Unaisa v. District Collector, Ernakulam District

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 12[TH] DAY OF OCTOBER 2021 / 20TH ASWINA, 1943** **WP(C) NO. 17947 OF 2021** ## **PETITIONER:** **UNAISA, AGED 43 YEARS, W/O.ABDUL SALAM K.M, MAROTTIKKAL HOUSE, THOPPIL PADANATTUPARAMBU, THRIKKAKARA P.O., ERNAKULAM DISTRICT-682021.** **BY ADVS.** **K.N.ABHILASH SUNIL NAIR PALAKKAT M.A.AHAMMAD SAHEER P.B.MUHAMMED AJEESH** ## **RESPONDENTS:** **1 THE DISTRICT COLLECTOR, ERNAKULAM DISTRICT, COLLECTORATE, ERNAKULAM, PIN-682030.** **2 THE DEPUTY COLLECTOR (LAND ACQUISITION) KOCHI METRO RAIL PROJECT, CIVIL STATION, KAKKANAD, ERNAKULAM-682030.** **SMT. K.AMMINIKUTTY – SR GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 17947/21 2 ## **JUDGMENT** The petitioner, who is stated to have been operating a Small Scale Bag Stitching Unit under the name 'Spinz Bag Works', in Building No.32/1243 of the Thrikkakkara Municipality - which building has now been acquired by Kochi Metro Rail Ltd (KMRL) - has approached this Court impugning Ext.P8 order issued by the 2nd respondent – Deputy Collector, rejecting her request for rehabilitation under the provisions of Section 3 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as 'the Fair Compensation Act' for short), on the ground that it has been issued without proper application of mind and without understanding her case in its proper perspective. 2. Sri.K.N.Abhilash – learned counsel for the petitioner, submitted that the aforementioned shop was originally being run by his client and her WPC 17947/21 3 husband under a joint licence, but that subsequently, the latter obtained an employment with the Cochin University, as a Class IV Sweeper. He submitted that this by itself would not alter the status of the business run by the petitioner, as being the primary source of her livelihood; and he relies for support on the judgment of this Court in **Unaisa v. District Collector [2021(1) KHC 411)** . He then argued that as is evident from Ext.P8, the 2nd respondent has rejected his client's plea merely saying that she has not produced a statement from her Bank or her Income Tax Returns to establish that her family's primary source of income is the said business. He predicated that these documents are irrelevant for consideration of the issues in this case and therefore, prayed that it be set aside and the 2nd respondent be directed to grant his client necessary rehabilitation in terms of the ‘Fair Compensation Act’. 3. In response, Smt.K.Amminikutty – learned WPC 17947/21 4 Senior Government Pleader, submitted that even going by the petitioner's case, her husband is employed in the Cochin University and obviously, therefore, the 2nd respondent was obligated to verify whether her business was the primary source of livelihood of the family, under the provisions of Section 3 of the Fair Compensation Act. She then pointed out that, as has been recorded in Ext.P8, the petitioner did not produce any valid document, but merely a statement, which she herself had created with respect to her business – which can only be seen as a self serving document. She, therefore, prayed that this Writ Petition be dismissed. 4. When I evaluate the afore dialectical contentions of the parties, it is evident that, going by Section 3(c)(ii) of the Fair Compensation Act, what is relevant is whether the primary source of livelihood of the affected family is depended upon the property which has been acquired. There can be no doubt - it having WPC 17947/21 5 been settled by this Court in **Unaisa** (supra) - that the employment of one of the members of the family would only be one of the criterion to be considered and merely because of that factor, a claim under the afore provision cannot be rejected. In other words, what is relevant for the 2nd respondent was to consider all the aspects and to verify whether the petitioner's business was the primary source of livelihood of her family, for which purpose, certainly, her husband's income, as also the proceeds from her business, would have had to be properly evaluated. 5. Of course, when I say this, I am aware that, in Ext.P8, the 2nd respondent has rejected the petitioner's plea saying that she has not been able to establish her income validly through either a Bank Statement or Income Tax Returns. However, it must be borne in mind that several small businesses in our State sometimes would not have maintained such documents, relying upon rough and ready accounts, which they maintain. Further, WPC 17947/21 6 going by the size of the business, perhaps, the petitioner was not within the umbra of the mandatory Income Tax limits. 6. I am, therefore, of the firm view that Ext.P8 cannot find my favour because, solely for the reason that the petitioner has not been able to establish her income either through a Bank Statement or Income Tax Return, it could not have been justified for the 2nd respondent to reject her plea, but ought to have verified her income through other sources, giving her necessary opportunity to establish the same through other means; thus leading to a decision whether the income generated by her husband through his employment can be construed to be the primary source of livelihood or otherwise. This was an imperative requirement under the Statute and therefore, am certain that the matter requires to be reconsidered by the competent Authority. In the afore circumstances, I allow this Writ Petition and set aside Ext.P8; with a WPC 17947/21 7 consequential direction to the 2nd respondent – Deputy Collector, to hear the petitioner, as also her husband - if he is so interested, and then evaluate the claim of the former, based on the materials and documents to be produced by her, without insisting on a Bank Statement or Income Tax Return _per se_ , thus assessing whether she is entitled to the benefits under Section 3(c)(ii) of the Fair Compensation Act, as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment. **Sd/-** **DEVAN RAMACHANDRAN JUDGE** **RR** WPC 17947/21 8 ## **APPENDIX** PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE LICENSE DATED 25.06.2004 ISSUED BY THE ERSTWHILE THRIKKAKARA GRAMA PANCHAYATH IN FAVOUR OF THE HUSBAND OF THE PETITIONER. Exhibit P2 THE TRUE COPY OF THE CASE RECEIPT FOR LICENSE FEE DATED 23.02.2018 ISSUED BY THE THRIKKAKARA MUNICIPALITY IN FAVOUR OF THE HUSBAND OF THE PETITIONER. Exhibit P3 THE TRUE COPY OF THE CASH RECEIPT FOR LICENSE FEE DATED 23.01.2019 ISSUED BY THE THRIKKAKAR MUNICIPALITY IN FAVOUR OF THE PETITIONER. Exhibit P4 THE TRUE COPY OF THE NOTICE DATED 26.10.2019 ISSUED UNDER RULE 21(7) BY THE ADMINISTRATOR IS PRODUCED. Exhibit P5 THE TRUE COPY OF THE NOTIFICATION PUBLISHED IN KERALA KAUMUDY DAILY DATED 11.03.2020. Exhibit P6 THE TRUE COPY OF THE APPLICATION DATED 15.05.2020 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. Exhibit P7 THE TRUE COPY OF THE ORDER DATED 02.07.2020 PASSED BY THE 2ND RESPONDENT. Exhibit P8 THE TRUE COPY OF THE ORDER DATED 27.03.2021 PASSED BY THE 2ND RESPONDENT.