Kerala High Court Allows State To Acquire Nedumpala Estate and Elstone Tea Estate In Wayanad For Rehabilitation Of Landslide Victims
The Kerala High Court on Friday (December 27) held that the State can take over the Nedumbala estate and Elstone tea estates in Wayanad for rehabilitation purposes post the July 30 landslide, under the Disaster Management Act, 2015 (DM Act).
Justice Kauser Edappagath also said that the government shall determine the total amount of compensation to be awarded to the petitioners for taking over/acquiring the subject properties as per the provisions in Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
It further said, "The 1st respondent (State) is free to proceed further with GO dated 4/10/2024 to take over the subject properties for rehabilitation/reconstruction of landslide victims in accordance with law. The compensation amount shall be paid to the petitioners before taking possession of the land on the petitioners executing a bond that in the event the titles of the properties are declared against them in the suits filed by the 1st respondent, they shall refund the amount of compensation. The petitioners shall be entitled to pursue the statutory remedies available to them under the provisions of the LARR Act, 2013, for further enhancement of compensation if they are not satisfied with the compensation determined by the 1st respondent".
The order was passed in two pleas which claimed that Government can acquire private land only by invoking provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (LARR Act).
The petitioner companies claimed to be title holder in possession of two properties (Nedumbala Estate and Elstone Tea Estates) in the area had challenged a October 4 government order according sanction and approval for setting up a model township after the Wayanad landslide in July for rehabilitating the disaster victims, mainly on the ground that it was issued beyond the powers under the DM Act, 2005 and is violative of the provisions contained in Article 300A of the Constitution of India. It was specifically alleged in the writ petitions that right to property being a constitutional right guaranteed under the Constitution, the Government is not entitled to take over the land from the private entity by resorting to the provisions of the DM Act, 2005 without payment of compensation.
The State Government after the landslide disaster on July 30 in the Chooralmala, Mundakkai and Puncharimattom villages in Wayanad decided to build a model township to rehabilitate displaced families permanently and restore the livelihood of the region. The District Collector of Wayanad had identified 65.41 hectares of Nedumbala Estate and 78.73 hectares of Elstone Tea Estates as suitable land for the purpose. The Government issued an order giving approval to initiate proceedings for taking possession of the land. Harrisons Malayalam Limited who claims to be the owner of the Nedumbala Estate and Elstone Tea Estates Ltd. had opposed this initiative by the Government saying that the Government cannot take over private lands by using provision of DM Act.
The Court however observed that the DM Act has an overriding effect over the LARR Act by virtue of Section 72 of the DM Act. The Court observed that the State is expected to act expeditiously in extraordinary circumstances.
“The present proceedings were initiated by the Government in the aftermath of a disaster which warranted immediate measures of the rehabilitation of the homeless. The State is not expected to take recourse to any time-consuming process in such an extraordinary circumstance. Extraordinary times call for extraordinary measures. Public interest has to prevail over the private interest of the petitioners in such circumstances."
The Court had rejected petitioner's contention that Section 34 can be invoked only as a temporary measure for assisting, protecting or providing relief. The Court held that the Division Bench of the High Court in State of Kerala v Dr, Biju Ramesh and Another (2016), had observed that it cannot be held that Section 34 can be invoked only as an emergency measure. The Court had further held in that case that the DDMA has the power under Section 4 of the DM Act to take any measure in implementing the statutory disaster management plan or to make any measure towards Disaster Management.
The Court in the instant case, observed that as per the law laid down in State of Kerala v Dr, Biju Ramesh and Another (2016), that the District Disaster Management Authority is competent to take any measure for disaster management including permanently taking over/ acquiring land of a private person/ entity to rehabilitate the disaster victims and reconstruct the damage caused by the victim.
The Court however held that the State has to adequately compensate before acquiring any private property. The State had also informed the Court that it is ready to pay just and adequate compensation to the title holders of the subject properties. The Court observing that since DM Act does not envision a manner for determining the compensation amount, the amount can be fixed as per LARR Act.
The State had already disputed title of the petitioner over the properties and had filed suits for declaration of title and recovery of possession against the property. The Court had asked the petitioners to execute a bond saying that if the declaration is made against them, they shall refund the compensation amount.
It further said that before taking possession of the land, the petitioners shall permit the State to enter the subject properties so as to measure and demarcate the areas and boundaries of the subject properties and also to proceed with and complete other necessary formalities for the purpose of taking possession of the properties.
Case Title: M/s Elstone Tea Estates Ltd. v State of Kerala And Connected Case
Case No: WP(C)36125/ 2024 & Connected Case
Citation: 2024 LiveLaw (Ker) 825