Aliyamma Mathai v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR MONDAY, THE 23RD DAY OF JUNE 2014/2ND ASHADHA, 1936 WP(C).No. 5618 of 2014 (B) --------------------------- PETITIONER: -------------- ALIYAMMA MATHAI, AGED 75 YEARS, D/O.MATHAI, RESIDING AT KOTTAKKUDIYIL HOUSE KADATHI EAST, MARKET PO, MUVATTUPUZHA ERNAKULAM DISTRICT PIN CODE 686 673 BY ADV. SRI.PEEYUS A.KOTTAM RESPONDENTS: ----------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT ANNEXE, TRIVANDRUM-695 001. 2. THE DISTRICT COLLECTOR, COLELCTORATE, CIVIL STATION, KAKKANAD, ERNAKULAM, COCHIN 682 030. 3. SPECIAL TAHAZILDAR(LA), NATIONAL HIGHWAY NO 1, CIVIL STATION, KAKKANAD, ERNAKULAM, COCHIN 682 030 R-R3 BY GOVERNMENT PLEADER SMT.SHERIN C.K. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 5618 of 2014 (B) --------------------------- ## APPENDIX PETITIONER'S EXHIBITS ---------------------------- EXHIBIT P1 TRUE COPY OF THE NOTICE NO. C5 320/10 DATED NIL ISSUED BY THE 3RD RESPONDENT UNDER SECTION 4(1) OF THE LAND ACQUISITION ACT 1894 TO THE PETITIONER EXHIBIT P2 TRUE COPY OF THE NOTICE LAC NO 1/13 DATED 04-02-2014 ISSUED BY THE 3RD RESPONDENT UNDER SECTION 9(3) OF THE LAND ACQUISITION ACT 1894 RESPONDENTS' EXHIBITS : NIL ----------------------------- // TRUE COPY // TKS P.S. TO JUDGE **“C.R”** ## **C.T.RAVIKUMAR, J.** ------------------------------ W.P.(C)No.5618 of 2014 ------------------------------Dated 23[rd] June, 2014 ## **JUDGMENT** The petitioner's parents were the joint owners in possession of 50 cents of property comprised in Survey No.522/16 of Vallurkunnam Village. Out of the said extent, in respect of 0.1246 Ares of land acquisition proceedings were initiated under the Land Acquisition Act, 1894 (for short `the Act 1894') to acquire the same from their possession. While the acquisition proceedings are under way they died and thereupon, the property devolved upon the legal heirs including the petitioner herein. In respect of the said extent proposed to be acquired Ext.P2 notice under Section 9(3) of Act, 1894 was issued. Ext.P2 is dated 4.2.2014. The contention of the petitioner is that since the Act 1894 was repealed with effect from 1.1.2014 and the new Act viz., Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short `Act 30 of 2013') was introduced with effect from 1.1.2014 notice under the repealed Act should not have been issued. That apart, it is the contention of the petitioner that in terms of the provisions under Section 24(2) of Act 30 of 2013 in respect of the acquisition proceedings initiated under the WP(C).No.5618/2014 2 repealed Act but, no award was passed thereunder the determination of the compensation shall be in accordance with the provisions under the Act 30 of 2013. If that be so, according to the petitioner, Ext.P2 notice should not have been issued and notice should have been issued in terms of the provisions under the Act 30 of 2013. To lend support to the said contention the learned counsel appearing for the petitioner relied on a decision of the Hon'ble Apex Court in **Pune Municipal Corporation** v. **Harakchand Musirimal Solanki (2014 (1) KLT 470 (SC))** . In the said decision the Hon'ble Apex Court held that under Clause (a) of Section 24(1) of the Act 30 of 2013 where the land acquisition proceedings have been initiated under the Act 1894 but no award was passed, then the provisions of Act 30 of 2013 should apply relating to the determination of compensation. 2. I have heard the learned Government Pleader as well. A counter affidavit has been filed on behalf of the third respondent. It is admitted therein that the acquisition proceedings have been initiated in respect of the property in question while the Act, 1894 was in force. It is also admitted thereunder that Ext.P2 notice was issued after the coming into force of Act 30 of 2013. It is the further contention therein that WP(C).No.5618/2014 3 notice under Section 9(3) of the Act, 1894 was issued to the persons including the petitioner, whose properties are proposed to be acquired under the notification in question only for the purpose of appearing before the Land Acquisition Officer on or before the appointing day with original documents to prove their title over the land and file claims and objections. It is further stated therein that despite the receipt of such notice none of them appeared before the Land Acquisition Officer or produced any document to prove their ownership over the land in question. It is also stated therein that the acquisition proceedings in question are in the final stage. A statement in paragraph 10 assumes relevance in this context. It reads thus:- “As regards the new Land Acquisition Act, the Government have not issued any order or instruction. Hence the third respondent is bound to continue the Land Acquisition Proceedings on the basis of Land Acquisition Act, 1894, till the receipt of clear orders from Government and Higher Authorities.” I am at a loss to understand how such an affidavit could be sworn in despite the coming into force of Act 30 of 2013. WP(C).No.5618/2014 4 3. In the context of the aforesaid statement in paragraph 10 of the counter affidavit it is relevant to refer to Section 1(3) of Act 30 of 2013. It reads thus:- - “ **1.(3)** It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint: Provided that the Central Government shall appoint such date within three months from the date on which the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 receives the assent of the President.” Indisputably, the notification was published in the Gazette of India Extraordinary Part II on 19[th] December, 2013 vide S.O.3729(E) and it came into force with effect from 1.1.2014. When the Act 30 of 2013 came into force with effect from 1.1.2014 by virtue of the specific provisions thereunder how could an officer say and swear that the said Act would not operate until issuance of any order or instruction by the Government and that till receipt of such orders from the Government or Higher authorities the third respondent is bound to consider the land acquisition proceedings based on the Act, 1894. It is also apposite to WP(C).No.5618/2014 5 refer to Section 114 (1) of Act 30 of 2013. It reads thus:- “ **114. Repeal and saving** - (1) The Land Acquisition Act, 1894 (1 of 1894) is hereby repealed.” Thus, after the coming into force of Act 30 of 2013 with effect from 1.1.2014 by virtue of operation of Section 114(1) thereunder the Land Acquisition Act, 1894 stands repealed. Though there is a saving provision under Section 114(2) it is admitted by both the sides that it is inapplicable in view of the facts obtained in this case. 4. It is evident from Section 114(2) that the repeal under sub-section (1) shall not be held to prejudice or affect the application of section 6 of the General Clauses Act, 1897 with regard to the effect of repeals. A joint reading of the provisions under Section 114(2) and Section 6 of the General Clauses Act, would reveal that after the coming into force of Act 30 of 2013 to know whether any proceedings is saved for the repeal of the Act 1894, the saving provision under Act 30 of 2013 has to be looked into. The only saving provision which assumes relevance in the context of Section 114(2) of Act 30 of 2013 is WP(C).No.5618/2014 6 Section 24 of the said Act. Virtually, it is taking into consideration of such aspects that the Hon'ble Apex Court referred to Clause (a) of Section 24(1) of the Act 30 of 2013 and held that in respect of land acquisition proceedings initiated under the Act, 1894 but no award under Section 11 was passed while the said Act was in force, then the provisions of Act 30 of 2013 shall apply relating the determination of compensation. The respondents cannot say that Ext.P2 notice is not one relating to the determination of compensation. When it is admitted that Ext.P2 notice was issued in relation to the determination of compensation, in the light of the decision of the Hon'ble Apex Court in **Solanki's** case (supra) and also in terms of the provisions under Clause (a) of Section 24(1) of Act 30 of 2013 the notice for appearance as also the determination of compensation in such cases should have been under the provisions of Act 30 of 2013 and not under the repealed Land Acquisition Act of 1894. In this case, there is no case for the respondents that an award under Section 11 of the Act, 1894 was passed. True that, the proceedings were initiated while the Land Acquisition Act, 1894 was in force. In the said circumstances, I have no hesitation to hold that in respect of the land involved in this writ petition the further proceedings in relation to the payment of compensation can 7 WP(C).No.5618/2014 only be under the Act 30 of 2013. Subject to the said observation, this writ petition is disposed of. In view of this judgment the Land Acquisition Officer is directed to issue fresh notice relating the payment of compensation to the petitioner in accordance with the provisions under the Act 30 of 2013 fixing the date for appearance and production of such documents and to determine the compensation in accordance with Act 30 of 2013. The writ petition is disposed of accordingly. Sd/C.T.RAVIKUMAR Judge TKS