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2022 Supreme(Online)(KER) 4510
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE N.NAGARESH TUESDAY, THE 29TH DAY OF MARCH 2022 / 8TH CHAITHRA, 1944 WP(C) NO. 23554 OF 2021 PETITIONERS:
1 M.V.CHACKOCHAN AGED 60 YEARS S/O.LATE VARKEY, MANALEL HOUSE, PATTITHANAM P.O., ETTUMANOOR VIA., KOTTAYAM DISTRICT, PIN - 686 631.
2 JOSE P.T.
AGED 60 YEARS S/O.THOMMAN THOMMAN, PULIYALA PARAMBIL HOUSE, PATTITHANAM P.O., ETTUMANOOR - VIA, KOTTAYAM DISTRICT, PIN - 686 631.
3 XAVIER V.V.
AGED 61 YEARS S/O.V.M.VARKEY, VARAPADAVIL HOUSE, THIRUVAMBADI P.O., NJEEZHOOR, KOTTAYAM DISTRICT, PIN - 686 612.
4 SIBY SEBASTIAN AGED 51 YEARS S/O.SEBASTIAN, KANNAMKULATHEL HOUSE, NAZARETH HILL P.O., KURAVILANGAD, KOTTAYAM DISTRICT, PIN - 686 633.
5 HAYASINTH SEBASTIAN AGED 70 YEARS W/O.K.J.ANTONY, KUTTICKAL HOUSE, KALATHOOR P.O., KOTTAYAM DISTRICT, PIN - 686 633.
BY ADVS.
BABU JOSEPH KURUVATHAZHA M.G.SREEJITH K.S.ARCHANA RESPONDENTS:
1 UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF RAILWAYS, RAIL BHAVAN, 256-A, RAISINA ROAD, RAJPATH AREA, CENTRAL SECRETARIAT, NEW DELHI - 110 001.
2 STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
3 KERALA RAIL DEVELOPMENT CORPORATION LIMITED TRANS TOWER, 5TH FLOOR, VAZHUTHACAUD, THIRUVANANTHAPURAM, PIN - 695 014, REPRESENTED BY ITS MANAGING DIRECTOR.
4 THE RAILWAY BOARD INDIAN RAILWAY, 256-A, RAIL BHAVAN, RAISIN ROAD, NEW DELHI - 110 001, REPRESENTED BY ITS CHAIRPERSON.
BY ADVS.
SRI.N.K.SUBRAMANIAN, SC, RAILWAYS SRI.A.DINESH RAO, SC, SHRI.T.B.HOOD, SPL.G.P. TO A.G.
ADVOCATE GENERAL SRI.K.GOPALAKRISHNA KURUP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.03.2022, ALONG WITH WP(C).24973/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE N.NAGARESH TUESDAY, THE 29TH DAY OF MARCH 2022 / 8TH CHAITHRA, 1944 WP(C) NO. 24973 OF 2021 PETITIONERS:
1 JAMES ALEX, AGED 41 YEARS S/O.ALEXANDER PAUL, MANNANIKATTU HOUSE, VEMPALLY P.O., KOTTAYAM DISTRICT, PIN-686 633.
2 JIS KUTTICKAL, AGED 41 YEARS S/O.K.J.ANTONY, KUTTICKAL HOUSE, KALATHOOR P.O., KANAKKARY, KOTTAYAM DISTRICT, PIN-686 633.
BY ADVS.
BABU JOSEPH KURUVATHAZHA M.G.SREEJITH RESPONDENTS:
1 UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF RAILWAYS, RAIL BAHVAN, 256-A, RAISINA ROAD, RAJPATH AREA, CENTRAL SECRETARIAT, NEW DELHI-110 001.
2 STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
3 KERALA RAIL DEVELOPMENT CORPORATION LIMITED, TRANS TOWER, 5TH FLOOR, VAZHUTHACAUD, THIRUVANANTHAPURAM, PIN-695 014, REPRESENTED BY ITS MANAGING DIRECTOR.
4 THE RAILWAY BOARD, INDIAN RAILWAY, 256-A, RAIL BHAVAN, RAISINA ROAD, NEW DELHI-110 001, REPRESENTED BY ITS CHAIRPERSON.
BY ADVS.
SRI.N.K.SUBRAMANIAN, SC, RAILWAYS SHRI.T.B.HOOD, SPL.G.P. TO A.G.
SRI.A.DINESH RAO, SC, ADVOCATE GENERAL SRI.GOPALAKRISHNA KURUP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.03.2022, ALONG WITH WP(C).23554/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
[CR]
N. NAGARESH, J.
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W.P.(C) No.23554 and 24973 of 2021 `````````````````````````````````````````````````````````````
Dated this the 29th day of March, 2022
['BABU JOSEPH KURUVATHAZHA', '', 'M G SREEJITH', 'K S ARCHANA', 'SRI N K SUBRAMANIAN', 'SC', 'RAILWAYS', 'GOVERNMENT PLEADER', 'SHRI T B HOOD', 'SPL G P TO A G SHRI V MANU', 'SENIOR G P ADVOCATE GENERAL', 'SRI A DINESH RAO']
J U D G M E N T
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The petitioners in W.P.(C) Nos.23554/2021 and
24973/2021, who are holding land in Kanakkary, Njeezhoor and Kuravilangad Villages of Meenachil and Vaikom Taluks in Kottayam District, are before this Court aggrieved by Ext.P4 Government Order dated 18.08.2021 whereby sanction has been accorded by the Government of Kerala for the acquisition of 955.13 Hectares of land of various Villages of Thiruvananthapuam, Kollam, Alappuzha, Pathanamthitta, Kottayam, Ernakulam, Thrissur, Malappuram, Kozhikode, Kannur and Kasaragod Districts for Semi High Speed Railway Line (Silver Line) Project by invoking the provisions contained in LARR Act, 2013.
2. The petitioners state that they are in absolute possession and ownership of pieces of land in Kanakkary, Njeezhoor and Kuravilangad Villages of Meenachil and Vaikom Taluks in Kottayam District. The 2nd respondent- State of Kerala and the 4th respondent-Railway Board entered into a Memorandum of Understanding for the formation of a Joint Venture Company on the equity partnership of 51:49, for infrastructure development of Railway in Kerala. The MOU was intended to improve and strengthen the railway traffic facilities in Kerala by establishing a High Speed Rail Corridor.
3. The 3rd respondent-Kerala Rail Development Corporation Limited (KRDCL) floated Ext.P3 tender for carrying out Environment Impact Assessment study/field work and preparation of comprehensive Environment Impact Assessment Report, Environment Management Plan, Detailed Social Impact Assessment, Resettlement Action Plan and Indigenous People Plan, for the proposed Silver Line Semi High Speed Railway Line between Thiruvananthapuram and Kasaragod. The length of the proposed corridor is 532 Km.
4. In pursuance of the proposal, the 2nd respondent-
State of Kerala issued Ext.P4 order dated 18.08.2021 establishing 11 offices of Special Tahsildars for land acquisition, in 11 Districts. This was with a view to acquire 955.13 Hectares of land for the purpose of Semi High Speed Railway Line. In Ext.P4, sanction was accorded for acquisition of 955.13 Hectares of land situated in various Villages.
5. The petitioners state that in view of Section 105 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (LARR Act, 2013), the provisions of the Act are not applicable to railway projects. The projects under the Union of India and Railway Board are specifically excluded /
exempted in view of the 4th Schedule to the LARR Act, 2013.
6. The petitioners would contend that in the 4th Schedule to the LARR Act, 2013, the 13th entry is the Railways Act, 1989. Therefore, the LARR Act, 2013 cannot be applied for acquisition of lands for Railway. Acquisition of land for Railway would fall within the domain of the Railways Act, 1989.
7. The petitioners would further state that in view of Section 20-A and 20-B of the Railways Act, 1989, the 1st respondent-Union of India alone is competent to issue notification for any purpose of any Railway Project in India, including notifications for making inspections, surveys, measurements, valuation, enquiry, to take levels, to set out boundaries, alignments, placing marks, etc. Flouting Sections 20-A and 20-B of the Act, 1989, the 2nd respondent has issued Ext.P4.
8. The learned counsel for the petitioners asserted that the power vested in law to acquire land for the purpose of Railway, is with the 1st respondent. The 1st respondent has to issue a notification contemplated in Chapter IV-A of the Railways Act, 1989. The 1st respondent has not issued any such notification. Ext.P4 amounts to usurping the power and jurisdiction vested with the 1st respondent.
9. The learned counsel for the petitioners further urged that Ext.P4 order is void ab initio since respondents 2 and 3 have no right to act in furtherance of the said order. The officials under the 2nd respondent are deliberately misusing law and they have trespassed into the properties o
