Kerala High Court
Nochikkatte Musthafa vs The State Of Kerala on 14 March, 2025
Author: Murali Purushothaman
Bench: Murali Purushothaman
WP(C) NO. 242 OF 2021 : 1 :
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
FRIDAY, THE 14TH DAY OF MARCH 2025 / 23RD PHALGUNA, 1946
WP(C) NO. 242 OF 2021
PETITIONER:
NOCHIKKATTE MUSTHAFA
AGED 65 YEARS
S/O.ABDU, HOLDER OF INDIAN PASSPORT
NO.Z4760941, EMPLOYED IN QATAR, PERMANENTLY
RESIDING AT NOCHKKATTIL HOUSE, P.O.ANIYARAM,
THALASSERY TALUK,
KANNUR DISTRICT, PIN-670672,
REPRESENTED BY POWER OF ATTORNEY HOLDER,
RAFAS.M.P, S/O.RAFI.H, AGED 31 YEARS,
BUSINESS, RESIDING AT SUBAH HOUSE,
NEW MAHE AMSOM KURICHIYIL DESOM OF THALASSERY
TALUK, P.O.KURICHIYIL, PIN-670102,
KANNUR DISTRICT.
BY ADVS.
R.SURENDRAN
KUM.S.MAYUKHA
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
REVENUE DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695001.
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2 THE DISTRICT COLLECTOR,
KANNUR DISTRICT, COLLECTORATE,
KANNUR, PIN-670002.
3 THE SPECIAL TAHSILDAR,
LAND ACQUISITION (GENERAL), THALASSERY,
KANNUR DISTRICT, PIN-670101.
4 THE SECRETARY,
PANOOR MUNICIPALITY, PANOOR,
KANNUR DISTRICT, PIN-670692.
5 THE DISTRICT MEDICAL OFFICER,
HEALTH, 1ST FLOOR, COLLECTORATE,
ANNEX, THAVAKKARA, KANNUR, KERALA-670002.
6 KANNUR ASSOCIATION FOR INTEGRATED RURAL
ORGANISATION AND SUPPORT,
A SOCIETY REGISTERED UNDER THE SOCIETIES
REGISTRATION ACT, 1860, S.NO.737/1999,
REPRESENTED BY ITS SECRETARY CUM TREASURER,
KAIROS, LATIN BISHOPS HOUSE,
BURNACHERRY P.O., KANNUR, PIN-670013.
7 THE CHAIRMAN,
SOCIAL IMPACT ASSESSMENT UNIT (KANNUR
ASSOCIATION FOR INTEGRATED RURAL ORGANISATION
AND SUPPORT, KANNUR), LATIN BISHOPS HOUSE,
BURNACHERRY P.O., KANNUR, PIN-670013.
BY ADVS.
R BY SRI.GOPALAKRISHNA KURUP (ADVOCATE GENERAL)
SRI.K.P.JAYACHANDRAN, ADDL. ADVOCATE GENERAL()
R BY SRI. P.A.MOHAMMED SHAH
R BY SR.GP SRI.JAFAR KHAN Y.,
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 28.02.2025, THE COURT ON 14.03.2025 DELIVERED THE
FOLLOWING:
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JUDGMENT
The petitioner, a Non Resident Indian, is the
owner in possession of 0.7807 Hectares of garden
land comprised in R.S. Nos.128/1, 128/2A and
128/2B of Panoor Village, Thalasseri Taluk, Kannur
District. He states that he has purchased the said
properties for the purpose of construction of a
multi storied commercial cum special residential
building at an estimated cost of INR 64.0 crores.
He applied for building permit for construction of
the proposed building before the Panoor
Municipality and the District Town Planner
approved the layout for construction of 29050 sq.
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metres of building. No Objection Certificate from
the Fire and Rescue Department was also
obtained. His application for environmental
clearance is pending before the State
Environmental Impact Assessment Authority. He
had already invested considerable amount for
clearing the site, preparation of plan and design,
permits and statutory clearance for the proposed
construction.
2. The District Collector, Kannur, the 2 nd
respondent, as per Ext. P2 proceedings dated
05.10.2016, appointed Kannur Association for
Integrated Rural Organisation and Support
(KAIROS), Kannur, the 6th respondent and another
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agency by name VIGIL, Mattanur for conducting
Social Impact Assessment Studies in accordance
with the provisions of the Right to Fair
Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act,
2013 (for short, 'the RFCTLARR Act') and to submit
time bound reports. In Ext. P2, the District
Collector ordered that, in all new land acquisition
cases under the RFCTLARR Act in the district, the
conduct of Social Impact Assessment studies must
be entrusted to these two agencies.
3. The petitioner states that appointment of
KAIROS as the Social Impact Assessment Unit (SIA
Unit) vide Ext. P2 is per se illegal inasmuch as
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under Rule 9 of the Right to Fair Compensation
and Transparency in Land Acquisition,
Rehabilitation and Resettlement (Kerala) Rules,
2015 (for short 'the RFCTLARR (Kerala) Rules'),
only the Government can accredit and empanel SIA
Units. Referring to Ext. P3 Certificate of
Registration, By-laws and Memorandum of
Association of KAIROS, it is contended that it is
purely a community controlled organization of
persons professing a particular religion and
comprised of persons who have no experience in
conducting Social Impact Assessment of any
projects.
4. Ext. P4 notification dated 04.11.2019 was
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issued by the District Collector, Kannur, the 2 nd
respondent proposing to acquire 0.8418 Hectares
of land situated in R.S. No.6/3A of Peringalam
Village in Panoor Municipality for the purpose of
expansion of Community Health Centre, Panoor
and appointed KAIROS as the SIA Unit for
conducting Social Impact Assessment Study and to
file report. The KAIROS submitted Ext. P5 report
dated 15.01.2020 stating that the proposed land is
suitable for expansion of Community Health Centre
and no alternate land need be considered for
acquisition. However, the 2nd respondent did not
proceed with acquisition of the said property at
Peringalam Village.
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5. While so, on 05.08.2020, the Government
issued Ext. P6 order according sanction to the
District Collector to acquire 78.7 Ares of land
situated in R.S. Nos.128/1, 128/2A and 128/2B of
Panoor Village, owned by the petitioner for the
development of Panoor Taluk Hospital invoking the
provisions of the RFCTLARR Act. Pursuant
thereto, the District Collector, by Ext. P7
notification dated 28.09.2020, issued in exercise of
the powers under Section 4(1) of the RFCTLARR
Act, appointed the 6th respondent KAIROS as the
SIA Unit for preparation of Social Impact
Assessment Study. Ext. P8 dated 19.10.2020 is the
report submitted by the KAIROS.
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6. The petitioner states that the observations
in Ext. P8 report are not genuine and he did not
get any notice of public hearing and that the notice
was not published as per Rule 8 of the Right to Fair
Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement
(Social Impact Assessment and Consent) Rules,
2014 [for short, 'the RFCTLARR (Social Impact
Assessment and Consent) Rules, 2014]. It is also
contended that Ext. P8 report is contrary to Ext. P5
report and does not conform to the requirements in
Form-I prescribed under Rule 3 of the RFCTLARR
(Social Impact Assessment and Consent) Rules,
2014.
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7. Based on Ext.P8 report, the District
Collector, constituted an Expert Group under
Section 7(1) of the RFCTLARR Act and the Expert
Group submitted Ext. P9 report dated 06.11.2020.
According to the petitioner, the members of the
Expert Group are not qualified and have no
experience or training in any kind of Social Impact
Assessment.
8. The District Collector, vide Ext.P10 letter
dated 10.11.2020, directed the 4th respondent, the
Secretary of the Panoor Municipality to publish the
report of the Expert Group in the office of the
Municipality and the Grama Sabha. It is stated
that Ext. P10 is the first official communication
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issued to Panoor Municipality regarding the
proposed acquisition and there was no consultation
with the Municipality while conducting the Social
Impact Assessment.
9. The District Collector issued Ext. P11
preliminary notification dated 19.11.2020 in Form
7 under Section 11(1) of the RFCTLARR Act
notifying the petitioner's property having an extent
of 0.7807 Hectares comprised in R.S. Nos.128/1,
128/2A and 128/2B of Panoor Village, for the
purpose of development of Panoor Community
Health Centre and calling for objection regarding
title and updating of land records. It is stated that
the Village Officer, Panoor affixed a copy of Ext.P11
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preliminary notification on the closed gate of the
petitioner's property on 28.11.2020 and a copy of
Ext.P11 was published in Kerala Kaumudi Daily on
10.12.2020.
10. Earlier, the Government had, by Ext.P12
notification dated 04.12.2015, appointed the
Special Tahsildar, Land Acquisition (General),
Thalasseri, the 3rd respondent to perform any or
more functions of Collector under the RFCTLARR
Act in Kannur District in respect of land
acquisitions for which notification under Section
11(1) of the RFCTLARR Act has been issued. The
petitioner states that, on the strength of Ext. P12,
the 3rd respondent proceeded with the acquisition
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process denying the petitioner opportunity to make
objection under Section 15 of the RFCTLARR Act.
According to the petitioner, Rule 18 of the
RFCTLARR (Kerala) Rules does not provide for the
right of owners to prefer objection to the
preliminary notification, social impact assessment
report, and expert committee report and the same
is in violation of Section 15 of the RFCTLARR Act.
11. The District Collector, by Ext.P13
proceedings dated 11.11.2020, ordered that the
petitioner's property is acquired for the purpose of
development of Panoor Community Health Centre.
According to the petitioner, Ext.P13 does not show
that the District Collector applied his mind on
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Exts.P8 and P9 reports on their merits before
coming to the conclusion that the petitioner's
property is required to be acquired. The petitioner
contends that there is noncompliance of Rule 12 of
the RFCTLARR (Social Impact Assessment and
Consent) Rules, 2014. The petitioner further states
that the District Collector has not been maintaining
any web-based work flow and management
information system for land acquisition as required
under Rule 13 of the RFCTLARR (Social Impact
Assessment and Consent) Rules, 2014 and the
petitioner who is residing abroad has no means to
know the acquisition processes and there is no
transparency in the acquisition proceedings
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initiated by the District Collector. Since the
petitioner was denied the opportunity to raise
objections to Ext.P11 preliminary notification, as
provided under Section 15 of the RFCTLARR Act,
he has been deprived of his statutory rights as well
as Constitutional right under Article 300-A of the
Constitution of India. In the said circumstances,
the petitioner has filed this writ petition to quash
Exts.P2, P7 to P9, P11 and P13 and for a
declaration that Rule 18 of the RFCTLARR (Kerala)
Rules and Form-7 prescribed thereunder are ultra
vires the RFCTLARR Act. A further declaration is
sought that Rule 9 of the RFCTLARR (Kerala) Rules
conflicts with Rule 4 of the RFCTLARR (Social
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Impact Assessment and Consent) Rules, 2014, and
is therefore inoperative.
12. A statement dated 05.02.2021 has been
filed by the District Collector wherein it is stated
that in the Social Impact Assessment study report
it is reported that no adverse environmental impact
will be caused if the subject property is acquired
for development of Panoor Community Health
Centre and the District Collector, on receipt of the
report, was fully convinced that the subject
property is suitable for the said purpose. Ext. P11
preliminary notification was issued after being fully
convinced that the subject property is highly
necessary in public interest. It is further stated
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that RFCTLARR (Kerala) Rules has been framed in
exercise of the powers under Section 109 of the
RFCTLARR Act for carrying out the provisions of
the Act and the said Rules are applicable to all land
acquisition proceedings in the State. It is also
stated that there is no conflict between the Rules
framed by the Central Government and the State
Government and the RFCTLARR (Social Impact
Assessment and Consent) Rules, 2014 is applicable
only when the Central Government makes
acquisition within a Union Territory. It is further
stated that all the impugned notifications are legal
and valid and the petitioner will be paid sufficient
compensation and that if the acquisition is not
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allowed to be continued, substantial prejudice will
be caused to the general public.
13. An additional statement dated 16.02.2021
has been filed by the District Collector. Referring
to the proviso to Section 3(e) of the RFCTLARR
Act, it is stated 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. By Ext.P1/ Annexure-
R2(a), the Government have notified that, in
respect of land not exceeding 200 Ares, the District
Collector shall be the appropriate Government and
the District Collector can invite application for
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conducting Social Impact Assessment study. It is
further stated that KAIROS, the 6 th respondent, has
conducted social impact assessment studies in 21
land acquisition cases in Kannur District and 12
cases in Kozhikode District. Estimate was invited
from 4 district level agencies empanelled for social
impact assessment studies and after taking note of
the estimate submitted by these agencies, it was
decided to select KAIROS. Annexure R2(d) is the
Minutes of the meeting convened on 24.09.2020 to
appoint SIA agency. Annexure R2(e) is the order
issued by the District Collector pursuant to
Annexure R2(d). Annexure R2(f) is the notification
issued by the Government under Section 7(1) of
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the RFCTLARR Act authorising the District
Collector for constituting an Expert Group. It is
stated that the preliminary notification under
Section 11(1) of the RFCTLARR Act was published
in the gazette after complying with all legal
formalities. It is further stated that the petitioner
had submitted an objection under Section 15 of the
RFCTLARR Act on 11.01.2021 and the same will be
considered in accordance with law.
14. A memo dated 16.01.2023 has been filed
by the learned Senior Government Pleader
producing the proceedings of the District Collector
dated 14.03.2021 rejecting the objection submitted
by the petitioner under Section 15 of the
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RFCTLARR Act. Thereafter, a memo dated
26.06.2023 has been filed by learned Senior
Government Pleader producing the copy of the
proceedings of the District Collector under Section
7(1) of the RFCTLARR Act constituting the Expert
Group to evaluate the report of the SIA unit
appointed under Section 4(1). Yet another memo,
dated 07.08.2023, has been filed by the learned
Senior Government Pleader producing the copy of
the Government letter No. B2/240/2018-REV dated
04.05.2018 which shows that the original proposal
was to acquire the petitioner's property for the
development of Community Health Centre.
However, the proposal was dropped by the
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Government considering the inclusion of said land
for the proposed Inland Navigation Water Ways.
The alignment for Water Ways was subsequently
changed and the authorities proceeded with the
original proposal.
15. Argument Notes have been filed by the
petitioner as well as the learned Senior
Government Pleader.
16. Heard Adv. R. Surendran, the learned
counsel for the petitioner, Sri. K. Gopalakrishna
Kurup, the learned Advocate General for
respondents 1 to 3 and 5, Adv. P.A. Mohammed
Shah, the learned standing counsel for the 4 th
respondent Municipality.
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17. The objective of the RFCTLARR Act is to
ensure a fair, transparent, and participative
process for land acquisition by providing just
compensation, rehabilitation, and resettlement to
affected families with minimal disturbance while
promoting their socio-economic development.
Section 3(e) of the RFCTLARR Act defines
"appropriate Government", and Section 3(e)(i)
states that the 'appropriate Government' in
relation to the acquisition of land situated within
the territory of a State shall be the State
Government. The proviso to Section 3(e) provides
that in respect of a public purpose in a District for
an area not exceeding such as may be notified by
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the appropriate Government, the Collector of such
District shall be deemed to be 'appropriate
Government'. Section 3 (g) defines "Collector" to
mean the Collector of a revenue district, and
includes a Deputy Commissioner and any officer
specially designated by the appropriate
Government to perform the functions of a Collector
under RFCTLARR Act. Section 4 deals with
preparation of Social Impact Assessment Study. It
provides 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
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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.
Section 5 deals with public hearing for Social
Impact Assessment, which states that whenever a
Social Impact Assessment is required to be
prepared under Section 4, the appropriate
Government shall ensure that a public hearing is
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, which is to
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be published as per Section 6 of the RFCTLARR
Act at the designated places. The Social Impact
Assessment Report is liable to be appraised by an
independent multi disciplinary Expert Group as
provided under Section 7. Section 7(4) provides
that if the Expert Group is of the opinion that, the
project does not serve any public purpose; or the
social costs and adverse social impacts of the
project outweigh the potential benefits, it shall
make a recommendation within two months from
the date of its constitution to the effect that the
project shall be abandoned forthwith and no
further steps to acquire the land will be initiated in
respect of the same and that the grounds for such
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recommendation shall be recorded in writing
giving the details and reasons for such decision. It
is provided further that, where the appropriate
Government, in spite of such recommendations,
proceeds with the acquisition, then, it shall ensure
that its reasons for doing so are recorded in
writing. Section 7(5) provides that, if the Expert
Group is of the opinion that the project will serve
any public purpose; and the potential benefits
outweigh the social costs and adverse social
impacts, it shall make specific recommendations
within two months from the date of its constitution
whether the extent of land proposed to be acquired
is the absolute bare-minimum extent needed for
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the project and whether there are no other less
displacing options available and the grounds for
such recommendation shall be recorded in writing.
Section 7(6) deals with publication of
recommendations of the Expert Group. Section 8
deals with the examination of proposals for land
acquisition and Social Impact Assessment report
by the appropriate Government. Section 8(1)(a)
provides that, the appropriate Government shall
ensure that, there is a legitimate and bona fide
public purpose for the proposed acquisition which
necessitates the acquisition of the land identified.
Clause (b) of Section 8(1) states that the potential
benefits and the public purpose referred to in
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clause (a) shall outweigh the social costs and
adverse social impact as determined by the Social
Impact Assessment that has been carried out. It is
also provided therein to ensure only the minimum
area of land required for the project is proposed to
be acquired. Section 9 enables the appropriate
Government to get itself exempted from social
impact assessment where land is proposed to be
acquired invoking the urgency provisions of
Section 40. Section 11 provides that whenever it
appears to the appropriate Government that the
land in an area is required or likely to be required
for any public purpose, a preliminary notification
to that effect along with the details of the land to
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be acquired in rural and urban areas shall be
published in (a) in the Official Gazette; (b) in two
daily newspapers circulating in the locality of such
area of which one shall be in the regional
language; (c) in the local language in 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; (d) uploaded on the website of the
appropriate Government; (e) in the affected areas,
in such manner as may be prescribed. Section 15
deals with hearing of objections and provides that
any person interested in any land which has been
notified under sub-section (1) of section 11, as
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being required or likely to be required for a public
purpose, may within sixty days from the date of the
publication of the preliminary notification, object
to, (a) the area and suitability of land proposed to
be acquired; (b) justification offered for public
purpose; (c) the findings of the Social Impact
Assessment report. Section 15 (2) provides that the
Collector after hearing all such objections and
after making such further inquiry, if any, make a
report to the appropriate Government, containing
his recommendations on the objections, together
with the record of the proceedings for the decision
of the Government. Section 15(3) provides that the
decision of the appropriate Government on the
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objections shall be final. Section 19 of the
RFCTLARR Act deals with the publication of
declaration and summary of Rehabilitation and
Resettlement. Section 109 deals with the power of
'appropriate Government' to make rules.
18. The Government of Kerala, being the
'appropriate Government' in relation to acquisition
of land situated within the territory of State of
Kerala, have in exercise of the powers under
Section 109 of the RFCTLARR Act, framed the
RFCTLARR (Kerala) Rules. The said Rules are to
apply in relation to acquisition of land situated
within the territory of Kerala. Rule 2(1)(c) of the
RFCTLARR (Kerala) Rules defines "Government" to
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mean the 'Government of Kerala'. Rule 2(1)(e)
defines "Social Impact Assessment" to mean an
assessment as envisaged under the RFCTLARR
Act. Rule 2(1)(f) defines "Social Impact Assessment
Unit" to mean a unit accredited by the Government
to conduct the Social Impact Assessment Study
about a proposed acquisition. Rule 3 provides for
requisition for acquisition and provides that the
Government may designate any officer to perform
the functions of a Collector under the Act by
notification published in the official gazette. Rule
3(2) provides that requisition for acquisition has to
be made to the Collector within whose jurisdiction
the land is situated. Rule 3 (3) provides that where
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the land to be acquired is spread over more than
one district, the requisition for acquisition shall be
made to the Collector of the District where major
portion of the land is situated. Chapter IV of the
RFCTLARR (Kerala) Rules deals with Social Impact
Assessment. Rule 9 deals with selection,
accreditation and empanelment of SIA Units by the
Government. Rule 10 deals with notifying SIA unit
for conducting Social Impact Assessment study.
Rule 11 deals with entrustment of Social Impact
Assessment study to appropriate SIA Unit. Rule
11(3) deals with issuance of Section 4(1)
notification for conduct of Social Impact
Assessment Study. It provides that the Government
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shall issue a notification in the Official Gazette in
Form No.4 entrusting the appropriate Social
Impact Assessment unit the responsibility of
conducting the Social Impact Assessment Study for
the proposed acquisition. Rule 12 deals with the
process of conducting Social Impact Assessment
Study and Rule 13 deals with preparation of draft
Social Impact Assessment Study report. Rule 14
deals with public hearing on Social Impact
Assessment and Rule 15 deals with preparation of
Social Impact Assessment report and Rule 16 deals
with publication of the report of the Expert Group.
Rule 17 deals with publication of the decision of
the Government on the proposed acquisition on
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receipt of recommendation of the Expert Group.
Rule 18 deals with publication of preliminary
notification and provides that the Government shall
publish a preliminary notification as provided
under sub-section (1) of Section 11 of the
RFCTLARR Act showing the details of the land
proposed to be acquired. Rule 20 deals with
hearing of objections on the preliminary
notification. Rule 21 deals with the procedure for
Rehabilitation and Resettlement and Rule 21(16)
deals with publication of declaration by
appropriate Government as required under Section
19 of the RFCTLARR Act.
19. The foremost contention of the petitioner
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is that Ext. P2 proceedings of the District Collector,
Kannur appointing the SIA Units is per se illegal
inasmuch as Rule 9 of the RFCTLARR (Kerala)
Rules provides that it is for the Government to
accredit and empanel SIA Units, and not the
District Collector. If Ext. P2 is found to be illegal
and without jurisdiction, the entire acquisition
proceedings are liable to be interfered with. This
contention of the petitioner is opposed by learned
Advocate General by referring to Section 3(e) of
the RFCTLARR Act. Referring to the proviso to
Section 3(e), it is contended that the Government
can notify the District Collector as 'appropriate
Government' in a case where the land proposed to
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be acquired does not exceed 200 Ares. It was
accordingly that Ext.P1 notification was issued
deeming the District Collector as the 'appropriate
Government'. It is contended by the learned
Advocate General that the terms "appropriate
Government" and "Government of Kerala" used in
RFCTLARR (Kerala) Rules are one and the same.
20. Considering the contentions raised, it is
appropriate to refer to the relevant provisions,
namely, Section 3(e) of the RFCTLARR Act and
Rules 2(1)(c) and 9 of the RFCTLARR (Kerala)
Rules. Section 3(e) of the RFCTLARR Act reads as
follows:
"3(e).appropriate Government" means,--
(i) in relation to acquisition of land
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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
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Collector of such District shall be deemed to be
the appropriate Government;"
Rule 2(1)(c) of the RFCTLARR (Kerala) Rules reads
as follows:
"Government" means the Government of
Kerala.
Rule 9 of the RFCTLARR (Kerala) Rules reads as
follows:
"9. Social Impact Assessment Units -
(1) The Government shall for the
purpose of conducting Social Impact
Assessment study in accordance with
the provisions of the Act invite
applications from individuals and
organizations with experience in
conducting social impact assessment or
related field-based assessments. The
Government shall, after assessing the
capacity of the applicants through an
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interview and assessment of their
experience accredit them to conduct
the Social Impact Assessment Study for
the Project and draw out a list of Social
Impact Assessment Units.
(2) The Government shall empanel
these Social Impact Assessment units
(SIA units) in various categories
depending on the scale of the
acquisition, the area of their operation
or on other relevant criteria and update
the panels from time to time.
(underlining supplied)
21. Rule 9 of the RFCTLARR (Kerala) Rules
thus provides that the Government shall invite
applications from qualified individuals and
organizations for conducting Social Impact
Assessment studies. After evaluating their
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experience and capacity through an interview,
selected applicants will be accredited and listed as
SIA Units. These units will be empaneled into
different categories based on factors like the scale
of land acquisition and operational area, with
periodic updates to the panel. According to Sri.
Surendran, the learned counsel for the petitioner,
going by Rule 9 of the RFCTLARR (Kerala) Rules,
only the Government can invite applications for
conducting Social Impact Assessment studies,
evaluate applicants, accredit the selected
candidates, prepare the list of accredited SIA
Units, empanel these units, and update the panel
from time to time. It is therefore contended that,
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Ext.P2 proceedings of the District Collector
appointing KAIROS as SIA Unit is per se illegal and
without adopting the procedure established by law.
Sri. Surendran submits that the "Government"
referred to in Rule 9 of the RFCTLARR (Kerala)
Rules is the "Government of Kerala" as defined in
Rule 2(1)(c) of the said Rules and not the
"appropriate Government" referred to in Section
3(e) of the RFCTLARR Act. He refers to Rule 2 (2)
of the RFCTLARR (Kerala) Rules which provides
that, words and expressions not defined in
RFCTLARR (Kerala) Rules but defined in the
RFCTLARR Act shall have the same meanings as
assigned in the Act, unless the context requires
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otherwise.
22. The learned Advocate General would refer
to Section 3(e)(i) of the RFCTLARR Act which
defines 'appropriate Government' to mean the
'State Government' in relation to acquisition of
land situated within the territory of a State. The
learned Advocate General also referred to the
proviso to Section 3(e) which provides that, in
respect of 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 appropriate Government. The
learned Advocate General took me through Ext.P1/
Annexure-R2(a), wherein the Government have
2025:KER:21653
notified that, in respect of land not exceeding 200
Ares in a district, the District Collector of such
district shall be deemed to be the appropriate
Government for the purpose of the RFCTLARR Act.
The Explanatory Note to the notification would
show that the Government had authorised the
District Collector to appoint SIA Units for
conducting Social Impact Assessment study. It is
contended that a conjoint reading of the proviso to
Section 3(e) of the RFCTLARR Act and Rule 9 of
the RFCTLARR (Kerala) Rules would make it clear
that the District Collector is to be considered as
the 'appropriate Government' and the word
'Government' in Rule 2(1)(c) of the RFCTLARR
2025:KER:21653
(Kerala) Rules has to be interpreted as 'appropriate
Government'.
23. A reading of Section 3(e) of the RFCTLARR
Act makes it evident that the 'appropriate
Government' for the acquisition of land within the
territory of a State is the State Government, except
when the acquisition is for a public purpose in a
district within a notified area, in which case the
Collector of that district shall be deemed the
'appropriate Government. The proviso to Section
3(e) requires notification by the State Government
for a particular area within the district to be
acquired for public purpose and for such limited
area, the Collector would be authorised by
2025:KER:21653
deeming fiction to act as the appropriate
Government. Ext.P1 is the notification issued by
the Government of Kerala, in exercise of the
powers under the proviso to Section 3(e) of the
RFCTLARR Act, notifying that in respect of land
not exceeding 200 Ares, the District Collector shall
be the appropriate Government. Thus, in the light
of Ext.P1 notification, District Collector, Kannur is
the 'appropriate Government' for the purpose of
the impugned land acquisition proceedings. In the
absence of Ext. P1 notification, the authority would
have vested in the State Government.
24. Section 4(1) of the RFCTLARR Act deals
with preparation of Social Impact Assessment
2025:KER:21653
Study. It provides that whenever the 'appropriate
Government' intends to acquire land for a public
purpose, the 'appropriate Government' 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. Section 4(2) provides 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
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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. Thus the notification for
Social Impact Assessment Study under Section 4(1)
of the RFCTLARR Act has to be issued by the
'appropriate Government'. By virtue of Ext.P1
notification, the District Collector, Kannur is the
'appropriate Government' to issue notification for
Social Impact Assessment Study for public purpose
in Kannur District under Section 4(1) in respect of
2025:KER:21653
land not exceeding 200 Ares. In the absence of
such a notification issued under the proviso to
Section 3(e) of the RFCTLARR Act, the
'Government of Kerala' would have been the
'appropriate Government'. Rule 11(3) of the
RFCTLARR (Kerala) Rules provides that the
'Government' shall issue a notification in the
Official Gazette in Form No.4 entrusting the Social
Impact Assessment unit the responsibility of
conducting the Social Impact Assessment study
and preparing a Social Impact Management Plan
for the proposed acquisition. Since RFCTLARR
(Kerala) Rules have been framed to carry out the
provisions of the RFCTLARR Act, the word
2025:KER:21653
"Government" in Rule 11(3) of the RFCTLARR
(Kerala) Rules has to be read as 'appropriate
Government', or else it would go against the
provisions contained in Section 4(1) of the
RFCTLARR Act. A notification under Section 4(1)
of the RFCTLARR Act has to be issued by the
Government of Kerala if it is the 'appropriate
Government' and by the concerned District
Collector, as the 'appropriate Government', for a
public purpose in the district where a notification
under the proviso to Section 3(e) has been issued.
The provisions of the RFCTLARR (Kerala) Rules
have to be interpreted contextually, and in a
purposive manner. When the RFCTLARR (Kerala)
2025:KER:21653
Rules are read in the context of Section 3(e) and its
proviso, along with Section 4(1) of the RFCTLARR
Act, it becomes evident that the term 'Government'
in the RFCTLARR (Kerala) Rules refers to the
'appropriate Government'. The term 'Government'
used in the RFCTLARR (Kerala) Rules must be
interpreted and understood within the scope of the
term 'appropriate Government'.
25. A comparative reference to certain
sections of the RFCTLARR Act and the
corresponding provisions of the RFCTLARR
(Kerala) Rules would help illustrate that the term
'Government' in the RFCTLARR (Kerala) Rules
refers to the 'appropriate Government.
2025:KER:21653
26. Section 4(3) of the RFCTLARR Act
provides that the Social Impact Assessment study
report shall be made available to public in the
manner prescribed under Section 6. Section 6
deals with the publication of Social Impact
Assessment study by the appropriate Government
and uploading of study report in the website of the
appropriate Government. However, Rule 15 of the
RFCTLARR (Kerala) Rules provides for submission
of study report to the Government and publication
by the Government on the Government's website.
Section 7 of the RFCTLARR Act deals with
appraisal of Social Impact Assessment study report
by an Expert Group and uploading of the
2025:KER:21653
recommendations of the Expert Group on the
website of the appropriate Government. However,
the corresponding Rule, viz., Rule 16 of the
RFCTLARR (Kerala) Rules provides for uploading
of the recommendations of the Expert Group on
the website of the Government. Section 8 of the
RFCTLARR Act deals with the examination of the
Social Impact Assessment report by the
appropriate Government, and decision of the
appropriate Government, and the publication of
that decision, including uploading it on the website
of the appropriate Government. In contrast, Rule
17 of the RFCTLARR (Kerala) Rules provides that,
based on the recommendation of the Expert Group,
2025:KER:21653
the Government shall make a final decision on the
proposed acquisition in conformity with Sections
8(1) and (2) of the RFCTLARR Act and upload it on
the website of the Government. Section 11 of the
RFCTLARR Act deals with publication of
preliminary notification by the appropriate
Government and Rule 18 of the RFCTLARR
(Kerala) Rules deals with publication of preliminary
notification by the Government. Section 15 deals
with hearing of objections and provides that the
decision of the appropriate Government on the
objections shall be final. The corresponding Rule,
viz., Rule 20 under the RFCTLARR (Kerala) Rules
deals with hearing of objections on the preliminary
2025:KER:21653
notification and provides that the Government shall
take a final decision on the objections. It is also
pertinent to note that, as regards the publication of
declaration under Section 19, Rule 21(16) of the
RFCTLARR (Kerala) Rules provides that the
appropriate Government shall publish the
declaration as required under Section 19(1) of the
RFCTLARR Act. The RFCTLARR (Kerala) Rules
have been framed under Section 109 of the
RFCTLARR Act to carry out the provisions of the
said Act. The provisions of the Rules are meant to
be in conformity with the provisions of the Act.
Accordingly, the word 'Government' used in the
RFCTLARR (Kerala) Rules must be read as
2025:KER:21653
'appropriate Government' wherever necessary to
align with the provisions of the RFCTLARR Act.
Otherwise, it would be contrary to the contextual
intent and the object of the Act.
27. Consequently, the 'appropriate
Government' can invite applications for conducting
Social Impact Assessment studies, evaluate
applicants, accredit selected candidates, prepare a
list of accredited SIA units, empanel these units,
and update the panel periodically. When the
acquisition is for a public purpose in a district
within an area notified by the Government under
the proviso to Section 3(e) of the RFCTLARR Act, it
will be open to the District Collector of that district
2025:KER:21653
as 'appropriate Government' to prepare and
maintain a list of accredited SIA Units as per the
procedures prescribed under Rules 9 to 11 of the
RFCTLARR (Kerala) Rules.
28. Here, it is relevant to extract the
explanatory note to Ext. P1, issued by the
Government, which notifies the District Collector
as the 'appropriate Government' for land
acquisitions not exceeding 200 Ares in a district for
public purpose. The explanatory note reads as
follows:
"The Right to Fair Compensation and
Transparency in Land Acquisition,
Rehabilitation and Resettlement Act,
2013 (Central Act 30 of 2013) has
come into force on 1st January, 2014.
2025:KER:21653
In order to ensure speedy action in
accreditation/empanelment of Social
Impact Assessment (SIA) units for SIA
study as stipulated under sub-section
(1) of section 4 of the said Act and
acquisition of land for public purpose,
Government have decided to notify an
extent of land not exceeding 200 Ares
in each district for public purpose and
the District Collector of such district
shall be deemed to be the appropriate
Government, provided in the proviso
to clause (e) of section 3 of the said
Act."
(underlining supplied)
Ext.P1 shows that the Government have taken a
conscious decision authorizing the District
Collector to appoint SIA Units for conducting
Social Impact Assessment study. Notably, the
2025:KER:21653
RFCTLARR (Kerala) Rules do not prohibit the
District Collector, as the 'appropriate Government,'
from selecting an SIA unit from the panel
maintained by the State Government for land
acquisition within the State's territory for a public
purpose in the district under the District
Collector's jurisdiction.
29. If the District Collector as the 'appropriate
Government can select, accredit and empanel an
SIA Unit for conducting Social Impact Assessment
study in respect of acquisition for a public purpose
in the district within the notified area, the next
question is whether the District Collector while
issuing Ext.P2 appointing KAIROS and VIGIL as
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SIA units, has followed the procedures under Rules
9 to 11 of the RFCTLARR (Kerala) Rules.
30. Ext.P2 proceedings of the District
Collector is dated 05.10.2016. It is contended by
the petitioner that the District Collector did not
conduct any interview and assessment of SIA
agencies before issuing Ext.P2 appointing KAIROS
and VIGIL as SIA units. In Ext.P2, it is stated that
pursuant to the applications invited for conducting
Social Impact Assessment Study and to submit
time bound reports, two agencies, namely, KAIROS
and VIGIL, have submitted willingness. In the
Additional Statement filed on behalf of the 2 nd
respondent dated 16.02.2021, it is stated that the
2025:KER:21653
District Collector had invited applications from
agencies who had expressed their readiness to
conduct Social Impact Assessment. It is argued by
the learned Advocate General that the SIA units
were selected by the District Collector after
evaluating their experience in the field and
thereafter, those agencies were empanelled by the
Collector. It is also stated that KAIROS has
experience in conducting SIA study in 33 land
acquisition cases in Kannur and Kozhikode
districts. This Court cannot interfere with Ext.P2 at
this distance of time based solely on the
petitioner's bald assertion that the District
Collector did not follow the procedure under Rule
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9 of RFCTLARR (Kerala) Rules. It is important to
note that the Rule provides for updating the panel
from time to time.
31. In the Additional Statement filed on behalf
of the 2nd respondent, it is stated that, by Annexure
R2(b) letter of the District Collector addressed to
the empaneled SIA units, estimate of cost for
Social Impact Assessment study was invited from
the SIA units and after taking note of the estimate
submitted by these units, it was decided to entrust
the Social Impact Assessment study to KAIROS.
Annexure R2(d) is the Minutes of the meeting
convened on 24.09.2020 to entrust the study to
KAIROS. Annexure R2(e) is the order issued by the
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District Collector pursuant to Annexure R2(d).
These documents show that the District Collector
has followed the procedures under Rules 10 and 11
of the RFCTLARR (Kerala) Rules while entrusting
the Social Impact Assessment study to KAIROS.
Ext.P7 notification under Section 4(1) of the
RFCTLARR was issued by the District Collector,
the appropriate Government, after following the
procedures under the RFCTLARR (Kerala) Rules.
32. The contention of the petitioner regarding
the composition and constitution of the Expert
Group is also without any basis. The qualifications
of the two non-official Social Scientists show that
they were included in the Expert Group after an
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analysis of their educational credentials. The
Expert Group has been constituted in terms of
Annexure R2(f) Government order issued under
Section 7(1) of the RFCTLARR Act.
33. The petitioner's contention that he did not
have an opportunity to object to Ext.P11
preliminary notification cannot be sustained. The
petitioner contends that he was denied the
opportunity to file an objection under Section 15 of
the RFCTLARR Act to the preliminary notification
resulting in deprivation of his statutory rights and
constitutional rights under Article 300-A of the
Constitution of India. After the filing of the writ
petition, the petitioner filed objection to Ext.P11
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preliminary notification on 11.01.2021 and the
District Collector considered the objection and
rejected the same as per proceedings No.
DCKNR/2753/2020/CI dated 14.03.2021. The copy
of the said proceedings has been produced by the
learned Senior Government Pleader along with a
Memo dated 16.01.2023. The said proceedings of
the District Collector has not been challenged by
the petitioner thus far.
34. As for the petitioner's contention that the
provisions of the RFCTLARR (Social Impact
Assessment and Consent) Rules, 2014, prevail over
the RFCTLARR (Kerala) Rules, 2015, it should be
noted that the RFCTLARR (Social Impact
2025:KER:21653
Assessment and Consent) Rules, 2014, apply only
to Union Territories in India and cannot be invoked
for land acquisition within the State of Kerala.
Therefore, the petitioner's contentions based on
RFCTLARR (Social Impact Assessment and
Consent) Rules, 2014 cannot be sustained and the
declaration sought on this ground must fail.
35. According to the petitioner, he purchased
the properties included in Ext.P11 notification for
the construction of a multi-storied commercial-
cum-special residential building and invested a
considerable amount in clearing the site, preparing
the plan and design, obtaining permits, and
securing statutory clearances for the proposed
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construction. The acquisition is for a public
purpose, i.e, for development of Community Health
Centre. A project serving a larger public interest
should not be halted merely at the instance of an
individual claiming that the acquisition would
cause inconvenience to him. While balancing the
public interest against the private interest, I am
not inclined to exercise discretionary jurisdiction
under Article 226 of the Constitution of India in
favour of the petitioner. I find no merit in the writ
petition.
The writ petition fails and is, dismissed.
Sd/-
MURALI PURUSHOTHAMAN
JUDGE
SB
2025:KER:21653
APPENDIX
PETITIONER EXHIBITS
EXHIBIT TRUE COPY OF THE NOTIFICATION DATED 29.06.2016
P1 ISSUED BY THE FIRST RESPONDENT AS SRO
468/2016.
EXHIBIT TRUE COPY OF THE ORDER DATED 05.10.2016,
P2 ISSUED BY THE SECOND RESPONDENT IN
DCKNR/7005/2016 C1.
EXHIBIT TRUE COPY OF THE REGISTRATION CERTIFICATE,
P3 BYLAWS AND MEMORANDUM OF ASSOCIATION OF THE
SOCIETY AND AMENDMENTS OF BYELAWS ETC. OF THE
SOCIETY, KANNUR ASSOCIATION FOR INTEGRATED
RURAL ORGANISATION AND SUPPORT (KAIROS).
EXHIBIT TRUE COPY OF THE NOTIFICATION DATED
P4 04.11.2019, ISSUED BY THE SECOND RESPONDENT AS
PER ORDER IN REF.NO.DCKNR/9727/2017/C1.
EXHIBIT TRUE COPY OF THE REPORT DATED 15.01.2020
P5 SUBMITTED BY THE 7TH RESPONDENT BEFORE THE
SECOND RESPONDENT.
EXHIBIT TRUE COPY OF THE ORDER G.O.
P6 (RT.)NO.2517/2020/RD DATED 05.08.2020 ISSUED
BY THE FIRST RESPONDENT.
EXHIBIT TRUE COPY OF THE NOTIFICATION DATED 28.09.2020
P7 ISSUED BY THE SECOND RESPONDENT IN FILE
NO.DCKNR/2753/2020/C1.
EXHIBIT TRUE COPY OF THE REPORT DATED 19.10.2020
P8 SUBMITTED BY THE 7TH RESPONDENT BEFORE SECOND
RESPONDENT.
EXHIBIT TRUE COPY OF THE REPORT DATED 06.11.2020,
P9 PREPARED BY THE EXPERT COMMITTEE PURPORTEDLY
2025:KER:21653
CONSTITUTED BY THE SECOND RESPONDENT.
EXHIBIT TRUE COPY OF THE LETTER DATED 10.11.2020
P10 ISSUED BY THE SECOND RESPONDENT TO THE 4TH
RESPONDENT.
EXHIBIT TRUE COPY OF THE PRELIMINARY NOTIFICATION
P11 DATED 19.11.2020 ISSUED BY THE SECOND
RESPONDENT AS APPROPRIATE GOVERNMENT UNDER
SECTION 11(1) OF THE ACT NO.30 OF 2013 READ
WITH RULE 18 OF RIGHT TO FAIR COMPENSATION AND
TRANSPARENCY IN LAND ACQUISITION,
REHABILITATION AND RESETTLEMENT (KERALA)
RULES.
EXHIBIT TRUE COPY OF THE GOVERNMENT ORDER DATED
P12 04.12.2015 ISSUED AS G.O.(P)NO.649/2015/RD AND
PUBLISHED IN THE OFFICIAL GAZETTE.
EXHIBIT TRUE COPY OF THE ORDER DATED 11.11.2020 IN
P13 FILE NO.DCKNR/2753/C1 ISSUED BY THE SECOND
RESPONDENT.
RESPONDENTS EXHIBITS
ANNEXURE TRUE COPY OF THE GOVERNMENT ORDER NO.GO(P)
R2(A) NO.376/2016/RD DATED 29.06.2016
ANNEXURE TRUE COPY OF THE LETTER NO.DCKNR/2753/2020/C1
R2(B) DATED 9.9.2020.
ANNEXURE TRUE COPY OF THE LETTER NO.REV-B2-346/2019/REV
R2(C) DATED 21.08.2019
ANNEXURE TRUE COPY OF THE MINUTES OF THE MEETING DATED
R2(D) 24.09.2020
ANNEXURE TRUE COPY OF THE ORDER NO.DCKNR/2753/2020/C1
R2(E) DATED 28.09.2020
ANNEXURE TRUE COPY OF THE GOVERNMENT ORDER
R2(F) NO.377/2016/RD DATED 29.06.2016
