Dismissed

K.S. Rajendran v. State of Kerala

Kerala HC7 Dec 2022WA/1821/2022

Case brief

AI extract

What is this about?

Appellants challenged a lower court order denying stay on eviction pending land acquisition for bridge reconstruction. The High Court dismissed the writ appeal, noting no specific grounds were raised regarding the notification's validity, and affirmed the lower court's refusal to disrupt acquired proceedings absent specific challenges.

What did the court decide?

The writ appeal challenging the interim order refusing stay on eviction and enhancement of compensation is dismissed, with liberty to raise tanable grounds.

K.S. Rajendran Vs State of Kerala — Land Acquisition | Kerala HC (2022)

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W.A.No1821 of 2022

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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WEDNESDAY, THE 7^TH DAY OF DECEMBER 2022 / 16TH AGRAHAYANA, 1944 WA NO. 1821 OF 2022

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AGAINST THE ORDER IN WP(C) 37114/2022 OF HIGH COURT OF KERALA APPELLANTS/PETITIONERS:

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1 K.S. RAJENDRAN AGED 60 YEARS S/O. K. SANKARAN, KALARICKAL, AVALOOKKUNNU P. O., ALAPPUZHA, PIN - 688006

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2 M. BASHEER AGED 65 YEARS S/O. MAIDHEENKUNJU ALHIPANAMPIL VEETIL, VELLAKINAR WARD (STADIUM WARD), ALAPPUZHA, PIN - 688001

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3 HARIS R AGED 50 YEARS S/O.LATE RASHEED, PANACKAL BANGLOW, ALLASHERY WARD, ALAPPUZHA P.O., ALAPPUZHA, PIN - 688001

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4 ABDUL JABBAR AGED 54 YEARS S/O. MUHAMMED KUNJU, MILAD MANZIL,P.H. WARD, ALAPPUZHA, PIN - 688007 5 V.M. LATHEEF REPRESENTED BY POWER OF ATTORNEY HOLDER, M. NISSAR,AGED 61 YEARS S/O. MUHAMMED KUNJU, VELIM PARAMBIL,DISTRICT COURT WARD, ALAPPUZHA, PIN – 688013.

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W.A.No1821 of 2022

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6	E. NAZEER
	AGED 56 YEARS
	S/O. PAREETH ESMAIL,
	VELIM PARAMBIL,
	KALATH WARD, ALAPPUZHA, PIN - 688006
7	K.S. PRASAD
	AGED 55 YEARS
	S/O. K. SANKARAN,
	KALARIKKAL, KARUKAYIL WARD,
	THATHAMPALLY P.O.,
	ALAPPUZHA, PIN - 688006
8	M NIHAR
	AGED 60 YEARS
	S/O. MUHAMMED,DISTRICT COURT WARD,
	ALAPPUZHA, PIN - 688013
9	KORA MATHEW
	AGED 66 YEARS
	S/O. M.C. MATHEW,
	MALAYIL, THATHAMPALLY,
	ALAPPUZHA, PIN - 688013
10	JOSEPH M.T
	AGED 70 YEARS
	S/O. THOMAS PARAMBIL,
	DISTRICT COURT WARD,
	ALAPPUZHA, PIN - 688013
11	A.K. MUHAMMED ISMAIL
	AGED 66 YEARS
	S/O. K.P. ABDUL KARIM,
	REYAS MANZIL,
	ZACHARIAH WARD, BAZAR P.O.,
	ALAPPUZHA, PIN - 688012
12	K.P. SUSEELAN
	AGED 65 YEARS
	S/O. H. PAPPAN,
	KAYALIL PARAMBU, KAINAKARI P.O,
	ALAPPUZHA, PIN - 688501
13	SALIM KUMAR
	AGED 60 YEARS
	S/O. RAGHAVAN, CHENNOTHU (H),
	CHANDANAKAVU P.O., ALAPPUZHA, PIN - 676101
14	LOVELY G.
	AGED 53 YEARS
	D/O. GOPALA KRISHNAN,K.C. NIVAS,
	CHIGOLI VILLAGE, NANGARKULANGARA,

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W.A.No1821 of 2022

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ALAPPUZHA, PIN - 690513

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15 K.S.SHAJI AGED 61 YEARS S/O. K. K. SANKARAN, KALARICKAL HOUSE, AVALOOKUNNU WARD, ALAPPUZHA, PIN - 688016 16 RAJESH R AGED 51 YEARS S/O. K. RAVEENDRAN, SREE RAVI NIVAS, THONDANKULANGARA,AVALOOKKUNNU P.O., ALAPPUZHA, PIN - 688006 BY ADVS. KALEESWARAM RAJ THULASI K. RAJ SHILPA SOMAN

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001

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2 SECRETARY DEPARTMENT OF PUBLIC WORKS,SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001

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3 SECRETARY DEPARTMENT OF LOCAL SELF GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001

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4 CHIEF ENGINEER PWD ROADS AND BRIDGES, PUBLIC OFFICE, MUSEUM P.O. THIRUVANANTHAPURAM, PIN - 695033

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5 DISTRICT COLLECTOR ALAPPUZHA, PIN - 688001

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6 SPECIAL TAHSILDAR (LAND ACQUISITION) MINI CIVIL STATION KIIFB, CHERTHALA ALAPPUZHA, PIN - 688524

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7 ALAPPUZHA MUNCIPALITY REPRESENTED BY SECRETARY ALAPPUZHA MUNICIPALITY, ALAPPUZHA, PIN - 688001

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W.A.No1821 of 2022

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8 SECRETARY ALAPPUZHA MUNICIPALITY, ALAPPUZHA, PIN – 688001.

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BY SRI.TEK CHAND, SENIOR GOVERNMENT PLEADER

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07.12.2022, THE

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COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.A.No1821 of 2022

J U D G M E N T

Dated this the 7^th day of December, 2022

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S.MANIKUMAR, CJ.

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Before the writ court, writ petitioners/appellants sought for the following reliefs:

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i. To issue a writ of certiorari to quash and set aside Exhibit P25 series and Exhibit P26 notices or any other like communications directing the petitioners to leave their shop rooms or directing acquisition or consequent steps:

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ii. To issue a writ of mandamus directing the respondents to pass orders granting alternative shop rooms to the petitioners in compliance to rehabilitation as prescribed under section 31 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013,

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iii. To issue a writ of mandamus directing the respondents directing, the respondents to grant higher compensation to the petitioners in compliance to Schedule I and in addition to Schedule II under Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013;

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iv. To declare that the shops of the petitioners are not liable to be acquired under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013;

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v. To issue a writ of mandamus directing the respondents to refrain from acquiring the petitioners' shops/properties stated in para 3 of this writ petition and/or from evicting the petitioners from the said shops;

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vi. To declare that the petitioners are entitled to receive higher compensation in compliance to Schedule I and in addition to Schedule II under Right to Fair Compensation and Transparency in Land Acquisition, and Resettlement Act, 2013;

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W.A.No1821 of 2022

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vii. To issue a writ of mandamus directing the respondents to pay higher compensation to the petitioners in compliance to Schedule I and in addition to Schedule II under Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013;

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viii. To grant such other reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case.

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ix. To dispense with the filing of translation of vernacular document.

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Short facts leading to the filing of the writ appeal are as follows:

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2.1 According to the appellants, they are shop keepers and licensees doing various types of small business at Municipality Jetty Shopping Complex, Alappuzha District. As such, they are all tenants, within the ambit of holders of property and affected families, as defined under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, hereinafter called, “the Act, 2013”.

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2.2 It is submitted that on 22.01.2021, the appellants received Exhibit P17 notice dated 22.01.2021 stating that in pursuance to the reconstruction of Zilla Court Bridge, documents have been called for regarding the ownership of the shop rooms provided in the property acquired/ if a tenant, for how many years he has been living on rent/ trade license/ if there are workers in the shop, their labour registration documents etc., and to appear before the Cherthala Special Tahsildar within 3 days of receipt of the notice.

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2.3 According to the appellants, upon enquiry, they came to know that the shopping complex was proposed to be acquired by the Government for expansion of the 'Court Bridge' plan. Subsequently, by submitting an RTI application, the appellants came

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W.A.No1821 of 2022

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to know about Exhibit P19 decision for compensation directed to be paid by the Land Acquisition Commission.

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2.4 It is also submitted by the appellants that subsequently, on 22.07.2022, Exhibit P20 notice was issued under Section 21 of the Act, 2013, directing all persons interested in the land to appear in person or through an authorized agent on 11.08.2022 before the Special Tahsildar (LA). Aggrieved by the abrupt displacement of the appellants from their only source of livelihood, they approached numerous authorities.

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2.5 According to the appellants, on 3.10.2022, Exhibit P25 series of notices were issued by the Land Acquisition Officer notifying taking over possession of the land to all interested persons. In the said notices, it was stated that appellants have to vacate and deliver possession of their respective shop rooms before the evening of 17^th October, 2022, to the Revenue Inspector. Correspondingly, along with Exhibit P25 series notices, Exhibit P26 notices was issued by the Land Acquisition officer stating award of Rs. 50,000/- be deposited before the Additional Sessions Judge II, Alappuzha under section 77(2) of the Act, 2013.

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2.6 It is further submitted by the appellants that they are aggrieved by Exhibit P24 series of notices and Exhibit P25 series of notices as the said notice have been issued without consideration of Exhibit P18 and Exhibit P23 social impact assessment study and at present, the appellants apprehend eviction from their respective shop rooms, depriving their only source of livelihood. It is in this background, the appellants have filed the writ petition.

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Pending disposal of the writ petition, appellants sought for an interim order of

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W.A.No1821 of 2022

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stay for the forcible eviction from their shop rooms/properties.

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Adverting to the submissions and after going through the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, the date i.e., 14.10.2020, when section 11 has published in the Gazette extending the notification twice and finally issuance of Exhibit P19 rehabilitation package dated 11.5.2022 and thereafter, Exhibit P25 series of notices were issued on 3.10.2022, and by observing that the appellants have approached the writ court with prayers inter alia that they should not be evicted without providing rehabilitation, writ court vide interim order dated 24^th November 2022 in W.P.© No.37114 of 2022 declined to grant stay of the proceedings.

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For brevity, the operative portion of the interim order dated 24^th November, 2022, is reproduced hereunder:

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“2. After going through the subsequent requirements under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 Act, on 14.10.2020 Section 11(1) notification has been published in the Gazette. Even thereafter, if the petitioners had any grievance regarding the acquisition, they had an option to challenge it under Section 15. The period of the notification was later extended twice and finally by Ext.P19, rehabilitation package was also published. The said package was published on 11.05.2022 and much thereafter Ext.P25 series notices had been issued on 03.10.2022. The petitioners have approached this Court contending that they are not liable to be evicted without taking care of the obligation for rehabilitation. It can be seen from Ext.P26 series of notices that awards had been issued in terms of the rehabilitation package. It is also seen therefrom that the petitioners had not attended the hearing or submitted any relevant documents for claiming the compensation, resulting

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W.A.No1821 of 2022

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in the compensation being deposited with the Court of the Additional Sessions Judge-II, Alappuzha.

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In the above circumstances, there can be no stay of proceedings at this stage. The petitioners are at liberty to collect the amount of compensation from the Additional Sessions Court-II, Alappuzha by filing appropriate applications. If they are aggrieved by the amount awarded, they may seek for enhancement in the manner known to law.

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Post on 19.12.2022.”

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Being aggrieved by the said interim order, instant writ appeal is filed.

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Though, by inviting attention of this Court to section 19(7) of the Act, 2013, Ms.Thulasi K. Raj – learned counsel for appellant, submitted that as there was no declaration is made under sub-section (1) within 12 months from the date of preliminary notification, then such notification shall be deemed to have been rescinded, going through the averments made in the writ petition, we find that the appellants have not even raised any specific grounds.

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As stated supra, the notification has been issued as early as on 13.10.2020 and section 11(1) notification has been extended twice. The appellants have not challenged the notification, however, sought for a declaration that the shops of the appellants are not liable to be acquired under the Act, 2013. They also sought for a writ of mandamus directing the respondents to refrain from acquiring the appellants' shops/properties from evicting the appellants from the shops.

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In the absence of any specific challenge to the notification dated 13.10.2020 issued under section 11(1) of the Act, 2013 and in the absence of any specific grounds

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W.A.No1821 of 2022

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with reference to section 19(7) of the Act, 2013, we are of the prima facie view that the reliefs sought for by the appellants cannot be granted by this Court. More so, award has been passed on 11.5.2022 and compensation was deposited.

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That apart, on the aspect of rehabilitation, it could be seen that the package is also been published on 11.5.2022. The grievance of the appellants is that the rehabilitation and resettlement to the appellants have not been provided and therefore, they should not be evicted.

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In this context, it is worthwhile to refer section 64 of the Act, 2013, which reads

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thus:

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“ 64. Reference to Authority .–(1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Authority, as the case may be, whether his objection be to the measurement of the land, the amount of the compensation, the person to whom it is payable, the rights of Rehabilitation and Resettlement under Chapters V and VI or the apportionment of the compensation among the persons interested:

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Provided that the Collector shall, within a period of thirty days from the date of receipt of application, make a reference to the appropriate Authority:

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Provided further that where the Collector fails to make such reference within the period so specified, the applicant may apply to the Authority, as the case may be, requesting it to direct the Collector to make the reference to it within a period of thirty days.

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(2) The application shall state the grounds on which objection to the award is taken:

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Provided that every such application shall be made—

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(a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from

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W.A.No1821 of 2022

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the date of the Collector‘s award;

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(b) in other cases, within six weeks of the receipt of the notice from the Collector under section 21, or within six months from the date of the Collector‘s award, whichever period shall first expire:

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Provided further that the Collector may entertain an application after the expiry of the said period, within a further period of one year, if he is satisfied that there was sufficient cause for not filing it within the period specified in the first proviso."

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From the material on record, it could be deduced that the purpose of the acquisition is to re-construct the Zilla Court Bridge, Alappuzha.

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Though, Ms.Thulasi K. Raj made submissions on the grounds raised seeking reversal of the interim order, giving due consideration to the material on record, we are not inclined to do so.

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Therefore, writ appeal is dismissed, however, liberty is granted to the appellants to raise all tanable grounds before the writ court.

Sd/-

S.MANIKUMAR,

CHIEF JUSTICE

Sd/-

SHAJI P. CHALY,

smv

JUDGE

W.A.No1821 of 2022

APPENDIX OF WA 1821/2022

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APPELLANTS' ANNEXURES Annexure I TRUE COPY OF THE G.O. MS 448/2017/RD DATED 29.12.2017 ISSUED BY REVENUE(B) DEPARTMENT. Annexure II TRUE COPY OF THE PRELIMINARY NOTIFICATION ISSUED AS PER PROCEEDINGS NO G3-19827/2018 DATED 13.10.2020 ISSUED BY DISTRICT COLLECTOR, ALAPPUZHA. Annexure III TRUE COPY OF THE EXTENSION NOTIFICATION G.O.(P) NO. 150/2021/RD ISSUED BY THE REVENUE(B) DEPARTMENT DATED 22.10.2021 Annexure IV TRUE COPY OF THE DECLARATION NO. G.5/19827/18 DATED 29.06.2022 ISSUED BY DISTRICT COLLECTOR, ALAPPUZHA.

K.S. Rajendran v. State of Kerala

Case brief

What is this about?

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K.S. Rajendran v. State of Kerala

Case brief

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