Kerala High Court
Firoz Konikuzhiyil vs State Of Kerala on 27 March, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
WEDNESDAY, THE 27TH DAY OF MARCH 2024 / 7TH CHAITHRA, 1946
WP(C) NO. 32250 OF 2023
PETITIONERS:
1 FIROZ KONIKUZHIYIL
AGED 45 YEARS
S/O HUSSAIN HAJI, KONIKUZHIYIL POONTHAVANAM (H),
POONTHANAM P.O, PATTIKKAD, MALAPPURAM DISTRICT,
KERALA, PIN - 679325
2 NOOR MUHAMMED
AGED 52 YEARS
S/O BEERAN, KURIADAN PALLIKKUNNU (H), CHUNGAM,
PATTIKKAD P.O, MALAPPURAM DISTRICT, KERALA, PIN -
679325
3 MOHAMED BASHEER
AGED 49 YEARS
S/O ABDUL JABBAR, MATTUMATHODI MULLYARAKURSHI (H),
PATTIKKAD, MALAPPURAM DISTRICT, KERALA, PIN -
680652
4 UMMU HABEEBA
AGED 55 YEARS
W/O YOUSAF, KOORIYATTU VATTAMPARAMBIL (H),
PATTIKKAD, MALAPPURAM DISTRICT, KERALA, PIN -
680652
5 JABIR K.V
AGED 35 YEARS
S/O YOUSAF, KOORIYATTU VATTAMPARAMBIL (H),
PATTIKKAD, MALAPPURAM DISTRICT, KERALA, PIN -
680652
BY ADVS.
N.U.HARIKRISHNA
MITHUN BABY JOHN
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT OF
KERALA, SECRETARIAT, TRIVANDRUM, PIN - 695001
W.P.(C). No.32250 of 2023 :2:
2 THE PUBLIC WORKS DEPARTMENT
SECRETARIAT, TRIVANDRUM , REPRESENTED BY ITS
SECRETARY, PIN - 695001
3 LAND ACQUISITION OFFICER & SPECIAL THAHASILDAR
SPECIAL THAHASILDAR OFFICE, L.A (GENERAL),
MALAPPURAM, PIN - 676505
4 KERALA RAIL DEVELOPMENT CORPORATION LTD
5TH FLOOR, TOONS TOWER, VAZHUTHACAUD, THYCAUD P.O,
TRIVANDRUM, KERALA, REPRESENTED BY ITS CHAIRMAN.,
PIN - 695014
5 SOUTHERN RAILWAY, PALAKKAD
REPRESENTED BY ITS RAILWAY DIVISIONAL MANAGER,
ENGINEERING BRANCH, SOUTHERN RAILWAY, PALAKKAD,
PIN - 678002
6 THE DISTRICT COLLECTOR
COLLECTORATE ROAD, UP HILL, MALAPPURAM, KERALA,
PIN - 676505
7 THE DEPUTY COLLECTOR
COLLECTORATE ROAD, UP HILL, MALAPPURAM, KERALA,
PIN - 676505
BY ADV DINESH RAO A
OTHER PRESENT:
GP - DEEPA V
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 27.03.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C). No.32250 of 2023 :3:
VIJU ABRAHAM, J.
-- -- -- -- -- -- -- -- -- -- -- -- --
W.P.(C) No.32250 of 2023
-- -- -- -- -- -- -- -- -- -- -- -- --
Dated this the 27th day of March, 2024
JUDGMENT
The petitioners have approached this Court seeking to quash
Ext.P4 notification under Section 11 of the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013(in short 'the Act, 2013)
and to quash Ext.P3 report of the Social Impact Assessment Study.
2. The present writ petition is filed aggrieved by the
notification for acquisition of land for the purpose of construction
of a railway over bridge and also challenging Ext.P3 assessment
study report. The contentions of the petitioners is that the
proposed alignment is biased towards one side of the land owners,
which is very evident from Exts.P5 and P6. Aggrieved by the same,
the 1st petitioner has preferred Ext.P7 reply before the 5 th
respondent with a copy to the 3 rd respondent Land Acquisition
Officer.
3. The learned Standing Counsel for the Railways as well as
the learned Government Pleader would submit that the petitioners
have an effective alternative remedy under Section 15 of the Act,
2013 to file an objection before the Collector and based on the
report of the Collector, the Government shall take appropriate
decision on the matter. It is further submitted that for an area less
than 200 Ares, the Collector mentioned in Section 15 is the 3 rd
respondent herein and a decision to be taken based on the report
of the 3rd respondent will be the District Collector, who is the 6 th
respondent in this writ petition.
4. The learned Standing Counsel for the railways brought to
my notice the Apex Court judgment in Union of India v. Dr.
Kushala Shetty and Others [2011 KHC 821], wherein
paragraph 24 reads as follows:
"24.Here, it will be apposite to mention that NHAI is
a professionally managed statutory body having
expertise in the field of development and
maintenance of National Highways. The projects
involving construction of new highways and
widening and development of the existing highways,
which are vital for development of infrastructure in
the country, are entrusted to experts in the field of
highways. It comprises of persons having vast
knowledge and expertise in the field of highway
development and maintenance. NHAI prepares and
implements projects relating to development and
maintenance of National Highways after thorough
study by experts in different fields. Detailed project
reports are prepared keeping in view the relative
factors including intensity of heavy vehicular traffic
and larger public interest. The Courts are not at all
equipped to decide upon the viability and feasibility
of the particular project and whether the particular
alignment would subserve the larger public interest.
In such matters, the scope of judicial review is very
limited. The Court can nullify the acquisition of land
and, in rarest of rare cases, the particular project, if
it is found to be ex-facie contrary to the mandate of
law or tainted due to mala fides. In the case in hand,
neither any violation of mandate of the 1956 Act has
been established nor the charge of malice in fact has
been proved. Therefore, the order under challenge
cannot be sustained. "
In the said judgment the Apex Court held that the courts are not
equipped to decide upon the viability and feasibility of particular
project and whether particular alignment would subserve larger
public interest and in such matters the scope of judicial review is
very limited.
After hearing both sides I am of the view that since there is an
effective remedy available to the petitioners under Section 15 of
the Act, 2013 and the petitioners have already preferred Ext.P7
objection in this regard before the 3rd respondent, the said
objection shall be treated as an objection filed under Section 15 of
the Act, 2013 and the 3rd respondent shall forward the same to the
6th respondent with a report based on the objections raised in
Ext.P7, after affording an opportunity of being heard to the
petitioner and any other affected parties, within a period of two
weeks from the date of receipt of a copy of this judgment and the
6th respondent shall finalise the same, within an outer limit of two
weeks thereafter, after hearing the petitioners and any other
affected parties.
The writ petition is disposed of as above.
Sd/-
VIJU ABRAHAM
JUDGE
sm/
APPENDIX OF WP(C) 32250/2023
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE PHOTOGRAPH OF THE
SURVEY STONE LAID ON 25/11/2020
Exhibit P2 A TRUE COPY OF THE OBJECTION DATED NILL
FILED BY THE PETITIONERS AND OTHER LAND
OWNERS
Exhibit P3 A TRUE COPY OF THE DRAFT REPORT OF SOCIAL
IMPACT ASSESSMENT DATED 19/04/2022
Exhibit P4 A TRUE COPY OF THE NOTIFICATION DATED
25/3/2023 UNDER SECTION 11(1) OF THE
RIGHT TO FAIR COMPENSATION AND
TRANSPARENCY IN LAND ACQUISITION,
REHABILITATION AND RESETTLEMENT ACT, 2013
PUBLISHED IN THE LOCAL DAILY NEWSPAPER
NAMED CHANDRIKA ON 31/03/2023
Exhibit P5 A TRUE COPY OF THE SKETCH PLAN DATED NIL
PREPARED BY THE 4TH RESPONDENT
Exhibit P6 A TRUE COPY OF SKETCH PLAN DATED NIL
PREPARED BY THE PETITIONERS THROUGH "MAP
SURV", A PRIVATE AGENCY
Exhibit P7 A TRUE COPY OF THE OBJECTION DATED
21/06/2022 SUBMITTED BY THE 1ST
PETITIONER BEFORE THE 5TH RESPONDENT
