Kerala High Court
George Joseph And Ors. vs Union Of India (Uoi) And Ors. on 4 April, 2008
Equivalent citations: 2008(2)KLJ196, AIR 2008 (NOC) 2069 (KER.)
Author: K. Padmanabhan Nair
Bench: K. Padmanabhan Nair
JUDGMENT K. Padmanabhan Nair, J.
1. Petitioners are agriculturists of the Villages of Erattupetta, Thalappalam, Bharanganam, Kanjirappally, Kadanad and Kondoor within the Meenachil and Kanjirappally Taluks, Kottayam District. According to them, they are aggrieved by the action of the respondents 4 and 5 for acquisition of the land, for the proposed Angamali-Erumeli Broad-Gauge Railway line. A Government of India Enterprises, by name RITES, had conducted Engineering-cum-Traffic survey for the proposed Broad-Gauge railway line between Angamali and Erumeli, via. Muvattupuzha, and prepared a report and plan. The case of the petitioners is that respondents have taken a decision to accept Alternative I proposal as against Alternative IV proposal. According to the petitioners if Alternative I proposal is accepted, that will not serve any purpose and it will upset the ecology of the land. It is also averred that various Panchayats have also raised objection against the accepting of Alternative No. I proposal. The petitioners have produced Ext.P7 representation of the Sabarimala Pilgrims Welfare Committee and resolutions passed by the Kadanad, Bharananganam, Thalappalam, Erattupetta, Thidanad Grama Panchayats, as evidenced by Exts. P8 to P12, to show that the Samithi as well as the local authorities are opposing the present railway line, accepting Alternative No. I proposal. So the petitioners pray that this Court may issue a direction to the respondents to accept Alternative IV proposal for the proposed Angamaly-Erumeli Broad-Gauge Railway line.
2. The learned Counsel appearing for the Railways submitted that the proposal has been studied by the railways and a decision was taken and the petitioners can only challenge the notification that may be issued under Section 4(1) of the Land Acquisition Act. It is argued that this Writ Petition is premature. It is argued that there is no provision of law which enables a person/an organisation/a local authority to raise objections against the acquisition of land for a proposed railway line or road etc. It is also argued that the petitioners, whose lands are not yet notified for a acquisition have no right to seek a direction to the second respondent to accept the Alternative No. IV in the place of Alternative No. I.
3. It is true that at present there is no provision in the Land Acquisition Act which enables a person whose land may be acquired and who is likely to be affected to raise any objection challenging the proposed acquisition prior to the issuance of notification under Section 4(1) of the Act. But the fact remains that whenever the Government starts a new project a section of people come forward with objections. The question arising for consideration is whether the State/Union is bound to consider their objections also before taking a decision.
4. In Karnataka Industrial Areas Development Board v. C. Kenchappa and Ors. the Apex Court had directed that "in future, before acquisition of lands for development the consequences and adverse impact of development on environment must be properly comprehended...."
5. Central Ministry of Environment and Forest, Government of India had issued Environment Impact Assessment ('EIA' for short) notification. The same makes Environment Impact Assessment mandatory for 29 different identified activities. Some of the projects require clearance from the Central Government. List of Projects requiring environmental clearance includes Ports, Harbour, Airport, Transport Projects (Rail, Road and Highways). Before granting E.I.A. Clearance there is provision for public hearing also and the same is mandatory. Whenever State or Union undertakes a developmental activity like Transport Project, Port or Airport it will affect the public at large. So it is only just and proper that the persons, organisations, or local authorities who are likely to be benefited or affected by that project shall also be given an opportunity to raise their objections or suggestions, if any, before issuing the notification under Section 4(1) of the Land Acquisition Act. This can be done by making available the details of the project with alignment sketch and plans, etc. In the Government web site, or make available to the public under the provisions of Right to Information Act. It may not be possible to publish the whole report in the news papers. But as and when the project report with the alignment sketches and plans, etc. are received by the requisitioning authority, public notice shall be published in prominent dailies in vernacular as well as in English, regarding the availability of the project report, plan etc. and inviting objections and suggestions from individuals and orgnisations. The authorities shall fix a time limit for filing objections, views etc. When the date fixed for filing objections is over, a public hearing shall be given with public notice. Such a course is absolutely necessary to avoid the allegation that a particular alignment is accepted on account of undue influence exercised by the land mafia.
6. This Court cannot close its eye to the fact that in number of projects objections are raised by a section of the public contending that a cheaper and more useful alignment is available. In such cases, the requisitioning authority always maintain a stand that a lot of money had already been spent for implementing that project. All such objections can be avoided and transparency maintained by giving an opportunity to beneficiaries and persons who are likely to be affected by the project for public hearing. So it is only just and proper that the State/requisitioning authority conducts public hearing before issuing notification under Section 4(1) of the Act regarding major projects such as new road, bye-pass, railways line or airport etc.
7. In M. Naga Venkata Lakshmi v. Visakhapatnam Municipal Corporation and Anr. 2007 (8) SC 748, the Supreme Court has held as follows:
...Before making the zonal plan and the master plan, the Authority was required to give an opportunity of hearing to the persons who may be affected thereby. Neither the writ court nor the court of a appeal dealt with the question as regards the right of the appellant to be heard in matter....
8. I am of the view that similar procedure is to be followed before implementing major projects like Transport Projects by the requisitioning authority and the State Government, in view of the importance of the matter. So, there will be a direction to the respondents 2 and 3 to conduct a public hearing after inviting objections or suggestions by any person, organisations or local authorities, within a time frame. The authorities shall pass considered order after hearing the parties. If any persons makes an application for a copy of the Engineering Report and plans prepared by RITES, copy of the same shall be made available to such person in accordance with law.
9. In the result, the writ petition is disposed of with the following directions. Petitioners are given two weeks time from the date of receipt of this judgment to file their objections before respondents 2 and 3, raising all their objections, suggestions etc. The respondents 2 and 3 shall conduct a public hearing after calling for objections. Public notice shall be given by publishing the notice at least in two leading dailies. If objections are filed by the local authorities, organisations, or individuals, the same shall also be considered with due notice to all of them, as expeditiously as possible, at any rate, within six weeks from the last date fixed for receipt of such objections. The notification under Section 4(1) of the Land Acquisition Act shall be issued only after disposing of such objections, if any, filed.
10. Forward a copy of this judgment to the 3rd respondent who shall communicate copies of the same to all Heads of Departments and District Collectors with a direction to follow the procedure of conducting public hearing before issuing Section 4(1) notification for acquiring land for any project like Transport Projects (roads, railway line, airport, etc.).