Shoby T.K v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY ,THE 17TH DAY OF JANUARY 2019 / 27TH POUSHA, 1940** ## **WP(C).No. 1048 of 2019** ## **PETITIONER/S:** **SHOBY T.K AGED 49 YEARS S/O.LATE KOCHAPPAN, THARAYIL HOUSE, VYTTILA DESOM, ERNAKULAM.** **BY ADVS. SRI.A.X.VARGHESE SRI.A.V.JOJO** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY CHIEF SECRETARY, SECRETARIAT,**| ||**THIRUVANANTHAPURAM,PIN-695 001.**| |**2**|**DISTRICT COLLECTOR,**| ||**COLLECTORATE, KAKKANADU, ERNAKULAM, PIN-682**| ||**030.**| |**3**|**DEPUTY COLLECTOR,**| ||**LAND ACQUISITION, ERNAKULAM,PIN-682 030.**| |**4**|**SPECIAL TAHSILDAR,**| ||**LAND ACQUISITION, NH III, VYTTILA, KOCHI, PIN-**| ||**682 019.**| |**5**|**KOCHI METRO RAIL LTD.,**| ||**REPRESENTED BY MANAGING DIRECTOR, 8TH FLOOR,**| ||**REVENUE TOWER, PARK AVENUE, KOCHI-682 011.**| ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY,SR.GOVT.PLEADER FOR R1 TO R4, SMT.M.U.VIJAYALAKSHMI, SC FOR R5** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.01.2019,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No1048/2019 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------- W.P.(C)No.1048 of 2019 ---------------------------------------------Dated this the 17[th] day of January, 2019 ## **JUDGMENT** The prayers in the above Writ Petition (Civil) are as follows: _“i) Call for the records pertaining to Exhibit P-10 and p-11 and quash the same by issuing a Writ of Certiorari;_ _ii) Issue a Writ of Mandamus or appropriate writ, order or direction, directing the respondents to provide rehabilitation and resettlement package to the petitioner under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013;_ _iii) Award the cost of the petitioner;”_ 2. Heard Sri. A.X. Varghese, the learned counsel appearing for the petitioner, Sri. Saigi Jacob Palatty, the learned Senior Government Pleader appearing for respondents 1 to 4 and Smt.M.U. Vijayalakshmi, the learned Standing Counsel for Kochi Metro Rail Limited appearing for R5. 3. According to the petitioner, he had conducted a shop room in a rented building bearing Door No.2075 (51/1174) within the territorial limits of the Kochi Municipal Corporation with requisite licence from the said Municipal Corporation. The said building was owned by one Sri. Peter. The petitioner eked out livelihood W.P.(C)No1048/2019 3 from the meagre income derived from the business conducted in the said shop, which was acquired for the widening of the VytilaPetta road. The petitioner had submitted Ext.P6 application dated 26.2.2016 for getting compensation for persons, who come within the ambit of “affected family” in terms of Chaper V of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Central Act 30 of 2013), more particularly Section 31 thereof etc. But, the said application was rejected by the impugned Ext.P10 order dated 6.5.2016 issued by the 4[th] respondent Special Tahsildar and the impugned Ext.P11 appellate order dated 25.5.2017 issued by the 2[nd] respondent District Collector on the ground that the petitioner was working abroad for the three previous years in question from 2015. The petitioner would contend that it is evident from Exts.P3, P4, P8 and P9 that the said findings of respondents 2 and 4 are wrong and incorrect and that the petitioner has conducted shop rooms in a rented building of one Peter during these periods. Further, that though the petitioner had only temporarily gone to a Gulf Country for the limited period from 27.4.2012 to 4.5.2013 as evident from Ext.P8 passport entries, respondents 2 and 4 has went to the extent that he was in the Gulf Country for all the three previous years in 4 W.P.(C)No1048/2019 question. Further that, during the temporary absence of the petitioner, the shop room was conducted by a person duly authorised by the petitioner and that therefore, it cannot be said that the petitioner was not engaged in the business activity in question for that period. The sheet anchor of the contention urged by Sri. A.X. Varghese, the learned counsel appearing for the petitioner is the one based on procedural fairness by urging that a mere perusal of impugned orders would disclose that the impugned adverse findings therein against the petitioner were made made on the basis of an enquiry said to have been conducted by the 2[nd] respondent Special Tahsildar as well as another enquiry which culminated in enquiry report dated 29.3.2015 of the Revenue Inspector as item No.6 in Ext.P1o, and those enquiries have been conducted behind the back of the petitioner without any notice to the petitioner and further that the copies of such enquiry reports were never furnished to the petitioner and it is on the basis of these unilateral fact findings in such proceeding conducted behind the back of the petitioner, that the impugned fact findings have been made against the petitioner in Exts.P10 and P11 etc. The mattes relating to rehabilitation and resettlement award are dealt within Chapter V of the above said 2013 Act and Section 31 deals with W.P.(C)No1048/2019 5 rehabilitation and resettlement award for affected families by the Collector. “Affected family” has been defined in Section 3(c) of he above said Act, which reads as follows: _“(c) “affected family” includes-_ _(i) a family whose land or other immovable property has been acquired;_ _(ii) a family which does not own any land but a member or members of such family may be agricultural labourers, tenants including any form of tenancy or holding of usufruct right, share-croppers or artisans or who may be working in the affected area for three years prior to the acquisition of the land, whose primary source of livelihood stand affected by the acquisition of land;_ _(iii) the Scheduled Tribes and other traditional forest dwellers who have lost any of their forest rights recognised under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (2 of 200&) due to acquisition of land;_ _(iv) family whose primary source of livelihood for three years prior to the acquisition of the land is dependent on forests or water bodies and includes gatherers of forest produce, hunters, fisher folk and boatmen and such livelihood is affected due to acquisition of land;_ _(v) a member of the family who has been assigned land by the State Government or the Central Government under any of its schemes and such land is under acquisition._ _(vi) a family residing on any land in the urban areas for preceding three years or more prior to the acquisition of the land or whose primary source of livelihood for three years prior to the acquisition of the land is affected by the acquisition of such land;_ _“emphasis supplied”_ 4. In order to examine the said cardinal argument raised by Sri. A.X. Varghese, the learned counsel appearing for the petitioner on the aspects of procedural fairness, this Court had requested the learned Senior Government Pleader to get specific W.P.(C)No1048/2019 6 instructions from respondents 2 and 4 as to whether those enquiries were conducted with due prior notice to the petitioner and more importantly, as to whether copies of such enquiry reports relied on in the impugned proceedings were furnished to the petitioner and the petitioner was heard before the decision as per Exts.P10 and P11 was rendered. Now it appears that such enquiries have been conducted unilaterally without any notice to the petitioner and more importantly, copies of such enquiry reports have not been given to him and further no reasonable opportunity of being heard was also given to the petitioner prior to the decision is taken as per Exts.P10 and P11, after furnishing copies of such enquiry reports. It is now too well settled to require the citation of any judicial authority that where the decision maker and the enquiry officer are two distinct functionaries and the decision maker ensures the conduct of enquiry by an enquiry officer in order to enable the decision maker to arrive at a considered decision, then such enquiry should ordinarily be held with due prior notice to the affected person, but at any rate, the copies of such enquiry reports, if the same as also relied on or referred to in the impugned decision, should be given to the affected person in advance and reasonable opportunity should be given to them to W.P.(C)No1048/2019 7 controvert such adverse findings in such enquiry report and only thereafter, the real decision maker should take a decision in the matter. **[Union of India & Others** v. **Muhammed Ramzan Khan [1991 (1) SCC 588], Managing Director, Electronic Corporation of India Limited** v. **B. Karunakar & Others [1993 (4) SCC 727]** . Hence this Court has no hesitation to conclusively hold that the impugned decision making process which led to the impugned proceedings as Exts.P10 and P11 are vitiated on account of procedural impropriety and unfairness. 5. This view is arrived at by this Court without in any manner,examining the merits of the controversy. Accordingly, the impugned Exts.P10 and P11 orders will stand set aside and Ext.P6 application of the petitioner will stand remitted to the 2[nd] respondent Special Tahsildar (Land Acquisition) for consideration afresh. The petitioner is permitted to submit any additional representation so as to comprehensive deal with his claims and necessary materials may also be produced. Such additional representation may be so filed before the 4[th] respondent within two weeks from the date notified for receiving certified copy of this judgment. The 4[th] respondent Special Tahsildar will ensure that if enquiry report is already available with respect to the enquiry W.P.(C)No1048/2019 8 referred to in paragraph 2 of the impugned Ext.P10 order, then such copy of the enquiry report should be given to the petitioner. So also the copy of the enquiry report dated 29.3.2015 submitted by the Revenue Inspector as referred to as item No.6 in Ext.P10 is also to be furnished to the petitioner. Any other materials, which are adverse to the petitioner should also be furnished in advance to the petitioner. This process should be duly completed by the 4[th] respondent Special Tahsildar within two weeks from the date of receipt of a certified copy of this judgment. Thereafter, the 4[th] respondent may ensure that a proper fresh enquiry is conducted by competent revenue official concerned with due prior notice to the petitioner and copy of the enquiry report so furnished by the said officer shall be given in advance to the petitioner. It will be open to the petitioner to make available his materials before the enquiry officer and the enquriy officer should consider those aspects also while drawing up his enquiry report. After furnshing copy of the said enquiry report on the enquiry to be conducted afresh as directed herein above, the 4[th] respondent will issue notice inviting the petitioner for personal hearing. A reasonable opportunity of being heard shall be given to the petitioner and thereafter, the 4[th] respondent will pass orders on the claim made by the petitioner in W.P.(C)No1048/2019 9 accordance with law, without much delay. The entire process in this regard should be duly completed by the 4[th] respondent within two months from the date of production of a certified copy of this judgment. It is made clear that all issues relating to the claim of the petitioner are left open to be appropriately considered and decided by the 4[th] respondent as directed hereinabove. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. sd/- ## **ALEXANDER THOMAS, JUDGE.** acd W.P.(C)No1048/2019 10 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LICENSE ISSUED BY THE KOCHI CORPORATION DATED 1.10.2004.** **EXHIBIT P2 TRUE COPY OF THE RECEIPTS DATED 29.3.2008 AND 28.1.2009.** **EXHIBIT P3 TRUE COPY OF THE RENT AGREEMENT DATED 4.7.2015.** **EXHIBIT P4 TRUE COPY OF THE AFFIDAVIT DATED 28.7.2015.** **EXHIBIT P5 TRUE COPY OF THE CONSENT LETTER DATED 12.1.2016.** **EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 26.2.2016.** - **EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 21.3.2016 IN WPC 10805/2016.** - **EXHIBIT P8 TRUE COPY OF THE RELEVANT PAGE OF THE PASSPORT OF THE PETITIONER.** - **EXHIBIT P9 TRUE COPY OF THE RECEIPTS. EXHIBIT P10 TRUE COPY OF THE ORDER DATED 6.5.2016. EXHIBIT P11 TRUE COPY OF THE ORDER DATED 25.5.2017.** TRUE COPY P.S.TO JUDGE.