IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE FRIDAY, THE 20TH JUNE 2008 / 30TH JYAISHTA 1930 WP(C).No. 37570 of 2007(V) ----------------------------------------- PETITIONER: -------------------- V.D.MARTIN, S/O.DEVASSY, VALIYAPARAMBIL, POST OFFICE ROAD, VADUTHALA-682 23. BY ADV. SRI.SIBY MATHEW SRI.PHILIP J.VETTICKATTU RESPONDENTS: ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE SECRETARY IN CHARGE OF RAILWAYS, SECRETARIAT, TRIVANDRUM. 3. THE DISTRICT COLLECTOR, ERNAKULAM. 4. THE SPECIAL TAHSILDAR (LA), RAILWAYS, ERNAKULAM, KOCHI-682 016. 5. THE UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF RURAL DEVELOPMENT, DEPARTMENT OF LAND RESOURCES, LAND REFORMS DIVISION, NEW DELHI. BY SR. GOVERNMENT PLEADER SRI. D. ANILKUMAR - R3 BY SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR GENERAL - R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/06/2008 ALONG WITH WPC NO. 161 OF 2008 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.37570/2007 V APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE NATIONAL REHABILITATION AND RESETTLEMENT POLICY, 2007 FRAMED BY THE MINISTRY OF RURAL DEVELOPMENT DEPARTMENT OF LAND RESOURCES. EXT.P2: COPY OF PHOTOGRAPHS SHOWING THE LAND IN WHICH REHABILITATE THE EVICTEES. EXT.P3: COPY OF G.O.(MS) NO.12/2007 DTD. 29/06/2007. EXT.P4: COPY OF PROCEEDINGS OF MEETING HELD ON 16/10/2006 UNDER THE AUSPICES OF 3 MINISTERS. EXT.P5: COPY OF G.O.(MS) NO.62/08/RD DTD. 19/03/2008. EXT.P6: COPY OF NOTIFICATION DTD. 19/02/2007. EXT.P7: COPY OF CERTIFICATE OF DEDUCTION OF TAX ISSUED U/S.203 OF THE INCOME TAX ACT, 1961. /TRUE COPY/ P.S.TO JUDGE Kss PIUS C. KURIAKOSE, J. ----------------------------------------------- W.P.(C)Nos. 3757 of 2007, 161, 4728, 4834,5380 & 11556 of 2008 ------------------------------------------------ Dated this the day of June, 2008 J U D G M E N T All these cases pertain to acquisition of land in Kadamakudy, Cheranalloor, Varapuzha, Kulavukad, Eloor, Thrikkakara North and Kadungalloor Villages in the Ernakulam District for the purpose of road connectivity or rail connectivity to the project site of the International Container Transshipment Terminal (ICTT) presently taken up by the Cochin Port Trust at Vallarpadam. It is stated that the Cochin Port Trust has entered into an agreement with Dubai Ports International, UAE for implementation of the ICTT project. On the terms of the agreement Dubai Ports International Limited is the developer on a BOT basis. Government of India has given approval for the proposal for taking up common user project of National Highway connectivity, rail connectivity and capital dredging by the concerned agencies with direction to approach the competent authorities for approval for implementation of the common user national project. Accordingly the Cochin Port Trust approached the National Highway Authority of India (NHAI) and after exploring several routes the road which starts from NH 47 at Kalamassery passing through Eloor, Cheranallore, Kothad, WP(C)N0.37570/07 etc. -2- Moolampally and Bolgatty was found to be more feasible. Land in the villages aforementioned are necessarily to be acquired, so that road connectivity and rail connectivity through the identified route can be provided. 2. The petitioners in WP(C). No. 11556/08 are 20 in number and all of them belong to the Cheranelloor Village. The respondents in that case are the Union of India represented by Secretary to Government of India, Ministry of Rural Development, (2) the Secretary to Government of India, Ministry of Rural Development, (3) the Secretary to Government of India, Department of Shipping, (4) the Secretary to Government of India, Ministry of Environment and Forests, (5) the Secretary to Government of India, Department of Road Transport and Highways, (6) Cochin Port Trust represented by its Chairman, (7) National Highways Authority of India represented by the Chairman, (8) State of Kerala represented by the Chief Secretary to Government. (9) the District Collector, Ernakulam, (10) the Special Tahsildar (L.A) Vallarpadam International Container Transshipment Terminal Project, (11) the Circle Inspector of Police, Ernakulam Town North and (12)a the Sub Inspector of Police Cheranelloor. The case of the petitioners in WP(C) 11556/08 is that their lands are going to be WP(C)N0.37570/07 etc. -3- acquired for the purpose of road connectivity. According to them since Highway connectivity is a project taken up and implemented by Cochin Port Trust and since the project involves involuntary displacement of people, asper the provisions of Exts.P1 and P2 policies the Central Government is bound to provide rehabilitation and resettlement to the project affected families by adding the expenses thereof to the cost of the project. Their grievance is that even though the work of the project has been commenced on behalf of Cochin Port Trust by National Highways Authority of India and even though steps are under way to evict them in accordance with the provisions of the Land Acquisition Act till this date the Central Government have not taken any steps to provide rehabilitation and resettlement to the project affected people like them. It is pointed out, in the meanwhile State Government has issued Ext.P3 order declaring that persons who are evicted for the project from Kadamakkudy Village will be provided habitable lands up to 6 cents, Rs.50,000/- towards rent for alternate accommodation till such time as the displaced persons are able to construct their homestead on the lands provided and Rs.10,000/- towards shifting charges. They further pointed out that under Ext.P3 it is also provided that water and electricity connections will be provided WP(C)N0.37570/07 etc. -4- to the evictees on the completion of their buildings on a priority basis if they are constructing buildings on the alternate sites provided to them. According to the petitioners they who belong to Cheranalloor Village are similarly placed as the evictees in Kadamakudy Village and therefore they are also eligible for the benefits of Ext.P9 order. The prayers in that writ petition are the following. 1. Issue a writ of mandamus or any other appropriate writ, direction or order commanding respondents 1 to 7 to formulate and implement a rehabilitation and resettlement scheme for the families affected on account of the formation of Highway from Kalamassery to International Container Transshipment Terminal at Vallarpadam, within a time limit to be prescribed by this court. 2. Or in the alternative declare that the decision of the State Government to confine the benefits provided for in Ext.P3 order to persons evicted from Kadamakkudy Village for the National Highway connectivity project of International Container Transshipment Terminal at Vallarpadam is discriminatory. 3. Issue a writ of mandamus or any another appropriate writ, direction or order commanding respondents 8 to 10 to extend the benefits provided for in Ext.P3 order to the petitioners within a time limit to be prescribed by this court. The petitioners in WP(C). 5380/08 are residents of Cheranalloor Village and their lands are proposed to be acquired for providing rail connectivity from Edappally to the proposed ICTT project. They submit that they do not challenge the alignment already fixed for drawing WP(C)N0.37570/07 etc. -5- railway line. According to them Ext.P1 National Rehabilitation and Resettlement Policy 2007 evolved by the Government of India has come into force with effect from 31-10-2007 and the same is binding on the State Government also. Their grievance is that apart from making announcements in newspapers the respondents ( (1) the State of Kerala represented bay the Secretary, Revenue Department, (2) the District Collector, Ernakulam, (3) the Special Tahsildar L.A. Railways, Ernakulam, and (4) the Union of India represented by its Secretary, Ministry of Rural Development, Department of Land Resources) have not put forward any concrete proposal or scheme for rehabilitation of the persons who will be displaced by the implementation of the project. They also complain that the alternate land which is proposed to be granted to them for rehabilitation asper newspaper reports are waterlogged and marshy lands as evident from Ext.P2 series of photographs. The petitioners have produced Ext.P3 Government Order issued by the Government offering concrete rehabilitation packages for persons who had to be evicted for the establishment of the Smart City Project. They point out that asper this project the affected parties are to be offered 6 cents of land free of cost and the families who are residing in their house in the area under acquisition WP(C)N0.37570/07 etc. -6- are tobe paid Rs.1 lakh. In Ext.P3 it is also stated that the compensation amount which had been annexed earlier will be increased by 50%. The petitioners complain that in their case apart from certain oral promises and announcements nothing concrete is being done. They contend that the respondents are bound to issue a Government Order laying down the conditions of package and rehabilitation scheme before they are actually evicted. Ext.P4 is minutes of the meeting held under the auspices of three Ministers and the petitioners are alleged that the District Collector has gone back from the the undertaking given in that meeting and the present offering is 3 cents of land. The prayers in the writ petition are the following: 1. Issue a writ of mandamus or any other appropriate writ, order or direction commanding respondents 1 to 4 to make public the concrete proposals for rehabilitation of the persons who would be displaced from the Vaduthala area for drawing the railway line. 2. Issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to implement Ext.P1 National Rehabilitation and Resettlement Policy, 2007 in letter and spirit before actually evicting the petitioner and other displaced persons from the present location. 3. Issue a writ of mandamus or any other appropriate writ, order or direction commanding respondents 1 to 4 to offer alternate sites under Ext.P1 scheme and Ext.P4, which is fit for human habitation and is fit for construction of buildings. WP(C)N0.37570/07 etc. -7- Petitioners in WP(C). 11915/08 belong to Cheranelloor Village and their lands and buildings are now proposed to be acquired for laying railway line for connectivity from Edappally to ICTT at Vallarpadam. Respondents in this case are (1) the State of Kerala represented by the Secretary, Revenue Department, (2) the District Collector and (3) the Cochin Port Trust. It is contended in this writ petition that acquisition proceedings have been initiated in the name of the State and for the purpose of the State. But in the case a certain persons who had already surrendered their lands sale deeds have been executed in favour of the RVNL (Railway Vikas Nigam Limited) and relied on Ext.P7 for this. On the basis of Ext.P7 it is stated that the sale consideration is paid by the Cochin Port Trust who is beneficiary of the acquisition. They contend therefore that the acquisition cannot be treated as acquisition for the State but is to be construed as an acquisition for a company in which case provisions of Part VII of the Land Acquisition Act has to be complied with. Since admittedly there has been no compliance with the conditions of Part VII of the L.A. Act the acquisition proceedings initiated are bad. They they relied on National Rehabilitation Policy 2007 declared by the WP(C)N0.37570/07 etc. -8- Government of India and contend that the same is binding on the Kerala State. Their contention is that before resorting to acquisition and eviction it is obligatory that a package of the scheme for rehabilitation and resettlement of the evictees is offered. They have a further contention that though they have been served with award notice lands in their possession were not mentioned in Ext.P1 the initial notification under section 4(1) and for that reason also the acquisition proceedings are bad. The prayers in the writ petition are the following: 1. Issue a writ of certiorari quashing Ext.P1 notification and P5, P6, P6(a). 2. Issue a writ of mandamus or any other appropriate writ order or direction directing the respondents to resort to the provisions of Part VII of the Land Acquisition Act before acquiring the lands mentioned in Ext.P1, Sec. 1(1) Notification. 3. Issue a writ of mandamus directing the respondents to comply with the provisions of the National Rehabilitation Policy, 2007 and provide a package as provided therein before dispossessing the petitioners from the lands in their possession. 4. Issue an interim direction to stay all further proceedings pursuant to Exts.P5, P6 and P6(a) awards pending disposal of the writ petition. The petitioner WP(C). 37570/07 belongs to Cheranelloor Village and he WP(C)N0.37570/07 etc. -9- owns only 1.495 ares of land which was purchased by him only in the year 2001. After purchase he put up a residential building spending 12 lakhs of rupees. His grievance is that his property is going to be acquired completely for the purpose of providing rail connectivity from Edappally to the ICTT. His grievance is also that notwithstanding the existence of Ext.P1 National Policy for Rehabilitation and Resettlement of persons who are evicted on account of acquisition for implementation of projects no concrete proposals are yet forthcoming. Ext.P3 Government Order offering clear package containing various benefits was issued in the case of persons who are evicted in connection with the Smart City Project is produced by the petitioner. Petitioner complains that though various announcements are being made nothing concrete has come out so far. Authorities are now insisting that consent letters should be executed in favour of District Administration without being informed of the Rehabilitation Package. Petitioner contends that in the absence of a concrete rehabilitation package he is not able to take a final decision as to whether he should execute a consent letter or proceed with the matter under the L.A. Act. Prayers in this writ petition are the following: 1. Issue a writ of mandamus or any other appropriate writ, order or direction commanding respondents 1 to 5 to make public WP(C)N0.37570/07 etc. -10- the concrete proposals for rehabilitation of the persons who would be displaced from the Vaduthala area for drawing the railway line. 2. Issue a writ of mandamus or any other appropriate writ order or direction commanding the respondents to implement Ext.P1 National Rehabilitation and Resettlement Policy, 2007 in letter and spirit before actually evicting the petitioner and other displaced persons from the present location. 3. Issue a writ of mandamus or any other appropriate writ, order or direction commanding respondents 1 to 5 to offer alternate sites under Ext.P1 scheme and Ext.P1 which is fit for human habitation and is fit for construction of buildings. Petitioners in WP(C). 4728/08 belong to Moolampilly in Kadamakudy village. They highlight in this writ petition what they describe is brutal and revengeful action taken by the revenue and police authorities on 10 families of Moolampilly area who had not given consent for land acquisition for Vallarpadom road project. It is alleged, eviction without proper rehabilitation the authorities have dumped a number of people on the streets. The provisions of the Land Acquisition Act have not been complied with. The compensation amounts have not been deposited in Court as contemplated under sections 17 and 31 of the Act. Provisions of the National Rehabilitation and Resettlement Scheme has not so far been formulated or any package scheme published apart from the statement of the District Collector in news WP(C)N0.37570/07 etc. -11- papers. According to them the public and the petitioners are entitled to know the details of the package scheme before they are actually evicted from the land in their possession and the houses are completely demolished. Revenue authorities are not entitled to take law into their hands and evict the owners on instructions from the top without implementing the rehabilitation and resettlement policy and the publication of the package scheme. The action now proposed is mala fide. Prayers in this writ petition are: 1. Issue a writ of prohibition prohibiting the respondents from forcibly evicting the petitioners from the land in their possession. 2. Issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to implement the provisions of the National Rehabilitation and Resettlement Policy before completely demolishing the residential houses and taking possession of the land. 3. Issue a writ of mandamus commanding the respondent to publish the package scheme framed under the National Rehabilitation and Resettlement Policy, 2007 before displacing the persons from their land in their possession. (refer to the interim orders passed in this case) Petitioner in WP(C). 4834/08 belonging to Cheranelloor Village whose land extending to 4.5 cents and residential building is going to be taken over for the purpose of providing road connectivity to the ICTT WP(C)N0.37570/07 etc. -12- at Vallarpadom. The grievance of the petitioner is that even though work of the project has been commenced on behalf of Cochin Port Trust by National Highways Authority of India and even though steps are being taken to displace the affected families in accordance with the provisions of the Land Acquisition Act, till date, the Central Government have not appointed an Administrator for Rehabilitation and Resettlement as provided for in the policies aforesaid. The Central Government has also not found out the appropriate place for resettlement of the affected families, nor formulated any scheme for rehabilitation and resettlement of the affected families nor provided them the various benefits provided for in the policies referred to above. Several representations have been submitted by the petitioner to the respondents requesting them to take appropriate action to formulate and implement a rehabilitation and resettlement scheme for the affected families. But till date no action has been taken by the respondents to formulate or implement a rehabilitation scheme. The petitioner is under imminent threat of displacement. The following are the prayers in this writ petition: 1. Issue a writ of mandamus or any other appropriate writ, direction or order commanding respondents 1 to 7 to formulate and implement a Rehabilitation and Resettlement Scheme for the families affected on account of the formation WP(C)N0.37570/07 etc. -13- of Highway from Kalamassery to International Container Transshipment Terminal at Vallarpadam, within a time limit to be prescribed by this court. 2. Issue a writ of mandamus or any other appropriate writ, direction or order commanding respondents 1 to 7 to provide temporary accommodation, pending implementation of Rehabilitation and Resettlement Scheme for the families affected on account of the formation of Highway from Kalamassery to International Container Transshipment Terminal at Vallarpadam, within a time limit to be prescribed by this court. Petitioners in WP(C). 161/08 belong to Cheranelloor Village and their properties are proposed to be acquired for construction of railway line so as to provide railway connectivity from Edappally to the ICTT at Vallarpadom. Their grievance is that the respondents (1) State of Kerala represented by its Secretary, (2) the Secretary in Charge, Railways (3) the District Collector, Ernakulam, (4) the Special Tahsildar L.A. Railways and (5) Union of India represented by its Secretary, Ministry of Rural Development) have not so far framed a concrete proposal for rehabilitation of the evictees as was done in the case of those who were evicted for the establishment of the Smart City Project at Kakkanadu Ext.P1 produced along with the writ petition is copy of the National Rehabilitation and Resettlement Policy, 2007 declared by the Government of India in the Ministry of Rural Development (Department of Land Resources) . Ext.P2 is copy of the WP(C)N0.37570/07 etc. -14- Government order offering concrete package proposal for rehabilitation of the evictees in the Smart City Project. Ext.P3 is copy of proceedings of a high level committee meeting convened under the auspices of three Ministers. The petitioners allege that the District Collector has gone back from the undertaking which was given in that meeting that package similar to the one which was offered for Smart City evictees will be given. It is alleged that the present offer is only 3 cents of land. The prayers in this writ petition are: 1. Issue a writ of mandamus or any other appropriate writ, direction or order directing the respondents 1 to 4 to publish a concrete proposal for rehabilitation of the persons who would be displaced from Vaduthala area for drawing the railway line. 2. Issue a writ of mandamus commanding the respondents to implement Ext.P1 national Rehabilitation and Resettlement Policy, 2007 in its true spirit before evicting the petitioners and other displaced persons from the present location. 3. Issue a writ of mandamus or any other appropriate writ direction or order directing the respondents 1 to 4 to offer alternate sites under Ext.P1 scheme, which is fit for human habitation and fit for construction of houses. A short counter affidavit has been filed by the District Collector, the third respondent in WP(C). 37570 of 2007. It is stated therein that acquisition of land for road and railway connectivity to the proposed ICTT Project is proceeding under fast track project as per GO (MS) WP(C)N0.37570/07 etc. -15- No. 331/04/RD dated 5-11-2004. Declaration under section 6 of the L.A. Act has already been published. As per the Rehabilitation and resettlement package the District Level Purchase Committee held various meetings and fixed land value. This land value was approved by the State Level Empowered Committee under the Chairmanship of Chief Secretary. While so, the Government vide GO (MS) No.54/07/Trans dated 12-12-2007 decided to assign alternate land to those people whose houses have been acquired and also decided to appoint a High Level Committee with the Minister for Revenue, Minister for Law, Minister for Fisheries and Registration and Chief Secretary as the member to resolve all outstanding issues related to the project and for taking appropriate action. It is stated that an extent of 4.22 acres of land in Sy. No.985 in Cheranelloor Village is earmarked for allotting alternate site to those persons whose houses have been acquired for the Project from Cheranelloor and Mulavukadu Villages. The Government is committed to undertake necessary development of works on the said land so as to make the land absolutely suitable for residential purposes. It is also decided that electricity, water connection and access roads would be provided bay the implementing agency of the project. This alternate site is being provided free of cost WP(C)N0.37570/07 etc. -16- in addition to the enhanced land value and the building value being paid as per the DLPC rates. The residents of Edappally North and South Village who are losing land are also to be provided with alternate site in Block No. 9 in Sy. No.196/5 measuring 2.41 acres situated in Kakkanad Village. The persons who are accepting the DLPC rate will be given compensation at the rate fixed and they are bound to hand over possession of the building and the site to the Government. Considering the prime importance to the ICTT Project delay on account of the time taken for construction of new houses in the alternate site is to be avoided. In the above background request for extension of time bay the respondent to hand over the building and site to the Government cannot be entertained. Nevertheless, it is submitted that in deserving cases, where persons are from the lowest strata of the society financial assistance for taking houses on rental basis during the intervening period will be provided. Estimate for development of the land at Kakkanad and Cheranalloor Villages has been prepared by the Executive Engineer, District Panchayat, Ernakulam and the same has been submitted to the Chairman, Cochin Port Trust. The Chairman, Cochin Port Trust in his letter dated 27-12- 2007 addressed to Rail Vikas Nigam Ltd. has accorded sanction for WP(C)N0.37570/07 etc. -17- taking up land development work at Kakkanad and Cheranelloor at a total cost of 2.2 crores. It is stated that the development works will be starting on 2-1-2008. To this counter affidavit a reply affidavit has been filed by the petitioner in WP(C).37570/07 giving details of Ext.P1 policy and alleging that the land which is presently being offered is wet lands. The so called development of those lands will not make those lands habitable. The offer of alternate accommodation is false and it cannot be relied on. It is only a name sake statement made to mislead this court so as to make it appear that the rehabilitation scheme will be implemented immediately. The small holders like the petitioners who own a cent or two should not be dumped into a water logged marshy land which are unfit for habitation.