Manoj Thomas and Others v State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V`** ``` WEDNESDAY,THE11[TH]DAYOFOCTOBER2023/19THASWINA,1945 ``` ## **`WP(C) NO. 29622 OF 2023`** ## **`PETITIONERS:`** |`1`|`MANOJ THOMAS, AGED 48 `|`YEARS`|| |---|---|---|---| ||`S/O. THOMAS SEBASTIAN, `|`KALLOOKULANGARA HOUSE,`|| ||`ERUMELY P.O, KOTTAYAM, `|`PIN - 686509`|| |`2`|`JOSHY JAMES, AGED 53 YEARS`||| ||`S/O JAMES SEBASTIAN,`|`PULPEL HOUSE, ERUMELY P.O.,`|| ||`KOTTAYAM, PIN - 686509`||| |`3`|`BIJI ANTONY, AGED 53 YEARS,`||| ||`S/O. P.G GASPER, PERUMPETTIKUNNEL `||`HOUSE,`| ||`KARIKKATTOOR CENTRE,`|`KOTTAYAM DISTRICT,`|| ||`PIN - 686544`||| |`4`|`CHITHRA RAJAN, AGED 45 `|`YEARS`|| ||`W/O. PRASAD, NIVARATHIL HOUSE, KARIKKATTOOR CENTRE,`||| ||`KOTTAYAM DISTRICT, PIN `|`- 686544`|| ||`BY ADV PRAKASH M.P.`||| ||||| |**`ND`**|**`NTS:`**||| |`1`|`STATE OF KERALA,`||| ||`REPRESENTED BY ITS`<br>`SECRETARY TO THE GOVERNMENT,`||| ||`REVENUE DEPARTMENT, SECRETARIAT,`||`THIRUVANANTHAPURAM,`| ||`PIN - 695001`||| |`2`|`DISTRICT COLLECTOR`||| ||`KOTTAYAM, PIN - 686001`||| |`3`|`CENTRE FOR MANAGEMENT `|`DEVELOPMENT`|| ||`REPRESENTED BY ITS DIRECTOR & MEMBER SECRETARY,`||| ||`THYCAUD, THIRUVANANTHAPURAM, PIN - 695014`||| ## **`RESPONDENTS:`** W.P.(C) No. 29622/2023 2 ``` 4DR.BINOYJ.KATTADIYIL DIRECTOR&MEMBERSECRETARY, CENTREFORMANAGEMENTDEVELOPMENT, THYCAUD, - THIRUVANANTHAPURAM,PIN695014 ``` ## **`OTHER PRESENT:`** ``` SMT.SURYABINOY,SR.GP ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSIONON 11.10.2023,THECOURTONTHESAMEDAYDELIVEREDTHEFOLLOWING: ``` W.P.(C) No. 29622/2023 3 ## **J U D G M E N T** The petitioners herein owned property in Kottayam District in the State of Kerala. Their grievance in this Writ petition concerns the proposed acquisition of about 1039.8 Ha of land from Erumeli South and Manimala Villages Of Kanjirappally Village in Kottayam District for the Sabarimala Airport project, a Green Field Airport proposed by the Government of Kerala, purportedly to serve the pilgrims of Sabarimala temple and the Domestic as well as the International tourist community. 2. According to the petitioner, they fall within the ambit of the term “affected families” as defined under Section 3 of the Right to Fair Compensation And Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Act 30 of 2013). It is contended that serious procedural illegalities have been committed while preparing the Social Impact Assessment Report (SIA Report) as a prequel to the initiation of land acquisition for the construction of the greenfield airport. They contend that the Government of Kerala, by virtue of the powers conferred under Section 4(1) of the Act, has issued a notification on 23.1.2023 and has accorded sanction to the 3rd respondent to conduct a Social Impact Assessment study W.P.(C) No. 29622/2023 4 and prepare a Social Impact Assessment Plan as provided under the Act of 2013. They assert that the 3rd respondent is an autonomous institution under the Government of Kerala. It is stated that the 4th respondent, in his capacity as the Director and Member Secretary of the 3rd respondent, has prepared the SIA Report by toeing the lines of the 1st respondent and without considering the relevant aspects. It is asserted that the petitioners are aware that the Government has appointed an Expert Group under Section 7 of the Act to assess the Social Impact Assessment study, and they have received reliable information that there are serious shortcomings in the study. They assert that the SIA Report is liable to be ignored and set aside for lack of transparency, for the failure to obtain consent from the project-affected families, and as it does not serve any public purpose. It is contended that under the provisions of the Act, the 3rd respondent was bound to ascertain whether the land proposed for acquisition is the bare minimum, whether there is an alternate place that is more feasible, and also a study whether the cost of addressing the social impact and the service of the overall cost of the project would outweigh the purported benefits of the project. The question of resettlement of the persons affected by the acquisition has also not been addressed. It is on these assertions that this W.P.(C) No. 29622/2023 5 Writ Petition is filed seeking to declare that Ext. P1 Social Impact Assessment of land acquisition for the construction of Sabarimala Greenfield Airport is illegal and does not conform to the provisions of the Act of 2013 and for incidental reliefs. 3. I have heard Sri. Prakash, the learned counsel appearing for the petitioner, who reiterated the contentions in the Writ Petition. 4. The learned Senior Government Pleader, while opposing the submissions, pointed out that the Writ Petition is premature. He points out that the Government, in strict consonance with the provisions of Act 30 of 2013, appointed a competent body to prepare the Social Impact Assessment study, which was carried out strictly in accordance with the provisions of Section 4 of the Act. A public hearing for Social Impact Assessment was done, and the Social Impact Assessment study was published in terms of Section 6 of the Act. An independent multidisciplinary Expert Group was appointed to carry out an appraisal of the Social Impact Assessment, and their report will also be published as stipulated in Section 7 (6) of the Act. It is for the Expert Group to assess and determine whether the project will serve the public purpose and whether the potential benefits would outweigh the social costs and adverse social impacts. The SIA Report would then be W.P.(C) No. 29622/2023 6 examined by the appropriate Government as provided under Section 8 of the Act. Only thereafter would there be the publication of a preliminary notification under Section 11 of the Act. A preliminary survey of land would then be carried out, and thereafter, the persons interested in the land would be afforded an opportunity to be heard. In this case, the petitioner has not even seen the report of the Expert Group, and they have approached this Court after seeing the SIA report. 5. I have considered the submissions advanced by the learned counsel appearing for both sides. 6. From the pleadings in the Writ Petition, it is clear that the petitioners are impugning the SIA Report on the ground that the said report is not in tune with the provisions of Act 30 of 2013. Though the petitioner states that the expert committee has recommended that there are shortcomings in the SIA study, it appears to be an assumption rather than a concrete fact. Issuance of such notification is not final and binding on any authority. Subsequent to the submission of the SIA Report, the provisions of the Act envisage several steps to be taken. The project is still at the proposal stage, and the provisions of the Act provide ample opportunity for the persons affected by the proposed acquisition to raise their contentions and W.P.(C) No. 29622/2023 7 oppose the project opportunity. There are various stages before finalizing the proposal, and it cannot at this stage be said that the entire project has to be shelved on the basis of the assertions made by the petitioners. Under Section 8 of the Act, the appropriate Government is statutorily bound to examine the proposals for land acquisition and impact the SIA Report and determine as to whether the lands in question are required to be acquired for the purpose of the green field project. The persons affected by the acquisition will also have an opportunity at the stage of hearing the objections under Section 15 of the 2013 Act, and they can arm themselves with the report of the Expert Committee at that stage. In **Sunil J Arackalam v State of Kerala and Others[1]** , in identical circumstances, the Apex Court, while refusing to entertain a petition challenging the SIA Report, held that no prejudice could be said to be caused to the petitioners therein as the proceedings were at the stage of conduct of Social Impact Assessment. 7. In that view of the matter, I hold that the challenges raised by the petitioners are premature and do not warrant any interference at this stage. The appropriate Government is directed to consider the Social Impact Assessment Report and shall proceed strictly in accordance with the > 1 SLP( C) Nos 5179-5188/ 2022 W.P.(C) No. 29622/2023 8 provisions of the Act and Rules made there under. It is also made clear that the dismissal of the writ petitions would not come in the way of the petitioners exercising their rights in terms of the various provisions of the Act and Rules made there under at the appropriate stage. Hence, this petition is disposed of, reserving the rights of petitioners for a later stage if prejudice occurs. sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** PS/9/10/2023 W.P.(C) No. 29622/2023 9 ## **`APPENDIX OF WP(C) 29622/2023`** ``` PETITIONEREXHIBITS ``` ``` ExhibitP1COPYOFTHESOCIALIMPACTASSESSMENTOFLAND ACQUISITIONFORTHECONSTRUCTIONOFSABARIMALA GREENFIELDAIRPORTDATEDNIL,JUNE2023 ``` ``` ExhibitP2TRUECOPYOFTHEGOVERNMENTOFINDIALETTERDATED 13.04.2023 ```