Kerala High Court
Jose Pannikot vs State Of Kerala on 21 January, 2022
Author: Devan Ramachandran
Bench: Devan Ramachandran
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY, THE 21ST DAY OF JANUARY 2022 / 1ST MAGHA, 1943
WP(C) NO. 18544 OF 2021
PETITIONER:
JOSE PANNIKOT,
AGED 60 YEARS
S/O. LATE P.J. KURIEN, PANNIKOT HOUSE, PURAMATTOM P.O,
PATHANAMTHITTA, PIN-689 543
BY ADVS.
K.R.VINOD
M.S.LETHA
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF
KERALA, SECRETARIATE, THIRUVANANTHAPURAM, PIN-695 001
2 THE DISTRICT COLLECTOR,
PATHANAMTHITTA, COLLECTORATE P.O, PATHANAMTHITTA ,
PIN-689 647.
BY ADV GOVERNMENT PLEADER
OTHER PRESENT:
SMT. MABLE .C .KURIAN SR.G.P
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
21.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 18544 OF 2021 2
JUDGMENT
The petitioner impugns Ext.P3 order issued by the 2nd respondent - District Collector, under the provisions of Section 15 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 ('Fair Compensation Act' for short), on the specific ground that said Authority obtained no competence to have issued the said order.
2. Shri.K.R.Vinod, learned counsel appearing for the petitioner, made submissions with specific reference to Section 15 of the 'Fair Compensation Act', predicating that clause 2 thereof would make it indubitable that the objections of the owner of a property sought to be acquired have to be made to the Collector, who will have to hear him and then make a report, to be forward to the competent Government. He pointed out that it is for the competent Government to make an order, which, under the rigour of clause 3 thereof, has been postulated to be final.
3. Shri.K.R.Vinod, thereafter, submitted that, WP(C) NO. 18544 OF 2021 3 from the facts of this case, it would become perspicuous that objections of his client were heard by the Collector, but that instead of forwarding his report to the Government, he himself issued Ext.P3 final order under Section 15 of the 'Fair Compensation Act'; thus vehemently arguing that the entire process is vitiated and liable to be interfered with by this Court.
4. In response, Smt.Mable C.Kurian, learned Senior Government Pleader, submitted that the afore submissions of the petitioner are based on a wrong impression of the statutory Scheme and she took my attention to the definitions of the words 'Appropriate Government' and 'Collector', as are available in Section 3 of the 'Fair Compensation Act'. She showed me that the word 'Collector' has been defined to be the Collector of a Revenue District; while the 'Appropriate Government' to be either the State or Central Government, as per the criteria therein, but its proviso renders it limpid that where, in respect of a public purpose in a WP(C) NO. 18544 OF 2021 4 District for an area not exceeding such as may be notified by the Government, it will be the District Collector who will be the 'Appropriate Government'. She thus explained that Government of Kerala has issued Annexure R2(a) notification under the sanction of the afore said proviso; and therefore, that the District Collector is the 'Appropriate Government' as far as this case is concerned. She thus argued that his action, in having issued Ext.P3, is without error and thus prayed that this writ petition be dismissed.
5. When I evaluate the afore rival contentions of the parties, it becomes necessary for me to have a glance at Section 15 of the 'Fair Compensation Act', which, for the purpose of easy reference, is extracted as under:
"15. Hearing of objections - (1) Any person interested in any land which has been notified under sub-section (1) of Section 11, as being required or likely tobe 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.WP(C) NO. 18544 OF 2021 5
(2) Every objection under sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard in person or by any person authorised by him in this behalf or by an Advocate and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under sub-section (1) of section 11, or make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him along with a separate report giving therein the approximate cost of land acquisition, particulars as to the number of affected families likely to be resettled, for the decision of that Government.
(3) The decision of the appropriate Government on the objections made under sub-section (2) shall be final."
6. There can be little doubt from the afore provisions that every objection under Section 15(1) of the 'Fair Compensation Act' is to be made to the District Collector in writing, who will, after giving an opportunity of being heard to the objector, make a report to the appropriate Government, containing his recommendations on each of the objections, together with a record of proceedings held by him; along with separate report providing the approximate cost of land acquisition and the details of resettlement to the affected families.
WP(C) NO. 18544 OF 2021 6
7. Thereafter, clause 3 of Section 15 of the Fair Compensation Act specifies that the decision of the Appropriate Government on the objections made under sub section (2) thereof shall be final.
8. There can be no two ways about it that, going by Section 15 of the 'Fair Compensation Act', the District Collector is to make a report to the competent Government, which is to then take a final decision.
9. However, the word 'Appropriate Government' has been defined under Section 3(e) of the Fair Compensation Act in the following manner:
"3(e) "appropriate Government" means -
(i) in relation to acquisition of land 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 WP(C) NO. 18544 OF 2021 7 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 Collector of such District shall be deemed to be the appropriate Government."
10. The proviso to the afore Section renders it apodictic that, in respect of a public purpose within a District for an area which does not exceed that extent as is notified by the Government, the District Collector will be the 'Appropriate Government'. This is a deeming provision, which construes the District Collector as the Appropriate Government and in the absence of any challenge to these provisions, obviously, the petitioner is also bound by the same.
11. In that perspective, when one examines Annexure R2(a), it is without contest that Government of Kerala has issued the said notification under the ambit of the afore proviso, notifying the extent of land not exceeding 200 Ares in a District for a public purpose and thus nominating the District Collector to be the 'Appropriate Government' for the purpose of the 'Fair Compensation Act'.
12. As I have already indited above, the WP(C) NO. 18544 OF 2021 8 petitioner does not challenge any of the statutory provisions or Annexure R2(a) and indubitably, therefore, there can be no cry that the District Collector, in this case, is also the 'Appropriate Government'.
13. The only corollary question that requires my attention - since it has been raised by Shri.K.R.Vinod - is whether, in such circumstances, the rigour of Section 15 of the 'Fair Compensation Act' would be whittled down.
14. By its frame, there can attract no doubt that, under Section 15 of the 'Fair Compensation Act' two Authorities are in play, namely the 'District Collector' and the 'Appropriate Government'. Except in the cases, covered by the proviso to Section 3(e) of the 'Fair Compensation Act', the District Collector will certainly have to make a report to the 'Appropriate Government' which will then take a final decision, making it binding on the parties as per clause 3 thereof.
15. However, in the case at hand, the Government WP(C) NO. 18544 OF 2021 9 of Kerala has issued Annexure R2(a) notification deeming the District Collector to be the 'Appropriate Government'; and luculently, therefore, under the cojoint effect of the proviso to Section 3(e) and Section 15 of the 'Fair Compensation Act', the Collector becomes both the 'District Collector', as also the competent Authority'.
16. The purpose of Section 15 of the 'Fair Compensation Act' is limpid from its scheme. What is provided for is that any person interested in the land must obtain the opportunity to make an objection to the Collector, who shall then hear him and make a report. This report is to be forwarded by him to the 'Appropriate Government; who will then finally take a decision as to the acquisition and the criteria for settlement.
17. Therefore, what is expected is a fair and transparent procedure, whereby, a report is first concluded, leading to a final decision. However, when the District Collector himself statutorily acts as the 'competent Government', the rigour of first WP(C) NO. 18544 OF 2021 10 creating a report and only then settling a final order would be virtually superfluous when both these can be done by the said Authority simultaneously. In such context, I do not see how Ext.P3 can be challenged for the reason that the stipulations of the statutory Scheme under Section 15 of the 'Fair Compensation Act' have not been complied with because it contains answers to the objections raised by the petitioner, with the opinion of the Authority. This is more so since there is neither no allegation impelled against the District Collector, nor does the petitioner say that said Authority is not abide by the statutory prescriptions, as is mandated in law.
18. Of course, at this time, Shri.K.R.Vinod intervened to say that his client has an adscititious claim that the District Collector has not considered his objections in its proper perspective. He read out Ext.P3 to say that majority of the objections raised by his client, namely that the whole of his property ought to have been acquired; and that there is an alternative land, which is more suitable for the WP(C) NO. 18544 OF 2021 11 purposes of the Requisitioning Authority - namely, the Kerala Water Authority - has not even been adverted to, except saying that the Social Impact Assessment study (SIA study) has concluded upon these aspects. The learned counsel submitted that merely because the SIA study has made certain recommendations, it would not disentitle his client to raise all germane objections within the ambit of Section 15 of the 'Fair Compensation Act' before the District Collector and that said Authority is certainly enjoined to consider the same.
19. The afore submissions of Shri.K.R.Vinod certainly will have to be assessed by this Court within the circumcised parameters of Section 15 of the 'Fair Compensation Act'. Going by the said Section - which is extracted above - any person interested in the land can raise objections relating to: (a) the area and suitability of the land proposed to be acquired (b) justification offered for public purpose and (c) the findings in the Social Impact Assessment report.
WP(C) NO. 18544 OF 2021 12
20. In the afore umbra, all the objections urged by the petitioner, admittedly, can only be within the sweep of the 'area and suitability of the land', because he does not have a case, even before this Court, that the purpose for acquisition is not a public one or against the findings in the Social Impact Assessment report.
21. That being so said, even though the objections of the petitioner have not been placed before this Court, going by the submissions of Shri.K.R.Vinod, the only one of any relevance before this Court, even peripherally, is that whole of his land ought to be acquired, and not merely a portion thereof. This is undoubted - because, the assertion of alternate lands being available would be of no cause now, once the final notification had been issued, particularly because the purpose for the acquisition, as I have already recorded above, is uncontested to be a public one.
22. I am, therefore, of the firm view that petitioner cannot succeed in the challenge to Ext.P3, WP(C) NO. 18544 OF 2021 13 but that he will certainly obtain an opportunity to make an application under Section 94 of the 'Fair Compensation Act' before the competent Authority, seeking that whole of his land ought to be acquired and not a portion thereof.
23. Of course, any consideration of such an application will depend upon the satisfaction of the imperative and inviolable criteria as are stipulated under the said Section; and I make it clear that I have not entered into the merits of any such and that it is left open to be impelled by the petitioner, if he is so desirous, as per law.
In the afore circumstances, I dispose of this writ petition confirming Ext.P3; however, leaving full liberty to the petitioner to approach the competent Authority, if so advised, with an application under Section 94 of the 'Fair Compensation Act', which will certainly be considered as per law, after evaluating its maintainability and the conditions and criteria statutorily attracted, and after affording him an opportunity of being WP(C) NO. 18544 OF 2021 14 heard; thus culminating in an appropriate order thereon in terms of law.
Sd/-
DEVAN RAMACHANDRAN JUDGE MC/21.1 WP(C) NO. 18544 OF 2021 15 APPENDIX OF WP(C) 18544/2021 PETITIONER EXHIBITS Exhibit P1 THE COPY OF THE FORM NO. IV NOTIFICATION PUBLISHED IN KERALA GAZETTE DATED 28.07.2018.
Exhibit P2 THE COPY OF THE PRELIMINARY NOTIFICATION, ISSUED U/S. 11(1) DATED 13.11.2020 SIGNED BY THE 2ND RESPONDENT.
Exhibit P3 THE COPY OF ORDER ISSUED BY THE 2ND RESPONDENT DATED 11.07.2021.
RESPONDENT EXHIBITS ANNEXURE R2(A) TRUE COPY OF G.O(P)NO.376/2016/RD DATED 29.06.2016 PROVIDING THAT DISTRICT COLLECTOR SHALL BE THE APPROPRIATE GOVERNMENT IN SPECIFIED CASES.
ANNEXURE R2(B) TRUE COPY OF THE JUDGMENT DATED 07.09.2020 IN W.P(C)NO.17948/2020.