Sabarimala Greenfield Airport: Kerala High Court Sets Aside Land Acquisition Steps For Non-Compliance With 2013 Act Safeguards

Justice C. Jayachandran allowed the writ petition preferred by the Ayana Charitable Trust and its Managing Trustee challenging the notification as well as the Social Impact Assessment report, Expert Group Appraisal report and the other government orders to acquire their land and that belonging to other persons.

The petitioners claimed that there was a colourable exercise of power by the government with respect to the acquisition and that the whole acquisition proceeding was initiated with an aim to take over the Cheruvally Estate, the petitioners' 2263 acres of land.

They also submitted that the government proposed to acquire more than the bare minimum area of land required for the project. Further, it was argued that possible alternative sites for the project and its feasibility were not properly considered. Thus, they contended that the acquisition violated the mandates under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

While deciding the case, the Court examined the preamble to and the provisions of the 2013 Act, including Sections 2 to 8, 11, and 15. It found that the one of the aims of the Act is to ensure acquisition in a transparent and informed manner, causing minimum disturbance to land owners.

According to the Act, when the government intends to acquire a land, it has to undertake a mandatory social impact assessment study (SIA study).

The authority conducting the SIA study has to prepare a Social Impact Management Plan and also conduct a public hearing with the affected persons. Following this, the SIA report has to be published. A multidisciplinary Expert Group has to then evaluate the report and give its recommendation recording the grounds for the same, weighing the social costs and the potential benefits of the project.

Next, the government will examine the proposals for land acquisition and the SIA report. It would then recommend the minimum area of land required for the project. Upon completion of recommendation, the government has to issue the preliminary notification for acquisition.

After laying out the scheme of the Act, the Court considered whether the absolute bare minimum extend was proposed to be acquired in the present case. For that, it considered the land ideally required for an international airport.

In this connection, the Court examined a document produced by the State, which was a communication issued by the Airports Authority of India to the Chief Secretary of Kerala with the subject 'Standardization of land requirement for various categories of Operation for Green Field Airport, New Civil Enclave and development of existing airports'.

It was observed that going by the above document, the minimum land required in the ideal scenario is 1200 acres. However, it also remarked that there is no mandate that there cannot be any acquisition more than afore minimum but when further extent of land is sought to be acquired, the purpose for the same needs to be explained.

Examining the SIA report, the Court found that absolutely no reason was assigned by the SIA study team as to why double the aforementioned area of land was proposed to be acquired.

Though it was stated by the State that there would be a longer runway, that extent was fixed considering the future growth, and that the airport is sought to provide smoother, faster and convenient travel for Sabarimala pilgrimage, the Court felt that this was not sufficient.

It observed:

“First of all, there is no indication, whatsoever, in the S.I.A. study report as to what future growth and expansion are contemplated. What is the extent required for the airport with the infrastructure, now envisaged? What growth and expansion are contemplated in future? What is the additional extent required for such future growth and expansion? The answers to these important questions are far to seek. The same is not forthcoming in S.I.A. report, or for that matter, in any other record. The mandate flowing from Section (4)(4)(d), followed by Section 7(5)(b) and reiterated in Section 8(1)(c) of the 2013 Act is to limit the acquisition to the absolute bare-minimum required.…there is no reason, whatsoever, stated to arrive at a conclusion that the proposed acquisition is the absolute bare-minimum extent required for the project.”

Next, the Court made a comparison of the extent of land for the airports in Kerala. It noted that except for the Kannur International airport, which spans 2300 acres, the others are comparatively much smaller.

“Barring the Kannur International Airport, the extent of all the three other International Airports in Kerala are between 373 to 1300 acres. In such a scenario, why an extent of 2570 acres is required for the Sabarimala Greenfield Airport - which is contemplated as the fifth airport of Kerala - is not discernible from any of the records, much less from S.I.A. study report,” the Court remarked.

The Court then found that Expert Group also did not consider whether the absolute bare minimum was proposed to be acquired, but instead relied on the SIA report. Similarly, the government also did not consider this aspect, the Court opined:

“This Court may have to say that…Order of the Government is worser than…S.I.A. report and…report of the Expert Group, insofar as satisfying the requirement that the absolute bare-minimum extent required for the project alone is acquired.”

The petitioners had also argued that the SIA team has to assess whether there were any alternative places for the purpose of acquisition as well as its acquisition.

Rejecting this, the Court observed:

“the Government will have to first conclude, whether an acquisition is required. If the answer is in the affirmative, it may have to prima facie conclude as regards the place from where such acquisition has to be made, having regard to the nature of the project for which acquisition is made. During that process, the appropriate Government will have to consider other sites to find out, whether the proposed site is prima facie the suitable one. It is after this exercise that the S.I.A. team can start its work for conducting the S.I.A. study in general…”

The Court noted that in the 2017 review meeting for the project held in the presence of the Chief Minister, 5 other estates were considered before finding that the Cheruvally Estate was the most suitable.

The third point considered by the Court was whether there was fraud on power or colourable exercise of power by the government in acquiring the petitioners' estate. They listed out previous instances where the State sought to acquire the Cheruvally estate. However, the Court felt that it cannot enter into a finding regarding the same at this stage.

It found that if the State could establish that it bonafidely required 2570 acres of land and that there is no other single plot of land having similar extend except the Cheruvally estate, then the allegation of fraud on power would not stand. It was further remarked that, it is established that the bare minimum required was only 1200 acres, then insistence on double this area may verge upon fraud.

“without concluding that aspect pertaining to the absolute bare-minimum extent of land required for the project, it is neither proper nor feasible to conclude on the question of fraud on power. In the circumstances, this Court is of the opinion that the issue has to be left open…”

It set aside the SIA report, report of the Expert Group and the government order for non-application of mind. It was further remarked that the acquisitioning authority will have to restart the entire SIA study, Expert Group appraisal and Government examination in the light of the statutory requirement of bare minimum.

The following was the Court's observation:

“the requirement of ensuring the absolute bare-minimum is not satisfactorily met by the State… This Court may pinpoint that the fatal flow is found in the 'decision making process', than the 'decision' as reflected in S.I.A. study report, report of the Expert Group and Government Order. There is manifest non-application of mind, resulting in the omission to consider a vital factor of limiting the acquisition to the absolute bare- minimum required…”

The Court concluded the judgment by making a suggestion that sufficient number of technical members having know-how of the project requirements has to be included in the SIA study team.

Thus, it allowed the writ petition.