Rajesh K vs Managing Director
2023 Latest Caselaw 6396 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MR. JUSTICE GOPINATH P.
     TUESDAY, THE 13TH DAY OF JUNE 2023 / 23RD JYAISHTA, 1945
                        WP(C) NO. 41009 OF 2022
PETITIONER/S:

    1     RAJESH K.,
          AGED 52 YEARS
          LEKSHMI NIVAS, ERUVA EAST P.O., KAKKANAD, KAYAMKULAM
          -690572.

    2     LEKSHMI M,
          SREERAGAM, MAVOLIMUKKE, ERUVA EAST P.O., KAKKANAD,
          KAYAMKULAM -690572

    3     SMITHA RANI S,
          CHOORAKKATTU, ERUVA EAST P.O., KAKKANAD, KAYAMKULAM-
          690572.

    4     SAHADEVAN N.,
          THEVALAPURATHU, PERINGALA P.O., NADAKKAVU, KAYAMKULAM-
          690559.

    5     G.VALSALA DEVI,
          MAVOLIL VEEDU, NADAKKAVU, PERINGALA P.O., KAYAMKULAM-
          690559.

    6     G.REMA DEVI,
          MAVOLIL VEEDU, NADAKKAVU, PERINGALA P.O., KAYAMKULAM-
          690559.

    7     SINDHU VISWANATHAN,
          PADIPPURAKKAL HOUSE, MATTOM SOUTH, THATTARMABALAM P.O.,
          MAVELIKARA -690103.

    8     CHANDRABABU,
          PANAMPALLIL HOUSE, PATHIYOOR, BHAGAVATHYPADY P.O.,
          KAYAMKULAM -690508.

    9     MOHANKUMAR K.V.,
          SREEMANDIRAM, NADACKAVU, PERUNGALA P.O. ALAPPUZHA
          -690559.

    10    RAJENDRAN,
          AYIKKRETH, NADAKKAVU,, PERUNGALA P.O., ALAPPUZHA
 W.P.(C)No.41009/2022               2

            -690559.

    11      SOBHANA S.,
            DEVIKRIPA, PERUNGALA P.O., ALAPPUZHA -690559.

    12      R.ANADALAKSHMI,
            ANANDA BHAVAN, PERUNGALA P.O., ALAPPUZHA- 690559.

    13      FR.K.M.THOMAS,
            KUNNUMPURATHU, PERUNGALA P.O., KAYAMKULAM 6905559.

    14      DAISY PHILIP,
            ROSHAN VILLA, ERUVA EAST P.O., KAYAMKULAM.

    15      PRASANNAKUMARI,
            THEVALAPURATHU HOUSE, NADAKKAVU, PERINGALA P.O.,
            KAYAMKULAM -690559.

    16      SUMESHKUMAR
            THATTAVAZHI PUTHEN VEEDUM, ERUVA, POKAKKANAD,
            KAYAMKULAM -690572.

    17      PAPPYKOSHY,
            VADAKKAETHALACKAL, PERINGALA P.O., KAYAMKULAM
            690559.

    18      JIJI THOMAS,
            KALLUMOOTTILTHARAYIL, ERUVA P.O., KAYAMKULAM 690572.

    19      VASANTHI VELAYUDHAN,
            EDAYIRICKAL HOUSE, NADACKAVU, PERINGALA P.O.,
            KAYAMKULAM -690559.

    20      DR.P.K.ALEXANDER,
            PONVANISHOM ANJANA, ERUVA EAST, KAYAMKULAM -690572.

            BY ADVS.R.RAJASEKHARAN PILLAI
            SABINA JAYAN



RESPONDENT/S:

     1      MANAGING DIRECTOR
            KERALA RAIL DEVELOPMENT CORPORATION LTD., 5TH FLOOR,
            TRANS TOWER, VAZHUTHAKKAD, THYKKADU P.O.,
            THIRUVANANTHAPURAM- 695014.
 W.P.(C)No.41009/2022              3

     2      THE CENTRE FOR MANAGEMENT DEVELOPMENT,
            REPRESENTED BY ITS CHAIRMAN, FXV5+H99, CV RAMAN
            PILLAI RD, NEAR GOVERNMENT GUEST HOUSE, ELANKOM
            NAGAR, THYCAUD, THIRUVANANTHAPURAM, KERALA- 695014.

     3      THE STATE OF KERALA REPRESENTED BY THE CHIEF
            SECRETARY, GOVT. SECRETARIAT, THIRUVANANTHAPURAM-
            695001.


OTHER PRESENT:

            SMT. PREETHA K K (SR GP)


THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
13.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C)No.41009/2022                   4

                              JUDGMENT

The petitioners are residents on the either side of Kayamkulam-

Thiruvalla State Highway (SH-6) at a point called Kakkanad. There is a

railway crossing at Kakkanad which is stated to be very congested and

causing difficulties to commuters due to frequent closure. The

authorities, therefore, decided to construct a railway over-bridge.

According to the petitioners, in 1990's, a proposal had been made by the

revenue authorities and the railway authorities for acquisition of land for

construction of the railway over-bridge, the site of which is 400 meters

west of the present site. It is submitted that totally ignoring the earlier

proposal, a totally new proposal was put in place by the respondents

which involves the acquisition of land belonging to the petitioners and

others as well.

2. It is the case of the learned counsel appearing for the

petitioners that under the provisions of the Right to Fair Compensation

and Transparency in Land Acquisition, Rehabilitation and Resettlement

Act, 2013, (hereinafter referred to as the '2013 Act') a social impact

assessment study is to be completed in terms of the provisions contained

in Section 4 r/w. provisions contained in Right to Fair Compensation

and Transparency in Land Acquisition, Rehabilitation and Resettlement

(Social Impact Assessment and Consent) Rules, 2014 (hereinafter

referred to as the '2014 Rules'). It is submitted that, in the public hearing

conducted as a part of the Social Impact Assessment study, the 1 st

petitioner had raised a specific contention that the authorities should

take into consideration the earlier proposal for construction of the

railway over-bridge at a site which is on the western side of the present

proposed site. It is submitted that despite there being a specific

requirement in the 2014 Rules that any alternate proposal must also be

considered as a part of the social impact assessment study, this was not

done as is clear from a reading of Ext.P3.

3. The learned Government Pleader and the learned counsel

appearing for the 1st respondent would submit that the social impact

assessment study in question had been conducted following all the

procedures contemplated by the 2013 Act and the 2014 Rules. It is

submitted that the proposal now mooted was found to be the most

feasible proposal and it does not lie in the mouth of the petitioners to

insist that the earlier proposal mooted in the 1990's should be

considered by the authorities.

4. The learned counsel appearing for the petitioners would

submit that the alternate proposal mooted in the year 1990's was clearly

more economically feasible and that aspect to the matter has also not

been considered by the authorities concerned.

5. Having heard the learned counsel appearing for the

petitioners, the learned counsel appearing for the 1 st respondent and the

learned Government Pleader appearing for the official respondents, I am

of the view that in the light of the specific provisions contained in the

2014 Rules, it was incumbent on the part of the authorities [while

conducting the Social Impact Assessment study], to consider whether

there was any alternate alignment/proposal that could be considered.

The provisions of Rule 7 of 2014 Rules clearly provide that one of the

matters to be studied while conducting the Social Impact Assessment

study would be possible alternative sites for the project and their

feasibility(see Rule 7 (3) (d) of the 2014 Rules). A perusal of Ext.P3 does

not suggest that any alternate proposal had been considered. It is the

specific case of the petitioners that such an alternate proposal had been

mooted at the time of public hearing. While it will not be proper for this

Court to minutely examine whether the proposal mooted by the

petitioners or the proposal mooted by the authorities is more feasible

among the two, the fact that the authorities were alive to the possibility

of there being a cost effective alternate site is something that should have

featured in Ext.P3 report. I am, therefore, of the view that this writ

petition can be disposed of directing that the 2 nd respondent shall cause

the preparation of an additional report as a part of Ext.P3 Social Impact

Assessment study specifically considering the alternate site proposed by

the petitioners. The 2nd respondent shall also consider whether the

acceptance of the alternate site will be more economically feasible as

suggested by the petitioners. I make it clear that I have not expressed any

opinion on the merits of the claim put forth by the petitioners that the

alternate site to be more convenient and economically feasible, and it

will be open to the authorities to consider the same on the basis of their

own assessment of the situation. The report to be prepared by the 2 nd

respondent shall, thereafter, be placed for consideration of the expert

committee mentioned in paragraph 5 of the counter affidavit filed by the

3rd respondent (expert committee constituted in terms of sub sections 2

and 3 of Section 7 of 2013 Act) and the matter shall be considered in

accordance with the provisions contained therein. Till such time as a

fresh decision is taken as directed above, status quo as on today shall

continue. The petitioners shall place their alternate proposal in writing

before the 2nd respondent within a period of two weeks from today. The

writ petition is ordered as above.

Sd/-

GOPINATH P.

JUDGE acd

APPENDIX OF WP(C) 41009/2022

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE JUDGMENT DATED 5.8.2022 IN WP(C) NO.23099/2021 OF THIS HON'BLE COURT.

Exhibit P2               TRUE COPY OF THE DRAFT REPORT OF THE
                         SOCIAL IMPACT ASSESSMENT STUDY FURNISHED
                         BY THE 2ND RESPONDENT.

Exhibit P3               TRUE COPY OF THE FINAL REPORT OF THE
                         SOCIAL IMPACT ASSESSMENT STUDY FURNISHED
                         BY THE 2ND RESPONDENT.

Exhibit P4               TRUE COPY OF THE NEWS ITEM APPEARED IN
                         MATHRUBHOOMI DAILY DATED 30.11.2022.

Exhibit P5               TRUE COPY OF THE GAZETTE NOTIFICATION
                         NO.995 DATED 18.3.2023