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Judgment
C. Jayachandran, J
In this Writ Petition, the petitioners seek to quash Ext.P49 notification issued by the 1st respondent/State under Section 11(1) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 ('2013 Act', for short). The petitioners also seek quashment of Ext.P41 notification and Ext.P45 Social Impact Assessment Report under Section 4(1), Ext.P47 Expert Group Appraisal Report under Section 7 and Ext.P48 Government Order issued under Section 8 of the 2013 Act. The acquisition in question is one pertaining to the development of the Sabarimala Greenfield Airport Project. In respect of the self-same acquisition, this is the third occasion where the petitioners approach this Court. The following list of dates will unfurl the essential events which ultimately led to the filing of the instant Writ Petition:
LIST OF DATES AND ESSENTIAL EVENTS IN THE CHRONOLOGICAL ORDER:
TABLE – I
SL.
No.
DATE
EVENT
REMARKS
1
21-2-2017
The Government of Kerala issued Government Order detailing the steps to be taken for the new Greenfield Airport for the convenience of Sabarimala pilgrims.
Ext.P58
(produced along with reply affidavit)
2
4-4-2017
A review meeting of the Sabarimala Project held in the presence of the Chief Minister, appointed a four-member committee consisting of I.A.S. officers to prepare a list of suitable sites for the project.
The event is referred to in Ext.P56 (produced along with the reply affidavit)
3
21-4-2017
The four-member committee headed by the Addl. Chief Secretary submitted a report with the list of suitable sites for the Airport Project.
Ext.P56
(produced along with the reply affidavit)
4
21-7-2017
The State Government issued Government Order approving the recommendations of the four- member committee that the Cheruvally Estate belonging to the petitioner is the most suitable site for the Airport.
Ext.P46
[English translation, is Ext.P46(A)]
5
18-6-2020
The Government issued Orders according sanction to the District Collector, Kottayam, to acquire the Cheruvally Estate, having an extent 2263.18 acres of land, by invoking the provisions of the 2013 Act. The G.O. also directed that the compensation amount will be deposited before the Court as per Section 77(2) of the 2013 Act, since a suit on the title of the property was pending.
Ext.P30
6
2020
The petitioner Trust challenged Ext.P30 G.O. before this court by filing W.P.(C) No.13332/2020.
7
16-10-2020
The Writ Petition was allowed in part, setting aside the direction in the impugned G.O. to deposit the compensation amount before the authority under Section 77(2) of the 2013 Act. Other grounds urged in the Writ Petition were left open.
Ext.P31
8
30-12-2022
The Government issued G.O. partially modifying an earlier
G.O. and according sanction for acquisition of 2570 acres constituted of the Cheruvally Estate; and another 307 acres outside the Cheruvally Estate. The sanction was accorded, subject to the conduct of Social Impact Assessment (S.I.A.) study, pursuant to the issuance of Section 4(1) notification. An Expert Committee was also directed to be constituted to evaluate the S.I.A. study
report.
Ext.P35
9
23-1-2023
Section 4(1) notification was issued. The Centre for Management Development (C.M.D.), Thiruvananthapuram was assigned with the task of conducting the S.I.A. study and to prepare S.I.A. plan.
-
10
1-3-2023
The Social Impact Assessment study conducted by C.M.D. was published as per Section 6(1) of the 2013 Act.
-
11
9-6-2023
The petitioner Trust submitted its written objections to the S.I.A. Report.
-
12
13-3-2024
The Government issued notification under Section 11 of the 2013 Act stating that the land scheduled in the notification is required to be acquired for the public purpose of the Sabarimala Greenfield Airport and issued notice to the persons concerned, for objections, if any, against the proposed acquisition.
Ext.P38
13
26-3-2024
The petitioner Trust accordingly filed objections detailing the malafides of the State, as also, the contravention of the provisions of the 2013 Act.
-
14
1-4-2024
Petitioner filed W.P.(C) No.13775 of 2024 challenging Ext.P38 notification under Section 11.
-
15
25-4-2024
This Court passed an interim order restraining the officials from taking any further steps pursuant to Section 11 notification for a period of two months.
Ext.P39
16
20-6-2024
It was submitted on behalf of the Government before the High Court that Ext.P38 notification under Section 11 is being withdrawn and a fresh S.I.A. study will be conducted through a different agency, after issuing a fresh notification under Section 4(1) of the 2013 Act. Recording the above submission, the writ petition was closed.
Ext.P40
17
9-9-2024
The Kerala Government issued a notification under Section 4(1) of the 2013 Act appointing Bharata Matha School of Social Work/Respondent No.3 to conduct S.I.A. Study.
-
18
28-11-2024
Petitioner submitted its objections to the S.I.A. Unit.
Ext.P42
19
29.11.2024
& 30.11.2024
Two public hearings were conducted to record the concerns of the people, who are affected by the project.
Ext.P43
[English translation, is Ext.P43(A)]
20
27-12-2024
The final S.I.A. report was published.
Ext.P45
21
28-1-2025
An Expert Committee was constituted under Section 7 of the 2013 Act. The Committee published a report accepting the
S.I.A. report and recommending to proceed with the acquisition for Sabarimala Greenfield Airport.
Ext.P47
[English translation, is Ext.P47(A)]
22
8-4-2025
The Government issued a G.O.(Rt) No.91/2025/RD dated 08.04.2025
under Section 8 of the 2013 Act to proceed with the acquisition for the Sabarimala Greenfield Airport Project, on the basis of the S.I.A. report and the Expert Committee Report.
Ext.P48
[English translation, is Ext.P48(A)]
23
25-4-2025
The Government issued a notification dated 25.04.2025
under Section 11 of the 2013 Act, calling upon the persons interested to lodge - before the Special Tahsildar LA (General), Kottayam - a statement in writing of the objections, if any, regarding the update of land records; title of the land proposed for acquisition; regarding the area and suitability of land proposed to be acquired; justification offered for public purpose; and the findings of the Social Impact Assessment report within 60 days.
Ext.P49
[English translation, is Ext.P49(A)]
24
7-5-2025
Petitioner submitted its objections.
Ext.P50
25
12-5-2025
Petitioner filed the present Writ Petition challenging Ext.P41 Notification and Ext.P45/Social Impact Assessment Report under Section 4(1); Ext.P47/Expert Group Appraisal Report under Section 7(5); Ext.P48/Order under Section 8(2) issued by the Government; and Ext.P49 notification under Section 11(1) of the 2013 Act.
Heard Sri.Amit Sibal, learned Senior Counsel, duly instructed by Adv.Dhiraj Abraham Philip and Adv.Darpan Sachdeva on behalf of the petitioners; Sri.K.Gopalakrishna Kurup, learned Advocate General on behalf of respondents 1 to 5 and Sri.P.Haridas, learned counsel on behalf of respondents 6 to 9. Perused the records.
In this Writ Petition, Exts.P45 to P49 are challenged essentially on two grounds, namely, (1) colourable exercise of power or, alternatively, fraud on power and (2) Non-compliance of the mandatory requirements of the 2013 Act. Under the first ground, it is the petitioners' contention that the proposed acquisition stems from a pre-concerted decision of the Government to take over the petitioners' property, having an extent of 2263 acres; and not based on a genuine study as to the suitability of the land, as also, the availability of alternate lands. In other words, the whole acquisition proceeding was initiated with an eye fixed on divestiture of the petitioners from the said 2263 acres of land, which allegation is levelled on the strength of the various events which transpired prior to the acquisition proceedings in question. A detailed reference to such events will be made during the course of this judgment, whereby the petitioners would allege that the Government was taking steps, one after another, by exploring all possibilities under various statutes, to deprive the petitioners of the subject property.
On the second ground, the petitioners would allege that the mandatory requirement of ensuring that the absolute bare-minimum extent required for the project alone is acquired, has not been complied with. It is the second contention in this direction that the determination regarding the possible alternate sites for the project and its feasibility, was also not properly considered in terms of the 2013 Act, thereby violating the mandatory requirements of the Act. In respect of both these aspects, it is the petitioners' allegation that the findings of a four-member committee, constituted for ascertaining the possible sites for the Sabarimala Greenfield Airport Project, has been merely endorsed by the Social Impact Assessment Unit constituted under Section 4 of the 2013 Act; the Expert Group, constituted as per Section 7 of the 2013 Act, and also, by the appropriate Government in terms of Section 8 of the 2013 Act.
Based on the arguments addressed the following points are raised for consideration:
I. Whether the mandatory legal requirement in terms of Section 4(4)(d), Section 7(5)(b) and Section 8(1)(c) of the 2013 Act, to ensure that only the absolute bare-minimum extent needed for the Project is acquired, has been satisfied as per Ext.P45 S.I.A. study report, Ext.P47 report of the Expert Group and Ext.P48 Order of the Government.
II. Within the scope of S.I.A. study, is it imperative that the S.I.A. study team should consider the availability of alternate lands for acquisition and to satisfy that the same are not feasible? or is it necessary only to ensure that such alternate lands have been considered and found not feasible by a competent body, without there being a legal requirement for the S.I.A. study team to independently consider/analyse the feasibility of such alternate lands?
III. Whether there is any merit in the petitioners' allegation that the proposed acquisition is vitiated by fraud on power or colourable exercise of power?
Before addressing the points raised, this Court will glance through the salient features of the 2013 Act. The preamble of the Act itself is important, which is extracted here below:
“An Act to ensure, in consultation with institutions of local self-government and Gram Sabhas established under the Constitution, a humane, participative, informed and transparent process for land acquisition for industrialisation, development of essential infrastructural facilities and urbanisation with the least disturbance to the owners of the land and other affected families and provide just and fair compensation to the affected families whose land has been acquired or proposed to be acquired or are affected by such acquisition and make adequate provisions for such affected persons for their rehabilitation and resettlement and for ensuring that the cumulative outcome of compulsory acquisition should be that affected persons become partners in development leading to an improvement in their post acquisition social and economic status and for matters connected therewith or incidental thereto.”
The preamble speaks for itself that the 2013 Act seeks to ensure the acquisition of land in a humane, participative, informed and transparent manner, causing least disturbance to the owners of the land and other affected families, besides ensuring just and fair compensation. The Act also envisages rehabilitation and resettlement of the affected persons. Section 2 of the Act speaks about the application of the Act; and Section 3, of the various definitions. Section 4 of the Act which comes under Chapter 2, under the heading 'Determination of Social Impact and Public Purpose', is pivotal. Chapter 2, in Part-A, contemplates a preliminary investigation for determination of social impact and public purpose. Section 4(1) mandates a Social Impact Assessment Study (S.I.A. study) to be conducted, whenever the Government intends to acquire land for a public purpose. The first proviso to Section 4(2) mandates the appropriate Government to ensure that adequate representation has been given to the representatives of Panchayath, Gram Sabha, Municipality or Municipal Corporation, as the case may be, at the stage of carrying out the S.I.A. study. Section 4(4), which depicts the matters to be included while conducting the S.I.A. study, is relevant and extracted here below:
“4. Preparation of Social Impact Assessment Study
(4) The Social Impact Assessment study referred to in sub-section (1) shall, amongst other matters, include all the following, namely:—
(a) assessment as to whether the proposed acquisition serves public purpose;
(b) estimation of affected families and the number of families among them likely to be displaced;
(c) extent of lands, public and private, houses, settlements and other common properties likely to be affected by the proposed acquisition;
(d) whether the extent of land proposed for acquisition is the absolute bare-minimum extent needed for the project;
(e) whether land acquisition at an alternate place has been considered and found not feasible;
(f) study of social impacts of the project, and the nature and cost of addressing them and the impact of these costs on the overall costs of the project vis-a-vis the benefits of the project:”
(underlined, for emphasis)
Section 4(6) calls upon the authority conducting the S.I.A. study to prepare a Social Impact Management Plan, wherein ameliorative measures to be undertaken for addressing the impact for a specific component referred to in sub-section (5), are to be enlisted. Section 5 contemplates a public hearing while conducting the S.I.A. study, and the views of the affected families are to be recorded and included in the S.I.A. report. Section 6 enjoins the appropriate Government to publish the S.I.A. study report in the local language at the places specified in Section 6, besides uploading the same on the website of the appropriate Government. Section 7 is important, which comes under Part-B of Chapter II with the heading - 'Appraisal of Social Impact Assessment Report by an Expert Group'. Accordingly, a multidisciplinary Expert Group has to evaluate the Social Impact Assessment Report. The constitution of the Expert Group is contemplated in Section 7(2). As could be seen from Section 7(4), the Expert Group is powerful enough to opine that the project does not serve any public purpose or that the social cost and adverse social impacts of the project outweigh the potential benefit. Such opinion will be followed by a recommendation to be made by the Expert Group to the effect that the project shall be abandoned forthwith. The Expert Group is duty bound to record the grounds for such recommendation, giving the details and reasons for such decision. Section 7(5) is important, and the same is extracted here below:
“7. Appraisal of Social Impact Assessment Report by an Expert Group
(5) If the Expert Group constituted under sub-section (1), is of the opinion that,—
(a) the project will serve any public purpose; and
(b) 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 displacing options available:
Provided that the grounds for such recommendation shall be recorded in writing by the Expert Group giving the details and reasons for such decision.”
(underlined, for emphasis)
Now comes Section 8, which envisages the examination by the appropriate Government of the proposals for land acquisition and the Social Impact Assessment Report. Within the scope of Section 8(1), one among the important criteria to be ensured by the appropriate Government is that only the minimum area of land required for the project is proposed to be acquired. Section 8(2) enjoins upon the Government to examine the reports of the Collector or of the Expert Group on the S.I.A. study and to recommend such area for acquisition which would ensure minimum displacement of people and minimum adverse impact on the individuals affected. It is upon completion of this recommendation by the appropriate Government that a notification under Section 11 has to be issued, as contemplated in Chapter-IV of the 2013 Act. The discussion on the scheme of the Act can be wound up by referring to Section 15 of the Act as well, which provides for hearing of objections to be raised by any person interested, within 60 days from the date of publication of Section 11 notification. The subject matter of such objections is confined to (a) the area and suitability of the land proposed to be acquired; (b) justification offered for public purpose; and (c) the findings of the S.I.A. report. After affording an opportunity of being heard to the objector, the Collector has to make a report to the appropriate Government, containing his recommendations on the objections, together with a record of proceedings held by him. Such report shall also contain the approximate cost of land acquisition, the particulars of the number of affected families likely to be resettled etc., for the decision of the Government.
It could be seen from the Scheme of the Act that the absolute bare-minimum extent of land needed for the project alone can be acquired. This requirement, seems to be pivotal, since the same is the subject matter of consideration by the Social Impact Assessment Unit in terms of Section 4(4)(d) of the Act; by the Expert Group in terms of Section 7(5)(b) of the Act; and also by the appropriate Government in terms of Section 8(1)(c) of the Act. It is in respect of this criteria that the main challenge has been posed by the petitioners to the notification issued under Section 11 of the Act.
Point No.I – THE ABSOLUTE BARE-MINIMUM:-
With this prelude, this Court will examine whether the requirement of ensuring that the absolute bare-minimum extent required for the project alone is acquired, has been complied with or not. For an effective appreciation of this issue, this Court may have to start from the constitution of the four-member committee appointed by the Chief Minister to prepare the list of suitable sites for the project. The Committee was constituted of four members of the Indian Administrative Service, headed by the Additional Chief Secretary. The report submitted by the Committee is produced at Ext.P56 (along with the reply affidavit filed by the petitioners). The Committee considered as many as six sites and found the subject Cheruvally Estate as the most suitable one.
This Court may straightaway reject the petitioners' contention that the above exercise, itself, is flawed in law. The 2013 Act which brought in comprehensive changes in acquisition of lands only contemplates preliminary investigation for determination of social impact and public purpose by conducting an S.I.A. study. Going by the Scheme of the Act, the S.I.A. study is the first step. However, this Court recognises that the S.I.A. study team cannot start from vacuum. Nor could the S.I.A. study team fix, for the first time, the area from where the acquisition has to be effected. It is well within the powers of the Government to commence the initial proposal for acquisition and to identify the place from where the acquisition is to be effected, having regard to the purpose of acquisition. Having fixed the place, it is still open for the Government to identify possible sites for the purpose of acquisition and to suggest the same to the S.I.A. study team. It is also possible for the Government to conclude, which among the sites available is the most suitable one according to the Government. The mandate of Section 4(4)(e) is only to satisfy that land acquisition at an alternate place has been considered and found not feasible.
This Court will now ascertain whether the mandate in terms of Section 4(4)(d) to limit the acquisition to the bare-minimum extent needed, has been considered by the S.I.A. study team in accordance with law. Before analysing the S.I.A. report, it will be profitable to know the extent of land ideally required for an international airport, which intends use of larger aircrafts like Boeing 777, etc.
SIGNIFICANCE OF EXHIBIT R1(h) COMMUNICATION:-
A vital document which will throw light into the aspect of absolute bare-minimum extent of land required for a Greenfield Airport is the one produced at Ext.R1(h) by the 1st respondent, along with the additional counter affidavit dated 22.08.2025. Ext.R1(h) is a communication issued by the Airports Authority of India to the Chief Secretary of Kerala, wherein the subject is seen captioned as 'Standardization of land requirement for various categories of Operation for Green Field Airport, New Civil Enclave and development of existing airports'. Paragraph 4 of Ext.R1(h) is relevant and extracted here below:
“4. To assist State Government, AAI has formulated the minimum requirement of land for Greenfield Airport, new Civil Enclaves and development of existing airstrips for various type of aircraft operations under VFR (Visual Flight Range- suitable only for day time operations with visibility of around 5 Km) and IFR (Instrument Flight Range when aircraft can land with visibility of around 800 to 1200 Mtr, including night landing) conditions, which are as under:
TABLE – II
Categorizatin of Airport
Civil Enclaves (where operations area is with Defence Authorities)
3C- VFR
3C- IFR
4C-IFR
4E-IFR
Operational
ATR-
A-321/320
ATR-
ATR-
A-321/
B-
Aircraft
72/Q-400
B-737
72/Q
-400
72/Q
-400
320
B-737
777/787
Minimum land Required in Acres in ideal scenario (including available land)
30
50
350
600
1200
A brief presentation on area requirements for various airports is attached for better understanding and reference.”
Paragraph no.2 of Ext.R1(h) speaks about the difference in the extent of land required for Visual Flight Range (V.F.R.) operations and Instrument Flight Range (I.F.R) operations. Ext.R1(h) refers to the situation where airports will initially be developed on the basis of available land for V.F.R. operations, followed by immediate request for upgradation of the airport, including 24 hour low visibility operations, with night landing facility.
Paragraph no.3 of Ext.R1(h) speaks about assessment of the extent, keeping in view the future growth and expansion. It is after taking stock of these facts, that is to say, whether the airport contemplates V.F.R. operations or I.F.R. operations and also the possibility of future growth and expansion, that the Airports Authority of India had crystalised the extent of land required for various projects in paragraph no.4 of Ext.R1(h). A perusal of paragraph no.4 extracted above would make it amply clear that, even for the highest aircraft B-777/787 in an airport contemplating I.F.R. operations, the minimum land required in the ideal scenario is 1200 acres. Of course, the language used is 'minimum land', however, followed by the expression 'ideal scenario'.
By referring to Ext.R1(h), this Court is not concluding for a moment that there cannot be an acquisition beyond 1200 acres. However, even for the highest type of aircraft, in an airport contemplating I.F.R. operations, the land required in the ideal scenario is 1200 acres. Therefore, if any further extent of land is sought to be acquired, the purpose for which and the necessity of which is liable to be explained by the requisitioning authority, especially taking into account the mandatory requirement of Section 4(4)(d) of the 2013 Act. As against 1200 acres, the proposal for Sabarimala Greenfield Airport is to an extent of 2570 acres, which is more than double the extent indicated in Ext.R1(h).
FINDINGS IN S.I.A. REPORT AS REGARDS ABSOLUTE BARE-MINIMUM:-
Ext.P45 is the final S.I.A. report. Though there is reference in Ext.P45 as regards the extent of land to be acquired as approximately 1039.876 hectares (2570 acres), in various chapters, the solitary finding as regards the requirement that the extent sought to be acquired is the bare-minimum, is contained in Chapter 11. The heading of Chapter 11 of Ext.P45 is “Analysis of Costs and Benefits and Recommendation on Acquisition”. The sub heading at 11.1 reads thus:
“11.1. Final conclusions on assessment of public purpose, less displacing alternatives, minimum requirements of land, the nature and intensity of social impacts, and viable mitigation measures will address costs.”
The relevant findings at page no.67 of Ext.P45, is extracted here below:
“With respect to the proposed project, 2263 acres of land from Cheruvally Estate and 307 acres from private individuals will be acquired. While there may be various impacts when acquiring land for the proposed project, when scientifically evaluating the other ancillary development activities required for the airport and the future development of the area, the least amount of land is being acquired for the project.”
Of course, the language is not the absolute bare-minimum. Instead, the finding is that 'the least amount of land is being acquired for the project.' It is relevant to note that absolutely no reason, whatsoever, has been stated by the S.I.A. study team in Ext.P45 as to why 1039.876 hectares (2570 acres) of land is required for the project. Nor is any reason stated in Ext.P45 that the said extent is the absolute bare-minimum required for the project. This is all the more so, when specific questions regarding the necessity of acquiring such vast extent were mooted by one Manoj Thomas and one Harikrishnan in the public hearing conducted by S.I.A. study team [see in this regard Ext.P43 at running page nos.809, 812 and 813 of the Writ Petition].
In this regard, learned Advocate General would point out that the reason for acquiring 1039.876 hectares can be found in paragraph 2.5 in Chapter 2 of Ext.P45, which is also extracted here below [See page no.13 of Ext.P45]:
“2.5. Project layout, size and facilities Length of the runway depends on the elevation of the site, slope of the runway and temperature of the place. The large aircraft intended to be used at the airport are those of ICAO code E category. The Critical Aircraft considered for this purpose is B 777-300 (ER). The ideal runway length for code E aircraft is in between 3691m and 3783m. However, depending on average passenger and cargo loads and the distance to destination, the runway length of 3500m will be adequate. The runway length of the nearby airports, Kochi and Thiruvananthapuram, is 3400 m.”
This Court cannot endorse the submission made by the learned Advocate General. Primarily, Chapter 2 of Ext.P45, report deals with the detailed project description, and paragraph no.2.5 contains the heading 'Project layout, size and facilities'. Having perused the entire Chapter 2, this Court is of the opinion that the contents of paragraph no.2.5, as also, several other contents forming part of Chapter 2, are mere recordings of the information received by the S.I.A. team and cannot be treated as its findings. That apart, paragraph 2.5 of Chapter 2 of Ext.P45 refers to the fact that large aircraft like Boeing 777-300 are intended to be used, which requires a length between 3961 meters and 3783 meters for the runway. There is no correlation, whatsoever, of that technical data, with the extent of land required for the airport project, in paragraph no.2.5 under Chapter 2 of Ext.P45. That apart, it was pointed out by the learned Senior Counsel for the petitioners that the length of the runway referred to in paragraph no.2.5 probably explains the acquisition of an additional 307 acres outside the Cheruvally estate. Paragraph no.2.5 offers no explanation as to why a total extent of 2570 acres is required for the Airport project. It could thus be seen that, except a self-serving statement as contained in Chapter 11 page no.67, there is no reason, whatsoever, stated to arrive at a conclusion that the proposed acquisition is the absolute bare-minimum extent required for the project. This Court finds that the Ext.P45 report of the S.I.A. study team does not reflect any independent application of mind, as regards this particular aspect, which is a specific mandate flowing from Section 4(4)(d) of 2013 Act.
Similar comments are available in paragraph no.2.3 of Chapter 2 with the heading 'Information on project location, size, target, and cost'. In sub paragraph no.2 therein (at page no.10 of Ext.P45), it is referred that the airport project was initially conceptualized within the Cheruvally Estate and having regard to the requirement of a runway which will suit larger aircrafts to be used in an International Airport, additional land outside the Estate was also proposed to be acquired to meet the requirements for a longer runway. This would only reiterate the argument of the learned Senior Counsel based on paragraph no.2.5 of Ext.P45, referred to in the preceding paragraph of this judgment. Paragraph no.2.3 of Ext.P45 also refers to the fact that other basic infrastructure has been planned within the Cheruvally Estate itself. Similarly under paragraph no.2.5, at page no.14 the facilities required and the master plan for the Sabarimala International Airport are seen referred to.
As regards the first comment based on paragraph no.2.3, this Court may have to reiterate that the same does not answer the requirement of satisfying that the absolute bare-minimum extent alone is acquired. As indicated earlier, there is no correlation between the requirement of a longer runway with the extent of land to be acquired. In other words, the requirement of a longer runway does not answer the requirement to acquire 1039.876 hectares (2570 acres) of land. Once it comes to the listing of facilities at paragraph no.2.5, again, the issue is the same that there is no correlation with the extent required for the facilities made mention of therein. There is no indication as to whether these are ordinary facilities available to any airport? or whether it is peculiar for Sabarimala Airport. Going by the nature of the facilities, one can only conclude that these are ordinary facilities available to an airport, in which case, it does not answer the requirement for almost double the extent required for an ordinary airport, about which further reference would be made here below.
EXTENT OF LAND FOR OTHER AIRPORTS IN KERALA:- Another relevant input in this regard is the material made available before this Court, pursuant to this Court’s direction as regards the extent of the Cochin International Airport, Thiruvananthapuram International Airport and the Kannur International Airport. The data in this regard is made available by virtue of the additional documents produced by the petitioners. As per Ext.P61, the extent of the Cochin International Airport is 1300 acres. As per Ext.P62, the extent of the Thiruvananthapuram International Airport is 700 acres. As per Ext.P63, the extent of the Kozhikode International Airport is 373 acres. As per Ext.P64, the extent of Kannur International Airport is 2300 acres. Barring the Kannur International Airport, the extent of all the three other International Airports in Kerala are between 373 to 1300 acres. In such a scenario, why an extent of 2570 acres is required for the Sabarimala Greenfield Airport - which is contemplated as the fifth airport of Kerala - is not discernible from any of the records, much less from Ext.P45 S.I.A. study report. One argument of the learned Senior Counsel for the petitioners assumes significance in this regard. It was argued that the 5th airport of the State is sought to be set up essentially to enable smoother, faster and convenient travel for Sabarimala pilgrimage, though the convenience of residents of Idukki, Kottayam and Pathanamthitta districts is also espoused. Having regard to the limited purpose and scope of the proposed airport, there is no rhyme or reason for having an extent more than that of the Cochin International Airport, is the argument advanced. All what this Court needs to observe in this regard is that the above argument is not misplaced. Needless to say that the above aspect also points to the need for a satisfactory explanation that 2570 acres is the absolute bare-minimum required.
EXPLANATION OF FUTURE GROWTH AND EXPANSION:- The argument of the learned Advocate General in this regard that the extent has been fixed taking into account the future growth and expansion can hardly be accepted and appreciated. First of all, there is no indication, whatsoever, in the S.I.A. study report as to what future growth and expansion are contemplated. What is the extent required for the airport with the infrastructure, now envisaged? What growth and expansion are contemplated in future? What is the additional extent required for such future growth and expansion? The answers to these important questions are far to seek. The same is not forthcoming in Ext.P45 S.I.A. report, or for that matter, in any other record. The mandate flowing from Section (4)(4)(d), followed by Section 7(5)(b) and reiterated in Section 8(1)(c) of the 2013 Act is to limit the acquisition to the absolute bare-minimum required. The peremptory mandate of the above quoted sections of the 2013 Act finds reiteration in Rule 12(3)(c) and Rule 12(5) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Compensation, Rehabilitation and Resettlement and Development Plan) Rules, 2015 (for short, '2015 Rules'). It is grossly insufficient to offer an explanation that a whooping extent of 2570 acres is required for “the future growth and expansion.” In such circumstances, the only possible conclusion is that the mandatory requirement in terms of Section 4(4)(d) of the 2013 Act is not satisfied in Ext.P45 S.I.A. report.
EVALUATION BY THE EXPERT GROUP – SECTION 7:- This Court will now ascertain whether the self-same mandatory requirement with respect to the absolute bare-minimum extent, has been considered by the Expert Group constituted in terms of Section 7. Ext.P47 is the report of the Expert Group. The findings with respect to the bare-minimum extent is contained in paragraph no.14 of Ext.P47 report, which is extracted here below:
"വ ദഗ ധസമ ത പഠന റ പ ർട വ ശദമ യ ചർച ചചയ കയ ത ടർന ള ദ വസ പദത പപപദശമ യ ചചറ വള എപ#റ അന ബന സലങള പനര ട സനർശ ച സ മ.ഹ0 പപത0ഘ ത പഠന റ പ ർട വ ലയ ര ത. പദത യ ചട നടത ചന ഭ വ വ കസന ക.ട പര ഗണ ച ചപ ത ആവശ0ത പലക യ ക റഞ ഭ.മ യ ണ ഏചറട ക നത എന പഠന യ.ണ റ ന ചറ വ ദഗ ധസമ ത അ ഗ9കര ച ശ പ ർശ ചചയ ന.”
The true English translation of the above mentioned portion as per Ext.P47(A) is as follows:
“14. The expert committee discussed the study report in detail and in continuation to that they visited the project areas of Cheruvally Estate and related places directly and evaluated the SIA report. By considering the Social Impact Assessment report, and the future development of the project implement, only a bare-minimum area is acquiring as per the study report of the study group, the expert committee agreed it and recommended.”
(underlined, for emphasis)
The above findings of the Expert Group are liable to be rejected for the self-same reasons for rejecting Ext.P45 S.I.A. report. Primarily, the Expert Group relied upon Ext.P45 S.I.A. report to arrive at a conclusion that, only the bare-minimum area is being acquired; whereas Ext.P45 S.I.A. report does not contain any satisfactory reason for arriving at such a conclusion. Secondly, what has been taken stock of is the future development of the project. Here, again, as indicated earlier, what is the extent required for the present infrastructure; what, in fact, are the future developments contemplated; what is the extent required for such future development etc. are all conspicuously absent both in Ext.P45 S.I.A. report, as also, in Ext.P47 Expert Group’s report. While the mandate of Section 4(4), while considering the social impact assessment is to study whether the extent of land proposed is the absolute bare-minimum, the requirement of Section 7 is to evaluate the Social Impact Assessment report. The specific requirement to ensure that the absolute bare-minimum extent needed for the project alone is acquired, is contained in Section 7(5)(b) of the 2013 Act. The requirement in terms of Section 7(5)(b) is that the Expert Group shall make 'specific recommendations' whether the extent of land proposed to be acquired is the absolute bare-minimum needed for the project. The inevitable conclusion is that Ext.P47 report of the Expert Group also failed to address that issue and hence liable to be discounted.
EXAMINATION BY THE GOVERNMENT – SECTION 8:- Among other requirements of Section 8, Section 8(1)(c) specifically enjoins the Government to ensure that only the minimum area of land is acquired, is contained in Section 8(1)(c). The examination by the appropriate Government is reflected in Ext.P48 Government Order, granting preliminary approval for initiating action under the 2013 Act for the Sabarimala Greenfield Airport. After referring to the procedures thitherto undertaken, namely the S.I.A. study and the evaluation by the Expert Group, the findings of the Government is contained in paragraph no.4 of Ext.P48, which is extracted below:
"സർക ർ ഇക ര0 വ ശദമ യ പര പശ ധ ച . വ ദഗ ധ സമ ത യ ചട ശ പ ർശ, സ മ.ഹ0 ഘ ത പഠന റ പ ർട, പക ടയ ജ ല കളകറ> ചട ശ പ ർശ എന വയ ചട അട സ നത ൽ ശബര മല പഗ9ൻഫ9ൽഡ വ മ നത വള പദത ക യ കചCത യ പക ടയ ജ ലയ ചല എര പമല സDത, മണ മല എന9 വ പലജ കള ൽ ഉൾച ട 1039.876 ചഹകർ> ഭ.മ യ ൽ ചനൽവയൽ ഉൾച ട ട ചCങ ൽ ആയത 2008-ചല പകരള ചനൽവയൽ തണ9ർതട സ രകണ ആക >ചലയ ബനച ട ചടങള ചലയ നടപട പകമങൾ പ ല ച മ പതപമ പര വർതന ചചയ വ. എന വ0വസക വ പധയമ യ , പര മർശ (4) ന ർപJശത ന ചറ അട സ നത ൽ വ ദഗ ധ സമ ത യ ചട ശ പ ർശകൾക അന സKതമ യ ഗത ഗത , ധനക ര0 വക കള മ യ ക.ട യ പല ച ച ഒര പപപത0ക പ നരധ വ സ പ നMസ പന പ പകജ 2013-ചല എൽ.എ.ആർ.ആർ. ന യമത ചല ചസകൻ 11 പപക ര അഡ Oന സ പപടറചറ ന പയ ഗ ക ന ഘടത ൽ പര ഗണ കണ എന വ0വസയ ക വ പധയമ യ 2013-ചല എൽ.എ.ആർ.ആർ. ന യമപപക ര ഭ.മ ഏചറട കൽ നടപട കള മ യ മ പന ട പപ ക നത ന അന മത നൽക ഇത ന ൽ ഉതരവ ക ന .”
The true English translation of the above mentioned portion as per Ext.P48(A) is as follows:
“4. The Government has examined the matter in detail. Based on the recommendation of the expert committee, the social impact study report and the recommendation of the Kottayam District Collector, 1039.876 hectares of land in Erumeli South and Manimala villages in Kottayam district identified for the Sabarimala Greenfield Airport project should be converted only by following the procedures of the Kerala Paddy Wetland Conservation Act, 2008 and related rules, if any. Subject to reference (4) in accordance with the recommendations of the Expert Committee, a special resettlement and rehabilitation package in consultation with the Departments of Transport and Finance may be prepared. Subject to the condition to be considered at the stage of appointment of the Administrator under Section 11 of the Act. It is hereby ordered to proceed with the land acquisition proceedings under the L.A.R.R. Act, 2013.”
This Court is at a loss to find that the above referred requirement in terms of Section 8(1)(c) has not been considered at all by the Government in Ext.P48. There is not even a whisper to that aspect in Ext.P48. This Court may have to say that Ext.P48 Order of the Government is worser than Ext.P45 S.I.A. report and Ext.P47 report of the Expert Group, insofar as satisfying the requirement that the absolute bare-minimum extent required for the project alone is acquired.
Before winding up point no.I, it is relevant to take stock of the settled legal position that no one shall be deprived of his property without the due process or authorisation of law, as held, way back, in 1700s by the King's bench in Entick v. Carrington [(1765) 95 ER 807]. In Wazir Chand v. State of Himachal Pradesh and Others [AIR 1954 SC 415], the Hon'ble Supreme Court held that the State has a higher responsibility in demonstrating that it has acted within the confines of legality, rather than enjoying a wider bandwidth of lenience. It has been held by the Supreme Court that a high threshold of legality must be met, when the State dispossesses an individual of their property. The above facets of law are quoted with approval by the Hon'ble Supreme Court in Sukh Dutt Ratra and Another v. State of Himachal Pradesh and Others [(2022) 7 SCC 508].
In this connect, this Court also takes stock of the paradigm shift brought in the 2013 Act, when compared to the erstwhile Land Acquisition Act of 1894. Besides making the process of acquisition more humane, participative and transparent, the preamble to the 2013 Act highlights one another aspect, that is to cause least disturbance to the owners of the land. It is in the light of this foundational object of the 2013 Act that Section 4(4)(d), Section 7(5)(b) and Section 8(1)(c) has to be interpreted.
One final aspect before concluding point no.I is the requirement to strictly follow the diktats of an expropriatory legislation. Finding in the context of Land Acquisition itself (L.A. Act, 1894), the Hon'ble Supreme Court held that the law being expropriatory in character, the same is required to be followed strictly. See in the regard,
i) D.B. Basnett v. Collector, East District Gangtok, Sikkim and Another [(2020) 4 SCC 572 – paragraph no.15]
ii) Urban Improvement Trust, Bikaner v. Gordhan Dass and Others [(2024) 3 SCC 250 – paragraph no.14]
Gauged in the above said standards, the requirement of ensuring the absolute bare-minimum is not satisfactorily met by the State, with the result, Point no.I is found in favour of the petitioners, finding violation of Section 4(4)(d), Section 7(5)(b) and Section 8(1)(c) of 2013 Act.
Point No.II:
This point pertains to the scope and interpretation of Section 4(4)(e) of the 2013 Act. Section 4(4)(e) is extracted herein:
“4. Preparation of Social Impact Assessment Study
(4) The Social Impact Assessment study referred to in sub-section (1) shall, amongst other matters, include all the following, namely:—
(a) xxxx
(b) xxxx
(c) xxxx
(d) xxxx
(e) whether land acquisition at an alternate place has been considered and found not feasible;”
Serious arguments were advanced by both sides as regards the interpretation of this clause. The learned Advocate General would argue that it is not the caveat of the S.I.A. team to ascertain afresh, whether an alternate place can be considered as against the proposed place of acquisition, as also, to find that such alternate place, if any, is not feasible. Instead, the the S.I.A. team, as per the statute, need only satisfy that land at alternate place has been considered and found not feasible by the appropriate Government.
This was seriously opposed by the learned Senior Counsel for the petitioners. It is submitted that, having regard to the matters to be assessed by the S.I.A. team as contemplated in clauses (a), (b), (c), (d) and (f) of Section 4(4), a separate treatment cannot be given to the matter required to be considered in terms of Section 4(4)(e) alone. Learned Senior Counsel would further explain that as per Section 4(4)(a), the S.I.A. team has to assess whether the proposed acquisition serves public purpose or not. Similarly, under Section 4(4)(b), the S.I.A. team has to estimate the affected families and the number of families likely to be displaced. Under clause (c), the extent of lands, houses, settlements and other common properties likely to be affected by the proposed acquisition has to be studied. Under clause (d), the S.I.A. team has to study whether the extent of land proposed is the absolute bare-minimum extent needed for the project; and under clause (f), the team has to study the social impact of the project, and also, the impact of the costs on the project vis-a-vis the benefits of the project. If these are independent diktats to the S.I.A. team for the purpose of conducting study, the one contemplated under Section 4(4)(e) cannot stand alone. Therefore, the legal requirement is to independently assess, whether there exists any alternate place for the purpose of acquisition, as also, its feasibility. In this context, heavy reliance was placed on the 2015 Rules especially to Rule 12(3)(d), which stipulates that the assessment for S.I.A. study shall 'determine' the possible alternative sites for the project and their feasibility, which makes it imperative for the S.I.A. study team to consider the above referred aspect, independently.
Having considered the rival arguments, this Court is inclined to endorse the submission made by the learned Advocate General. It is relevant to notice that an acquisition process cannot commence with a Social Impact Assessment study, though the first step as per the Scheme of the Act, in terms of Section 4, is apparently such a study by the S.I.A. team. To expatiate, it may be stated that the S.I.A. team cannot start from vacuum. What is required to be assessed by the S.I.A. team is, whether the proposed acquisition serves a public purpose, and to estimate the affected families likely to be displaced by such acquisition. In the absence of a definite proposal for acquisition, it is not possible to assess, whether the land proposed is the absolute bare-minimum; and also the social impacts of the project, its costs etc. A meaningful interpretation of the subject matter of study, as contemplated in Section 4(4) of the 2013 Act, would only lead to the conclusion that there should be a definite proposal of acquisition, before consulting a team to conduct the Social Impact Assessment study. In other words, the Government will have to first conclude, whether an acquisition is required. If the answer is in the affirmative, it may have to prima facie conclude as regards the place from where such acquisition has to be made, having regard to the nature of the project for which acquisition is made. During that process, the appropriate Government will have to consider other sites to find out, whether the proposed site is prima facie the suitable one. It is after this exercise that the S.I.A. team can start its work for conducting the S.I.A. study in general; and in particular about the matters enumerated in Section 4(4) of the 2013 Act. The assessment as to whether the proposed acquisition serves public purpose or not; the estimation of the affected families and the number of families likely to be displaced; the estimation of the extent of lands, houses, settlements and other common properties likely to be affected by the proposed acquisition etc. is not possible unless there is a definite proposal for acquisition. Emphasis in this regard can be made to the word 'proposed', as employed in Section 4(4) to conclude that there should be a proposal before the S.I.A. team to enable it to conduct the study. Profitable reference in this regard can be made to Rule 12(2) of the 2015 Rules, whereby all relevant project reports and feasibility studies shall have to be made available to the Social Impact Assessment process, from which, it is axiomatic that there should be project reports and feasibility studies before the S.I.A. study team to assess the matters enumerated in Section 4(4).
Now, this Court will specifically come to the language employed in Section 4(4)(e), that is to say, 'whether land acquisition at an alternate place has been considered and found not feasible'. In the backdrop of the above discussion, the meaning which can be assigned to Section 4(4)(e) is only a requirement on the part of the S.I.A. team to ascertain, whether land acquisition at an alternate place has been considered and found not feasible, which obviously means that it has already been considered so by the body concerned, which is the appropriate Government. As already indicated, the S.I.A. team cannot consider for the first time as to what are the alternate places available for acquisition, as against the place proposed for acquisition; and it cannot conduct a feasibility study on its own. It need only ensure that the same has already been done. The mandate of Section 4(4)(e) is not to consider independently the availability of alternate land and its feasibility. Instead, the mandate is just to ascertain whether alternate land for acquisition has been considered and found not feasible. It is used in present perfect tense, which necessarily indicate that the alternative has already been considered and found not feasible; and not to consider such alternatives, if any, and its feasibility independently by the S.I.A. study team.
In this regard it is necessary to address the arguments raised by learned Senior Counsel for the petitioners based on Rule 12(3)(d) of the 2015 Rules, which is extracted here below:
“12. The process of conducting Social Impact Assessment study.-
(1) xxx
(2) xxx
(3) A detailed assessment based on a thorough analysis of all relevant land records and data, field verification, review and comparison with similar projects shall be conducted by the Social Impact Assessment unit. The assessment shall determine the following, namely:-
(a) xxx
(b) xxx
(c) xxx
(d) possible alternative sites for the project and their feasibility;”
The obvious difference in the language employed in Section 4(4)(d) of the 2013 Act and Rule 12(3)(d) of the 2015 Rules is explicit. Whereas, the former spoke in the present perfect tense and the latter is in the future tense. In this regard, Rule 12(5) is also relevant, which is extracted here below:
“(5) The Social Impact Assessment unit shall undertake site visits, collect relevant data on the project and the land proposed for acquisition is the bare minimum required for the project and whether alternate places have been considered and found not feasible for the proposed acquisition.”
(underlined, for emphasis)
Rule 12(5) employs the language in pari materia with Section 4(4)(d), in the present perfect tense.
In the above legislative backdrop, this Court can only conclude that Rule 12(3)(d) cannot be read in isolation, but in conjunction with Section 4(4)(d) of the 2013 Act and Rule 12(5) of the 2015 Rules, as otherwise Rule 12(3)(d) may render itself ultravires, for being inconsistent with the provisions of the parent statute. Therefore, the argument based on Rule 12(3)(d) will stand repelled.
FINDINGS IN EXT.P45 REPORT ON THE REQUIREMENTS OF SECTION 4(1)(e):- In the light of the above discussion, this Court will now ascertain the above said legal requirement as per Section 4(4)(e), from Ext.P45 S.I.A. study report. The first page of Ext.P45 speaks about a declaration and vide paragraph no.2 therein, it is stated that the details relating the land for the proposed project has been obtained from the Land Acquisition Office, Kottayam, which obviously indicates that the S.I.A. team was in receipt of a definite proposal with respect to the acquisition for the project itself. Chapter 1 of Ext.P45 speaks about executive summary of the study. Paragraph no.1.3 refers to the alternatives considered, which is extracted here below:
“1.3 Alternatives considered
In the presence of the Honorable Chief Minister, a review meeting regarding the Sabarimala airport project was held. During the meeting, a four-member team of officials was assigned the task of preparing a list of suitable locations for the project. Based on this, six locations were shortlisted as potential sites for the construction of the Sabarimala Greenfield Airport. Based on that, six suitable locations were considered for the construction of the Sabarimala Greenfield Airport.
Cheruvally Estate (Gospel for Asia), Travancore Rubbers Cliptham, also known as Propose Estate-Kottayam, Tropical Plantation Kottayam, also known as Vellanadi Estate, Laha Estate, Kalleli Estate, and Kumbazha Estate were considered for the project.
Cheruvally Estate (Gospel for Asia) was selected from the six locations identified for the project based on criteria such as the area of the land, distance from Thiruvananthapuram, Kochi, and other locations, distance to Sabarimala, the topography of the land, transportation facilities, the distance from reserve forests, and other development possibilities.”
Again, in Chapter 2, which deals with the detailed project description, vide paragraph no.2, the constitution of the four-member committee, the inspection conducted by the committee and their finding that the Cheruvally Estate is the most suitable for the construction of the Sabarimala Airport, has been taken stock of by the S.I.A. team. Further, at paragraph no.2.4 of Chapter 2, this aspect has been referred as follows:
“2.4. Alternatives Considered
The review meeting for the Sabarimala Airport project was held in 2017 in the presence of the Honorable Chief Minister. In the said review meeting, for preparing a list of suitable locations, Shri.P.H.Kurian IAS, Additional Chief Secretary of the Revenue Department; Smt.M.Beena IAS, Managing Director of KSIDC; Smt.Girija IAS, Pathanamthitta District Collector; Smt. C.A.Latha IAS, Kottayam District Collector was appointed as four-member official team. The aforementioned team visited around six locations across Pathanamthitta and Kottayam districts to identify suitable sites for the Sabarimala Airport. Further details about these locations are provided below:
Harrison Malayalam Plantation, commonly known as Cheruvally Estate
The proposed area comprises 2,263.18 acres of land located in Kanjirappally Taluk, Kottayam district. It is 138 km from Thiruvananthapuram, 113 km from Kochi, and 48 km to Sabarimala. Most of this land is plain, and the rest is a small hilly area. The southern part of the land shares a boundary with forest land known as Ponthanpuzha Forest. The estate is situated near the PWD roads of Kottayam-Erumeli-Pampa, Theni - Kumily – Mundakayam -Erumeli-Pampa, Thiruvananthapuram -Pathanamthitta - Ranni - Erumeli, and Changanassery-Manimala-Erumeli PWD roads. It is also close to the Kollam-Theni National Highway and the newly proposed Bharanikkavu-Pathanamthitta – Ranni – Erumeli - Mundakayam National Highway. The other developmental prospects of this location are considered as; Firstly, it's very close proximity to Erumeli town, and second, it has direct link roads to towns such as Peerumed, Kumily, and Thekkady in Idukki district, as well as Kambam and Madurai in Tamil Nadu.
Travancore Rubbers Cliptham, also known as Propos Estate, Kottayam
The proposed area is 824.48 acres of land belonging to Kanjirapalli taluk of Kottayam district. It is 135 km from Thiruvananthapuram, 110 km from Kochi and 45 km to Sabarimala. Most of this land is plain and rest is small hilly area. There is approximately two acres of forest land adjacent to the northern side of Peruthod near Erumeli-Mundakkayam P.W.D. road. The Forest Department's guard station is also situated on this land. Additionally, starting approximately 3 kilometers east of the Travancore Rubber Estate, there is forest land beginning from an area called Koyilkkavu. The estate is located near the PWD roads of Theni – Kumali – Mundakkayam –Erumeli - Pampa, Kottayam – Kanjirapalli-Erumeli-Pampa (T Roads newly announced Bharanikkavu – Pathanamthitta – Ranni-Vadasserikkara – Erumeli - Mundakkayam), Changanassery-Manimala-Erumeli-Mundakkayam, and Thiruvalla - Ranni-Erumeli-Mundakkayam. When considering other developmental prospects, the proposed area is located very close to Erumeli town. Additionally, it has direct road links to towns such as Peerumed, Kumily, and Thekkady in Idukki district, as well as Kambam and Madurai in Tamil Nadu.
Tropical Plantation Kottayam, also known as Vellanadi Estate
The proposed area is 749.10 acres of land belonging to Kanjirapalli taluk of Kottayam district. It is 148 km from Thiruvananthapuram and 112 km from Kochi. The distance to Sabarimala is 55 km, but there is no direct road connection. Most of this land consists of small hills and the rest is plain areas. There is approximately two acres of forest land on the eastern side of the land. The forest department's guard station is also located on this land. Additionally, there are about 150 meters of forest land boundary from the Travancore Rubber Estate. Vellanadi Estate is situated about 2.5 km north-east of Mundakkayam on the Kollam-Theni road. The proposed area is very close to Erumeli town. There are direct road links to towns such as Peerumedu, Kumily and Thekkady in Idukki district, as well as Kambam and Madurai in Tamil Nadu, which create significant development opportunities.
Laha Estate
The proposed area is 2466.11 acres of land belonging to Ranni Taluk of Pathanamthitta District. It is 130 km from Thiruvananthapuram and 125 km from Kochi. The distance to Sabarimala is 38 kilometers, but there is only a single road connection available. Some of this land is flat, while the rest is steep and mountainous. There is a presence of forest on three sides of the site. The Laha Estate is located on both sides of the Pathanamthitta-Pampa road. Being the closest to Sabarimala, it offers significant development potential through pilgrim tourism.
Kalleli Estate
The proposed area is 2629.50 acres of land belonging to Konni Taluk of Pathanamthitta District. It is 96.5 km from Thiruvananthapuram and 134 km from Kochi. It is 83 km to Sabarimala but has no direct road connection. Most of this land is hilly, and the higher parts are plains. While considering the transportation facility, the Kalleli Estate is located 5 kilometers away from Eliyarackal, near Konni Junction on the Punalur-Muvattupuzha State Highway. To reach Kalleli Estate, one must cross the forest department checkpost, and approximately 3 kilometers of the road pass through forest land. It has less potential for other development.
Kumbazha Estate
The proposed area is 2569.89 acres of land belonging to Konni Taluk of Pathanamthitta District. It is 105 km from Thiruvananthapuram and 125 km from Kochi. It is 65 km to Sabarimala but has no direct road connection. The majority of this land consists of hilly terrain and is situated in tiers. The proposed land includes the controversial Chengara Estate. There are no forest areas within the designated land. Kumbazha Estate is accessible via a 10 kilometer stretch of unpaved road from the Pathanamthitta Malayalappuzha main road. This site has less potential for other development.
Cheruvally Estate, also known as Harrison Malayalam Plantation, was selected from the six locations identified for the project based on criteria such as the area of the land, distance from Thiruvananthapuram, Kochi, and other locations, distance to Sabarimala, the topography of the land, transportation facilities, the distance from reserve forests, and other development possibilities.”
Having interpreted and understood the requirement under Section 4(4)(e), this Court is of the definite opinion that Ext.P45 report has taken stock of the fact that the land acquisition at an alternate place has been considered and found not feasible by the appropriate body, as explicit from the contents of Ext.P45 report extracted herein above. As already held, the S.I.A. team need not endorse or agree with the findings of the appropriate Government as regards the consideration of alternate sites and its feasibility. Point no.II is, therefore, concluded against the petitioners; and in favour of the respondents.
Point No.III:-
The third point pertains to the fraud on power, or alternatively colourable exercise of power. This argument stems from the allegation that the Government had pre-determined to acquire the petitioners' land. To substantiate the allegation, the petitioners rely upon previous eight unsuccessful attempts made by the 1st respondent Government to grab the petitioners' land, all of which were effectively thwarted by the petitioners by recourse to necessary litigations. In short, the Government was guided by extraneous motives in choosing the petitioners' land for the purpose of acquisition, is the argument advanced. The following table containing the list of dates and events, culled out from the testimonials submitted by the petitioner's counsel, reveals the alleged attempts made by the Government and the litigations, which ensued therefrom.
TABLE – III
DATE
EVENT
REMARKS
1-8-2005
Gospel for Asia (hereinafter referred to as “GFA/Trust”), presently Ayana Charitable Trust, purchased the Rubber Plantation having an extent of 2263 acres of land situated in Sy.No.281, 282, 283, 284/2,
284/3, 284/4 in Erumely Village and Sy No.299 in Manimala Village (hereinafter referred to as “Property/Cheruvally Estate”) from Harrisons Malayalam Ltd, as per Sale Deed No.2329/2005.
Ext.P1
2006
W.P.(C) 28870/2006 filed by one P.R.Harikumar challenging the sale of Cheruvally estate and praying the Government of Kerala to take possession of the same.
18-10-2007
The Village Officer, Erumely South, issued an order restraining GFA from cutting any rubber trees from the Property alleging that the Trust had in its possession land, which was to be surrendered.
Ext.P5
22-10-2007
The Village Officer, Erumely South issued another order directing the trust not to remove any rubber trees, that had already been cut from the property.
Ext.P6
2007
The Orders dated 18-10-2007 and Order dated 22-10-2007 were challenged by the Trust by filing Writ Petition (C) No.32628/2007.
10-4-2008
The Government Pleader made a statement before the High Court that the Trust could be permitted to remove the rubber trees that had already been cut, subject to payment of seignorage. The Kerala High Court passed an Order to the said effect.
Ext.P7
30-5-2008
The assignor company started felling of rubber trees. The Revenue Official however interdicted it on the premise that the entire matter was open as per the remand order in C.R.P.No.3661/1982.
This stand of the Government was rejected by the Kerala High Court by Judgment in W.P.(C) No.738/2008 by holding that “it cannot in any manner touch the exemption already granted as per Exhibit-P3. Viewed in the aforesaid angle there is absolutely no reason for imposition of a restriction on the felling of rubber trees from the Mundakkayam estate”.
5-6-2008
The Tahsilar, Kanjirapally issued Notice no.12633/05/B8 proposing to cancel the order of mutation.
11-12-2008
The Tahsildar, Kanjirappally issued an order cancelling the mutation on the ground that a Land Ceiling Case was pending before the Land Board, Vythiri, and hence the transfer and consequential mutation were illegal.
Ext.P8
19-6-2009
The Trust challenged the Order dated 11-12-2008 before the Revenue Divisional Officer, Kottayam. The Appeal was however dismissed.
Ext.P9
5-2-2010
The Trust challenged the Order dated 19-6-2009 in revision before the District Collector, Kottayam. The revision was also dismissed.
Ext.P10
2010
The Trust filed Writ Petition (C) No.6258/2010 challenging the following orders:
a) Order dated 11-12-2008 passed by the Tahsildar, Kanjirappally.
b) Order dated 19-6-2009 passed by the Revenue Divisional Officer; and
c) Order dated 5-2-2010 passed by the District Collector, Kottayam.
2010
The Kerala High Court passed an Order staying the cancellation of the mutation in Writ Petition (C) No.6258/2010.
2010
Despite the stay Order granted by the Kerala High Court, the Additional Tahsildar, Kanjirappally, passed orders taking over the estate.
The Trust challenged the aforesaid Order in W.P.(C) No.18164/2010.
2010
The Kerala High Court by its Order in W.P.(C)No. 18164/2010 stayed the Order taking over the Estate.
2010
The Government of Kerala set up a High Level Committee chaired by Justice Manoharan (Rtd.). The said committee submitted a report without hearing the Trust, allegedly.
29-5-2010
Notice was issued by the Additional Tahsildar to show cause as to why action under Section 12 (1) of the Kerala Land Conservancy Act, 1957 not be taken against the Trust.
10-6-2010
Writ Petition (C) No.18164/2010 was filed by the Trust against the show cause notice dated 29- 5-2010.
A single judge of the Kerala High Court while hearing Writ Petition (C) No.18164/2010 passed an interim order staying the proceedings pursuant to the show cause notice.
The Trust also filed Writ Petition (C) No.35458/2010 challenging the orders passed by the state to pay seigniorage for the rubber wood and rubber firewood at the revised rate of Rs.1710/- and Rs.725/-.
2011
Trust also filed Writ Petition
(C) No. 11704/2011 challenging the notice issued by the Deputy Ranger, Forest Station, Plachery whereby the trust was directed to stop the pineapple cultivation in its property.
Writ Petition (C) 22082/2011 was filed seeking a direction to the forest officials to release the vehicle seized.
30-6-2011
High Court delivered its common judgment wherein the following petitions were disposed off:
a) Writ Petition (C) 30850 and 32628 of 2007
b) Writ Petition (C) 6258, 18164
and 35458 of 2010
c) Writ Petition (C) 11704 of 2011; and
d) Writ Appeal 1049 of 2010
As per Ext.P13 common judgment, the cancellation of mutation and order of taking over the Estate were quashed.
The report of Justice Manoharan (Rtd.) Committee was repelled and was found to be having no evidentiary value.
The only restriction imposed by the Court on the Trust was that the Trust shall not alienate the property pending the proceedings before the Land Board.
Ext.P13
19-8-2011
Firewood and 275 coconuts collected by the employees along with vehicle of the Trust were detained by the authorities who contended that the same would be released only on payment of seigniorage.
11-8-2011
Writ Petition (C) 22082/2011 was filed by the Trust seeking a direction to the forest officials to release the vehicle seized.
The Trust by means of the said Writ Petition had challenged Order dated 18-10-2007 passed by the Village Officer, Erumely South restraining GFA from cutting any rubber trees from the Property and the Order dated 22-10-2007 passed by the Village Officer, Erumely South directing the Trust not remove any rubber tree.
2011
Review Petition No.676/2011 was filed by the Trust against the Order passed in respect of Writ Petition (C) 32628/2007 for quashing interdictory orders by village offices.
The Trust also prayed for issuing specific direction to refund the seigniorage paid under protest.
2011
Several Review Petitions were filed by the State Government against the Order dated 30-6- 2011. The Review Petitions were filed in respect of the following Petitions:
a) Review Petition No.716 against Order passed in Writ Petition (C) 6258/2010
b) Review Petition No.745 against Order passed in Writ Petition (C) 18164/2010
c) Review Petition No.748 against Order passed in Writ Petition (C) 35458/2010
d) Review Petition No.750 against Order passed in Writ Petition (C) No.32628/2007 and
e) Review Petition No.751 against Order passed in Writ Petition (C) No.30850/2007
f) Review Petition No.744/2011 was also filed by P.R. Harikumar in W.P.(C) No.30850/2007.
6-1-2012
The Kerala High Court was pleased to allow W.P(C) No. 22082/2011 quashing interdictory orders and directed refund of seigniorage.
The seigniorage remitted under protest was not refunded by the State Government. Hence the Trust filed Cont. Case (C) No.412 of 2012.
Ext.P14
19-3-2012
The Special Officer and Collector, appointed by the government issued two stop memos interdicting the cutting and removal of trees.
The Trust filed W.P.(C) No.7379/2012 challenging the stop memos dated 19-3-2012 and Writ Petition 17796/2012 challenging order of Tahsildar against construction of rivets.
Ext.P16, Ext.P17
28-10-2011
The Government filed OP (Civil) 3508/2011 under Article 228 seeking to call for and decide matter pending before the Taluk Land Board.
The State of Kerala also filed OP(C) No.2989 of 2011 praying that the Suit OS No. 125 of 2007, pending before the Sub Court, Pathanamthitta, be withdrawn to the High Court for deciding the constitutional question involved therein.
28-2-2013
The Division Bench of the Kerala High Court in Writ Petition (Civil) No.7379 of 2012 quashed stop memo dated 19-3-2012 and held that it was part of the propriety rights of GFA to carry out necessary actions, to put the land to use, without changing its nature and status and to preserve the land and ensure that there were no further inter-meddlers.
Ext.P18
6-3-2013
A meeting was under the aegis of the Minister of Revenue, Government of Kerala was convened, which resolved to introduce a scheme comprising of a short term plan to appoint a special officer with unbridled powers to take over the properties under KLC Act and long term plan to promulgate ordinance to overcome the judgments of this Hon'ble Court were drawn for implementation.
Ext.P19
(Minutes)
9-9-2013
Thereafter OP(C) No. 2989/2011 and OP(C) No. 3508/2011 were dismissed by the Division Bench.
Ext.P20
23-9-2014
The High Court in Cont (C) No.579/2012 gave 45 days to the State to return the seigniorage in compliance of the direction in RP No.676/2011 in W.P.(C) No.32628/2007.
Ext.P21
Thereafter the Government issued interdictory orders, which were challenged before this Hon'ble court in WA No. 1386/2013 against judgment in W.P.(C) No.14913/2013 and in W.P.(C) No.5510/2015.
16-3-2015
The Special Officer and Collector issued Notices under section 12 of the Kerala Land Conservancy Act, 1957, passed an order declaring the subject matter property as a puramboke.
Ext.P22
31-3-2015
Writ Petition WP(C) 10640/2015 was filed before the High Court challenging the Notices issued by the Special Officer/ Collector.
9-2-2016
Supplementary Deed No.6 for name change from Gospel for Asia to Ayana Charitable Trust.
2017
W.P(C) No.5545 of 2017 also came to be filed as a public interest litigation seeking a direction for C.B.I. Enquiry, based on the recommendation by the Special Officer that large scale fraud was committed by Harrisons Malayalam Ltd in transferring and holding properties in collusion with revenue officials.
11-4-2018
The Division Bench passed judgment in Writ Petition (C) 33122/2014 and other connected petitions.
The Division Bench heard W.P.(C) No.10640/2015 along with W.P.(C) Nos.33122/2015, 7711/2013, W.P.
(C) No. 5510/2015, W.P.(C)
Nos.10320/2015, 10962/2015, W.P. (C) No.11598/2015, W.P.(C)
Nos.8437/2016, 5545/2017 and
quashed order of the Special
Officer and Collector dated
28-5-2015, Notice issued by the
Special officer and Collector
under Rule 11 of the Kerala Land Conservancy Rules dated
28.05.2015 and Minutes dated 6-
3-2013.
The Division Bench rejected the
claim of the title of the
Government over the property.
The action of the Government
initiating land conservancy
proceedings and issuing
interdictory orders were held as without jurisdiction and adverse orders passed against the Trust was quashed. It was also held that title has to be found in a properly initiated civil proceeding.
Ext.P26
17-9-2018
The Judgment dated 11-4-2018 was challenged before the Hon'ble Supreme Court in SLP (C) 24028- 24035/2018 and the SLP was dismissed.
Ext.P27
Dec 2019
The State of Kerala filed Suit, (O.S No. 72/2019) before the Sub Court, Pala, Kerala against Ayana Charitable Trust, and others seeking declaration of title and other reliefs.
Ext.P28
It is in addition to the above referred events, that the litigations pertaining to the subject acquisition commenced, the details of which have already been referred to in the Table-I containing the list of dates.
In the backdrop of the above events, the petitioners alleged fraud on power.
Having heard the Learned Senior Counsel on behalf of the petitioners and the learned Advocate General on behalf of the State, this Court cannot, at this stage, negate the above contention of the petitioners. All the same, it is not ripe for this Court to conclude that the acquisition proceedings are vitiated by fraud on power. This is for the reason that the allegation of fraud on power or colourable exercise of power is inextricably interwoven with the requirement of estimating the absolute bare-minimum extent of land, which is the statutory mandate flowing from Sections 4(4)(d), 7(5)(b) and 8(1)(c) of the 2013 Act. Unless that aspect is finalized, as to what is the absolute bare-minimum extent of land required for the subject project, a call on the question of fraud on power cannot be taken. If the respondent Government and the authorities under it could establish that 2570 acres of land is genuinely and bonafidely required for the purpose of acquisition for the subject project and if it is also established that there is no other single plot having an extent, which is near to the said extent of 2263 acres of Cheruvally Estate, probably, the allegation of fraud on power would crumble to the ground. Per contra, if it is established that the bare-minimum land required for the subject project is 1200 acres as envisaged in Ext.R1(h), or for that matter, 1500 acres, then, the insistence, if any, for 2570 acres may verge upon fraud on power, in which situation, the previous steps taken by the Government against the subject property and the litigations which ensued, will assume significance. It may be recalled in this regard that the property of Travancore Rubbers Ltd. having an extent of 800 acres was found to be suitable by the four-member team constituted by the Chief Minister, which option was excluded essentially on the requirement of area to the extent of 2570 acres. Therefore, depending upon the extent which is required genuinely, Travancore Rubber Ltd. may also become either an option by itself, or clubbed with another property, the suitability of the same having been found already. However, without concluding that aspect pertaining to the absolute bare-minimum extent of land required for the project, it is neither proper nor feasible to conclude on the question of fraud on power. In the circumstances, this Court is of the opinion that the issue has to be left open, to be considered, if required, after the exercise in terms of Sections 4(4)(d), 7(5)(b) and 8(1)(c) is completed. Point no.III concluded accordingly.
In view of the findings to point no.I, this Writ Petition deserves to be allowed. This Court may pinpoint that the fatal flow is found in the 'decision making process', than the 'decision' as reflected in Ext.P45 S.I.A. study report, Ext.P47 report of the Expert Group and Ext.P48 Government Order. There is manifest non-application of mind, resulting in the omission to consider a vital factor of limiting the acquisition to the absolute bare-minimum required. The power of a Writ Court under Article 226 to interfere in such matters, though of a scientific/technical nature is settled:
i) N.D.Jayal and Another v. Union of India and Others [(2004) 9 SCC 362].
ii) Social Action Forum for Manav Adhikar and Another v. Union of India, Ministry of Law and Justice and Others [(2018) 10 SCC 443].
iii) Census Commissioner and Others v. R.Krishnamurthy [(2015) 2 SCC 796].
iv) Federation of Railway Officers Association and Others v. Union of India [(2003) 4 SCC 289].
CONCLUSION:-
In the result, this Writ Petition is ordered. It is declared that Exts.P45, P47 and P48 are bad in law, to the extent it does not answer the requirements of Section 4(4)(d) of the 2013 Act. Consequently, Exts.P45, P47 and P48, insofar as it pertains to the requirements of and findings on Section 4(4)(d) will stand quashed. It is clarified that other findings in Exts.P45, P47 and P48 are not interfered with. Since Ext.P49 notification in terms of Section 11 can be issued only upon completion of the exercise warranted vide Sections 4, 7 and 8 of the 2013 Act, Ext.P49 will stand quashed. The acquisitioning authority will have to restart the exercise of a fresh S.I.A. study as regards Section 4(4)(d) is concerned, followed by an appraisal in that regard by the Expert Group as per Section 7 and an examination of the proposal and the Social Impact Assessment report by the appropriate Government in terms of Section 8 of the 2013 Act.
Though a contention is canvassed in the Writ Petition that the State cannot exercise its powers based on the principle of 'eminent domain', simultaneous with the process of acquisition treating the property as belonging to a third person, the said ground was not highlighted at the time of hearing. Nor is the determination of that issue a sine qua non to dispose of this Writ Petition. The said contention is also, therefore, left open.
Before parting with the judgment, this court is impelled to observe one final aspect. As regards the choice of the Social Impact Assessment study team, it may be profitable/advisable to include such number of technical members having sufficient know-how of the project for which the acquisition is made, especially when one among the requirements in terms of Section 4(4) of the 2013 Act is to ascertain whether the extent of land proposed for acquisition is the absolute bare-minimum needed for the project. This is all the more so, in cases of acquisition of land for technical projects like airport, dams etc. Inasmuch as the exercise commencing from Section 4 of the 2013 Act has to be performed again, so as to satisfy the requirements of Section 4(4)(d), the 1st respondent Government may consider inclusion of such expert members into the S.I.A. study team, the presence of whom would ease the business, which they are expected to perform.
This Writ Petition is allowed, as indicated above.