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2022 DIGILAW 328 (KER)

Binoy S/o Sreedharan v. State of Kerala

2022-04-06

DEVAN RAMACHANDRAN

body2022
JUDGMENT : DEVAN RAMACHANDRAN, J. 1. The petitioners assail Ext.P31 notification issued by the District Collector, Alappuzha under the provisions of Section 11 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as “Fair Compensation Act”); along with Ext.P36, which is the declaration issued by the said Authority under Section 19 of the afore said Act on various grounds as I will presently state. 2. Dr. V.N. Sankarjee - learned counsel appearing for the petitioners, edificed his arguments on the following broad assertions: (a) The District Collector, Alappuzha, is not the “appropriate Government” as per the provisions of the “Fair Compensation Act.” (b) Even if the District Collector can be construed to be the “appropriate Government” Ext.P31 notification is incompetent because it takes in two different districts. (c) Ext.P31 notification is bad because the necessary publication, as per Rule 18 of the Right to Fair Compensation Transparency in Land Acquisition Rehabilitation Resettlement Kerala Rules, 2015 (Hereinafter referred to as the “Fair Compensation Rules”) has not been made. (d) Ext.P36 declaration also suffers from the vice of it not having been published as per the “Fair Compensation Rules.” (e) No individual notice was issued to his clients, as is required under Section 21 of the “Fair Compensation Act” since they are in occupation of the properties in question. 3. Dr. V.N. Sankarjee then went on to explain each of his afore submissions by arguing that the District Collector cannot be construed to be the “appropriate Government” under the provisions of Section 3E of the “Fair Compensation Act” since said Authority can only obtain the competence to requisition and not to acquire lands. As far as the 2nd limb of his argument is concerned, Dr. V.N. Sankarjee predicated that since Section 3E of the “Fair Compensation Act” only provides that District Collector shall be deemed to be the “appropriate Government” for an area not exceeding as may be notified by the Government, Ext.P31 notification - which takes in two different districts, namely Alappuzha and Kottayam - is incompetent. 4. On the 3rd, 4th and 5th limbs of his argument, Dr. 4. On the 3rd, 4th and 5th limbs of his argument, Dr. V.N. Sankarjee contended that no materials have been placed on record by the official respondents to demonstrate the statutory necessitated publication of either Ext.P31 or Ext.P36; or the service of individual notices on his clients, as required under Section 21 of the “Fair Compensation Act”; and therefore, that they are all liable to be set aside by this Court. 5. In response, Sri. K.V. Manoj Kumar - learned Senior Government Pleader appearing for the official respondents, submitted that Section 3E of the “Fair Compensation Act” defines the words “appropriate Government” and under its proviso, makes it ineluctable that, on a notification to be issued by the Government, the Collector of the district shall be deemed to be “the appropriate Government.” He submitted that Government has already issued such a notification and therefore, that the afore contention of the petitioners, that a District Collector, cannot be construed to be the “appropriate Government” has no legs to stand on. 6. He, thereafter, in answer to the 2nd limb of the argument of Dr. V.N. Sankarjee, took my attention to Rule 3(3) of the “Fair Compensation Rules” to show that where the lands to be acquired are spread over more than one district, the requisition for acquisition shall be made to the Collector of that district where the major portion of such lands is situated. He then impelled a corollary argument that this Rule would clearly show that the Collector of any one of the districts can requisition and acquire the land as per the notification of the Government. 7. Finally, on the 3rd, 4th and 5th limbs of the submissions of Dr. V.N. Sankarjee, Sri. K.V. Manoj Kumar pointed out to a memo of his, dated 06.04.2022, wherein, publications of Exts.P21, 31 and 36, as also the individual notices to the petitioners, have been produced. He thus contented that none of the allegations of the petitioners are factually or forensically tenable and consequently prayed that this writ petition be dismissed. 8. I have considered the afore submissions very carefully, juxtaposed on the various documents produced on record. 9. He thus contented that none of the allegations of the petitioners are factually or forensically tenable and consequently prayed that this writ petition be dismissed. 8. I have considered the afore submissions very carefully, juxtaposed on the various documents produced on record. 9. As far as the contention, that the District Collector cannot be an “appropriate Government” under the provisions of the “Fair Compensation Act” is concerned, I am certain that it deserves to be repelled because, going by the proviso to Section 3E of the same, Government can notify a District Collector to be the “appropriate Government” and he shall then be deemed to be such Authority therefrom. The notification issued by the Government in this regard is G.O. (P) No. 649/2015/RD dated 04.12.2015, which is available on the files of the connected matter, namely W.P. (C) No. 22627/2021. 10. The further predication of Dr. V.N. Sankarjee that the District Collector, in any event, can only be an “recquisitioning Authority” and not the “acquiring Authority” does not also appeal to me because, as rightly stated by Sri. K.V. Manoj Kumar, the Act and the Rules thereunder render it luculent that “appropriate Government” is both the requisitioning and acquiring Authorities; and apodictically, thereafter, when the District Collector is deemed to be such Government, he will obtain both such capacities. 11. Qua the next argument of the petitioners, namely that the Collector of a district can issue a notification for acquisition solely with respect to the properties within his territory, is concerned, again, as rightly stated by Sri. K.V. Manoj Kumar, Rule 3(3) of the “Fair Compensation Rules” renders it perspicuous that when the land to be acquired is spread over more than one district, the requisition for it and its acquisition shall be made by the Collector of the district where major portion of the said land is situated. In this case, it was without contest - it being expressly admitted - that major portion of the acquisition is required to be done in Alappuzha and therefore, that Ext.P31 has been issued by the District Collector, Alappuzha. I cannot, hence, find the said notification to be vitiated for that reason. 12. In this case, it was without contest - it being expressly admitted - that major portion of the acquisition is required to be done in Alappuzha and therefore, that Ext.P31 has been issued by the District Collector, Alappuzha. I cannot, hence, find the said notification to be vitiated for that reason. 12. Coming to the publication of Exts.P31 and P36 notifications as also the service of individual notices to the petitioners under Section 21 of the “Fair Compensation Act” is concerned, the learned Government Pleader has produced all paper publications and evidence of service of notices, in substantiation of his plea that the requisites under Rule 18 of the “Fair Compensation Rules” and that under Section 21 of the “Fair Compensation Act” have been complied with. 13. When I evaluate the various paper publications and documents, produced along with a Memo of the Senior Government Pleader dated 06.04.2022, it is indubitable that publications, as are required under Rule 18 of the Rules “Fair Compensation Rules” have been made and that petitioners have served with individual notices, as required under Section 21 of the “Fair Compensation Act.” Since the petitioners do not have a case contrary to this, I am of the firm view that nothing remains in this writ petition to be considered by this Court. 14. Resultantly and for the afore reasons, I dismiss this writ petition and allow the competent respondents to continue with the project as per law, however, ensuring that every statutory right of the petitioners are implicitly protected and adhered to. 15. Of course, I must record the submissions of Dr. V.N. Sankarjee that a personal notice, as stated by Sri. K.V. Manojkumar, was never served on his clients, but the documents produced by the learned Government Pleader would clearly show that such a notice was served by affixture on the petitioners. Since this is a pure question of fact, which cannot be resolved by this Court, while acting under Article 226 of the Constitution of India, I am certain that petitioners must invoke their alternative right under Section 64 of the “Fair Compensation Act” if they intend to raise any dispute with respect to the Award that has been issued or to be issued. I leave full liberty to them to do; for which purpose, all their contentions in such regard are left open.