Augustine Kuruvila and others v State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR FRIDAY, THE 7TH DAY OF FEBRUARY 2014/18TH MAGHA, 1935 WP(C).No. 2908 of 2014 (K) --------------------------- PETITIONERS: - --------------- 1. AUGUSTINE KURUVILA, AGED 67 YEARS S/O.P.A.KURUVILA, CHOOLACKAL HOUSE, THUTHIYOOR ROAD KAKKANAD. 2. DEEPU KURUVILA ,S/O.AUGUSTINE KURUVILA, CHOOLACKAL HOUSE, THUTHIYOOR ROAD, KAKKANAD REPRESENTED BY HIS POWER OF ATTORNEY HOLDER THE 1ST PETITIONER HEREIN. 3. VINEETHA AUGUSTINE, D/O.AUGUSTINE KURUVILA, CHOOLACKAL HOUSE, THUTHIYOOR ROAD, KAKKANAD COCHIN - 682 037, REPRESENTED BY HER POWER OF ATTORNEY HOLDER THE 1ST PETITIONER HEREIN.. BY ADVS.SRI.G.SHRIKUMAR (SR.) SRI.R.MANOJ SRI.ANIL VINCENT RESPONDENTS: - ----------------- 1. STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY STATE SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001. 2. THE DISTRICT COLLECTOR, CIVIL STATION, KAKKANAD, ERNAKULAM, KOCHI - 682 030. 3. SECRETARY, DEPARTMENT OF REVENUE, STATE SECRETARIA,TTHIRUVANANTHAPURAM, PIN - 695 001 4. THE SPECIAL TAHSILDAR (L.A.) KOCHI REFINERIES LTD., NORTH FORT GATE, TRIPUNITHURA, PIN - 682 301. BY GOVERNMENT PLEADER SMT.SHERIN C.K. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 2908 of 2014 (K) --------------------------- ## APPENDIX ## PETITIONERS' EXHIBITS ---------------------------- EXHIBIT P1 : TRUE COPY OF THE POWER OF ATTRONEY EXECUTED BY THE 2ND PETITIONER IN FAVOUR OF THE 1ST PETITIONER - EXHIBIT P1(a) : TRUE COPY OF THE POWER OF ATTORNEY EXECUTED BY THE 3RD PETITIONER IN FAVOUR OF THE 1ST PETITIONER - EXHIBIT P2 : TRUE COPY OF THE NOTIFICATION DATED 13.10.2005 PUBLISHED UNDER SECTION 4(1) OF THE LAND ACQUISITION ACT - EXHIBIT P3 : TRUE COPY OF THE NOTICE ISSUED TO THE 3RD PETITIONER UNDER RULE 15 OF THE LAND ACQUISITION (KERALA) RULES DATED 21.02.2007 - EXHIBIT P4 : TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST PETITIONER BEFORE THE 4TH RESPONDENT - EXHIBIT P5 : TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 3RD PETITIONER TO THE 4TH RESPONDENT - EXHIBIT P6 : TRUE COPY OF THE MEMORANDUM OF WRIT PETITION AND EXHIBITS IN WP(C) NO.15026 OF 2007 OF THIS HONOURABLE COURT DATED 10.05.2007 - EXHIBIT P7 : TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 4TH RESPONDENT IN WP(C) NO.15026 OF 2007 ON THE FILES OF THIS HONOURABLE COURT - EXHIBIT P8 : TRUE COPY OF THE JUDGMENT IN WP(C) NO.15026 OF 2007 OF THIS HONOURABLE COURT DATED 24.07.2007 - EXHIBIT P9 : TRUE COPY OF THE NOTICE OF AWARD ISSUED TO THE 1ST PETITIONER DATED 27.07.2007 - EXHIBIT P9(a) : TRUE COPY OF THE NOTICE OF THE AWARD ISSUED TO THE 2ND PETITIONER DATED 27.07.2007 - EXHIBIT P9(b) : TRUE COPY OF THE NOTICE OF AWARD ISSUED TO THE 3RD PETITIONER DATED 27.07.2007 EXHIBIT P10 : TRUE COPY OF THE JUDGMENT IN R.P.NO.798/07 DATED 18.08.07 - EXHIBIT P11 : TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS BEFORE THE SECRETARY, REVENUE, STATE SECRETARIAT, THIRUVANANTHAPURAM DATED 16.08.2007 - EXHIBIT P12 : TRUE COPY OF THE ORDER DATED 09.10.2007 PASSED BY THE SECRETARY, INFORMATION TECHNOLOGY DEPARTMENT, - EXHIBIT P13 : TRUE COPY OF THE JUDGMENT IN S.L.P.(CIVIL) NO.35784 OF 2012 BEFORE THE HONOURABLE SUPREME COURT DATED 08.07.2013 WP(C).No. 2908 of 2014 (K) EXHIBIT P14 : TRUE COPY OF THE REFERENCE REQUEST REMINDER SUBMITTED BY THE 1ST PETITIONER IN L.A.C NO.41/2006, DATED 27.07.2013 EXHIBIT P15 : TRUE COPY OF THE REFERENCE REQUEST REMINDER SUBMITTED BY THE 2ND PETITIONER IN LAC NO.43/2006 DATED 27.07.2013 EXHIBIT P16 : TRUE COPY OF THE REFERENCE REQUEST REMINDER SUBMITTED BY THE 3RD PETITIONER IN L.A.C.NO.44/2006 DATED 27.07.2013 RESPONDENT(S)' EXHIBITS: NIL ------------------------------- // TRUE COPY // TKS P.S. TO JUDGE ## **C.T.RAVIKUMAR, J.** ------------------------------ W.P.(C)No.2908 of 2014 ------------------------------Dated 7[th] February, 2014 ## **JUDGMENT** Petitioners 1 and 2 are holding 0.4917 hectares of property in Survey No.640/4 and the 3[rd] petitioner is holding 0.1600 hectares in Survey Nos.641/1 and 649/29 of Kakkanad Village in Ernakulam District. Their properties were acquired for the development of Infopark, Cochin. Ext.P2 notification under Section 4(1) of the Land Acquisition Act, 1894 (for short `the Act') was published on 13.10.2005. Enquiry under Section 5A of the Act was dispensed with by invoking the urgency clause under Section 17 of the Act. Subsequently, on 16.1.2007 an award was passed in respect of the property acquired from the first petitioner. On the same day awards were passed in respect of the properties acquired from petitioners 2 and 3 also. It is the specific contention of the petitioners that they were not issued with notice under Section 12(2) of the Act prior to the passing of the said awards and that the awards were passed in their absence. Later, on the ground of non-availability of the petitioners the amounts of compensation were deposited before the court in terms of the provisions under section 31(2) of the Act. After passing the awards the 3[rd] petitioner was issued with notice under Section 15(3) of the Land WP(C).No.2908/2014 2 Acquisition (Kerala) Rules (Ext.P3). Similar notices were issued to petitioners 1 and 2 as well. Subsequently, the petitioners submitted application for reference under Section 18 of the Act. Thereafter, the petitioners have filed W.P.(C)No.15026 of 2007 before this Court challenging the very acquisition proceedings itself. The petitioners have challenged the acquisition proceedings unsuccessfully before this Court as also before the Hon'ble Apex Court. It is the contention of the petitioners that after Ext.P8 judgment dated 24.7.2007 that Exts.P9, P9 (a) and P9(b) notices of award were issued to them. The grievance in this writ petition is regarding the inaction on the part of the respondents in making a reference under Section 18 of the Act. 2. I have heard the learned Senior Counsel appearing for the petitioners and also the learned Government Pleader. 3. The precise contention of the petitioners is that they were not issued with notices of award prior to the passing of the award. The compensation awarded in respect of the petitioners were deposited before the court in terms of the provisions under Section 31(2) of the Act. In the normal situation there cannot be any doubt with respect to the fact that if the compensation awarded is deposited before the court in view of the provisions under Section 31(2) of the Act, it should be WP(C).No.2908/2014 3 deemed that the person interested in the acquisition had accepted the amount of compensation. In this case, as noticed hereinbefore, the specific case of the petitioners is that they were not issued with notices of award in tune with the provisions under Section 12. The said aspect is not refuted by the respondents. In such circumstances, the fact that the amount was deposited before the court pursuant to an award passed without their knowledge cannot be a reason for depriving the petitioners' right for reference under Section 18 of the Act. There cannot be any doubt with respect to the fact that acquisition would deprive their right to enjoy the property. In such circumstances, right which is available under the provisions of the Act cannot be deprived to the concerned persons. At any rate, when there is a mandatory provision which is incorporated in the Act for the purpose of making a person from whom the land is acquired to know about the fact that an award is proposed to be passed in respect of the properties to be acquired from him, the respondents are bound to adhere to such provisions. At any rate, a failure to comply with such a mandatory provision cannot be permitted to deprive an invaluable right of a person from whom the land was acquired. In that view of the matter, I am of the view that the respondents cannot be heard to contend that the petitioners were not entitled to submit applications for making reference to the court under Section 18 of the Act. True that, in such circumstances also the respondents are obliged to consider that WP(C).No.2908/2014 4 application only if such applications are filed within the time stipulated under the said relevant provision. That essentially is a question to be decided with reference to the facts. As noticed hereinbefore, the specific contention of the petitioners is that immediately after coming to know about the passing of the awards in respect of the properties acquired from them within the time stipulated under Section 18 of the Act they have submitted their applications requiring the respondents to make a reference under Section 18 of the Act. 4. Another issue crop up for consideration in this case is one occurred consequent to the coming into force of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Act 30 of 2013). As noticed hereinbefore, the acquisition proceedings were initiated and awards were passed in respect of the properties of the petitioners under the Land Acquisition Act, 1894. The said Act stands repealed by virtue of the provisions under Section 114(1) of the Act 30 of 2013. Sub section (2) of Section 114 reads as follows:- “ **114.(2)** Save as otherwise provided in this Act the repeal under sub-section (1) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897) with regard to the effect of repeals.” WP(C).No.2908/2014 5 In the light of sub-section (2) of Section 114 of Act 30 of 2013 to know about the effect of repeal under Section 114(1) the provisions under Section 6 of the General Clauses Act has to be looked into. Section 6 of the General Clauses Act to the extent it is relevant for the purpose of disposal of this case is as follows:- “ **6. Effect of repeal** .- Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-.....................” A perusal of the new Act, Act 30 of 2013 would reveal that a different intention within the meaning of Section 6 of the General Clauses Act appears under Section 24 of Act 30 of 2013. For the purpose of taking decision on the issues involved in this case Section 24(1)(b) alone is relevant. It reads thus:- “ **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 - (a) ......... - (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.” WP(C).No.2908/2014 6 It is evident from the provisions under Section 24(1)(b) that when an award under Section 11 has been made under the Land Acquisition Act, 1894, then the land acquisition proceedings should continue under the provisions of the said Act viz., Land Acquisition Act, 1894 as if the said Act was not repealed. In this case, admittedly, an award under Section 11 of the Land Acquisition Act, 1894 was passed. In such circumstances, by virtue of the provisions under Section 24(1)(b) of Act 30 of 2013 the land acquisition proceedings should continue under the provisions of the said Act as if the said Act was not repealed. The learned Senior Counsel appearing for the petitioners submitted that the issue involved in this case is squarely covered by a decision of the Hon'ble Apex Court in **Pune Municipal Corporation** v. **Harakchand Misirimal Solanki (C.A.No.877 of 2014 & connected cases)** reported in **(2014 (1) KLT 470(SC))** . In the said decision the Hon'ble Apex Court held that Clause (b) of sub section (1) of Section 24 of Act 30 of 2013 makes the provision that where land acquisition proceedings have been initiated under the Land Acquisition Act, 1894 and an award has been passed under Section 11, then such proceedings should continue under the provisions of the Land Acquisition Act, 1894 as if that Act had not been repealed. Section 24(2) begins with _non obstante_ clause and therefore, the said provision has overriding effect over Section 24(1). In other WP(C).No.2908/2014 7 words, it can be said that a different intention appears under Section 24 (1)(b) of Act 30 of 2013 and therefore, despite the repeal of the Land Acquisition Act, 1894 in respect of proceedings initiated under the said Act which culminated in award under Section 11 of that Act, the land acquisition proceedings should continue under the provisions of the Land Acquisition Act, 1894. The expression employed in Section 24(1)(b) is `such proceedings'. The expression `such proceedings' undoubtedly is relating the land acquisition proceedings initiated under the Land Acquisition Act. Therefore, the impact of Section 24(1)(b) is that the land acquisition proceedings initiated under the Land Acquisition Act should continue under the provisions of that Act when once an award was also passed under that Act as if the said Act was not repealed. Then the question is whether making a reference under Section 18 of the Act can be said to be part of the land acquisition proceedings. A perusal of the provisions under Section 6 of the General Clauses Act to know the nature of the provisions under Section 64 which is corresponding to Section 18 of the repealed Act would suggest that a proceedings therein is essentially judicial proceedings. The learned Senior Counsel appearing for the petitioners submitted that a proceedings under Section 18 of the Land Acquisition Act, 1894 or a proceedings under Section 64 of the Act 30 of 2013 respectively before the Court and the authority alone partake the nature of the judicial proceedings and at the same time, making a WP(C).No.2908/2014 8 reference under Section 18 of the Act or under Section 64 of Act 30 of 2013 cannot be said to be a judicial proceedings. Essentially, the said proceedings could assume the nature of a judicial proceedings only if after the reference the matter reaches before the concerned court. There cannot be any doubt with respect to the fact that the process of reference cannot be treated as a part of the judicial proceedings. True that, it may lead to a judicial proceedings but, only after reference the judicial proceedings could commence. In such circumstances, I am inclined to accept the contention raised by the learned Senior Counsel that the Act of reference cannot be said to be a judicial proceedings and it essentially can only be a proceedings under the Land Acquisition Act. Therefore, in the light of the provisions under Section 24(1)(b) and taking into the fact that an award under Section 11 was passed under the Act the rest of the land acquisition proceedings could continue only under that Act and not under Act 30 of 2013. A consideration of the cumulative impact of Section 114(2) of Act 30 of 2013, Section 6 of the General Clauses Act and Section 24(1)(b) of Act 30 of 2013 would essentially constrained me to conclude that the act of making a reference under Section 18 cannot be said to be a judicial proceedings and in the said circumstances, in view of the different intention appearing in Section 24(1)(b) the process of making reference has to be made in terms of the provisions under the Act. In the said circumstances, this writ petition is WP(C).No.2908/2014 9 disposed of with a direction to the 4[th] respondent to consider the application submitted by the petitioners for reference under Section 18 of the Act and pass appropriate orders thereon in accordance with law, as expeditiously as possible, at any rate, within six weeks from the date of receipt of copy of this judgment. Sd/C.T.RAVIKUMAR Judge TKS