A.J. George v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **MONDAY, THE 18TH DAY OF DECEMBER 2017/27TH AGRAHAYANA, 1939** ## **WP(C).No. 18019 of 2008 (T)** ## **----------------------------** ## **PETITIONER:** - **------------------** ## **A.J.GEORGE, 5/764, COSMOPOLITAN ROAD, THRISSUR-20.** ## **BY ADV. SRI.B.KRISHNA MANI** ## **RESPONDENT(S): ------------------------** **1. THE STATE OF KERALA,REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE SECRETARY,INDUSTRIES DEPARTMENT,GOVT.OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM.** **3. THE PRINCIPAL SECRETARY,DEPARTMENT OF REVENUE, GOVT.OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM.** **4. THE DISTRICT COLLECTOR, THRISSUR.** **5. THE SPECIAL TAHSILDAR (LAND ACQUISITION) CHEMPAKAVUE, THRISSUR.** **6. THE GENERAL MANAGER, DISTRICT INDUSTRIES DEVELOPMENT CENTRE, THRISSUR.** **7. THE SECRETARY (TOWN PLANNING DEPARTMENT), CORPORATION OF THRISSUR,THRISSUR.** **8. THE ADDITIONAL CHIEF SECRETARY, REVENUE DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.** **PBS** **WP(C).No. 18019 of 2008 (T)** **---------------------------------------** *** ADDL.R9&R10 IMPLEADED** ***ADDL R9: KERALA INDUSTRIAL INFRASTRUCTURE DEVELOPMENT CORPORATION.,REPRESENTED BY MANAGING DIRECTOR, HEAD OFFICER, KIFRA HOUSE, T.C. NO. 31/2312, SASTHAMANGALAM, THIRUVANANTHAPURAM-695 010** ***ADDL.R10: THE MANAGER, KERALA INDUSTRIAL INFRASTRUCTURE DEVELOPMENT CORPORATION, SMALL INDUSTRIES PARK, KORATTY P.O, THRISSUR DISTRICT.** ***ADDL.R9 & R10 ARE IMPLEADED AS PER ORDER DATED 28.08.2009 IN I.A. 10865/2009** **R1 TO R6 & R8 BY SPL. GOVT. PLEADER SMT. LATHA T. THANKAPPAN R7 BY SRI. SANTHOSH P.PODUVAL, SC, SRI.K.B.MOHANDAS,SC, ADDL.R9 BY ADV. SRI.G.S.REGHUNATH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 3/11/2017, THE COURT ON 18-12-2017,DELIVERED THE FOLLOWING:** **PBS** **WP(C).No. 18019 of 2008 (T)** ## **----------------------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** ## **-----------------------------------** - **EXHIBIT P1 TRUE COPY OF THE SALE DEED DATED 10.01.1984.** - **EXHIBIT P2 TRUE COPY OF THE ORDER DATED 29.08.1998 PASSED BY THE REVENUE DIVISIONAL OFFICER.** - **EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 08.02.2005 IN O.P. NO. 18849/98 BEFORE THE HON'BLE HIGH COURT OF KERALA, ERNAKULAM** - **EXHIBIT P4 TRUE COPY OF THE COMMUNICATION DATED 5.11.2005 PASSED BY THE DISTRICT COLLECTOR.** - **EXHIBIT P5 TRUE COPY OF THE COMMUNICATION DATED 05.11.2005.** - **EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 17.11.2005 FILED BY THE PETITIONER BEFORE THE GOVERNMENT.** - **EXHIBIT P7 TRUE COPY OF THE NOTICE DATED 30.03.2006 RECEIVED BY THE PETITIONER FROM THE ADDITIONAL CHIEF SECRETARY.** - **EXHIBIT P8 TRUE COPY OF THE COMMUNICATION DATED 10.01.2007.** - **EXHIBIT P9 TRUE COPY OF THE TAX RECEIPT DATED 01.08.2005.** - **EXHIBIT P10 TRUE COPY OF THE COMMUNICATION DATED 0.04.2007 FROM THE DEPUTY COLLECTOR (VIGILANCE) ALONG WITH A COPY OF REPORT.** - **EXHIBIT P11 TRUE COPY OF THE GAZETTE NOTIFICATION DATED 25.09.1999 ISSUED BY SEC.4(1) OF THE LAND ACQUISITION ACT.** - **EXHIBIT P12 TRUE COPY OF THE NOTIFICATION DATED 25.2.2000.** - **EXHIBIT P13 TRUE COPY OF THE AWARD DATED 27.03.2002.** - **EXHIBIT P14 TRUE COPY OF THE ORDER DATED 10.04.2008 PASSED BY THE PRINCIPAL SECRETARY, REVENUE DEPARTMENT** ## **COUNTER AFFIDAVIT EXT.P14 & P15** - **EXHIBIT P14 TRUE COPY OF THE REPLY DATED 7/11/2016 UNDER THE RIGHT TO INFORMATION ACT.** - **EXHIBIT P15 TRUE COPY OF THE SKETCH SHOWING THE LIE AND NATURE OF THE PROPERTIES** - **EXHIBIT P16 TRUE COPY OF THE GAZETTE NOTIFICATION DATED 20/12/2000** - **EXHIBIT P17 TRUE COPY OF THE SKETCH** **PBS** ## **WP(C).No. 18019 of 2008 (T)** **---------------------------------------** - **EXHIBIT P18 TRUE COPY OF THE PROCEEDINGS DATED 17/5/1983 ISSUED BY THE SECRETARY, TRICHUR URBAN DEVELOPMENT AUTHORITY.** - **EXHIBIT P19 TRUE COPY OF THE PROCEEDING DATED 17/5/1983 ISSUED BY THE SECRETARY, TRICHUR URBAN DEVELOPMENT AUTHORITY.** - **EXHIBIT P20 TRUE COPY OF THE ORDER DATED 4/8/97 ISSUED BY THE DISTRICT COLLECTOR, TRICHUR.** - **EXHIBIT P21 TRUE COPY OF THE TAX RECEIPT DATED 23/8/2000.** - **EXHIBIT P22 TRUE COPY OF THE TAX RECEIPT DATED 1/8/2005.** ## **RESPONDENT'S EXHIBITS** - **------------------------------------EXHIBIT R3(A) TRUE COPY OF THE GOVERNMENT ORDER NO. G.O.(MS) NO.387/2000/RD DATED 22.12.2000** - **EXHIBIT R9(A) TRUE COPY OF G.O.(MS) NO. 70/93ID DATED 08/06/93** - **EXHIBIT R9(B) TRUE COPY OF THE G.O(MS) NO. 84/05/ID DATED 08/07/2005. EXHIBIT R9(C) TRUE COPY OF THE POSSESSION RECORDS OF 40 ACRES OF LAND WAS TRANSFERRED AND GIVEN POSSESSION TO KINFRA ON 09/10/2016 BY S JOINT MAHAZAR PREPARED AND SIGNED BY THE REPRESENTATIVES OF DISTRICT INDUSTRIES CENTRE AND KINFRA.** - **EXHIBIT R9(D) TRUE COPY OF G.O.(MS) NO. 60/06/ID DATED 22.05.2006.** - **EXHIBIT R9(E) TRUE COPY OF LETTER DATED 25-6-2013 SENT BY AGRICULTURAL OFFICER, KRISHI BHAVAN, AYYANTHOLE.** - **EXHIBIT R9(F) TRUE COPY OF THE G.O(MS) NO. 282/2015/REV. DATED 27/06/2015** - **EXHIBIT R9(G) TRUE COPY OF THE G.O(MS) NO. 137/15/ID DATED 2/09/2015.** **EXHIBIT R9(H) TRUE COPY OF THANDAPER NO. 11086 OF VILLAGE OFFICE, THRISSUR ON 20/07/2015** **EXHIBIT R9(I) TRUE COPY OF THE MASTER PLAN OF THE WORK AWARDED.** ## **/TRUE COPY///** **PA TO JUDGE** **PBS** **“CR”** ## **A. MUHAMED MUSTAQUE, J.** ......................................... W.P.(C).No.18019 of 2008 .......................................... Dated this the 18[th] day of December, 2017. ## **JUDGMENT** The petitioner was the owner of land in Sy.No.218/1 of Ayyanthole village in Thrissur district having an extent of 38.875 cents. This was purchased by him by a sale deed dated 10.1.1984. The above land was acquired by the State for the purpose of KINFRA (Kerala Industrial Infrastructure Development Corporation). Total extent of land acquired in this area is 51.41 acres belonged to 109 land owners. The award was passed on 27.3.2002. Notice in the proceedings for land acquisition was issued in the name of Sri. Alappat Palathingal John, Kattoor, the father of the petitioner. It seems that the petitioner was not aware of the land acquisition. This is so clear from Ext.P8 proceedings of the Under Secretary to Government. It is also to be noted that after the award was passed, the writ petition filed by the petitioner as OP.No.18849/1998 was disposed on 8.2.2005 directing the District Collector to consider the petitioner's application for utilizing the land for establishing an industrial workshop in terms of Kerala Land Utilization Act. 2. This writ petition was filed in the year 2008 challenging the 2 W.P.(C).No.18019 of 2008 land acquisition proceedings on the ground that land acquisition proceedings against the land owned by the petitioner were illegal for want of individual notice. The petitioner also challenges the decision of the Government refusing to reconvey the land. When the matter was taken up, the New Land Acquisition Act came into force called the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act of 2013 (Act 30 of 2013). In the light of Section 24 of the Act 30 of 2013, a new argument has also been raised to challenge the land acquisition proceedings. 3. KINFRA established an industrial estate in the year 2008. The land belonged to the petitioner is the entrance to the knowledge park in the industrial estate established by KINFRA. 4. It is an admitted position by all the parties that the amount determined as compensation is in deposit with the revenue and that has not been deposited in court. The amount is lying in revenue account. In the light of the admitted position as above, it was argued on behalf of the petitioner in the light of Section 24(2) of Act 30 of 2013 that land acquisition proceedings shall deem to have been lapsed on account of non payment of compensation. 5. In the light of the facts and circumstances, following points have arisen for consideration: 3 W.P.(C).No.18019 of 2008 i. Whether non service of individual notice on petitioner, would render proceedings and award under Land Acquisition Act 1984 as invalid as against him? ii. Whether for the reason that compensation payable to the petitioner has been deposited in the revenue account would entail proceedings initiated under the Land Acquisition Act, 1894 as lapsed in terms of Section 24 (2) of Act 30 of 2013? iii. Whether the petitioner is entitled for any other reliefs? 6. Point No.1: Admittedly in revenue records, the name of the petitioner was shown as the owner. Sections 4(1) and 6 of the Land Acquisition Act, 1894 contemplate a public notice. Section 4(1) refers to publication of preliminary notification. Section 6 refers declaration that land is required for public purpose. This public notice certainly will give a constructive notice to a land owner even if he was not individually served. The very purpose of such public notice is to give notice to all persons who are interested in the land to raise objections as well as to make them aware that the land is being acquired for a public purpose. Once an award is passed, the land acquisition proceedings cannot be called in question for violation of any procedural lapses. See the judgments of the Hon'ble Supreme Court in _**General Manager Telecommunication**_ 4 W.P.(C).No.18019 of 2008 _**and another Dr. Madan Mohan Pradhan and others**_ (1995 Supp (4) SCC 268), _**Puttu Lal (Dead) by Lrs v. State of U.P. and another**_ (1996 (3) SCC 99), _**State of Gujarat v. Panch of Nani Hamam's Paul & others**_ (1986 (1) SCC 566) and **Mahadeo v. Sub Divisional Officer & others** (1997 (8) SCC 487). A Division Bench of this Court in _**G.C.D.A v. Victoria Xavier & Ors.**_ (2001 (1) KLJ 595) also held that after the award is passed, no challenge can be made against award for want of notice in any proceedings initiated under the Land Acquisition Act. Thus I have to hold that non service of individual notice on petitioner is not fatal to declare award is void as against the petitioner. ## 7. Point No.2: This point arises in the context of New Land Acquisition Act. It is appropriate to refer Section 24 of the Act which reads as follows: _“24._ _**Land acquisition process under Act No.1 of**_ ## _**1894 shall be deemed to have lapsed in certain cases:**_ _(1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894),-_ _(a) Where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall_ 5 W.P.(C).No.18019 of 2008 _apply;_ _(b) where an award under said section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed._ _(2) Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act:_ _Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act.”_ 8. For the purpose of this case, subsection (2) of Section 24 is relevant. It is mentioned in subsection (2) that if compensation has not been paid, proceedings initiated under the Land Acquisition W.P.(C).No.18019 of 2008 6 Act 1894 ( 1 of 1894) shall deem to have lapsed. Though subsection (2) to section 24 refers various circumstances in which Land Acquisition process initiated under Act 1/1984 shall be deemed to have lapsed, present controversy arises in the context of non payment of compensation to the petitioner and also on failure to deposit in court. In _**Pune Muncipal Corporation and Another**_ ## _**v. Harakchand Misirimal Solanki and others**_ (2014 (1) KHC 580), the Hon'ble Supreme Court after adverting to section 31(2) with regard to deposit of compensation in court and also with reference to Sections 31(1), 31(2), 32, 33, and 34 of the Land Acquisition Act, 1894 took the view that amount deposited in Government or other approved security is not sufficient to hold that compensation has been paid to the land owner and held that the expression 'paid' used subsection (2) of Section 24 is the actual compensation paid to the land owner or deposited in court. However, as seen from the facts involved in that case, land was acquired from many individuals and notices were issued to land owners to receive compensation and since they did not receive compensation, the amount was deposited in Government Treasury. In that circumstances, it was held that proceedings deemed to have lapsed as compensation had not been paid. 9. However the fact situation here is totally different in this 7 W.P.(C).No.18019 of 2008 case. There were many parcels of land involved. In such situation, I don't think Section 24 (2) would apply for the simple reason that award is indivisible. Section 24(2) would apply only in cases where entire compensation due under an award is remain unpaid. This is so clear from section 24(1)(b) and also from Section 24(2). Section 24(1)(b) states that an award passed under section 11 of Act 1/1894 shall continue as though said Act has no been repealed. As seen from Section 24(2), it will lapse only under circumstances referred therein. If proceedings under Act 1/1894 do not lapse on account of situation referred in Section 24(2), an award passed under section 11 of Act 1/1894 will continue to have operative value and compensation payable will be in accordance with proviso to section 24(2). Proviso states, when compensation payable to majority of land holders has not been deposited in the account of beneficiaries specified in the acquisition notice issued under Section 4 of Land Acquisition Act, 1894, all such beneficiaries will be entitled for compensation in accordance with the provisions of Act 30 of 2013. Therefore it is clear that when majority of the beneficiary remain unpaid, that will not result in lapse of proceedings and what they can claim is the compensation in accordance with Act 30 of 2013. For a moment, think about a converse situation. When a majority has been paid compensation, 8 W.P.(C).No.18019 of 2008 then minority or individual will not be entitled for compensation in accordance with Act 30 of 2013. Thus when a majority received compensation under Act 1894 and it will not result in lapse of proceedings, how is it possible to say that proceedings under the Land Acquisition Act, 1894 deem to have lapsed in respect of an individual who has not received compensation. As already adverted, once an award is passed, it is indivisible and integrity of the award cannot be broken based on individual reasons. Therefore Section 24(2) of Act 30 of 2013 would apply only if entire compensation due under an award passed based on the Land Acquisition Act, 1894 remain unpaid. To sum up discussion on scope of application of section 24(2) of Act 30/2013 in relation to non payment of compensation for acquisition initiated under Act 1/1894, following can be summarized as law applicable: i. The proceedings initiated for acquisition of land under Act 1/1894 shall deem to have lapsed if compensation has not been paid to all beneficiaries specified in the notification for acquisition under section 4 of Act 1/1894. ii. The proceedings under Act 1/1894 will not be lapsed even if majority of beneficiaries has not been paid the compensation. iii. If the compensation has not been paid to majority of beneficiaries, all beneficiaries specified in the notification under 9 W.P.(C).No.18019 of 2008 Section 4 of Act 1/1894 will be entitled for compensation based on Act 30/2013. iv. If an individual beneficiary or minority beneficiaries specified in the notification under Section 4 of Act 1/1894 has not been paid compensation, they will be entitled to compensation and interest only in accordance with Act 1/1894. ## 10. Point No.3: The petitioner cannot claim compensation under Act 30 of 2013 in the light of proviso to the above provision. However, certainly the petitioner would be entitled for interest in terms of Section 23 (1A) of Land Acquisition Act,1894. See the judgments in _**Ivo Agnelo Santimano Fernandes and others v. Government of Goa and another**_ (2011 KHC 4411) and _**Prem Nath Kapur and another v. National Fertilizers Crpn. Of India Ltd. and others**_ (1996 (2) SCC 71). 11. In the result, the writ petition is disposed of with the following directions: a. Challenge in regard to land acquisition proceedings is rejected. b. The petitioner is not entitled for re conveyance of land. c. The petitioner is also not entitled for the benefit of Section 24 (2) of Act 30 of 2013. 10 W.P.(C).No.18019 of 2008 d. The petitioner is only entitled for compensation and interest on such compensation in terms of Section 23 (1A) of the Land Acquisition Act, 1894. e. Compensation amount along with the interest shall be disbursed to the petitioner within a period of two months. Sd/- **A. MUHAMED MUSTAQUE, JUDGE.** cl