Abdullakunhi and others v. Special Tahsildar (Land Acquisition), Kasaragod and District Collector, Kasaragod

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE WEDNESDAY, THE 11TH JUNE 2008 / 21ST JYAISHTA 1930 WP(C).No. 10336 of 2007(E) -------------------------- PETITIONER: - ------------ 1. ABDULLAKUNHI S/O ACHIBI, KALNAD VILLAGE P.O.KALNAD, KASARGOD. 2. DAINABI D/O ABBAS, KALNAD VILLAGE, P.O. KALNAD KASARGOD. 3. MARIYAMMA D/O AHAMMED, KALNAD VILLAGE P.O. KALNAD, KASARGOD. 4. NAFEESA D/O ABDULLA, KALNAD VILLAGE, P.O. KALNAD, KASARGOD. 5. SAFIA D/O ALEEMA, KALNAD VILLAGE, P.O. KALNAD KASARGOD. 6. ABDULKHADER MUSALIYAR S/O DAINABI, KALNAD VILLAGE KALNAD P.O., KASARGOD. 7. MOHAMMEDKUNHI S/O KHADEEJA, KALNAD VILLAGE P.O. KALNAD, KASARGOD. 8. ABDULLA S/O M.ABDUL RAHIMAN, KALNAD VILLAGE, KALNAD P.O., KASARGOD. ALL THE PETITIONERS REPRESENTED THROUGH POWER OF ATTORNEY HOLDER C.A.MOIDEENKUNHI,CHEMBARIKKA, KALNAD VILLAGE P.O.KAINAD,KASARGOD TALUK. BY ADV. SRI.SURESH KUMAR KODOTH - SMT.V.SETHUKUTTY AMMA RESPONDENTS: ------------- 1. THE SPECIAL TAHSILDAR (LAND ACQUISITION) KASARGOD. 2. THE DISTRTICT COLLECTOR,KASARGOD. BY GOVERNMENT PLEADER SMT. LATHA THANKAPPAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## APPENDIX:- EXT.P1 TRUE COPY OF THE GENERAL POWER OF ATTORNEY EXECUTED BY THE LEGAL HEIRS OF THE OWNERS. EXT.P2 TRUE COPY OF GENERAL POWER OF ATTORNEY EXECUTED BY THE LEGAL HEIRS OF THE OWNERS. EXT.P3 TRUE COPY OF THE GENERAL POWER OF ATTORNEY EXECUTED BY THE LEGAL HEIRS OF THE OWNERS. EXT.P4 TRUE COPY OF THE RELEVANT PORTION OF THE AWARD NO.19/99 DATED 20-7-1999 EXT.P5 TRUE COPY of the COMMON JUDGMENT DATED 22-12-2000 IN LAR. NO.69/99 AND 72/99. EXT.P6 TRUE COPY OF THE JUDGMENT DATED 23-2-2001 IN LAR NOS. 71/99, 73/99 AND 74/99 EXT.P7 TRUE COPY OF THE ORDER DATED 6-8-2005 PASSED BY THE 1ST RESPONDENT. EXT.P8 TRUE COPY OF THE APPLICATIN IN FORM NO.22A EXT.P9 TRUE COPY of the ORDER DATED 24-2-2007 EXT.P10 TRUE COPY OF THE REPRESENTATION DATED 20-7-2001 EXT.P11 TRUE COPY OF THE RECEIPT OF EXT.P10 COMMUNICATION DATED 4-82003 EXT.P12 TRUE COPY OF THE REPRESENTATIN BEFORE THE DISTRICT COLLECTOR DATED 10-10-2002 EXT.P13 TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE HON'BLE MINISTER. //TRUE COPY// P.S. TO JUDGE. ## **PIUS C. KURIAKOSE, J.** ----------------------------------------------W.P.(C)No. 10336 OF 2007 ----------------------------------------------Dated this the 11th day of June, 2008 ## **J U D G M E N T** The petitioners who are the legal heirs of Achibi, Abbas, Ahammed alias Amu, Abdulla, Aleema, Jainabi alias Dainabi, Khadeejabi and Abdul Rahiman have filed this writ petition under Article 226 through their power of attorney holder Sri.C.A.Moideenkunhi complaining that the first respondent Land Acquisition Officer has passed Ext.P9 order rejecting Ext.P8 application submitted by them seeking a reference of the question of determination of the correct market value payable for their acquired properties having total extent of 0.2186 hectares in RS. No.151/1 and 151/2 of Kalanad Village for the purposes of Bakal Resorts Development Corporation Ltd. The reasons stated in Ext.P9 rejection order is that the award was passed on 20-7-1999 and that reference application which was filed only on 5-9-2005 is hopelessly barred by limitation having been filed far beyond the statutory period of limitation. Ext.P4 is copy of the relevant portions of the award dated 20-7-1999. It is stated that the award related to other properties also in which also the petitioners were interested. The compensation amount in respect of those properties were deposited before the court WP(C)N0. 10336/07 -2- by the land acquisition officer under section 31(2) and the court answered those reference cases in favour of the petitioners. Exts.P5 and P6 copies of court judgments are relied on in this context. It is further stated that there were section 18 references also in respect of those properties and those references were also answered by the reference court enhancing the compensation. But as regards the subject properties in RS. Nos. 151/1, 151/2 and 151/3 the Land Acquisition Officer kept those amounts under revenue deposit stating that nobody had claimed the amounts nor proved title to the property pertaining to the compensation awarded. According to the petitioners it is not correct to say that they had not claimed title to these properties or produced title documents in relation to these properties. It is contended that it was under the very same documents of title that the petitioners claimed interest over the subject properties as well as the other properties mentioned in the award in respect of which references had been made by the officer under section 31(2). This happened due to an apparent mistake committed by the officer who had not conducted the requisite enquiry. The petitioners through their power of attorney holder immediately filed representations before the first respondent, seeking rectification of the mistake and release of the WP(C)N0. 10336/07 -3- compensation determined for the subject properties to them. It is after the elapse of a long period of five years that the first respondent finally allowed the request by passing Ext.P7 order dated 6-8-05. Pursuant to Ext.P7 the awarded compensation for the subject property was paid to the petitioners who received the same under protest. Ext.P7 is dated 6-8-05 and on receiving the amount under protest the petitioners filed reference application Ext.P8 on 5-9-2005. It is Ext.P8 which was rejected by the first respondent under Ext.P9. Impugning Ext.P9 on various grounds the petitioners pray for the following reliefs: 1. To issue a writ of certiorari or any other appropriate writ calling for records and quash Ext.P9 declaring it to be illegal. 2. To issue a writ of mandamus or any other appropriate writ or order directing the 1[st] respondent to refer Ext.P8 to the competent civil court for adjudication within a time frame. 2. A very detailed counter affidavit has been filed by the first respondent. He justifies Ext.P9. It is pointed out that the date of the award even as per Ext.P8 application is 20-7-1999 and the application for reference Ext.P8 having been filed only on 8-9-2005 is hopelessly barred by limitation. It is contended that there was no bona fide request from the side of the petitioners for release of the compensation determined under the award for the subject properties. WP(C)N0. 10336/07 -4- That part of the compensation unlike the other portions of the compensation was not deposited before the court under section 31(2) only because there was no dispute regarding apportionment of that part of the compensation. Land Acquisition Officer became obliged to keep the amounts under treasury deposit so that once the real owners of the property are identified after enquiry the amounts could be released directly to them. There is no provision for condonation of the delay caused in the matter of filing of reference application and therefore Ext.P9 order is perfectly valid one. The contention of the petitioners that the award in respect of the subject properties became final only while passage of Ext.P7 is denied and it is contended that against claim No.3 of the statutory format of the reference application the petitioner himself has mentioned the date of the award as 20-71999. Ext.P7 is not the award, instead it is only an order granting sanction for relieving the lapsed deposit from the treasury. 3. I have heard the submissions of Mr. Suresh Kumar Kodoth, counsel for the petitioner and Smt.Latha Thankappan, learned Government Pleader. My attention was drawn by Sri.Suresh Kumar to section 12 of the Land Acquisition Act and also to Rule 13 of the Land Acquisition (Kerala Rules). Learned counsel submitted that an award WP(C)N0. 10336/07 -5- under the Land Acquisition Act becomes final only when the same is passed in favour of an identified interested person or persons. In the instant case award No.19/99 dated 20-7-1999 cannot claim finality in so far as the same relates to the subject properties since the stand of the Land Acquisition Officer regarding the subject properties was that he is not in a position to identify the interested person in whose favour the award could be passed. The respondents cannot for a moment contend that the said award (to the extent the same relates to the subject properties) is an award in favour of the petitioners. If that were so the compensation amount could have been released to the petitioners or could have been deposited before the court under section 31(2) and a reference initiated under that section as was done in the case of the other properties covered by the said award. Rule 13 contemplates service of notice on a named awardee or named interested person. Since the awardee or the interested person was identified by the Land Acquisition Officer for the first time only through Ext.P7, it has to be found that there is service of award notice in relation to the subject properties on the petitioner only when Ext.P7 is served. Mr.Suresh Kumar would submit relying on the observations of the Supreme Court in paragraph 5 of its judgment in Raja Harish WP(C)N0. 10336/07 -6- Chandra Raj Singh v. The Deputy Land Acquisition Officer, AIR 1961 SC 1500 that the words “the date of the award” in section 18 is to be construed not in a literal or mechanical manner. In the context of the legislative intendment underlying section 18 which is to afford a real and meaningful opportunity to a person to an award not satisfied by the compensation determined by the land acquisition officer to have the same redetermined by a court, “the date of the award” should be found out. 4. Smt.Latha Thankappan, learned Government Pleader would resist all the submissions of Mr.Suresh Kumar highlighting the answer given by the petitioner to clause No.3 of the statutory format of the reference application (Form 22A) . The learned Government Pleader submitted that it is futile for the petitioner to contend now that he came to have notice regarding the award only when Ext.P7 was issued. Ext.P7 is an order passed on the basis of successive representations filed by the petitioner who was aggrieved by the refusal of the officer to release the determined compensation to him. The compensation amount has been determined under the award dated 20-7-1999 and the details of that amount are clearly shown in that award itself. Reference under section 18 is a reference on the question of WP(C)N0. 10336/07 -7- determining whether the compensation determined by the officer is the correct compensation. Having received the award notice long ago and having appeared before the reference court in connection with the reference under section 31(2) as regards other properties covered by the award the petitioner cannot now contend that he came to have notice regarding that part of the award dealing with the subject properties only when Ext.P7 is issued. 5. As directed by me the learned Government Pleader made available for my perusal the entire files maintained by the Land Acquisition Officer regarding the award in question and I have perused the same. The files reveal that as soon as the notice of award No. 19/99 was served the petitioners through their power of attorney holder Sri. C.A.Moideenkunhi submitted an application before the Land Acquisition Officer on 1-8-1999 producing copy of the certificate of purchase in OA. No. 297/72. It is claimed therein that the subject properties belonged to one Achibi, Abbas, Ahammed alias Amu, Abdulla, Aleema alias Aliyumma, Jainabi alias Dainabi, Khadeejabi and Abdul Rahiman by virtue of certificate of purchase in O.A. No. 297/72 and that all the eight persons in whose favour the certificate of purchase was issued by the Land Tribunal have passed away and that WP(C)N0. 10336/07 -8- they are survived by the present petitioners, 49 in number. It is this representation dated 1-8-1999 which is followed up by the petitioners by filing subsequent representations and it is on the basis of this representation and the subsequent representations filed by the petitioners that the awarding officer finally issued Ext.P7. The file contains copy of the judgments in the various references which had been initiated by the Land Acquisition Officer under section 31(2) regarding the other properties covered by his award. Importantly the main document relied on by the petitioners in those reference cases also was Ext.A2 the certificate of purchase in O.A. No. 297/72. The correct number of the certificate of purchase is4942/76 and the same is issued by the Special Tahsildar (L.R) No.1, Kasargode. The original of certificate of purchase is also seen in the file. This supports the contention of the petitioners that the awarding officer ought to have recognised the claims of the petitioners which were based on the very same certificate of purchase and made references under section 31(2) in respect of the compensation due for the subject properties. In fact the petitioners were claiming rights over all the properties covered by the award under the very same certificate of purchase and that claim has ultimately been recognised by the Land Acquisition Officer by WP(C)N0. 10336/07 -9- passing Ext.P7. The statutory provisions regarding awards under the Land Acquisition Act give support to the argument of the petitioners that awards under the statute are expected to be passed in favour of named persons whether individuals or institutions and notice of the awards are expected to be given to the awardees, i.e., persons identified as persons interested in the acquired properties. Rule 13 of the Land Acquisition Kerala Rules, 1990 dealing with issuance of notice of award also provides that award notices contemplated by section 12 (2) of the Land Acquisition Act are to be served on the awardees and interested persons in the manner prescribed by section 45. Subsection 2 of section 45 provides that service of notice shall be made on the person named therein. Concededly in the original award No.19/99 dated 20-7-1999 regarding which notice was given to the petitioners they had not been named as the awardees or persons interested over the subject property. On the contrary the definite stand of the land acquisition officer was that nobody has claimed ownership over the properties and that the owner of the properties has not been identified so far. Under these circumstances I am unable to accept the case of the respondents that the award notice which had been earlier issued to the petitioners regarding award No.19/99 dated WP(C)N0. 10336/07 -10- 20-7-1999 should also be construed as an award notice in respect of the subject properties. The awarding officer has recognised the petitioners are the awardees of the compensation for the subject properties only when he issued Ext.P7. Ext.P7 as already stated has been issued on the basis of the representation which the petitioners had submitted within the statutory period of six weeks from the date of award No.19/99 itself. Taking due notice of the legislative intendment which underlies section 18 which in my opinion is to ensure that a person who has been deprived of his properties against his wishes by exercise of powers of eminent domain by the Government should be provided with an opportunity to have his grievance regarding the correct compensation payable for the acquired property adjudicated at the level of a competent civil court. I find that there is considerable merit in the contention of the petitioners that their rights to seek a reference under section 18 in respect of the compensation payable for the subject property became crystalised only when Ext.P7 was issued. Ext.P8 application seeking a reference has been filed well within the statutory period of six weeks of Ext.P7. 6. The result of the above discussion is that the writ petition will stand allowed. I direct the first respondent to refer the question of WP(C)N0. 10336/07 **==> picture [21 x 9] intentionally omitted <==** determination of the correct compensation payable for the subject properties having total extent of 0.2186 hectares in RS. No.151/1 and 151/2 of Kalanad Village to Subordinate Judge's Court, Kasaragode treating the same as valid application seeking reference under section 18 submitted by the petitioners. Needful in this regard shall be done by the first respondent at the earliest, at any rate, within six weeks of receiving copy of this judgment. **(PIUS C.KURIAKOSE, JUDGE)** ksv/-