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. WP(C) NO. 242 OF 2021 : 4 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 5 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 6 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 7 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 11 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 12 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 13 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 14 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 15 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 16 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 17 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 18 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 19 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 20 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 21 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 22 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 24 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 25 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 26 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 27 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 28 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 29 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 30 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 31 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 32 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 33 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 34 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 35 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 36 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 37 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 38 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 39 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 40 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 41 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 42 : 2025:KER:21653 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, WP(C) NO. 242 OF 2021 : 43 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 44 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 45 : 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 WP(C) NO. 242 OF 2021 : 46 : 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 WP(C) NO. 242 OF 2021 : 47 : 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 WP(C) NO. 242 OF 2021 : 48 : 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 WP(C) NO. 242 OF 2021 : 49 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 50 : 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 WP(C) NO. 242 OF 2021 : 51 : 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) WP(C) NO. 242 OF 2021 : 52 : 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. WP(C) NO. 242 OF 2021 : 53 :
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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 WP(C) NO. 242 OF 2021 : 54 : 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, WP(C) NO. 242 OF 2021 : 55 : 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 WP(C) NO. 242 OF 2021 : 56 : 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 WP(C) NO. 242 OF 2021 : 57 : 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 WP(C) NO. 242 OF 2021 : 58 : 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.WP(C) NO. 242 OF 2021 : 59 :
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 WP(C) NO. 242 OF 2021 : 60 : 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 WP(C) NO. 242 OF 2021 : 61 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 62 : 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 WP(C) NO. 242 OF 2021 : 63 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 64 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 65 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 66 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 67 : 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 WP(C) NO. 242 OF 2021 : 68 : 2025:KER:21653 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 WP(C) NO. 242 OF 2021 : 69 : 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 WP(C) NO. 242 OF 2021 : 70 : 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