K-Rail Silverline Project | Kerala High Court Sets Aside Single Judge Order Staying Land Survey

The Kerala High Court on Monday set aside an interim order issued by a Single Judge directing the State to defer steps for the survey taken in furtherance of its K-Rail Silver Line project of the writ petitioners' properties until the matters are considered again in February. 

A Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly allowed a batch of appeals filed by the State noting that Social Impact Assessment cannot be seen as an empty formality and that the public is entitled to know the adverse impact and consequences they are likely to suffer.

"Taking into account the various pros and cons, and the facts and figures, we are of the unequivocal and considered opinion that the State Government is vested with adequate powers to conduct the survey, and mark the properties appropriately, for conducting the Social Impact Assessment study, and therefore, the impugned interim order passed by the learned single Judge, interdicting the survey and marking of the properties in question, after issuing appropriate notifications by the State Government under the provisions of Kerala Survey and Boundaries Act, 1961, and the rules framed thereunder, has to be interfered with."

However, it was clarified that the observations and findings rendered in the appeal are for arriving at a logical conclusion in the matter of the interim order passed by the writ court and the same will not stand in the way of the rival parties taking up all contentions in the writ petitions.

Background:

The Silver Line Project is a semi high-speed rail corridor connecting one end of the State to the other and was announced for the first time over 12 years ago.

The Kerala Rail Development Corporation (K-Rail), a joint venture of Indian Railways and the state government, is to implement the project. According to K-rail, the cost of the project was estimated to be around 64,000 crores. Although its Detailed Project Report received a nod from the State cabinet, approval from the Centre is still pending.

The opening move in the project is land acquisition. The Silver Line project demands around 1,383 hectares to be completed, and out of this, a whopping 1,198 hectares are owned by private individuals.

The respondents herein moved the Single Bench with a batch of petitions assailing several steps initiated by the State in its endeavour to materialise the K-Rail project despite sanction from the Centre still pending for the same.

Their primary grievance was in relation to the installation of survey marks by the appellants under Kerala Survey and Boundaries Act, 1961 engraving "K-Rail" in their properties to conduct a Social Impact Assessment (SIA) study for the proposed project.

By the impugned interim order, the Single Judge kept in abeyance the proceedings initiated by the appellants to survey the properties of the respondents herein, invoking the powers under the Kerala Survey and Boundaries Act, 1961 to undertake the Social Impact Assessment Study, as required under Section 4 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. (LARR Act)

Through the interim order, Justice Devan Ramachandran had also ordered that every step, as is legally permissible under the LARR Act can certainly be continued by the competent authorities complying with the statutory prescriptions and that the afore directions will not stop them from doing so.

Submissions:

Appearing for the respondents, Special Government Pleader T.B. Hood and Senior Government Pleader V. Manu argued that without going into the real purport of the survey conducted by the appellants and the purpose for which the survey marks were laid, the single Judge prohibited them from conducting surveys and laying stones.

They pointed out that this caused serious and adverse effects and impacts to the steps taken by the State to fructify and achieve its target to introduce the Silver Line Project.

Further, Advocate General K. Gopalakrishna Kurup submitted that the State would not proceed with land acquisition for the proposed Silver Line Project unless all other legal mandatory requirements are complied with in consultation with the Union.  

However, Advocates Babu Joseph Kuruvathazha, A.K. Preetha, O.V. Maniprasad, P.A Mohammed Shah and C. Dinesh appearing for the respondents herein argued that LARR Act, 2013 is a self-contained statute, having its own facets and characteristics, and therefore, unless and until the procedure contemplated under the said Act are carried out, appellants are not entitled to enter into their properties, conduct survey, and lay the concrete poles, by exercising the powers conferred under the Kerala Survey and Boundaries Act and the rules framed thereunder. 

They also invited the Court's attention to Section 2(37A) of Railways Act which defines "special railway project" as a project notified by the Centre for providing national infrastructure for a public purpose in a specified time-frame, covering one or more States or the Union territories.

Additionally, they contended that State Government is not the appropriate authority to acquire land for the Silver Line Project.

ASG of India S. Manu appearing for the Centre filed a statement expressing serious concerns regarding the project and suggested that land acquisition for the same be suspended for the time being.

Senior Advocate S. Ramesh Babu assisted by Standing Counsel A. Dinesh Rao appearing for KRDCL took the Court through various provisions of Kerala Survey and Boundaries Act and the rules framed thereunder, and the LARR Act to canvas the point that arguments put forth by the writ petitioners in the respective writ petitions would come into play only when the State Government decides to acquire the lands after completing the mandatory requirements envisaged under Sections 4 to 7 of the LARR Act, 2013.

Findings: 

It was observed that a conjoint reading of Sections 4 and 6(1) of the Kerala Survey and Boundaries Act along with the proviso, makes it amply clear that State is vested with powers to conduct survey of any lands or boundary of any land for the purpose of the acquisition of any land under the law relating to compulsory acquisition of land for public purposes.

"...the proviso carved out from the main provision of Section 6 would not enable the State Government to acquire the lands because, it clearly denotes that the empowerment is done for the purpose of, or in connection with the acquisition of any land. Therefore, we have no doubt in our mind to say that State Government is vested with powers to survey the lands for the purpose of acquisition, or in connection with acquisition of land for public purpose, and not for acquisition of land as such." 

Additionally, it was found that a reading of Section 3(e) of the LARR Act makes it clear that in so far as the lands to be acquired for the State Government, the appropriate Government is the State.

However, the Court emphasised that if the acquisition of any land is required for public purpose, in more than one State, the appropriate Government is the Central Government and it shall carry out the acquisition, in consultation with the concerned State Governments or Union Territories.

 "This we say specifically for the reason that, writ petitioners have a case that the proposed Silver Line Project is passing through Mahe, which is within the limits of Union Territory of Puducherry, and therefore, the appropriate Government is the Central Government. We did not think much deliberation is required on that aspect, because the learned Advocate General has specifically pointed out that the property of the Union Territory of Puducherry is not at all required and further that, in Exhibit-R1(a) letter of the Ministry of Railways, Government of India dated 17.02.2019, no such objection was raised by the Government of India. "

The Court also found that the provisions of the Railways Act would come into play only if it is a 'special railway project', covering one or more States. It took the view that to attract the said provision, the Semi High-Speed Rail Corridor should cover at least one State apart from the State which envisages the project.

Further, the LARR Rules 2015 provides a clear procedure to conduct the Social Impact Assessment study. 

As such, after much deliberation and analysis of the relevant laws, the Division Bench decided to set aside the impugned interim order passed by the Single Judge. 

Case Title: State of Kerala v. Binu Sebastian & Ors

Citation: 2022 LiveLaw (Ker) 79

Click Here To Read/Download The Judgment