent authority under law, construction of boundary
wall across the roads, minor bridges/culverts, water-power lines, site
W.As.169, 176, 179 &
offices, temporary accommodation etc.
21. It is also submitted that on 11.06.2020, M/s. SYSTRA has
submitted a Detailed Project Report (DPR) and alignment for the
proposed Silver Line project. As per the DPR, the estimated cost of the
project is Rs.63,941/- Crores and is expected to be materialized,
within a period of five years, on getting final approval from
Government of India, and in turn, as per G.O.(MS.) No.18/2020/Trans
dated 11.06.2020, State Government has approved the DPR and
alignment of the proposed Semi Speed Rail Corridor - Silver Line.
22. While matters stood thus, on 29.01.2021, on the allegation
that acquisition proceedings for the proposed Silver Line project were
initiated, without sanction from the Central Government, W.P.(C)
No.18002/2020 was filed by an organization called Mulakulam
Residents' Welfare Association, a place within the limits of Ernakulam
district. Said writ petition along with connected cases were disposed
of by a learned single Judge as per judgment dated 29.01.2021
[Exhibit-P5 in W.P.(C) No.30561/2021], with a direction that if the
properties owned by petitioners therein are intended to be acquired for
W.As.169, 176, 179 &
the project, the provisions of LARR Act, 2013, shall be followed.
23. It seems, on 11.06.2021, Government as per G.O.(Ms.)
No.13/2021/Trans have accorded sanction to proceed with the
preparatory works for land acquisition, for the proposed Silver Line
project; as a part of the preparatory works, it was directed that SIA
study would be conducted, as contemplated under Section 4(1) of the
LARR Act, 2013; and for that, an expert committee would have to be
constituted, to evaluate the SIA report. It was made clear therein that
the Government order to proceed with the land acquisition as per
Section 8(2) of the LARR Act, 2013 would only be issued after getting
final approval of the project from the Railway Board.
24. Thereupon, Government have issued G.O.(Ms.) No.163/
2021/RD dated 18.08.2021, according sanction for creation of a
Special Deputy Collector Office and 11 Special Tahsildar Land
Acquisition Offices for Semi High Speed Railway Line (Silver Line)
project. In the said order, Government have also accorded sanction for
acquisition of 955.13 hectares of land by invoking the provisions of
LARR Act, 2013, in various villages of Thiruvananthapuram, Kollam,
W.As.169, 176, 179 &
Alappuzha, Thrissur, Kozhikode, Kannur, and Kasaragod districts,
subject to the condition that SIA study, as contemplated under section
4(1) of LARR Act, 2013 would be conducted and an expert committee
would be constituted to evaluate SIA report. It is also specified in
Exhibit-P6 Government order dated 18.08.2021, that the decision of
the State Government to proceed with the land acquisition as per
LARR Act, 2013 would be issued only after getting final approval of
the project from the Railway Board.
25. Appellants have also stated that in partial modification of
Exhibit-P6 order dated 18.08.2021, Government have issued G.O.(Rt.)
No.3642/2021/Rd dated 30.10.2021, according sanction for
acquisition of 1221 hectares of land. Thereafter, notification under
Section 6 of the Kerala Survey and Boundaries Act, 1961 (Exhibit-P7
in W.P.(C) No.30567/2021) was issued during September/October,
2021, in various districts, to facilitate survey for the purpose of Social
Impact Assessment study under Section 4 of the LARR Act, 2013.
26. During October/November, 2021, W.P.(C) Nos.23554/2021
and 24973/2021 were filed before the writ court, challenging the
W.As.169, 176, 179 &
abovesaid Government orders dated 18.08.2021 and 30.10.2021.
Appellants have contended that by the said Government orders,
Government have accorded sanction to acquire land for Silver Line
project and also to create Special Tahsildar Land Acquisition Offices.
In the said writ petitions, the challenge is basically on the ground that
as per Section 20A of the Railways Act, 1989, only the Central
Government have the powers to issue land acquisition notification for
the project in question, as it is a special railway project.
27. State Government and Kerala Rail Development Corporation
Limited have filed separate counter affidavits in the writ petitions. It
is stated that the writ petitions were heard and posted to a later date.
28. On 22.12.2021, W.P.(C) No.30567/2021 leading to W.A.
No.179/2022 was filed, contending that erection or laying of concrete
poles with the marking "K-Rail" and taking possession of the property
are illegal and liable to be interfered with. On 23.12.2021, writ court
passed an interim order in W.P.(C) No.30567/2021 directing that
survey shall be conducted in strict compliance of the requirements
under Section 3 of the Kerala Survey and Boundaries Rules, 1964, and
W.As.169, 176, 179 &
to install survey marks of the size and in the manner as provided
therein. Sometime in December, 2021 and January, 2022, Government
have issued notifications under Section 4 of the LARR Act, 2013 for
SIA study in various districts.
29. On 5.1.2022, W.P.(C) No.351/2022 leading to W.A. No.169/
2022 was filed by the writ petitioners challenging the
Government orders dated 18.08.2021 and 30.10.2021 respectively,
raising similar grounds and reliefs sought for in W.P.(C)
No.24973/2021, which was heard.
30. On 6.1.2022, when W.P.(C) No.351/2022 has come up for
admission, writ court passed an order directing the learned Senior
Government Pleader to explain, as to how the details of block
numbers, survey numbers and villages were mentioned in the
impugned Government orders, even though the survey under Kerala
Survey and Boundaries Act, 1961 was stated to be underway.
31. On 7.1.2022, as a Public Interest Litigation, writ petitioners
therein filed W.P.(C) No.741/2022 challenging the Government orders
dated 18.08.2021 and 30.10.2021 respectively. Apart from that, they
W.As.169, 176, 179 &
have sought for other consequential reliefs. On 5.2.2022, said writ
petition was withdrawn by the petitioners. While so, challenging the
Gazette Notifications issued under Section 6 of the Kerala Survey and
Boundaries Act, 1961 dated 07.10.2021, 12.10.2021, and 13.10.2021,
for conducting survey in Thrissur, Kozhikode and Kottayam districts,
W.P.(C) No.975/2022 leading to W.A. No.186/2022 was filed.
According to the writ petitioners, survey could be conducted only in
terms of LARR Act, 2013, and not under the Survey and Boundaries
Act, 1961. Thereafter, on 14.01.2022, W.P.(C) No.1574/2022 leading
to W.A. No.176/2022 was filed by the writ petitioners therein
challenging the Government orders dated 18.08.2021 and 30.10.2021,
and seeking to quash the notifications issued under Section 6 of the
Act, 1961, in regard to Thrissur district.
32. The State Government has filed a counter affidavit in the
lead Writ Petition No.30567/2021, explaining the facts and
circumstances involved in the subject issues. Said counter affidavit is
adopted in W.P.(C) No.351/2022. It was thereafter, the impugned
interim order was passed by the learned single Judge on 28.01.2022,
W.As.169, 176, 179 &
prohibiting the State Government from proceeding with the
notifications issued under the Kerala Survey and Boundaries Act, 1961
and the rules framed thereunder. The legality and correctness of the
same is under challenge in these intra court appeals.
33. The paramount contention advanced by the appellants is that
State Government is vested with ample powers to issue notifications
under Section 6 of the Kerala Survey and Boundaries Act, 1961,
which are under challenge in the writ petitions, for conducting survey
of the properties, in order to carry out the mandatory requirements
contained under Section 4 of the LARR Act, 2013.
34. It is further contended that the attempt made by writ
petitioners/party respondents to project the case, as if the State
Government is proceeding with the acquisition of the lands, is totally
misleading, since the attempt of the State Government is only to carry
out Social Impact Assessment study to protect the interest of the land
owners, enabling them to take steps to object the SIA study by having
a proper and clear picture of the extent of acquisition made in their
properties. It is also submitted that concrete poles with marking "K-
W.As.169, 176, 179 &
Rail" are planted only with the objective of identifying the lands for
evaluating social impact of acquisition and the State Government has
no intention to acquire the lands by planting the stones.
35. That apart, it is contended that the entire action undertaken
by the State Government is in accordance with the powers conferred
under the Act, 1961, in order to have a meaningful attempt to make the
SIA study, which can, in no way, interfere with the rights enjoyed by
the property owners. It is also contended that even without issuing
notifications, since SIA study is a mandatory requirement, State
Government and its authorised officers have to enter into the
properties, make a report, and in order to comply with the
requirements of LARR Act, 2013, they have no other option than to
make a report and follow the procedures, in contemplation of sub-
sections (4), (5), (6) and (7). While contending so, Mr. Gopalakrishna
Kurup, learned Advocate General, submitted that the attempt of the
writ petitioners is to scuttle the project as such, and that the State
Government and its officials will not do anything to acquire the lands,
without following the procedure contemplated under the Act, 2013.
W.As.169, 176, 179 &
36. Learned Advocate General further submitted that while
passing the impugned interim order, learned single Judge ought to
have accepted the contention of the State Government that the present
survey is for the purpose of demarcating the boundary of the project
alignment for SIA study.
37. Referring to Section 4(4) of the LARR Act, 2013, which
provides that SIA study under Section 4(1) shall include the extent of
land, public and private houses, settlement and other common
properties, likely to be affected by the proposed acquisition, learned
Advocate General also submitted that the lands in question must be
surveyed and demarcated and that the survey could only be done under
the Kerala Survey and Boundaries Act, 1961, and not under the LARR
Act, 2013.
38. Learned Advocate General further contended that the learned
single Judge ought to have found that identification of the land,
buildings, and other structures that would be affected by the proposed
project is essential for the purpose of conducting SIA study and that it
would be possible only by physical survey, for which purpose only, the
W.As.169, 176, 179 &
provisions of the Kerala Survey and Boundaries Act, 1961 have been
resorted to.
39. On the other hand, learned counsel appearing for the writ
petitioners/party respondents submitted that the State Government and
its authorised officers are not vested with the powers to enter into the
properties, conduct survey and lay concrete poles for the purpose of
conducting SIA study and such things can only be done after
undergoing the procedures contemplated under Sections 11 and 12 of
the LARR, 2013, coming under Chapter IV dealing with notification
and acquisition. That apart, learned counsel for the writ petitioners
raised contentions supporting the impugned interim order.
40. Learned Senior Counsel appearing for KRDCL has also
taken us through the various provisions of Kerala Survey and
Boundaries Act, 1961, the rules framed thereunder, and the provisions
of LARR Act, 2013, to canvas the point that arguments putforth by the
writ petitioners in the respective writ petitions would come into play
only when the State Government decides to acquire the lands after
completing the mandatory requirements envisaged under Sections 4 to
W.As.169, 176, 179 &
7 of the LARR Act, 2013.
41. On the other hand, learned counsel for the writ petitioners
contended that learned single Judge has arrived at the conclusions in
the impugned interim order, on the basis of a Detailed Project Report
(DPR) prepared by the State Government and "In-Principle Approval"
given by the Railway Board as per Exhibit-R1(a) letter dated
17.12.2019 produced along with the counter affidavit in W.P.(C)
No.30567/2021. In the matter of preparation of DPR, Government is
taking an estimate with regard to the cost of the project and the
approximate extent of the lands required and other intrinsic aspects
therein, in order to understand the basic requirements, to proceed with
the acquisition, for which, survey of the land and installation stones
are not required.
42. Mr. S. Manu, learned Assistant Solicitor General, submitted
that in effect, Ministry of Railways have only accorded "In-Principle
Approval" to the State Government as per Exhibit-R1(a) letter dated
17.12.2019, for taking up pre-investment activities for the proposed
construction of 3rd/4th line between Thiruvananthapuram and
W.As.169, 176, 179 &
Kasaragod districts covering 540 kms., Semi High Speed Rail
Corridor alone, and not yet approved the project finally. He further
contended that on the basis of the "In-Principle Approval", DPR and
other aspects can be undertaken. However, the State Government can
proceed with the acquisition of lands, only after obtaining appropriate
orders from the Ministry of Railways.
43. Heard Mr. K. Gopalakrishna Kurup, learned Advocate
General for the State and its officials, assisted by learned Special
Government Pleader Mr. T. B. Hood, Mr. P. A. Mohammed Shah,
Mr. O. V. Maniprasad, Mr. Babu Joseph Kuruvathazha, and Smt. A. K.
Preetha, learned counsel appearing for the writ petitioners, Mr. S.
Ramesh Babu, learned Senior Counsel assisted by Mr. A. Dinesh Rao,
Standing Counsel for KRDCL, Mr. S. Manu, learned Assistant
Solicitor General of India, Mr. C. Dinesh, learned counsel for the
Railway Board, New Delhi, and perused the material on record.
44. In order to understand the arguments advanced by the rival
parties, we deem it fit to consider the relevant statutory provisions,
viz., the Kerala Survey and Boundaries Act, 1961, the rules framed
W.As.169, 176, 179 &
thereunder, and LARR Act, 2013.
45. Kerala Survey and Boundaries Act, 1961, is an Act to
consolidate, amend, and unify the law relating to survey of lands and
settlement of boundary disputes in the State of Kerala. Section 2(vi) of
the Act defines the word "survey" to include all operations incidental
to the determination, measurement, and record of a boundary or
boundaries, or any part of a boundary and includes a resurvey. The
words "survey mark" is defined under Section 2(vii) to mean any mark
or object, erected, made, employed or specified by a Survey Officer to
indicate or determine or assist in determining the position or level of
any point or points.
46. Section 4 under Chapter II of the Act, 1961 deals with
survey of lands. As per Section 4, Government is vested with powers
to direct the survey of any land or any boundary of any land. It states
that Government or, subject to the control of the Government, any
officer or authority authorised by the Government in this behalf, may
by notification in the Gazette, order the survey of any land or of any
boundary of any land or of the boundary forming the common limit of
W.As.169, 176, 179 &
any Government land and any registered land.
47. Section 6 of the Act, 1961 speaks about notification to be
published by Survey Officers. Sub-section (1) of Section 6 stipulates
that when any survey is ordered under Section 4 or Section 5, the
Survey Officer shall publish a notification in the Gazette, in the
prescribed manner, inviting all persons having any interest in the land
or in the boundaries of which the survey has been ordered, to attend
either in person or by agent at a specified place and time, and from
time to time thereafter when called upon, for a purpose of pointing out
boundaries and supplying information in connection therewith.
48. Proviso to Section 4(1) is significant in the context, which
states that where the survey is ordered for the purpose of, or in
connection with, the acquisition of any land under the law relating to
compulsory acquisition of land for public purposes for the time being
in force, notification under this sub-section may be published in the
Gazette or in two daily newspapers which, in the opinion of Survey
Officer, have wide circulation in the locality in which the land in
respect of which the survey has been ordered is situated. In fact, the
W.As.169, 176, 179 &
said proviso was added to Section 6 by Act 18 of 1986 on and with
effect from 19.11.1983.
49. Conjoint reading of Sections 4 and 6(1) of the Kerala Survey
and Boundaries Act, 1961, along with the proviso, makes it amply
clear that State Government is vested with powers to conduct survey
of any lands or boundary of any land which can also be for the
purpose of, or in connection with the acquisition of any land under the
law relating to compulsory acquisition of land for public purposes for
the time being in force.
50. On an analysis of the proviso to Section 6(1), it is clear that,
by virtue of the said proviso, State Government is vested with the
powers to conduct survey of the properties for the purpose of, or in
connection with acquisition of the land alone. Thus to say, the proviso
carved out from the main provision of Section 6 would not enable the
State Government to acquire the lands because, it clearly denotes that
the empowerment is done for the purpose of, or in connection with the
acquisition of any land. Therefore, we have no doubt in our mind to
say that State Government is vested with powers to survey the lands
W.As.169, 176, 179 &
for the purpose of acquisition, or in connection with acquisition of
land for public purpose, and not for acquisition of land as such.
51. Section 18 of the Kerala Survey and Boundaries Act, 1961
deals with power to enter upon, examine and clear obstruction on
lands. Sub-section (1) thereto makes it clear that for the purpose of any
survey, enquiry or other proceedings under the Act, 1961, the Survey
Officer or the Collector or any of the subordinates of such officers
shall have power to enter upon, examine and measure any land under
survey and to clear, by cutting down or removing any trees, jungle,
fences, standing crops or other material obstructions, the boundaries or
other lines, the clearance of which may be necessary for the purposes
of the survey. Going through Section 18(1) also, it is clear that the
Survey Officer or the Collector or the authorised officer is vested with
powers only to enter into the property and do the necessary, so as to
conduct the survey effectively.
52. Kerala Survey and Boundaries Rules, 1964 are framed by
virtue of Section 22 of the Act, 1961. Some of the provisions are
relevant, in order to consider and adjudicate the issues raised by the
W.As.169, 176, 179 &
rival parties. Rule 2(b) of the Rules, 1964 defines 'field mark' to mean
the mark placed at the bends and junctions on the boundaries of survey
fields and sub-divisions, and includes marks placed on village
boundary, khandam boundary and other off-set stones. Rule 3 deals
with specifications of survey marks, which provides that survey marks
shall ordinarily be stones of durable quality, namely, granite stones of
the following descriptions and dimensions:
(1) Field stones.- Granite stones of durable quality roughly
squared of approximate dimensions 60cm. x 15 cm. x 15
cm. width with a coconut tree mark 1 cm. deep cut on
one side.
(2) Theodolite stones:- Granite stones of durable quality
roughly squared of approximate dimensions measuring
60cm. x 15cm. x 15 cm. width with a plummet hole, 1
cm. deep cut on the top and a coconut tree mark 1 cm.
deep cut on one side.
53. The contention advanced by Mr. K. Goplakrishna Kurup,
learned Advocate General, is that Rule 3 of the Kerala Survey and
Boundaries Rules, 1964 stipulate that stones specified therein are not a
mandatory requirement because, the rule itself says that the specified
survey stones shall be planted ordinarily, and, therefore, there is no
mandatory requirement that the stones specified in Rule 3 are to be
W.As.169, 176, 179 &
planted for the purpose of conducting Social Impact Assessment study.
He also contended that the stones specified in Rule 3 may be planted
by the State Government at a later point of time, if and when, after the
Social Impact Assessment study, the Government decides to acquire
the land required for the purpose of Semi High Speed Rail Corridor.
54. Relying on Rule 7 of the Kerala Survey and Boundaries
Rules, 1964, which deals with survey marks in special tracts, in
particular, sub-section (3) thereto, learned Advocate General submitted
that in exceptional cases, where survey marks of the prescribed quality
and dimensions cannot be obtained at reasonable cost, the Director of
Survey and Land Records shall, for reasons to be recorded in writing,
prescribe suitable survey marks. Therefore, according to the learned
Advocate General, it is not a hard and fast rule that planting of field
and theodolite stones are the mandatory requirements, in order to
conduct survey, especially for SIA study.
55. Now, coming to the provisions of LARR Act, 2013, which is
an Act made by the Union Government to ensure, in consultation with
the institutions of Local Self-Government and Gram Sabhas
W.As.169, 176, 179 &
established under the constitution, a humane, participative, informed
and transparent process for land acquisition for industrialisation,
development of essential infrastructural facilities and urbanisation
with the least disturbance to the owners of the land and other affected
families and provide just and fair compensation to the affected
families whose land has been acquired; or proposed to be acquired or
are affected by such acquisition and make adequate provisions for
such affected persons for their rehabilitation and resettlement; and for
ensuring that the cumulative outcome of compulsory acquisition
should be that affected persons become partners in development
leading to an improvement in their post acquisition social and
economic status and for matters connected therewith or incidental
thereto. We have stated the purport and intend from the preamble of
the Act since, we feel that the provisions of LARR Act, 2013 would
have to be considered bearing in mind the purpose of legislation.
56. The definition contained under Section 3(e) of LARR
Act2013, viz., appropriate Government, would be relevant to consider
the arguments advanced by the learned counsel for the writ petitioners
W.As.169, 176, 179 &
and it reads as under.-
"3. Definitions.- In this Act, unless the context otherwise
requires.-
(e) "appropriate Government" means.-
(i) in relation to acquisition of land situated within the
territory of, a State, the State Government;
(ii) in relation to acquisition of land situated within a Union
territory (except Puducherry), the Central Government;
(iii) in relation to acquisition of land situated within the Union
territory of Puducherry, the Government of Union
territory of Puducherry;
(iv) in relation to acquisition of land for public purpose in
more than one State, the Central Government, in
consultation with the concerned State Governments or
Union territories; and
(v) in relation to the acquisition of land for the purpose of
the Union as may be specified by notification, the
Central Government:
Provided that in respect of a public purpose in a
District for an area not exceeding such as may be
notified by the appropriate Government, the Collector of
such District shall be deemed to be the appropriate
Government;
57. Reading of the above provisions make it clear that in so far
as the lands to be acquired for the State Government, the appropriate
Government is the State. However, if acquisition of any land is
required for public purpose, in more than one State, the appropriate
Government is the Central Government and it shall carry out the
W.As.169, 176, 179 &
acquisition, in consultation with the concerned State Governments or
Union Territories. This we say specifically for the reason that, writ
petitioners have a case that the proposed Silver Line Project is passing
through Mahe, which is within the limits of Union Territory of
Puducherry, and therefore, the appropriate Government is the Central
Government. We did not think much deliberation is required on that
aspect, because the learned Advocate General has specifically pointed
out that the property of the Union Territory of Puducherry is not at all
required and further that, in Exhibit-R1(a) letter of the Ministry of
Railways, Government of India dated 17.02.2019, no such objection
was raised by the Government of India.
58. That apart, LARR Act, 2013 provides a clear distinction by
and between the provisions of Social Impact Assessment study
contained under Chapter II and the consequential actions thereto, and
also the notification and acquisition guided by the provisions of
Chapter IV of the LARR Act, 2013.
59. It would be worthwhile to make a reference to Section 4 of
the LARR Act, 2013, in order to understand the real reason for the
W.As.169, 176, 179 &
preparation of the Social Impact Assessment study. Section 4 speaks
about preparation of Social Impact Assessment Study and sub-section
(1) thereto clearly states that whenever the appropriate Government
intends to acquire land for a public purpose, it shall consult the
concerned Panchayat, Municipality or Municipal Corporation, as the
case may be, at village level or ward level, in the affected area and
carry out a Social Impact Assessment study in consultation with them,
in such manner and from such date as may be specified by such
Government by notification.
60. Sub-section (2) of Section 4 states that the notification issued
by the appropriate Government for commencement of consultation
and of the Social Impact Assessment study under sub-section (1) shall
be made available in the local language to the Panchayat, Municipality
or Municipal Corporation, as the case may be, and in the offices of
the District Collector, the Sub-Divisional Magistrate and the Tehsil,
and shall be published in the affected areas, in such manner as may be
prescribed and uploaded on the website of the appropriate
Government.
W.As.169, 176, 179 &
61. Going by the above provision, it is clear that the notification
issued under Section 4 of the LARR Act, 2013 is guided by a clear
procedure. Sub-section (4) of Section 4 states that the Social Impact
Assessment study referred to in sub-section (1) shall, amongst other
matters, include all the following, namely:
(a) assessment as to whether the proposed acquisition serves
public purpose;
(b) estimation of affected families and the number of
families among them likely to be displaced;
(c) extent of lands, public and private, houses, settlements
and other common properties likely to be affected by the
proposed acquisition;
(d) whether the extent of land proposed for acquisition is the
absolute bare- minimum extent needed for the project;
(e) whether land acquisition at an alternate place has been
considered and found not feasible;
(f) study of social impacts of the project, and the nature and
cost of addressing them and the impact of these costs on
the overall costs of the project vis-a-vis the benefits of
the project:"
62. First of all, sub-section (4) of Section 4 is an inclusive
provision by which, all requisites shall be followed, in order to
conduct the study. From the above, it could be deduced that the
appropriate Government has to undertake Social Impact Assessment
study, in order to make awareness to the public, the public purpose,
W.As.169, 176, 179 &
estimation of affected families, and the number of families likely to be
displaced, the extent of lands, public and private, houses, settlements
and other common properties likely to be affected by the proposed
acquisition, etc.
63. The proviso to Section 4 makes it clear that Environmental
Impact Assessment study, if any, shall be carried out simultaneously
and shall not be contingent upon the completion of the Social Impact
Assessment study. In our considered opinion, the provisions of Section
4 of the LARR Act, 2013 is incorporated to ensure that a study is
conducted to protect the interest of the public at large and the property
owners. Only after conducting such a study, the State Government
would be able to identify the properties required for acquisition and
thereby, inform the public about the extent of land and other aspects
dealt with therein.
64. To put it otherwise, in order to have a proper Social Impact
Assessment study, there should be clear facts and figures with the
Government, in order to put it across the public and property owners,
the public purpose and other aspects in regard to the proposed
W.As.169, 176, 179 &
acquisition of the lands. This we say because, Section 5 of the LARR
Act, 2013 makes it clear that whenever a Social Impact Assessment
study is required to be prepared under Section 4 of the Act, the
appropriate Government shall ensure that a public hearing has to be
held at the affected area, after giving adequate publicity about the date,
time and venue for the public hearing, to ascertain the views of the
affected families to be recorded and included in the Social Impact
Assessment Report.
65. Section 5 gives a clear picture that the persons who are
affected by the land acquisition or likely to be affected by the land
acquisition are entitled to ascertain correctly as to whether their land is
proposed to be acquired; the extent of land to be acquired, and the
manner in which the acquisition is carried out by the appropriate
Government.
66. Section 6 of Act 2013 makes it abundantly clear that Social
Impact Assessment study report has to be published along with the
Social Impact Management plan, referred to in sub-section (6) of
Section 4 of LARR Act, 2013 and made available in the local
W.As.169, 176, 179 &
language to the Panchayat, Municipality or Municipal Corporation, as
the case may be, and the offices of the District Collector, the Sub-
Divisional Magistrate and the Tehsil, and shall be published in the
affected areas, in such manner as may be prescribed, and uploaded in
the website of the appropriate Government. Apart from the same, other
procedures are also prescribed therein.
67. Sub-section (6) of Section 4 of the LARR Act, 2013 makes it
mandatory that the appropriate Government shall require the authority
conducting the SIA study to prepare a Social Impact Management
Plan, listing the ameliorative measures required to be undertaken for
addressing the impact for a specific component referred to in
sub-section (5), and such measures shall not be less than what is
provided under a scheme or programme, in operation in that area, of
the Central Government or, as the case may be, the State Government,
in operation in the affected area.
68. Sub-section (5) of Section 4 further makes it clear that while
conducting SIA study under sub-section (1) of Section 4, the
appropriate Government shall take into consideration the impact that
W.As.169, 176, 179 &
the project is likely to have on various components such as livelihood
of affected families, public and community properties, assets and
infrastructure particularly roads, public transport, drainage, sanitation,
sources of drinking water, sources of water for cattle, community
ponds, grazing land, plantations, public utilities such as post offices,
fair price shops, food storage go-downs, electricity supply, health care
facilities, schools and educational or training facilities, anganwadies,
children parks, places of worship, land for traditional tribal institutions
and burial and cremation grounds.
69. Therefore, in our considered view, Section 4 of the LARR
Act, 2013 has its own facets and requirements, in order to ensure
knowledge of every intrinsic aspects to the public and owners of the
lands, by giving a precise and specific picture with respect to the
extent of acquisition required and the public and private amenities that
are likely to be affected by the same.
70. We have discussed the above matters elaborately for the
basic and primary reason that Social Impact Assessment study cannot
be seen as an empty formality; the public is entitled to know, as of
W.As.169, 176, 179 &
right, the adverse impact and consequences they are likely to suffer, on
account of the proposed acquisition. That apart, the SIA study report
along with Social Impact Management Plan have to be appraised by
an Expert Group, in contemplation of Section 7 of the LARR Act,
2013, which is an independent multi-disciplinary Expert Group
constituted with various officials and experts, as are prescribed under
the said provision.
71. Ultimately, only after undergoing the mandatory
requirements contained under Chapter II of LARR Act, which deals
with the determination of Social Impact and Public Purpose, the
appropriate Government can proceed with the acquisition of lands.
This we say so because, sub-section (4) of Section 7 makes it clear
that if the Expert Group constituted under sub-section (1), is of the
opinion that, (a) the project does not serve any public purpose; or (b)
the social costs and adverse social impacts of the project outweigh the
potential benefits, it shall make specific recommendations within two
months from the date of its constitution to the effect that the project
shall be abandoned forthwith and no further steps for acquiring the
W.As.169, 176, 179 &
land will be initiated in respect of the same. Therefore, it can be seen
that even if the SIA study is undertaken and ultimately, the Expert
Group rejects the proposal, Government would have to take a decision
to abandon the project for land acquisition.
72. Moreover, Section 8 of the LARR Act, 2013, makes it clear
that the appropriate Government also should have to be satisfied that
there is a legitimate and bona fide public purpose for the proposed
acquisition, which necessitates acquisition of the land identified; the
potential benefits and the public purpose which shall outweigh the
social costs and adverse social impact, as determined by the Social
Impact Assessment and has been carried out. Apart from the same,
other requirements are also contained under Section 8, in order to
enable the Government to go ahead with the acquisition of lands after
conducting SIA study.
73. The Social Impact Assessment study may be exempted only
under one circumstance mentioned in Section 9 of the LARR Act,
2013, where land is proposed to be acquired invoking the urgency
provisions under Section 40 of LARR Act, 2013.
W.As.169, 176, 179 &
74. The deliberations made above would make it clear that the
Social Impact Assessment study is independent of the provisions
contained under Chapter IV for notification and acquisition. If only the
appropriate Government decides to proceed with the acquisition, a
notification for acquisition of the land is required to be published
under Section 11, in the Official Gazette and in two daily newspapers
having circulation in the locality of such area of which, one shall be in
the regional language, etc.
75. Section 12 of the LARR Act, 2013 makes it clear that for the
purpose of enabling the appropriate Government to determine the
extent of land to be acquired, it shall be lawful for any officer, either
generally or specifically authorised by such Government in this behalf,
and for his servants and workmen, to enter upon and survey, and take
levels of any land in such locality, for the purpose specified therein; to
do all other acts necessary to ascertain whether, the land is adapted for
such purpose, etc. Therefore, we have no doubt in our mind to say that
if only it enables the Government to proceed with the acquisition of
lands after the SIA study is over, the acquisition of lands can be done
W.As.169, 176, 179 &
by the Government, which is an act to be carried out continuously, in
order to ascertain the extent of the land to be acquired, boundaries to
be fixed, and all other attendant consequential purposes.
76. Here is a case where, the State Government is at the initial
stage of understanding the social impact that is likely to occur if the
Government proceeds with the acquisition of lands, and therefore, it
cannot be said that the provisions of Sections 11 and 12 of the LARR
Act, 2013, contained under Chapter IV, dealing with notification and
acquisition, publication of preliminary notification, etc., would come
into operation at this stage of the proceedings. In order to employ the
said provisions, the stage of the acquisition should reach, and
therefore, in our considered view, the requirements contained under
Sections 11 and 12 of the LARR Act, 2013, cannot be relied upon for
the conduct of SIA study. To put it otherwise, the apprehensions made
by the writ petitioners are premature in nature and do not have a
bearing at all to the facts in dispute.
77. Mr. S. Manu, learned ASGI, submitted that out of the total
extent of the property required for acquisition, about 185 hectares of
W.As.169, 176, 179 &
land belonging to the railways are likely to be utilised, since the
proposed Semi High Speed Rail Corridor is running parallel to the
present existing double line railway, maintained by the Ministry of
Railways, Government of India, which is about 200 kms, from the
total extent of 1221 hectares of properties.
78. Learned ASGI also submitted that those aspects are yet to
attain finality since the proposal submitted by the State Government
for utilisastion of railway property as per letter dated 28.09.2021 is
under consideration of the Ministry of Railways, and thereafter,
various procedures are to be undertaken through different departments
of Union Government. Therefore, the State Government is not entitled
to fix the survey stones through the properties of the railways. Said
submission of the learned ASGI is placed on record.
79. In this context, learned counsel appearing for the writ
petitioners Mr. Mohammed Shah, has invited our attention to Rule 42
of the Kerala Survey and Boundaries Rule, 1964, to contend that the
basis for demarcation is for sub-division. We are unable to agree with
the said contention, for the reason that Rule 42 of the Rules, 1964
W.As.169, 176, 179 &
would come into play and require the authority to demarcate the sub-
divisions only when the land is finally acquired under the Land
Acquisition Act, 1894. In our view, said rule exemplifies a situation
where there is already a concluded land acquisition proceedings.
Viewed in that manner, the said rule would not come into operation
and apply at this stage of the proceedings.
80. That apart, Smt. A.K. Preetha, learned counsel for one of the
writ petitioners, relied on paragraph (10) of Exhibit-R1(b) Office
Memorandum issued by Ministry of Finance, Government of India,
New Delhi, dated 5.8..2016, produced in W.P.(C) No. 30567/2021, to
contend that since the project cost is exceeding Rs.100/- Crores,
approval is required from the concerned Ministry of Government of
India and the Cabinet. However, we are unable to agree with the same,
since paragraph (10) of the said Office Memorandum deals with,
among others, pre-investment activities, such as preparation of
feasibility reports, detailed project reports, survey etc., and not the
entire project cost. Writ petitioners do not have a case that for pre-
investment activities, approval of the concerned is not obtained.
W.As.169, 176, 179 &
81. Even though Mr. Mohammed Shah, learned counsel,
submitted that when there is a specific provision in the LARR Act,
2013, in the matter of conducting the survey for acquisition of land, as
provided under Section 12 of the LARR Act, 2013, we are of the view
that, it can be invoked by the appropriate Government for the purpose
of acquisition only. Therefore, there is no conflict at all, with the
Central and State laws, in the matter of survey to be undertaken at two
different stages, viz., (a) survey in connection with acquisition, as
contemplated under Section 6 of the Kerala Survey and Boundaries
Act, 1961 and LARR Act, 2013; and (b) acquisition at a later stage.
82. Learned counsel for the respondents/writ petitioners in W.A.
Nos.169/2022, 179/2022 and 176/2022, also invited our attention to
the provisions of Railways Act, 1989, in particular, Section 2(37A),
which defines "special railway project" to mean a project notified as
such by the Central Government from time-to-time, for providing
national infrastructure for public purpose in a specified time-frame,
covering one or more States or the Union territories. Further, Chapter
VIA of the Railways Act, 1989 deals with land acquisition for a
W.As.169, 176, 179 &
special railway project. Section 20A of Chapter VI speaks about power
to acquire land, etc., and it reads as under:
"20A. Power to acquire land, etc.- (1) Where the
Central Government is satisfied that for a public purpose any
land is required for execution of a special railway project, it
may, by notification, declare its intention to acquire such
land.
(2) Every notification under sub-section (1), shall give
a brief description of the land and of the special railway
project for which the land is intended to be acquired.
(3) The State Government or the Union territory, as
the case may be, shall for the purposes of this section,
provide the details of the land records to the competent
authority, whenever required.
(4) The competent authority shall cause the substance
of the notification to be published in two local newspapers,
one of which shall be in a vernacular language."
83. Reading of the above makes it clear that the provisions of
Railways Act, 1989, would come into play and apply only if the
project is a 'special railway project', covering one or more States.
According to us, to attract the said provision, the Semi High Speed
Rail Corridor should cover at least one State, apart from the State
which envisages the project. Definitely, if such a situation arises as per
the LARR Act, 2013 and Railways Act, 1989, the appropriate
Government would be the Central Government.
W.As.169, 176, 179 &
84. We have already stated that there is no requirement for going
through the said provisions of Railways Act, 1989 because, learned
Advocate General, as well as the learned Senior Counsel for KRDCL,
submitted that the Semi High Speed Rail Corridor runs through the
districts, within the State of Kerala, and not through the Union
Territory of Puducherry. Moreover, we have already stated that the
stage of acquisition of land comes only later, since the Social Impact
Assessment study alone is carried out.
85. Learned Advocate General has also submitted that the State
Government would not proceed with the acquisition of lands for the
proposed Silver Line Project, unless and until all other mandatory
requirements, in accordance with law, are complied with, in
consultation with the Union Government.
86. Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement (Kerala) Rules, 2015,
provides a clear procedure to conduct the Social Impact Assessment
study. Chapter IV of the Rules, 2015 deals with Social Impact
Assessment. Under Chapter IV, Rule 9 speaks about Social Impact
W.As.169, 176, 179 &
Assessment Units to be formed by the Government for the purpose of
conducting SIA study, in accordance with the provisions of the Act
and to take appropriate action in that regard.
87. Rule 10 of the Rules, 2015 speaks about notifying a Social
Impact Assessment Unit for conducting Social Impact Assessment
study; Rule 11 of the Rules, 2015 speaks about project specific terms
of reference and deposit of the cost of conducting Social Impact
Assessment study; and Rule 12 speaks about the process of conducting
Social Impact Assessment study.
88. Sub-rule (1) of Rule 12 clearly states that the Social Impact
Assessment team shall collect and analyze a range of quantitative and
qualitative data, undertake detailed site visits, use participatory
methods such as focused group discussion, participatory rural
appraisal techniques and informant interviews in preparing the Social
Impact Assessment report.
89. Sub-rule (2) of Rule 12 clearly states that all relevant project
reports and feasibility studies shall be made available to the Social
Impact Assessment process, as required. Any request for information
W.As.169, 176, 179 &
from the Social Impact Assessment Unit shall be met at the earliest
and not later than ten days of its receipt. The District Collector shall
be responsible for providing the information requisitioned by the
Social Impact Assessment team. Apart from that, various other
procedures are also prescribed for the preparation of the Social Impact
Assessment study report, public hearing, the Social Impact
Management Plan, publication of the report of the Expert Group and
publication of the decision of the Government etc.
90. Taking into account the various pros and cons, and the facts
and figures, we are of the unequivocal and considered opinion that the
State Government is vested with adequate powers to conduct the
survey, and mark the properties appropriately, for conducting the
Social Impact Assessment study, and therefore, the impugned interim
order passed by the learned single Judge, interdicting the survey and
marking of the properties in question, after issuing appropriate
notifications by the State Government under the provisions of Kerala
Survey and Boundaries Act, 1961, and the rules framed thereunder,
has to be interfered with. Accordingly, we set aside the common
W.As.169, 176, 179 &
interim order passed by the learned single Judge in W.P.(C)
Nos.30567/2021, 351/2022, 975/2022 & 1574/2022 dated 20.01.2022
in regard to the same.
91. We make it clear that the observations and findings rendered
by us are for the purpose of arriving at a logical conclusion, in the
matter of the interim order passed by the writ court, and the same will
not stand in the way of the rival parties taking up all contentions in the
writ petitions.
In the result, Writ Appeals are allowed.
S. MANIKUMAR
CHIEF JUSTICE
SHAJI P. CHALY
JUDGE
Krj
//TRUE COPY//
P.A. TO C.J.
