Dismissed

T.Sudhakaran Nayar, v. State of Kerala

Kerala HC16 Mar 2022WP(C)/2133/2020

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed writ petitions challenging a Government Order providing enhanced compensation benefits. The Court held that the Government was justified in creating a separate package for lands acquired under subsequent notifications (Phase II) after objections were raised, as there was no discrimination among land owners acquired under the initial notification (Phase I) who rec

What did the court decide?

Petitions dismissed; writ challenge against the Government Order dated 01.12.2017 rejected.

T.Sudhakaran Nayar, Vs State of Kerala — Land Acquisition | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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WEDNESDAY, THE 16^TH DAY OF MARCH 2022 / 25TH PHALGUNA, 1943

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WP(C) NO. 2133 OF 2020

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PETITIONER:

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T.SUDHAKARAN NAYAR, S/O KRISHNA PILLAI,PATTATTUPADOM, V.K.COLONY.P.O, THEVAKKAL,NOW RESIDING AT THEKKE AMBADY HOUSE,POONITHURA.P.O, KOCHI-682038. BY ADVS. S.K.BALACHANDRAN SRI.K.M.BIJU SMT.N.D.DEEPA SMT.REMANI KUTTY P.S. SRI.RAJESH NAIR SRI.P.CHANDRASEKHAR

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY THE SECRETARY,REVENUE DEPARTMENT,GOVT.SECRETARIAT,THIRUVANANTHAPURAM695001. 2 GAIL (INDIA) LTD,KKBMPL P PROJECT, REPRESENTED BY ITS MANAGER, HMT COLONY ROAD,KALAMASSERY, ERNAKULAM,COCHIN-683503. 3 THE DEPUTY COLLECTOR AND COMPETENT AUTHORITY (KERALA), KKBMPL P PROJECT, GAIL (INDIA) LTD., HMT COLONY ROAD, KALAMASSERY, ERNAKULAM, COCHIN - 683 503. BY ADVS. SMT.K.AMMINIKUTTY, SR. GP SHRI.K.ANAND SRI.S.MOHAMMED AL RAFI, SC, GAIL INDIA LIMITED SRI.AJITH KRISHNAN, SC, COMPETENT AUTHORITY, GAIL (INDIA) LIMITED

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.03.2022, ALONG WITH WP(C).19957/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NOS.2133&19957/2020 2

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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WEDNESDAY, THE 16^TH DAY OF MARCH 2022 / 25TH PHALGUNA, 1943

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WP(C) NO. 19957 OF 2020

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PETITIONERS:

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GOPINATHAN NAIR C.K

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S/O.LATE KRISHNAN NAIR, CHERIATH HOUSE, VADAKODE P.O., KANGARAPPADY, KOCHI-682 021.

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BY ADVS. S.K.BALACHANDRAN SRI.K.M.BIJU SMT.N.D.DEEPA

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2 GAIL (NDIA) LTD., KKBMPL PROJECT, REPRESENTED BY ITS MANAGER, HMT COLONY P.O., KALAMASSERY, ERNAKULAM, COCHIN-682 503. 3 THE DEPUTY COLLECTOR AND COMPETENT AUTHORITY (KERALA), KKBMPL PROJECT, GAIL (INDIA) LTD., HMT COLONY P.O., KALAMASSERY, ERNAKULAM, COCHIN-682 503.

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BY ADVS. SMT.LATHA ANAND SHRI.K.ANAND SRI.AJITH KRISHNAN, SC, COMPETENT AUTHORITY, GAIL (INDIA) LIMITED, SC,

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SMT.K.AMMINIKUTTY SR.GP

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WP(C) NOS.2133&19957/2020 3

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.03.2022, ALONG WITH WP(C).2133/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NOS.2133&19957/2020 4

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JUDGMENT

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The Gas Authority of India Ltd. (GAIL for

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short) is engaged in the establishment of the “Kochi-Koottanad–Bangalore–Mangalore Gas pipeline”,

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to facilitate which, a notification dated 03.09.2010 was issued under the provisions of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 (hereinafter referred to as 'PMP Act' for short), leading to the Right of User being acquired on the properties of the petitioners. It is without contest that the petitioners were granted eligible compensation under the “PMP Act” without much of delay.

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While so, certain new notifications were

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issued to aid the same project and the Government of Kerala initially came out with a package of compensation, through G.O(Rt.)No.7325/2012/RD dated 29.12.2012, which was thereafter modified through G.O(Rt.)No.3195/13/RD dated 04.06.2013 – a copy of

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which is on record as Ext.P2 along with

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WP(C) NOS.2133&19957/2020 5

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W.P(C)No.19957 of 2020. Subsequently, a further

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order was issued by the Government, bearing number G.O(Rt.)No.5165/2017/RD dated 01.12.2017, fixing

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the market value of the property for the purpose of computing compensation under the “PMP Act”, as being ten times of its notified Fair Value.

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On being informed of the afore notification – which shall hereinafter be referred to as the

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“2017 order” – the petitioners put forth a claim that they are also entitled to the benefits under the said order, even though their lands were acquired in the year 2010. When this was not

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acceded to, they have approached this Court through these writ petitions.

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I am hearing the afore two writ petitions together because the factual factors are analogous and the reliefs sought for are similar, if not, identical.

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The argument on behalf of the petitioners

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were impelled by Shri.P.Chandrasekhar, learned counsel for the petitioner in W.P(C)No.2133 of 2020

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WP(C) NOS.2133&19957/2020 6

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and Shri.S.K.Balachandran, learned counsel for the petitioner in W.P(C)No.19957 of 2020.

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The learned counsel argued that the “2017

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order” is egregiously improper and illegal because it gives benefits to certain land owners, while denying it to persons like the petitioners, merely because their lands were acquired on an earlier point of time. They argued that the discrimination is glaring and that the classification of the land owners into two different categories is without any intelligible differentia and does not sub-serve any cogent purpose; and consequently that the “2017 order” is liable to be set aside by this Court to the extent to which it excludes them.

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This Court heard these matters on several days past, and on 07.09.2021 when it was listed, a specific adscititious submission was made on behalf of the petitioners that certain property owners, on whose lands the Right of User had been acquired pursuant to the notification dated 03.09.2010 were offered the benefit of the “2017 order”. This Court

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WP(C) NOS.2133&19957/2020 7

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found the afore allegation – without finding it to be genuine – to be one that required the response of the GAIL, as also the Government of Kerala and I adjourned these matters with the following order on that day:

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“Sri.Mohammed Rafi, learned counsel appearing for the GAIL, submits that the order of the Government of Kerala dated 01.12.2017 is applicable only to acquisition that happened subsequent to their first notification dated 03.09.2010. He added that acquisition of the petitioners' properties was done based on the notification dated 03.09.2010; while that with respect to the properties mentioned in the Government Order dated 01.12.2017 was based on subsequent notifications.

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However, I do not see any such pleading or material having been placed on record by the GAIL.

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I, therefore, adjourn these matters to be called on 16.09.2021 for the GAIL to produce necessary orders.

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I must also record that if all the acquisitions happened, as alleged by the petitioners, based on the notification dated 03.09.2010, I find no justification for the Government of Kerala in having confined the payment of compensation, as directed through their order dated 01.12.2017, solely from the beginning of the construction activity in January, 2012.”

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The records reveal that, thereafter or even

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before, the GAIL and the Government of Kerala

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completed their pleadings, wherein, their singular

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stand is that the Right of User over every land

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acquired pursuant to the notification dated 03.09.2010, including that of the petitioners, were

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WP(C) NOS.2133&19957/2020 8

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used for the purpose of “Phase I” of the Pipeline and that the work thereon was completed before 31.12.2011. According to them, the lands required for “Phase II” were acquired subsequently through separate notifications and that the Government of Kerala had made the Packages for rehabilitation and compensation only with respect to those lands, without intending to cover those, over which the work had been completed and Awards determined and paid.

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Shri.K.Anand, learned Senior Counsel and

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Shri.Mohammed Al Rafi, learned Standing Counsel appearing for the GAIL, vehemently asserted that the petitioners cannot allege any discrimination

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because their lands were acquired under the notification dated 03.09.2010, while the “2017 order” of the Government of Kerala was specifically thought of and designed to cover only those lands which governed by the subsequent notifications and which were part of “Phase II” of the Pipeline. The learned Senior Counsel and the learned counsel thus

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WP(C) NOS.2133&19957/2020 9

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argued that the very edifice of the petitioners' allegations that, they have been unfairly discriminated, would have no legs to stand on, because all the properties through which the Right of User were acquired pursuant to the notification dated 03.09.2010, have been treated equally and that there is no forensic stipulation which mandates that the benefits under separate notifications have to be the same or equated. They thus vehemently argued that these writ petitions are not maintainable and prayed that they be dismissed.

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Shri.Ajith Krishnan - learned Standing

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Counsel appearing for the Deputy Collector and

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competent Authority of the Project, adopted the afore submissions of Shri.K.Anand, learned Senior Counsel and Shri.Mohammed Al Rafi, learned Standing

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Counsel appearing for the GAIL, showing me - through the counter pleadings filed by his clients - that the lands which were acquired, including that of the petitioners, through the notification

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WP(C) NOS.2133&19957/2020 10

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dated 03.09.2010 had been included only in “Phase I” and that the acquisition of the Right of User over them was completed and the work finished with respect to them, before 31.12.2011. He submitted that all the land owners, including the petitioners, were given eligible compensation under the “PMP Act”, which they did not challenge at any time under the statutory scheme; but that they have now approached this Court when they saw that the “2017 order” gave certain better benefits to land owners, the Right of User over whose lands were acquired under a subsequent notification. He vehemently argued that this was without error because it is up to the Government and the competent Authorities to decide how the benefits under each notification have to be taken care of

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and that there can be no common yardstick with respect to separate notifications issued at different points of time. He thus prayed that these writ petitions be dismissed.

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I have examined and evaluated the afore

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WP(C) NOS.2133&19957/2020 11

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rival contentions very carefully.

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It is perspicuous, going by the submissions of Sri.P.Chandrasekhar and Sri.S.K.Balachandran, that their clients suffer angst noticing that persons whose lands were acquired for the same Project were given a better deal through the “2017 order”. This distress certainly is justified, but the crucial question is whether this is contrary to the principles of law.

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As I have said above, when I considered this case on 07.09.2021, a doubt was raised at the Bar as to whether the lands acquired under the notification dated 03.09.2010 were treated differently and some

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land owners given benefits under the “2017 order”, while the petitioners denied. Had this been the truth, then certainly, this Court would have intervened and may have even read down the “2017

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order” to make it applicable to all the land owners.

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In fact, Sri.P.Chandrasekhar and

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Sri.S.K.Balachandran specifically pointed that a

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certain Sri.Vishwanathan, whose land was governed under the notification dated 03.09.2010 had been

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WP(C) NOS.2133&19957/2020 12

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given the benefit of the “2017 order”, but this was strongly controverted by Sri.Mohammed Al Rafi, arguing that the said land was, in fact, included in the next notification dated 13.12.2012. He showed me Ext.P5 produced along with W.P.(C) No.19957/2020 in substantiation, as also the averments in the counter affidavit filed by the competent Authority in the said case, wherein, this fact has been expressly stated. Pertinently, the petitioners were not able to controvert this on cogent materials. Therefore, as now matters stand, the documents on record would indicate that there were two Phases for the Project. Phase I having been completed prior to 31.12.2011; while Phase II began thereafter.

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The properties of the petitioners were, admittedly, included in Phase I and the rights of

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user over them acquired under notification dated 03.09.2010; while the said user over the properties involved in Phase II were acquired based on subsequent notifications including the one dated 13.12.2012. Therefore, the only germane question now before this Court is whether the benefits granted to

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WP(C) NOS.2133&19957/2020 13

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land owners under all such notifications ought to

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have been similar, if not identical; or whether it is

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up to the Government to take a different call quad hoc the subsequent notifications, based on the circumstances prevailing at the relevant time.

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Going by the counter affidavit filed on

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behalf of the State, they say that Phase I went on smoothly and that its work was completed before 31.12.2011. However, when Phase II began, objections

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were raised by various land owners, which led to the Government to decide on a Package be given to them, which finally culminated in the “2017 order”. Since these benefits were confined to those people, the

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rights of user over whose lands were acquired subsequent to the notification dated 03.09.2010, prima facie, I am of the view that the Government was

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certainly justified in creating a package

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specifically for that class of persons, even though the same were not made available for the land owners

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of the properties involved in Phase I of the project.

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I say so because, even though the project is

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one, it was taken forward in two Phases and which

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WP(C) NOS.2133&19957/2020 14

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were governed by different notifications, Had any of the persons included in the same notification been

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treated differently, the matter would have been different and this Court would have certainly intervened. However, the uncontested materials on record would establish limpidly that the rights of

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user over lands acquired under the notification dated

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03.09.2010 were treated equally and all its land owners given the same benefits, which they had accepted without demur, forgoing their statutory remedies against the same. It was only subsequently, when Phase II began and further notifications were issued that a different package for compensation was offered by the Government of Kerala, perhaps to quell the unrest then notice; and therefore, I fail to fathom how the petitioners could then wake up and demand that they also be given the same benefits, merely because their lands are either adjourning or similarly situated.

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To paraphrase, as long as the lands covered

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by the same notification were not treated unequally and as long as all the land owners under the same

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WP(C) NOS.2133&19957/2020 15

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notification had been given identical benefits, I cannot see any reason for the petitioners to claim that they should be offered those which were granted to the owners of lands under subsequent notifications, particularly when it is without contest that it is under a different Phase of the Project, namely Phase II.

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In summation and edificed on the reasons above, I cannot find favour with the submissions of the petitioners and am certainly of the view that these writ petitions deserve only to be dismissed. It is so ordered.

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Sd/-

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DEVAN RAMACHANDRAN

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JUDGE

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MC/STU

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WP(C) NOS.2133&19957/2020 16

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APPENDIX OF WP(C) 2133/2020

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PETITIONER EXHIBITS

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EXHIBIT P1	TRUE COPY OF THE NOTIFICATION DT.1.12.2017
EXHIBIT P2	TRUE COPY OF THE REPRESENTATION DT 5/12/2019.
EXHIBIT P3	TRUE COPY OF THE 3(1) NOTICE NO. S.O.583(E) DATED 12.03.2010
EXHIBIT P4	TRUE COPY OF G.O.(RT) NO.3195/2013/RD DATED 04.06.2013
EXHIBIT P5	TRUE COPY OF THE PROCEEDINGS NO E- 3/2018/PVR/KADUNGALLOOR/ROU(01) DATED 08.08.2018 ISSUED BY 2ND RESPONDENT.
RESPONDENTS EXHIBIT EXHIBIT R1(A)	G.O.(RT)NO.7325/12/RD DATED 29.12.2012.
EXHIBIT R1(B)	TRUE COPY OF G.O(RT)NO.3195/13/RD DATED 4.6.2013.
EXHIBIT R2(A)	TRUE COPY OF THE ROUTE MAP OF THE PHASE I OF PIPELINE PROJECT
EXHIBIT R2(B)	TRUE COPY OF THE NOTIFICATION NO.SO 2170(E) DATED 3.9.2010 ISSUED BY THE CENTRAL GOVERNMENT.
EXHIBIT R2(C)	TRUE COPY OF THE ROUTE MAP OF PHASE II OF PIPELINE PROJECT.
EXHIBIT R2(D)	TRUE COPY OF RELEVANT PAGES OF THE NOTIFICATIONS DATED 5.3.2014
EXHIBIT R2(E)	TRUE COPY OF RELEVANT PAGES OF THE NOTIFICATIONS DATED 30.8.2013.
EXHIBIT R2(F)	TRUE COPY OF RELEVANT PAGES OF THE NOTIFICATIONS DATED 10.5.2013.

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WP(C) NOS.2133&19957/2020 17

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PETITIONER EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE SAID NOTIFICATION PUBLISHED ON 03.09.2010. EXHIBIT P2 TRUE COPY OF THE GO(RTo NO.3195/2013/RD DATED 04.06.2013. EXHIBIT P3 TRUE COPY OF THE NOTIFICATION DATED 01.12.2017. EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 05.12.2019. EXHIBIT P5 TRUE COPY OF THE PROCEEDINGS SHOWING COMPENSATION AWARDED IN TERMS OF EXT.P3 ORDER GIVEN TO ONE VISWANATHAN AND ANOTHER AS PER PROCEEDINGS NO.E3/2018/PVR/KADUNGALOOR/ROU(01) DATED 08.08.2018 OF THE 2ND RESPONDENT.

T.Sudhakaran Nayar, v. State of Kerala

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T.Sudhakaran Nayar, v. State of Kerala

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