[K-Rail Silverline] Kerala High Court lifts stay on land survey; says State govt vested with powers

The Kerala High Court on Monday lifted the stay on the land survey proceedings of the Kerala government and K-Rail (Kerala Rail Development Corporation Limited) for the Silverline Project [Muralikrishnan v State of Kerala]..A Division Bench of Chief Justice S Manikumar and Justice Shaji P Chaly opined that the State is well within its rights and is adequately empowered to continue with the survey to conduct the Social Impact Assessment (SIA). "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," the Court said in its judgement..K- Rail is a joint venture company under the Government of Kerala and Ministry of Railways, Government of India set up for complementing Indian Railways in augmenting the railway infrastructure within the State of Kerala.The Silverline Project was recommended by K- Rail for development of a 529.45 km semi high speed rail corridor connecting the State's northern most and southern most districts (Kasaragod and Thiruvananthapuram). The project is expected to cost the public exchequer over ₹60,000 crores..The order of the single-judge set aside by the court had come on a batch of petitions challenging the steps taken by the State in relation to the project and seeking to restrain all pre-investment activities including land acquisition.The State government had submitted that it is complying with the Kerala Survey and Boundaries Act, 1961 (the Act) or the Kerala Survey and Boundaries Rules, 1964 (the Rules).However, the single-judge had pointed out that going by the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act (LARR Act), 2013, an action for acquisition will have to follow the mandatory statutory scheme and had interdicted the survey proceedings. Subsequently, the State Government appealed against the interim order of the single-judge. .While the Division Bench was considering the State's appeal, the Central government and the Railway Board filed a statement through Assistant Solicitor General S Manu which stated that it has serious concerns regarding the Silverline project and suggested that land acquisition for the same be halted for the time being..However, Advocate General Gopalakrishna Kurup K, appearing for the Kerala government contended that the single-judge ought to have found that identification of the land, buildings, and other structures that would be affected by the proposed project is essential for the purpose of conducting SIA study and that it would be possible only by physical survey, for which purpose only, the provisions of the Kerala Survey and Boundaries Act, 1961 have been resorted to..The Court observed that Section 5 of the LARR Act, 2013 makes it clear that whenever a Social Impact Assessment study is required to be prepared under Section 4 of the Act, the government should ensure that a public hearing is held in the affected area so as to ascertain the views of the affected families and the same have to recorded and included in the Social Impact Assessment Report."We have discussed the above matters elaborately for the basic and primary reason that Social Impact Assessment study cannot be seen as an empty formality; the public is entitled to know, as of right, the adverse impact and consequences they are likely to suffer, on account of the proposed acquisition," the Court said.Further, the Court noted that only after undergoing the mandatory requirements contained under Chapter II of LARR Act, which deals with the determination of Social Impact and Public Purpose, the government can proceed with the acquisition of lands. The Court observed that even if the SIA study is undertaken and ultimately, the Expert Group rejects the proposal, the government would have to take a decision to abandon the project.In the case of Silverline, the Court noted that the State government is at the initial stage of understanding the social impact that is likely to occur if it proceeds with the acquisition of land.Therefore, it cannot be said that the provisions of Sections 11 and 12 of the LARR Act, 2013, contained under Chapter IV, dealing with notification and acquisition, publication of preliminary notification, etc., would come into operation at this stage of the proceeding, the Court held.It, accordingly, allowed the State government's appeal and set aside the order of the single-judge..[Read Judgment]