Kerala High Court
G. Madhusoodanan vs State Of Kerala on 3 January, 2024
Author: Murali Purushothaman
Bench: Murali Purushothaman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
WEDNESDAY, THE 3RD DAY OF JANUARY 2024 / 13TH POUSHA, 1945
WP(C) NO. 6246 OF 2023
PETITIONERS:
1 G. MADHUSOODANAN
AGED 76 YEARS
S/O GANGADHARAN, SHANTHIGIRI,
6TH STONE, KARAKULAM P.O.,
THIRUVANANTHAPURAM - 695564
2 SULEKHA BEEVI, AGED 72 YEARS
WIFE OF MOHAMMED ABDUL KHADAR,
RIYA MANZIL, NEAR U.P. SCHOOL, AZHIKODE,
CHEKKAKONAM P.O., THIRUVANANTHAPURAM - 695654
3 G.R.THANKAM, AGED 59 YEARS
WIFE OF SREEKANTAN, SREEKANTA BHAVA,
PURAVOORKONAM, KARAKULAM P.O.,
THIRUVANANTHAPURAM - 695564
4 AHAMMED RAMSI K
S/O. KAMALUDHEEN HAJI, BARAKATH MANZIL,
PERINGAMALA P.O.,
THIRUVANANTHAPURAMB - 695563
5 SAJAD M., AGED 57 YEARS
SON OF MAITHEN KANNU, SSN HOUSE,
VALAVATTY, AZHIKODE, CHEKKAKONAM P.O.,
THIRUVANANTHAPURAM., PIN - 695564
6 HUSSAIN S., AGED 65 YEARS
SON OF SHAHUL HAMEED LABBA,
NAZEEMA MANZIL, IRINGAYAM P.O.,
NEDUMANGAD, THIRUVANANTHAPURAM - 695561
7 ABDUL SALAM M., AGED 67 YEARS
SON OF MOHAMMED KUNJU, FATHIMAMANZIL,
AZHIKODE, CHEKKAKONAM P.O.,
THIRUVANANTHAPURAM - 695564
BY ADVS.
ASWINI SANKAR R.S.
K.RAMAKUMAR (SR.)
T.RAMPRASAD UNNI
S.M.PRASANTH
W.P(C) 6246/2023 -2-
T.H.ARAVIND
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF REVENUE, GOVERNMENT OF KERALA,
THIRUVANANTHAPURAM., PIN - 695001
2 THE DISTRICT COLLECTOR
COLLECTORATE, THIRUVANANTHAPURAM., PIN - 695001
3 THE CHIEF ENGINEER
PUBLIC WORKS DEPARTMENT (ROADS),
GOVERNMENT OF KERALA,
THIRUVANANTHAPURAM., PIN - 695001
4 THE EXECUTIVE ENGINEER
PUBLIC WORKS DEPARTMENT (ROADS),
GOVERNMENT OF KERALA,
THIRUVANANTHAPURAM., PIN - 695001
5 THE KERALA ROAD FUND BOARD
T.C. 4/1654, MAYOORAM, NO. 7,
BELHAVEN ROAD P.O., BELHAVEN GARDENS,
KOWDIAR, THIRUVANANTHAPURAM,
REPRESENTED BY ITS PROJECT OFFICER - 695001
6 THE PROJECT OFFICER
PROJECT MANAGEMENT UNIT,
KERALA ROAD FUND BOARD, BSNL BUILDING, PMG,
THIRUVANANTHAPURAM., PIN - 695033
7 THE EXECUTIVE ENGINEER
PROJECT MANAGEMENT UNIT,
KERALA ROAD FUND BOARD, EAST PATTOM,
THIRUVANANTHAPURAM., PIN - 695004
8 THE ASSISTANT EXECUTIVE ENGINEER
PUBLIC WORKS DEPARTMENT (ROADS), NEDUMANGAD,
THIRUVANANTHAPURAM - 695541
BY ADVS.
W.P(C) 6246/2023 -3-
GOVERNMENT PLEADER SMT.SUDHA DEVI
SHRI.K.P.JAYACHANDRAN, ADDL. ADVOCATE GENERAL()
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 03.01.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P(C) 6246/2023 -4-
JUDGMENT
The Government of Kerala issued Ext.P1 order dated 15.10.2020 granting sanction for the acquisition of 7.52 hectares of land in Karakulam, Aruvikkara, Nedumangad, and Karipoor Villages for the four-laning of the Vazhayila - Nedumangad - Pazhakutty road, invoking the provisions under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013 (hereinafter referred to as 'the RFCTLARR Act', for short). The petitioners own properties adjacent to the said road and their properties are included in Ext.P1 order. According to them, the alignment of the road is fixed without a proper social impact assessment, and is unscientific. It is stated W.P(C) 6246/2023 -5- that the present proposal is to acquire properties only from one side of the road without considering the availability of large extent of puramboke lands on the other side. The petitioners contend that using the puramboke land for widening the road could have avoided acquisition of private lands belonging to them and the Government could have saved public money. The petitioners refer to Ext.P6 Social Impact Assessment (SIA) study report and state that the only advantage noted regarding the proposed alignment is the avoidance of approximately 23 curves. However, the report states that approximately 92 families will have to be evicted, impacting the livelihoods of people conducting business on one side of the road. It is also pointed out that about 420 Ares of vacant government W.P(C) 6246/2023 -6- property will remain unused. The petitioners also refer to Ext.P8 report of the Expert Group which concurs with the findings in the SIA study report.
2. The petitioners, therefore, filed W.P.(C) No. 19331 of 2021 seeking direction to the competent authority under the RFCTLARR Act and the Government to have a proper consideration of the recommendations in the SIA study report and to take a decision in accordance with the said recommendations. During the pendency of the above writ petition, Government issued Ext. P7 order dated 20.06.2022 granting sanction under Section 8(2) of the RFCTLARR Act to proceed with the acquisition. According to the petitioners, Ext.P7 order is a clear indication that the Government have decided to proceed with the acquisition without W.P(C) 6246/2023 -7- taking into account the SIA study report and the provisions of Section 8 of the RFCTLARR Act. The petitioners state that, the Government, vide Ext.P9 letter dated 26.05.2022, directed the District Collector to submit another recommendation, and the District Collector, by Ext.P10, unilaterally recommended the acquisition of 7.561 hectares of land, deviating from the recommendations of the Expert Group in Ext.P8. It is on the basis of the said report that the Government have issued Ext.P7 order referred above.
3. On 12.08.2022, the Government published Ext.P12 preliminary notification under Section 11(1) of the RFCTLARR Act expressing the intention to acquire lands for the first reach of the project as originally envisaged. The petitioners state that the W.P(C) 6246/2023 -8- preliminary notification has been published without taking into consideration the recommendations in the SIA study report or the report of the Expert Group.
4. W.P.(C) No.19331 of 2021 was disposed of by this Court by Ext.P16 judgment permitting the petitioners to raise their objections to Ext.P12 notification before the competent authority. This Court directed the competent authority to consider the objections and make a reasoned decision in strict compliance with the procedure prescribed under Section 15 of the RFCTLARR Act. This Court observed that, when considering the objections raised by interested parties under Section 15, the competent authority is bound to consider the objection regarding the area and suitability of the W.P(C) 6246/2023 -9- land proposed to be acquired, the justification offered for the public purpose, and the findings in the SIA study report. This Court also observed that, since Section 15(2) of the RFCTLARR Act mandates that the decision under Section 15(3) shall be made only after considering 'all the objections,' the objection under Section 15 will take in the aspects covered by Section 8 as well.
5. In the meantime, the Government issued Ext.P18 notification dated 04.02.2023 publishing the draft resettlement package under Section 16 (2) of the RFCTLARR Act. Accordingly, the petitioners filed this writ petition on 20.02.2023, seeking, inter alia, a direction to the respondents to forbear from proceeding with the acquisition without considering W.P(C) 6246/2023 -10- their objections, as directed by this Court in Ext.P16 judgment.
6. During the pendency of this writ petition, the Government issued Ext.P19 communication dated 31.03.2023 rejecting the objections of the petitioners and authorising the District Collector to proceed with the acquisition proceedings. The Government then issued Ext.P20 declaration dated 07.07.2023 under Section 19(1) of the RFCTLARR Act. The petitioners have amended the writ petition to challenge Exts.P19 and P20. The petitioners contend that the Government rejected their objections without proper application of mind, solely based on the report of the Special Tahsildar, Land Acquisition (KIIFB), and without adhering to the directions of this Court in Ext.P16 judgment. It is also stated that W.P(C) 6246/2023 -11- the final notification, Ext.P20, was issued without complying with the mandatory requirements under the RFCTLARR Act. It is contended that the impugned orders and notifications have infringed the fundamental and Constitutional rights of the petitioners.
7. A counter affidavit has been filed on behalf of the 1st respondent wherein it is averred that the acquisition proceedings have been initiated strictly in compliance with all statutory procedures. It is stated that the Special Tahsildar, Land Acquisition (KIIFB), the competent authority, is not made a party and hence the writ petition is bad for non-joinder of necessary party. It states that the acquisition proceedings have been initiated to establish hassle-
free and easy road connectivity from W.P(C) 6246/2023 -12- Thiruvananthapuram to Madurai. It is stated that the existing road from Thenmala to Thiruvananthapuram through Vazhayila - Nedumangad - Pazhakutty is a two-lane road having only 12 meter width with sharp turns and curves at many places. The State Government, the appropriate Government, taking into consideration several factors such as reducing travel time, fuel consumption, and accidents, decided to upgrade the said road into four-lane by increasing the width to 21 meters for convenient travel. Although, earlier, a notification under Section 4(1) of the RFCTLARR Act was issued to conduct a SIA study for the above acquisition, it was subsequently cancelled due to a proposal by the National Highway Authority of India (NHAI) for the four-laning of Vazhayila - Pazhakutty - Kacherinada W.P(C) 6246/2023 -13- road by increasing the width to 45 meters. However, since the NHAI did not take up the said project, a fresh Section 4(1) notification dated 30.10.2020 was issued, entrusting for SIA study. It is also stated that the Section 4(1) notification was gazetted and published in all places as well as on the website of the Government. It is further averred that the SIA agency submitted its report, which was forwarded to the Expert Group for evaluation. The SIA report was then sent to the Chief Engineer (Design), PWD for detailed assessment. According to Ext. R1(a) report of the Chief Engineer, the alignment is designed for the minimum speed for the State Highway, and reducing the designed speed or adopting a non- designed alignment may lead to accidents at various locations, causing loss of human life. It is stated that W.P(C) 6246/2023 -14- the Government have scrupulously considered the SIA report, the recommendations of the Expert Group, and the technical explanation of the Chief Engineer (Design), PWD and the report of the District Collector before issuing Ext.P7 decision under Section 8 (2) of the RFCTLARR Act. It is stated that the Government found that there is a legitimate and bona fide public purpose for the proposed project and that the potential benefits and the public purpose outweigh the adverse social impacts, as observed by the SIA agency. It is further averred that the Government have given more weightage to larger public interest and safety aspects in accepting the alignment design of technical experts. With regard to the allegations of violation of statutory procedures, it is stated that the W.P(C) 6246/2023 -15- report of the Expert Group as well as Ext.P7 order granting sanction under Section 8(2) of the RFCTLARR Act was published in all relevant places, offices and areas and additionally, they were uploaded on the website of the appropriate Government as required under Sections 7(6) and 8(3) of the RFCTLARR Act. It is also stated that, following Exts.P12 and P12(a) notifications under Section 11(1) of the RFCTLARR Act, the petitioners submitted objections and as per the directions in Ext.P16 judgment, the Special Tahsildar, Land Acquisition (KIIFB), heard the objectors and rejected the objections as per Ext.R1(b) proceedings. The Government then published Ext.P19 declaration directing the District Collector to proceed with the acquisition in the first reach. It is averred that the W.P(C) 6246/2023 -16- design for the four-lane road has been fixed in accordance with Indian Road Congress (IRC) standards in view of larger public interest. Furthermore, it is stated that in the first reach from Vazhayila to Keltron junction, there are 400 holdings to be acquired, and the petitioners are the sole objectors regarding the alignment. Accordingly, the 1st respondent prays for dismissal of the writ petition.
8. Heard Sri. S. M. Prasanth, the learned counsel for the petitioners and Smt. N. Sudhadevi, the learned Special Government Pleader (LA).
9. Sri. Prasanth contends that the acquisition proceedings are vitiated by violation of statutory provisions. It is argued that the conduct of the Social Impact Assessment is mandatory under the W.P(C) 6246/2023 -17- provisions of the RFCTLARR Act. The SIA agency has pointed out that the acquisition of property, as shown in Ext.P1, would have serious social and economic impacts. The SIA agency, after weighing the pros and cons of the proposed alignment, suggested utilising the vacant lands on both sides of the existing road. It mentions that about 92 families will have to be evicted and the same will affect the livelihood of the people who are doing business locally. The report also notes the financial burden to the Exchequer. The Expert Group agreed with the findings of the SIA study. However, the Government, by Ext.P9, directed the District Collector to submit another recommendation after obtaining the remarks of the competent authority and the observation of the Chief Engineer (Design), PWD. W.P(C) 6246/2023 -18- Sri.Prasanth would contend that such procedure cannot be countenanced as the report of the SIA agency and the Expert Group cannot be overlooked. It is further contended that the recommendations of the Expert Group shall be made available in local language and shall be published in affected areas as stipulated under Section 7(6) of the RFCTLARR Act and that none of the directions in Ext.P16 judgment has been complied with. Sri.Prasanth contends that Exts.P19 and P20 are issued mechanically without any application of mind and without meeting the statutory requirements.
10. Per contra, Smt.Sudha would contend that all the statutory formalities have been complied with while initiating the acquisition proceedings. The notifications have been published as stipulated by W.P(C) 6246/2023 -19- the Statute. The report of the Expert Group was published in Malayalam as stipulated under Sections 7(6) and 8(3) of the RFCTLARR Act. Smt. Sudha also handed over to me the copy of the Expert Group report published in the newspapers. It is contended that the Government directed the District Collector to obtain the recommendations of the Chief Engineer (Design), PWD as it is recommended by the Expert Group in Ext.P8 to ascertain whether it is possible to implement the project after making necessary changes to the alignment by reducing social impact, at the Government level. The Chief Engineer has reported that compromising the IRC standard in geometry at locations will invite road safety concerns. On the basis of the same, the District Collector issued Ext.P10 and the contention that W.P(C) 6246/2023 -20- Ext.P10 has been issued unilaterally is incorrect. The objections of the petitioners were considered by the Special Tahsildar, LA (KIIFB) and were rejected by Ext.R1(b) proceedings and the Government by Ext.P19 rejected the objections and directed the District Collector to proceed with the acquisition. Smt. Sudha submits that the widening of the aforesaid road has been a long pending demand and the stretch is part of inter-state highway.
11. Section 4 of the RFCTLARR Act deals with preparation of Social Impact Assessment Study. 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, W.P(C) 6246/2023 -21- 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 be published as per Section 6 of the RFCTLARR Act at the designated places. The Social Impact 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 W.P(C) 6246/2023 -22- the land will be initiated in respect of the same and that the grounds for such 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 the project and whether there are no other less W.P(C) 6246/2023 -23- 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 of the RFCTLARR Act 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 clause (a) shall outweigh the social costs and adverse social impact as determined by the Social Impact Assessment that has been carried W.P(C) 6246/2023 -24- 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 of the RFCTLARR Act provides that whenever 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 be acquired in rural and urban areas shall be published (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 W.P(C) 6246/2023 -25- 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; and (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 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; and (c) the findings of the Social Impact Assessment report. Section 15 (2) provides that the Collector after hearing all such W.P(C) 6246/2023 -26- 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 objections shall be final. Section 19 of the RFCTLARR Act deals with the publication of declaration and summary of Rehabilitation and Resettlement.
12. The first contention of Sri.Prasanth is that the recommendations of the Expert Group were not made available and published in the local language as stipulated by Section 7(6) of the RFCTLARR Act. It is also contended that the decision of the W.P(C) 6246/2023 -27- Government on the SIA report was not published as mandated under Section 8(3).
13. Section 7(6) of the RFCTLARR Act provides that the recommendations of the Expert Group shall be made available in the local language to the Panchayat, Municipality or Municipal Corporation, as the case may be, and 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. Rule 16 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement (Kerala) Rules, 2015 (RFCTLARR (Kerala) Rules, for short) deals with the publication of the report of the Expert Group. Section 8(3) of W.P(C) 6246/2023 -28- RFCTLARR Act provides that the decision of the appropriate Government recommending acquisition shall be made available in the local language to the Panchayat, Municipality or Municipal Corporation, as the case may be, and 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. Rule 17 of the RFCTLARR (Kerala) Rules deals with publication of the decision of the Government under Section 8. In the counter affidavit filed by the 1 st respondent, it is stated that the report of the Expert Group and Ext.P7 decision of the Government under Section 8 were made available in Malayalam and published in all the places, offices and areas W.P(C) 6246/2023 -29- concerned and also uploaded on the website of the appropriate Government as required under Sections 7(6) and 8(3) of the RFCTLARR Act respectively. These averments have not been controverted by the petitioners in their reply affidavit. I accept the averments in the counter affidavit and reject the contentions of the petitioners as regards the violation of the stipulations under Sections 7(6) and 8(3) of the RFCTLARR Act.
14. The next contention of Sri. Prasanth is that the objections of the petitioners were not considered in the light of the directions of this Court in Ext.P16 judgment. In Ext.P16, this Court observed that while considering the objections raised by interested parties under Section 15, the competent authority is bound to consider the objection regarding the area W.P(C) 6246/2023 -30- and suitability of the land proposed to be acquired, the justification offered for the public purpose, the findings in the SIA study report and the aspects covered by Section 8. The petitioners have not produced the proceedings of the Special Tahsildar, Land Acquisition (KIIFB) on hearing the objections. The same has been produced by the 1 st respondent as Ext.R1(b) along with their counter affidavit. In Ext.R1(b), the competent authority has individually addressed the objections of all the seven petitioners/objectors. The objections were mainly with regard to alignment and in taking land from one side of the road. It has been observed by the competent authority in Ext.R1(b) that, widening the road by utilising the puramboke land on the other side and changing the alignment may increase W.P(C) 6246/2023 -31- accidents and other associated impacts, affecting road safety. When designing four lanes as per the IRC stipulations, the alignment has to be prepared as per the geometric standards, design speed etc, and in such cases, the land on one side, which has many twists and turns, must often be avoided. This spared land can be utilised to improve road infrastructure. It is further stated that, considering the availability of puramboke land at some places, it is not possible to modify the IRC norms and the alignment cannot be prepared through the puramboke land. It is also observed that the Vazhayila - Nedumangad - Pazhakutty road is a pivotal inter State Highway connecting Kerala and Tamil Nadu and its social, economic, touristic and commercial importance is immense and it is not W.P(C) 6246/2023 -32- possible to change the layout to mitigate the impact since compromising on IRC Geometric design standards will increase risks and seriously affect road safety. It is also observed that the benefits to the society by acquisition are enormous. The competent authority has considered the objections with due regard to Sections 8 and 15 (1) of the RFCTLARR Act. The report cannot be said as verbatim reproduction as contended by Sri. Prasanth, as, similar objections may lead to similar replies. It cannot be termed as mechanical. The Government, after considering the recommendation of the competent authority, rejected the objections of the petitioners stating that change of alignment will invite road safety concerns, and passed Ext.P19 order under Section 15(3). Pursuant thereto, the W.P(C) 6246/2023 -33- Government have published Ext.P20 declaration under Section 19.
15. In Ext.P6 Social Impact Assessment report, it is opined that the acquisition as per the alignment proposed by the developer can be implemented, after assessing the feasibility of making layout changes in response to complaints, subject to relevant Act and Rules for acquisition. In Ext.P8 report, the Expert Group recommended that, to minimize the adverse social impact and to implement the project, decisions should be made at the Government level after examining the feasibility of incorporating necessary changes in the layout. The SIA report was forwarded to the Chief Engineer (Design), PWD for evaluation and the Chief Engineer submitted Ext.R1(a) report observing, inter alia, that W.P(C) 6246/2023 -34- the alignment is designed for the minimum speed for the State Highway, and reducing the designed speed or adopting a non-designed alignment may lead to accidents at various locations, causing loss of human life. On the basis of the said report, the District Collector, by Ext.P10 letter, observed that the project is crucial for the commercial and economic development of the State, increased time savings, fuel efficiency, and improved public transport facilities. The sharp bends on the road have tragically claimed numerous lives and reducing the number of curves will mitigate accidents. It is also stated that the Government's responsibility to the public and the public purpose for the acquisition will outweigh the adverse social impact. Accordingly, the District Collector requested the Government to issue W.P(C) 6246/2023 -35- orders to proceed with the acquisition based on the existing design. The Government, after examining the SIA report, Expert Group recommendations, Ext.R1 (a) report of the Chief Engineer (Design), PWD and the report of the District Collector, have issued Ext.P7 order granting sanction under Section 8(2) of the RFCTLARR Act to proceed with the acquisition. The Government have also given reasons for the decision. There is no violation of the requirements of Sections 7 and 8 of the RFCTLARR Act as contended by Sri. Prasanth. There is no recommendation by the Expert Group that the project shall be abandoned. It only recommended to implement the project by minimizing the adverse social impact after examining the feasibility of incorporating necessary changes in the layout, at the W.P(C) 6246/2023 -36- Government level. The Government found that compromising the IRC standard in geometry at locations will invite road safety concern and decided to proceed with the acquisition based on the existing design. Section 8(2) mandates that the Government shall examine the report of the Collector, if any, and the report of the Expert Group on the Social Impact Assessment study and after considering all the reports, recommend such area for acquisition. It is true that the section does not contemplate any evaluation by the Chief Engineer (Design), PWD. When the Expert Group has recommended to examine the feasibility of incorporating necessary changes in the layout at the Government level to minimize the adverse social impact, there is nothing wrong in the Government examining and considering W.P(C) 6246/2023 -37- the recommendations of the Chief Engineer (Design), PWD forwarded by the District Collector while taking decision in terms of Section 8(2) of the RFCTLARR Act.
16. Yet another contention of Sri. Prasanth is that the recommendations of the Chief Engineer (Design), PWD were not disclosed to the petitioners and there is violation of the requirements under Rule 20(6) of the RFCTLARR (Kerala) Rules. Rule 20(6) provides that if any material or relevant fact is disclosed during the enquiry conducted by the Collector adverse to the person who has submitted the written objections, the said person shall be put to notice about the result of the enquiry and a reasonable opportunity shall be offered to him to dispute the said material or relevant fact before W.P(C) 6246/2023 -38- formulating the report. The said Rule applies at the time of hearing of objections on the preliminary notification. The recommendations of the Chief Engineer (Design), PWD were part of Ext.P7 order granting sanction under Section 8(2) of the RFCTLARR Act to proceed with the acquisition which was published in terms of Sections 7(6) and 8(3) of the RFCTLARR Act. The same was published even before publication of preliminary notification. Therefore, it is not open to the petitioners to contend that the recommendations of the Chief Engineer (Design), PWD were not disclosed to them.
17. It is contended on behalf of the Government that the Government, on examining the proposal for acquisition and the reports of SIA and Expert Group, have arrived at a conclusion that there is a W.P(C) 6246/2023 -39- legitimate and bona fide public purpose for the proposed project and that the potential benefits and the public purpose do outweigh the social costs and adverse social impacts as observed by the Social Impact Assessment agency. The recommendations of SIA agency and the Expert Group are not binding on the appropriate Government. They are recommendatory in nature. On examination of proposals for land acquisition and Social Impact Assessment report, the appropriate Government shall ensure that there is a legitimate and bona fide public purpose for the proposed acquisition and that the potential benefits and such public purpose shall outweigh the social costs and adverse social impact as determined by the Social Impact Assessment agency. The goal is to ensure that the overall result W.P(C) 6246/2023 -40- is positive for the society. The Government, after examining the SIA report, Expert Group recommendations, Ext.R1 (a) report of the Chief Engineer (Design), PWD and the report of the District Collector, have issued Ext.P7 order granting sanction under Section 8(2) of the RFCTLARR Act to proceed with the acquisition. The scope of interference of this Court over the said decision is very limited. No mala fides have been alleged against the respondents in issuing Ext.P7 or the impugned notifications or in fixing the alignment. It is seen that the project was on the anvil for the last several years. The stretch is part of Inter State Highway. The Hon'ble Supreme Court in Union of India v. Dr. Kaushala Shetty and others [(2011) 12 SCC 69] has held that Courts are not at all W.P(C) 6246/2023 -41- equipped to decide upon the viability and feasibility of the particular project and whether the particular alignment would subserve the larger public interest and in such matters, the scope of judicial review is very limited. The nature of alignment of the road has to be best left to experts. This Court finds no reason to interfere with the acquisition proceedings and the orders impugned.
The writ petition fails and is, accordingly, dismissed.
Sd/-
MURALI PURUSHOTHAMAN JUDGE spc/ W.P(C) 6246/2023 -42- APPENDIX PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF G.O. (RT) NO. 3132/2020/RD DATED 15.10.2020 ISSUED BY THE GOVERNMENT OF KERALA Exhibit P2 TRUE COPY OF SKETCH SHOWING A PART OF THE PROPOSED ROAD IN RESPECT OF BLOCK NO. 36 OF NEDUMANGADU VILLAGE OF NEDUMANGADU TALUK IN THIRUVANANTHAPURAM DISTRICT, PREPARED BY ONE MANIKANTAN NAIR K. (SURVEYOR) Exhibit P3 TRUE COPY OF REPRESENTATION DATED 11.11.2019 SUBMITTED BY THE ACTION COUNCIL OF THE RESIDENTS OF THE LOCALITY IN RESPECT OF VAZHAYILA - NEDUMANGAD PAZHAMKUTTY ROAD WIDENING, TO THE HON'BLE CHIEF MINISTER OF KERALA Exhibit P4 TRUE COPY OF COMMUNICATION NO. A1-2315/2017 DATED 15..06..2019 SENT BY THE 5TH RESPONDENT TO PROF. A. NABEESA UMMAL, EX. MLA, NEDUMANGAD Exhibit P5 TRUE COPY OF REPRESENTATION DATED 17..01..2020 SUBMITTED BY THE FIRST PETITIONER BEFORE THE HON'BLE CHIEF MINISTER OF KERALA Exhibit P6 TRUE EXTRACT OF RELEVANT PAGES OF REPORT OF THE SOCIAL IMPACT ASSESSMENT STUDY DATED
31..08..2021 SUBMITTED BY THE CENTRE FOR LAND AND SOCIAL STUDIES, THIRUVANANTHAPURAM SUBMITTED TO THE GOVERNMENT OF KERALA Exhibit P7 TRUE COPY OF ORDER G.O. (MS) NO. 166/2022/RD DATED 20..06..2022 ISSUED BY R1 Exhibit P8 TRUE COPY OF RECOMMENDATION OF EXPERT GROUP SUBMITTED ON 14..04..2022 IN RESPECT OF SOCIAL IMPACT ASSESSMENT STUDY ON VAZHAYILA - NEDUMANGAD - PAZHAMKUTY ROAD DEVELOPMENT Exhibit P9 TRUE COPY OF GOVERNMENT LETTER NO.
REV/B3/700/2018 DATED 26..05..2022 SENT BY THE W.P(C) 6246/2023 -43- GOVERNMENT TO THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM Exhibit P10 TRUE COPY OF LETTER NO. K5/22295/19 DATED ..05..2022 SENT BY THE DISTRICT COLLECTOR TO THE ADDITIONAL CHIEF SECRETARY, REVENUE (B) DEPARTMENT Exhibit P11 TRUE COPY OF LETTER DT. 10..06..2022 SENT BY THE CHAIRPERSON OF THE DISTRICT LEVEL EXPERT GROUP TO THE SECOND RESPONDENT Exhibit P12 TRUE COPY OF G.O. (P) NO. 216/2022/RD DATED
12..08..2022 BY THE GOVERNMENT OF KERALA PUBLISHED IN THE KERALA GAZETTE EXTRA ORDINARY DT. 12..08..2022 Exhibit NOTIFICATION NO. G.O. (P) NO. 288/2022/RD P12(a) DATED 12..11..2022 ISSUED BY THE GOVERNMENT OF KERALA Exhibit P13 TRUE COPY OF OBJECTION DATED 28..09..2022 SUBMITTED BY THE FIRST PETITIONER BEFORE R2 Exhibit P14 TRUE COPY OF OBJECTION DATED 23..09..2022 SUBMITTED BY ONE SRI. SREEKANTAN NAIR Exhibit P15 TRUE COPY OF LETTER NO. 31/RTI/2021/AVK DT.
NIL SENT BY THE POLICE INSPECTOR, ARUVIKKARA POLICE STATION TO THE FIRST PETITIONER UNDER THE RI ACT Exhibit P16 A TRUE COPY OF JUDGMENT DATED 16..11..2022 IN W.P. (C) NO. 19331 OF 2021 Exhibit P17 TRUE COPY OF OBJECTION DATED 28..01..2023 SUBMITTED BY SRI. KAMALUDHEEN HAJI, FATHER OF THE 4TH PETITIONER HEREIN Exhibit TRUE COPY OF OBJECTION DATED 28..01..2023 P17(a) SUBMITTED BY THE FIRST PETITIONER MADHUSOODANAN Exhibit TRUE COPY OF OBJECTION DATED 06..02..2023 P17(b) SUBMITTED BY THE 3RD PETITIONER ALONG WITH THE W.P(C) 6246/2023 -44- SKETCH Exhibit P18 TRUE COPY OF NOTIFICATION NO. K5.496222/2022 DT. 04..02..2023 ISSUED BY THE ADMINISTRATOR AND DEPUTY COLLECTOR (LA) PUBLISHING A DRAFT OF THE RESETTLEMENT PACKAGE IN THE JANAYUGHAM DAILY DATED 06..02..2023 Exhibit P19 TRUE COPY OF COMMUNICATION NO.B3/1/2023-REV DATED 31.03.2023 ISSUED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE ALONG WITH A COVERING LETTER NO.A1- 07/19(1) DATED 3.4.23 SENT BY THE SPECIAL TAHSILDAR, LAW (KIFBI) UNIT - I, THIRUVANANTHAPURAM TO ONE THANKAM Exhibit P20 TRUE COPY OF G.O(P) NO.165/2023/RD DATED 7.7.23 ISSUED BY THE GOVERNMENT OF KERALA RESPONDENT EXHIBITS Exhibit TRUE COPY OF THE REPORT DATED 31.03.2022 OF R1(a) THE CHIEF ENGINEER(DESIGN), PWD, THIRUVANANTHAPURAM Exhibit TRUE COPY OF THE PROCEEDINGS DATED 28.02.2023 R1(b) OF SPECIAL TAHSILDAR, LA(KIIFB), THIRUVANANTHAPURAM Exhibit TRUE COPY OF THE LETTER DATED 31.03.2023 R1(c) ISSUED BY THE GOVERNMENT TO THE DISTRICT COLLECTOR