Kerala High Court

Nochikkatte Musthafa vs The State Of Kerala on 20 May, 2025

Author: A.K.Jayasankaran Nambiar

Bench: A.K.Jayasankaran Nambiar

                                                             2025:KER:34498

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

         THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR

                                    &

                 THE HONOURABLE MR. JUSTICE P.M.MANOJ

         TUESDAY, THE 20TH DAY OF MAY 2025/30TH VAISAKHA, 1947

                           W.A.NO.1076 OF 2025
          AGAINST THE JUDGMENT DATED 14.03.2025 IN W.P(C).NO.242 OF 2021
                          OF HIGH COURT OF KERALA

APPELLANT(S)/PETITIONER:

           NOCHIKKATTE MUSTHAFA
           AGED 69 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. NEW ADDRESS NOCHIKKATTE MUSTHAFA,
           S/O. ABDU, HOLDER OF INDIAN PASSPORT NO.Z4760941,
           EMPLOYED IN QATAR, PERMANENTLY RESIDING AT NOCHKKATTIL
           HOUSE, P.O.ANIYARAM, THALASSERY TALUK, KANNUR DISTRICT,
           REPRESENTED BY POWER OF ATTORNEY HOLDER, RAFAS.M.P,
           S/O. RAFI.H, AGED 35 YEARS, BUSINESS, RESIDING AT
           "SUBAH HOUSE", NEW MAHE AMSOM KURICHIYIL DESOM OF
           THALASSERY TALUK, P.O.KURICHIYIL. PIN-670102,
           KANNUR DISTRICT, PIN - 670672

           BY ADV.SRI.R.SURENDRAN


RESPONDENTS:

     1     THE STATE OF KERALA
           REPRESENTED BY THE SECRETARY TO GOVERNMENT,
           REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM,
           PIN - 695001
 W.A.No.1076/25                  :: 2 ::




                                                       2025:KER:34498

 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
            BISHOP'S HOUSE, BURNACHERRY P.O., KANNUR,
            PIN-670013.

 7          THE CHAIRMAN,
            SOCIAL IMPACT ASSESSMENT UNIT (KANNUR ASSOCIATION
            FOR INTEGRATED RURAL ORGANISATION AND SUPPORT,
            KANNUR), LATIN BISHOP'S HOUSE, BURNACHERRY P.O.,
            KANNUR, PIN-670013.


            BY SRI.K.GOPALAKRISHNA KURUP, ADVOCATE GENERAL
            BY SRI.Y.JAFFAR KHAN, GOVERNMENT PLEADER
            BY SRI.P.MOHAMMED SHAH, STANDING COUNSEL


      THIS WRIT        APPEAL HAVING      BEEN FINALLY HEARD ON
20.05.2025, THE        COURT ON THE       SAME DAY DELIVERED THE
FOLLOWING:
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                                                                  2025:KER:34498




                                JUDGMENT

Dr. A.K.Jayasankaran Nambiar, J.

The petitioner in W.P.(C).No.242 of 2021 is the appellant

before us, aggrieved by the judgment dated 14.03.2025 of a learned

Single Judge dismissing the writ petition.

2. The brief facts necessary for disposal of the Writ Appeal

are as follows:

The appellant had approached the writ court challenging

Ext.P2 order dated 05.10.2016 issued by the 2nd respondent District

Collector, Kannur accrediting the 6th respondent as an agency for

conducting Social Impact Assessment and submitting time bound

reports. He had also impugned Ext.P7 notification dated 28.09.2020

issued by the 2nd respondent District Collector, Kannur appointing the

7th respondent as the Social Impact Assessment Unit as also Ext.P8

report dated 19.10.2020 of the 7th respondent and Ext.P9 report dated

06.11.2020 prepared by the Expert Committee constituted by the

District Collector, Kannur. There was also a separate challenge to

Ext.P13 order dated 11.11.2020 issued by the 2 nd respondent, Ext.P11

preliminary notification dated 19.11.2020 issued by the 2 nd respondent W.A.No.1076/25 :: 4 ::

2025:KER:34498

as well as a prayer for declaration that Rule 18 of the Right to Fair

Compensation and Transparency in Land Acquisition, Rehabilitation

and Resettlement (Kerala) Rules, 2015 and the Form 7 prescribed

thereunder were ultra vires the Act No.30 of 2013.

3. The crux of the arguments of the appellant while claiming

the reliefs aforementioned was that Ext.P2 order appointing the

agencies mentioned therein was per se illegal as it was passed without

following the procedure as established by law. In particular, it was

pointed out that the Social Impact Assessment Units for carrying out

the Social Impact Assessment Study had to be empanelled by the

appropriate Government after following the procedure prescribed

under the Right to Fair Compensation, Rehabilitation and Resettlement

Act, 2013 [hereinafter referred to as the "2013 Act"], and in the instant

case, it was the District Collector who had resorted to the selection and

empanelment of the Social Impact Assessment Units for the purposes of

the 2013 Act and Rules. It is the further contention of the learned

counsel that although by virtue of the provisions of Section 3(e) of the

2013 Act, the District Collector could be deemed to be the 'appropriate

Government' for the purposes of the 2013 Act, in the instant case, there

was no justification for the issuance of a Section 4(1) notification by the

District Collector since, going by the statutory provisions, the said

notification had to be issued by the appropriate Government which, in

the instant case, was the State Government. Various other contentions W.A.No.1076/25 :: 5 ::

2025:KER:34498

regarding the alleged prejudice that would be caused to the appellant

on account of the acquisition proceedings and the determination of

compensation were also highlighted by the learned counsel for the

appellant.

4. The contentions of the appellant were dealt with by the

learned Single Judge, who considered the writ petition, and at

paragraphs 23 to 35 of the impugned judgment, there is a

comprehensive answer to the various issues raised by the appellant,

both in the writ petition as well as before us in the writ appeal. The

said paragraphs of the impugned judgment read as under:

"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 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 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 W.A.No.1076/25 :: 6 ::

2025:KER:34498

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. 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 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 "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) 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.

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 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, W.A.No.1076/25 :: 7 ::

2025:KER:34498

Rule 17 of the RFCTLARR (Kerala) Rules provides that, based on the recommendation of the Expert Group, 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 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 '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 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. 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 W.A.No.1076/25 :: 8 ::

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Social Impact Assessment study. Notably, the 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 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 2nd respondent dated 16.02.2021, it is stated that the 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 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 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 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.

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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 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 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 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."

We have heard Sri.R.Surendran, the learned counsel for the

appellant at length. We have also heard the learned Advocate General

for the State and Sri.P. Mohammed Shah, the learned Standing Counsel

for the respondent Municipality. In our view, the findings of the

learned Single Judge in the afore-extracted portion of the impugned

judgment call for no interference since it is clear from the statutory

provisions that the appropriate Government in the instant case was the W.A.No.1076/25 :: 10 ::

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'District Collector' and he had complied with all the necessary statutory

formalities under the 2013 Act while empanelling the Social Impact

Assessment Units. In this regard, we have also noted the submission

of the learned counsel for the respondent Municipality that the

Municipality was in fact consulted before the empanelment of the Social

Impact Assessment Units by the District Collector. Since we find

ourselves in complete agreement with the findings of the learned Single

Judge on the various issues urged, we see no merit in the Writ Appeal,

and the same stands dismissed.