Kerala High Court
State Of Keralarepresented By ... vs V.V Varma on 18 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
FRIDAY, THE 18TH DAY OF FEBRUARY 2022 / 29TH MAGHA, 1943
WA NO. 244 OF 2022
AGAINST THE ORDER IN WP(C) 975/2022 OF HIGH COURT OF
KERALA DATED 7.2.2022
APPELLANT/RESPONDENTS 2, 5, 6 & 7 in WPC:
1 STATE OF KERALA
REPRESENTED BY ADDITIONAL CHIEF SECRETARY
SECRETARIAT, THIRUVANATHAPURAM, PIN - 695001
2 SPECIAL TAHSILDAR
LAND ACQUISITION(SILVER LINE)
COLLECTORATE THRISSUR, PIN - 680001
3 SPECIAL TAHSILDAR
LAND ACQUISITION(SILVER LINE)
COLLECTORATE, THRISSUR, PIN - 680001
4 SPECIAL TAHSILDAR
LAND ACQUISITION(SILVER LINE)
COLLECTORATE, KOZHIKODE, PIN - 673001
5 SPECIAL TAHSILDAR
LAND ACQUISITION(SILVER LINE)
COLLECTORATE, KOTTAYAM, PIN - 686001
BY ADV
SRI. K.GOPALAKRISHNA KURUP, ADVOCATE GENERAL,
SRI.T.B.HOOD, SPL GP
SRI V.MANU, SR.GP
RESPONDENTS/PETITIONER & RESPONDENTS 1,3 & 3 IN WPC:
1 V.V VARMA
AGED 69 YEARS, S/O ARUMUGAN
VAZHAPPULLY HOUSE, AYNOOR
PAZHANJI PO, THRISSUR, PIN - 680542
W.A.Nos.244, 245, 247 & 250 of 2022
2
2 MUJEEB RAHMAN A
AGED 39 YEARS,
S/O KOYAKKUTTY
ATTIYEDATH,
CHERUVANNUR
FEROKE PO, KOZHIKODE,
PIN - 673631
3 M.T THOMAS
AGED 70 YEARS,
S/O MG THOMAS
MURAMTHOOKIL
MULAMKULAM SOUTH
PERUVA P.O
KOTTAYAM, PIN - 686610
4 V.M JOSEPH
AGED 71 YEARS
S/O MATHAI THOMAS VAREECKAL
KUNNAPILLY, PERUVA P.O
KOTTAYAM, PIN - 686610
5 MATHEW KURIAN
AGED 65 YEARS
S/O KURIAM MATHEW
PUTHOOR THEEKARA
KUNAPILLY, PERUVA P.O
KOTTAYAM, PIN - 686610
6 UNION OF INDIA
REPRESENTED BY SECRETARY
MINISTRY OF RAILWAYS
RAIL BHAVAN, 256-A
RAISINA ROAD
RAJPATH AREA
CENTRAL SECRETARIAT
NEW DELHI, PIN - 110001
7 KERALA RAIL DEVELOPMENT CORPORATION LIMITED
REPRESENTED BY MANAGING DIRECTOR
TRANS TOWER
5 TH FLOOR
VAZHUTHACAUD
THIRUVANATHAPURAM,
PIN - 695001
W.A.Nos.244, 245, 247 & 250 of 2022
3
8 RAILWAY BOARD
RAIL BHAVAN
256-A
RAISINA ROAD
RAJPATH AREA
CENTRAL SECRETARIAT
NEW DELHI, PIN - 110001
REPRESENTED BY CHAIRPERSON
OTHER PRESENT:
SRI.MOHAMMED SHAH FOR R1 TO R5,
SRI. MANU.S.ASG FOR R6,
SRI.RAMESH BABU(SR) AND SRI. DINESH RAO FOR R7
SRI.C.DINESH CGC FOR R8
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
18.02.2022, ALONG WITH CONNECTED CASES, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
W.A.Nos.244, 245, 247 & 250 of 2022
4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 18TH DAY OF FEBRUARY 2022 / 29TH MAGHA, 1943
WA NO. 245 OF 2022
AGAINST THE ORDER IN WP(C) 351/2022 OF HIGH COURT OF
KERALA DATED 7.2.2022
APPELLANT/2ND RESPONDENT IN WPC:
STATE OF KERALA REPRESENTED BY CHIEF SECRETARY
GOVERNMENT SECRETARIAT
THIRUVANATHAPURAM, PIN - 695001
BY ADV
SRI.K.GOPALAKRISHNA KURUP, ADVOCATE GENERAL,
SRI.T.B.HOOD, SPL. GOVERNMENT PLEADER,
SRI.V.MANU, SR. GOVERNMENT PLEADER
RESPONDENTS/PETITIONERS & RESPONDENTS 1, 3 & 4 IN WPC:
1
BINU SEBASTIAN
AGED 45 YEARS
S/O PT DEVASIA
PUNCHAYIL HOUSE
ETTUMANOOR P O
KOTTAYAM, PIN - 686631
2 SUNIL KM
AGED 47 YEARS,S/O BABY
THOTTAKKATTU HOUSE
PERUMBAIKAD P O
ETTUMANOOR VIA
KOTTAYAM, PIN - 686016
W.A.Nos.244, 245, 247 & 250 of 2022
5
3 P E THOMAS
AGED 66 YEARS, S/O VT EAPEN
VALIYAPUNCHALPUTHENVEETIL HOUSE
ANIKKAL KAVALA, PERUMBAIKAD PO
ETTUMANOOR VIA
KOTTAYAM, PIN - 686016
4 MADHU J THEKKANATTU
AGED 47 YEARS, S/O MATHAI JOSEPH
THEKKANATTU HOUSE
KIZHAKKUMBHAGAM KARA, ETTUMANOOR PO
KOTTAYAM, PIN - 686631
5 UNION OF INDIA REPRESENTED BY SECREATARY
MINISTRY OF RAILWAYS
RAIL BHAVAN, 256-4
RAISINA ROAD, RAJPATH AREA
CENTRAL SECRETARIAT
NEW DELHI, PIN - 110001
6 KERALA RAIL DEVELOPMENT CORPORATION LIMITED
REPRESENTED BY MANAGING DIRECTOR
TRANS TOWER, 5 TH FLOOR
VAZHUTHACAUD, THIRUVANATHAPURAM,
PIN - 695014
7 THE RAILWAY BOARD REPRESENTED BY CHAIRPERSON
INDIAN RAILWAY
256-A, RAILWAY BHAVAN
RAISINA RAOD, NEW DELHI, PIN - 110001
BY ADVS.
BABU JOSEPH KURUVATHAZHA
MANU S., ASG OF INDIA
SRI. RAMESH BABU(SR) FOR R6
SHRI.SHRI.DINESH RAO A., SC, K-RAIL
SRI.S.RADHAKRISHNAN,SENIOR PANEL,RAILWAYS
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
18.02.2022, ALONG WITH CONNECTED CASES, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
W.A.Nos.244, 245, 247 & 250 of 2022
6
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 18TH DAY OF FEBRUARY 2022 / 29TH MAGHA, 1943
WA NO. 247 OF 2022
AGAINST THE ORDER IN WP(C) 30567/2021 OF HIGH COURT OF
KERALA DATED 7.2.2022
APPELLANTS/RESPONDENTS 1, 3 & 4 IN WPC:
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 HEAD QUARTERS,
THIRUVANANTHAPURAM, PIN - 695010
BY ADV
SRI.K.GOPALAKRISHNA KURUP, ADVOCATE GENERAL,
SRI.T.B.HOOD, SPL GP AND SRI.V.MANU,SR GP
RESPONDENTS/PETITIONERS & RESPONDENTS 2, 5 & 6 IN WPC:
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,
MAPPILCHERRY VILLA,
MAMOOD P O,CHANGANACHERY,
PIN - 686536
W.A.Nos.244, 245, 247 & 250 of 2022
7
3 P,A.JOHNIKKUTTY
S/O ITTIAVIRA, KUNNASSERI PUTHENPURAYIL,
THOTTECADU, VAKATHANAM.P.O,
KOTTAYAM DISTRICT , PIN - 686538
4 KERALA RAIL DEPARTMENT CORPORATION LTD.,
TRANS TOWERS, 5TH FLOOR VAZHUTHACAD,
THIRUVANANTHAPURAM, PIN - 695054
REPRESENTED BY THE MANAGING DIRECTOR
5 THE RAILWAY BOARD
INDIAN RAILWAYS, RAIL BHAVAN,
RAISANA ROAD, NEW DELHI, PIN - 110001
REPRESENTED BY ITS CHAIRMAN
6 THE UNION OF INDIA REPRESENTED BY ITS SECRETARY
TO GOVERNMENT OF INDIA
MINISTRY OF RAILWAYS, RAIL BHAVAN,
RAISANA ROAD, NEW DELHI, PIN - 110001
BY ADVS.
O.V.MANIPRASAD
SRI.A.DINESH RAO, SC, RAILWAYS
SHRI.C.DINESH, CGC
MANU S., ASG OF INDIA
OTHER PRESENT:
SRI. RAMESH BABU(SR)FOR R4
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
18.02.2022, ALONG WITH CONNECTED CASES, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
W.A.Nos.244, 245, 247 & 250 of 2022
8
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 18TH DAY OF FEBRUARY 2022 / 29TH MAGHA, 1943
WA NO. 250 OF 2022
AGAINST THE ORDER IN WP(C) 1574/2022 OF HIGH COURT OF
KERALA DATED 7.2.2022
APPELLANTS/RESPONDENTS 4 & 9 IN WPC:
1 STATE OF KERALA REPRESENTED BY SECRETARY TO
GOVERMENT, DEPARTMENT OF TRANSPORT,
SECRETARIAT,
THIRUVANANTHAPURAM,
PIN - 695001
2 SPECIAL TAHSILDAR(L.A)
N.H NO.2, ALUVA, PIN - 683101
BY ADV
SRI.K.GOPALAKRISHNA KURUP, ADVOCATE GENERAL,
SRI.T.B.HOOD, SPL GP
SRI.V.MANU,SR GP
RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 3 & 5 TO 8 IN WPC:
1 SUNIL J ARACKALAN
AGED 47 YEARS, S/O. JOSEPH,
ARACKALAN HOUSE, ELAVOOR KARA,
PARAKKADAVU VILLAGE,
ALUVA TALUK,
ERNAKULAM DISTRICT,
PIN - 683579
W.A.Nos.244, 245, 247 & 250 of 2022
9
2 UNION OF INDIA
REPRESENTED BY IT'S SECRETARY
MINISTRY OF RAILWAYS,
RAIL BHAVAN, 256-A,
RAISINA ROAD, RAJPATH AREA,
CENTRAL SECRETARIAT,
NEW DELHI, PIN - 110001
3
THE RAILWAY BOARD
REPRESENTED BY IT'S CHAIRMAN
RAIL BHAVAN, 256-A,
RAISINA ROAD, RAJPATH AREA,
CENTRAL SECRETARIAT,
NEW DELHI, PIN - 110001
4 SOUTHERN RAILWAY
REPRESENTED BY IT'S ZONAL MANAGER,
HEADQUARTERS OFFICE,
PARK TOWN,
CHENNAI, PIN - 600003
5
KERALA RAIL DEVELOPMENT CORPORATION LIMITED
(K-RAIL) REPRESENTED BY IT'S MANAGING DIRECTOR
5TH FLOOR, TRANS TOWER,
VAZHUTHACAUD, THYCAUD P.O,
THIRUVANANTHAPURAM,
KERALA, PIN - 659014
6
MANAGING DIRECTOR
KERALA RAIL DEVELOPMENT CORPORATION LIMITED
(K-RAIL), 5TH FLOOR,
TRANS TOWER, VAZHUTHACAUD,
THYCAUD P.O,
THIRUVANANTHAPURAM,
KERALA, PIN - 695014
7 THE UNION TERRITORY OF PUDUCHERRY
REPRESENTED BY IT'S SECRETARY
REVENUE DEPARTMENT,
CHIEF SECRETARIAT,
PUDUCHERRY, PIN - 605001
W.A.Nos.244, 245, 247 & 250 of 2022
10
8
THE REGIONAL ADMINISTRATIVE OFFICER
OFFICE OF REGIONAL ADMINISTRATOR,
GOVERNMENT HOUSE, MAHE, PIN - 673310
BY ADVS.
A.K.PREETHA
SRI.S.RADHAKRISHNAN,SENIOR PANEL,RAILWAYS
SRI.A.DINESH RAO, SC, RAILWAYS
MANU S., ASG OF INDIA
SRI. RAMESH BABU(SR)FOR R5 AND R6
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
18.02.2022, ALONG WITH CONNECTED CASES, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
W.A.Nos.244, 245, 247 & 250 of 2022
11
JUDGMENT
Dated this the 18th day of February, 2022
S.Manikumar, CJ.
Instant writ appeals are filed against the common interim order
dated 7.2.2022 passed by a learned single Judge of this Court in W.P.
(C). Nos.30567/2021, 351/2022, 975/2022 & 1574/2022 respectively.
2. By the impugned order, writ court, after hearing learned
counsel for the Petitioners, Mr. Ramesh Babu, learned Senior Counsel
appearing for KRDCL, assisted by the learned counsel Mr. Dinesh Rao,
Mr. T.B. Hood, learned Special Government Pleader, Mr. S. Manu,
learned Assistant Solicitor General, and on perusing the office
memorandum of Ministry of Finance, Government of India dated
05.08.2016, wherein the word 'Pre-Investment Activities' is admittedly
defined, ordered as under:
"15. Therefore, as I have begun this order, the relevant
issue today is not whether the survey under the Survey and
Boundaries Act is permissible along with the SIA, but if the
SIA itself is permissible, going by the stand of the Central
Government and the specific tenor of the word 'Pre-
Investment Activities' as defined in the Office Memorandum
of the Government of India dated 05.08.2016, which does
W.A.Nos.244, 245, 247 & 250 of 2022
not, prima facie, permit land acquisition.
16. Obviously, therefore, until this Court is
able to obtain specific clarifications on this from the
official respondents, further survey of the properties of
the petitioners would become unnecessary, particularly
because, as stated by the Railways, if the alignment is to
be altered, then all expenditure for the same would
become superfluous and wasted.
17. Therefore, until the next posting date, I
am certain that all action for survey of the properties, as
presently being done, cannot be permitted on the
properties of the petitioners, especially because the
Government of Kerala has sought time to answer the
specific queries of this Court.
Resultantly, I adjourn this matter to be
called on 18.02.2022; until which time, survey of the
properties of the petitioners and any acquisition steps
with respect to it shall stand deferred.
I make it clear that this Court has, today,
only considered the afore angle and nothing else and that
all other contentions are open to be argued by the
learned counsel, when the matter is next posted, so that
these writ petitions can be disposed of on its merits.
It goes without saying that the earlier orders
of this Court, dated 23.12.2021 and 06.01.2022, with
respect to the boundary stones and the manner of its
lying during survey, will continue to operate."
W.A.Nos.244, 245, 247 & 250 of 2022
3. Appellants are the official respondents in the writ petitions and
respondents are the writ petitioners. The writ petitions were filed
aggrieved by the notifications issued by the State Government directing
to conduct survey under the Kerala Survey and Boundaries Act, to
facilitate Social Impact Assessment Study (SIA Study) for the proposed
Semi High Speed Railway Line Project (Silver Line Project) between
Thiruvananthapuram and Kasaragod districts.
4. It is the case of the writ petitioners that the survey could be
conducted only in terms of the provisions under the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 and not by invoking the provisions of the
Surveys and Boundaries Act.
5. Writ court considered the writ petitions and by a common
interim order dated 20.01.2022, ordered to defer the steps for survey of
the properties belonging to the petitioners till 07.02.2022.
6. Being aggrieved, by the order dated 20.01.2022 the State
Government and its officials filed W.A. Nos.169, 176, 179 and 186 of
2022.
7. The writ appeals were heard together and by judgment
14.02.2022, this court allowed the writ appeals and set aside the
W.A.Nos.244, 245, 247 & 250 of 2022
common interim order dated 20.01.2022 passed by the learned single
Judge in the writ petitions.
8. In the meanwhile, the writ petitions were posted before the
learned single Judge at 1.45 p.m. on 7.2.2022 by publishing a
supplementary list on the same day. Appellants have stated that before
the writ court it was submitted on their behalf that writ appeals were
filed against the common interim order dated 20.01.2022 and after
hearing, the matters were reserved for orders.
9. It was also submitted that since the Division Bench was seized
of the matter, the common interim order may be extended. However,
based on the averments in the counter affidavit filed by the Railway
Board and Union of India in W.P.(C) No.30567 of 2021, writ court
passed a common interim order dated 7.2.2022 directing to defer the
survey of the properties belonging to the writ petitioners and any
acquisition steps with respect to the same, till 18.02.2022. It is thus
challenging the legality and correctness of the common interim order
dated 7.02.2022, these writ appeals are preferred.
10. We have heard, the learned Advocate General Sri. K.
Gopalakrishna Kurup for the State and its officials, assisted by Adv
T.B.Hood, senior Government Pleader, learned counsel for the party
W.A.Nos.244, 245, 247 & 250 of 2022
respondents Sri. P.A. Mohammed Shah, Mr. O. V. Maniprasad, Mr. Babu
Joseph Kuruvathazha, Smt. A.K. Preetha, and learned Assistant Solicitor
General of India Sri. S. Manu, and perused the pleadings and
documents on record.
11. In our considered opinion an elaborate discussion of the facts
is not required, basically for the reason that the issue with respect to
the survey conducted by the State Government for the purpose of social
impact assessment study as per the provisions of the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (hereinafter called 'LARR Act 2013') and other
intricate aspects in respect of 'K-Rail' project was considered by us in
W.A. No.169 of 2022 and other connected writ appeals; and as per a
common judgment dated 14.2.2022, we interfered with the common
interim order dated 20.1.2022, passed by the learned Single Judge in
the writ petitions in question by setting aside the same, and held that
the State Government is vested with adequate powers to conduct
survey and mark the properties appropriately for conducting the social
impact assessment study by virtue of the powers conferred under the
Kerala Survey and Boundaries Act 1961 and the Rules 1964 thereto.
12. In fact, a detailed judgment was passed in W.A. No.169 of
W.A.Nos.244, 245, 247 & 250 of 2022
2022 and the connected cases, taking into account the relevant
provisions of the Kerala Surveys and Boundaries Act, 1961, Kerala
Surveys and Boundaries Rules, 1964, the Right to Fair Compensation
and Transparency in Land Acquisition, Rehabilitation and Resettlement
Act, 2013, the State Rules, 2015 thereto, and the provisions of Railways
Act, 1989, and ultimately found that the action of the State Government
in conducting survey for social impact assessment study as per the
provisions of the LARR Act, 2013 and the State Rules 2015, is different
from the notification for acquisition under Section 11 of the LARR Act,
2013. We have also held that there is no conflict of interest between
the provisions of LARR Act 2013 and the Kerala Survey and Boundaries
Act 1961 in the matter of conduct of survey in connection with a
proposed land acquisition.
13. The writ appeals were heard by us and reserved for
judgment on 04.02.2022, and the judgment was pronounced on
14.02.2022. However, the impugned common order was passed by the
learned Single Judge on 07.02.2022. In our considered opinion, the
issues considered by the learned Single Judge in the common interim
order dated 7.2.2022 were considered by this Court in W.A. No.169 of
2022 and the connected cases, and the action of the State Government
W.A.Nos.244, 245, 247 & 250 of 2022
conducting the survey was found to be in accordance with law. In that
view of the matter, the common order now passed by the learned Single
Judge dated 7.2.2022 impugned in the writ appeals cannot be
sustained.
14. Therefore, after having taken into consideration the rival
submissions made across the Bar, we are of the view that writ appeals
are to be allowed in terms of the common judgment in W.A. No.169 of
2022 and connected cases dated 14.2.2022.
15. Accordingly, we allow the writ appeals and set aside the
common order of the learned Single Judge dated 7.2.2022. It is also
made clear that the findings, observations and the conclusions arrived
at by this Court in W.A. No.169 of 2022 and the connected cases would
strictly apply to the instant writ appeals also.
Writ appeals are allowed accordingly.
Sd/-
S. Manikumar,
Chief Justice
Sd/-
Shaji P. Chaly,
Judge
sou.
