Baby Joseph and Others v. The Chief Secretary, Government of Kerala, District Collector, Tahsildar, Village Officer, Corporation of Kochi, Chief Engineer (ROADS) PWD, Special Tahasildar (LA) Kerala Metro Project, Kochi Metro Rail Ltd. and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE GOPINATH P.** ## **WEDNESDAY, THE 15[TH] DAY OF MARCH 2023 / 24TH PHALGUNA, 1944** ## **WP(C) NO. 11928 OF 2022** ## **PETITIONERS:** - 1 BABY JOSEPH,AGED 83 YEARS, W/O.LATE JOSEPH, HOUSE NO.IV/513, THAIPPARAMBIL HOUSE, CHAMBAKKARA MARKET, POONITHURA P.O., KANAYANNUR TALUK, POONITHURA VILLAGE, ERNAKULAM-682 038. - 2 PETER.P.J., AGED 55 YEARS S/O.LATE JOSEPH, HOUSE NO.IV/513, THAIPPARAMBIL HOUSE, CHAMBAKKARA MARKET, POONITHURA P.O., KANAYANNUR TALUK, POONITHURA VILLAGE, ERNAKULAM682 038. - 3 MERCY, AGED 51 YEARS W/O.PETER, HOUSE NO.IV/513, THAIPPARAMBIL HOUSE, CHAMBAKKARA MARKET, POONITHURA P.O., KANAYANNUR TALUK, POONITHURA VILLAGE, ERNAKULAM-682 038. - 4 PRAVEEN PETER, AGED 30 YEARS S/O.PETER, HOUSE NO.IV/513, THAIPPARAMBIL HOUSE, CHAMBAKKARA MARKET, POONITHURA P.O., KANAYANNUR TALUK, POONITHURA VILLAGE, ERNAKULAM-682 038. BY ADVS. T.R.S.KUMAR DEENA JOSEPH DEEPA R MENON MITHUN C THOMAS AKSHAY JOSEPH ADHIKARAM SWARNA THOMAS ## **RESPONDENTS:** 1 THE CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2 THE DISTRICT COLLECTOR, CIVIL STATION, ERNAKULAM, KAKKANAD P.O., PIN-682 030. W.P (C) No.11928/2022 -2- - 3 THE TAHSILDAR, TALUK OFFICE, KANAYANNUR TALUK, DISTRICT COURT COMPLEX, ERNAKULAM, PIN-682 011. - 4 THE VILLAGE OFFICER, VILLAGE OFFICE, POONITHURA VILLAGE, POONITHURA P.O., PIN-682 038. - 5 THE SECRETARY, CORPORATION OF KOCHI, PARK AVENUE ROAD, ERNAKULAM-682 011. - 6 THE CHEIF ENGINEER (ROADS), PUBLIC WORKS DEPARTMENT, PUBLIC OFFICE COMPLEX, MUSEUM P.O., THIRUVANANTHAPURAM-695 033. - 7 SPECIAL TAHASILDAR (LA), NO.II, KERALA METRO RAIL PROJECT, KAKKANAD P.O., ERNAKULAM-682 030. 8 KOCHI METRO RAIL LIMITED, REP BY ITS MANAGING DIRECTOR,JLN METRO STATION,4TH FLOOR,KALOOR,KOCHI,ERNAKULAM-682017 IS IMPLEADED AS ADDL.R8 AS PER ORDER DATED 10.10.2022 IN IA.2/22 . BY ADVS. K.B.ARUNKUMAR K.JAJU BABU (SR.) SMT.M.U.VIJAYALAKSHMI, SC, KOCHI METRO RAIL LTD. SRI. BIMAL K NATH (SR GP) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P (C) No.11928/2022 -3- **C.R.** ## **JUDGMENT** The petitioners in this writ petition claim to be in absolute possession of 3 cents of land comprised in survey No.1279 of Poonithura Village, Kanayannur Taluk, Ernakulam District. The said property, it is not disputed, is marked as ' _puramboke'_ land in the revenue records. It is the case of the petitioners that sometime in the year 1960, the land came into the possession of the husband of the first petitioner [late Joseph]. Thereafter, the late Joseph and his successors, including the petitioners herein, have been in possession of the said property where they are residing after constructing a residential building. The petitioners have approached this Court, seeking to quash Exts.P9 and P10, through which the petitioners were informed that the land would be taken over for the purposes of the Kochi Water Metro without subjecting the land to any proceeding under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as ‘the Act’) and without paying to the petitioners the compensation payable in terms of the provisions contained in the said Act. 2. Sri. T.R.S Kumar, the learned counsel appearing for the petitioners, would submit that there is absolutely no dispute that the W.P (C) No.11928/2022 -4- land in question has been in possession of the late Joseph since 1960 and after his death, with the petitioners as legal heirs of late Joseph. It is submitted that the documents produced along with the writ petition will suggest that there can be no dispute that the petitioners had been in possession of the property for a long time and they are in a position to establish their title by adverse possession. It is submitted that the petitioners have already filed a suit claiming a declaration of title and for an injunction restraining the official respondents from taking over the property without following the procedure contemplated by the provisions of the Act. It is submitted that the petitioners are entitled to compensation for the land and the building. Reference is made in this regard to the provisions of the First Schedule of the Act as also to the provisions of Section 77(2) of the Act to contend that where a question regarding title is to be established, the entire compensation, including compensation for the land, has to be deposited before the authority competent to consider a reference under Section 64 of the Act. It is submitted that, without following such a procedure, the respondents cannot take over the land and residential building in question. Learned counsel appearing for the petitioners also would submit, with reference to the provisions in the Second Schedule of the Act, that the petitioners are entitled to the provision of housing units as the petitioners have been displaced from their dwelling unit. It is submitted that the W.P (C) No.11928/2022 -5- benefits available to persons, who have lost houses in urban areas, have to be calculated in terms of the provisions contained in the Second Schedule of the Act. As far as the petitioners are concerned, it is submitted that the displacement of the petitioners from the house in question can be only after the rehabilitation and resettlement process is completed. It is also submitted that the petitioners are also entitled to a solatium as contemplated by Section 30 of the Act. 3. Sri. Jaju Babu, learned Senior counsel appearing for the additional 8[th] respondent, on the instructions of Adv. Brijesh Mohan and Sri. Bimal K. Nath, the learned Senior Government Pleader appearing for the official respondents would contend that there is absolutely no merit in the contentions taken in the writ petition. It is submitted that, admittedly, the land in question is a ‘ _puramboke’_ land. It is submitted that the petitioners do not fall within the definition of “ _land owner_ ” and that unless the petitioners establish title in the suit stated to have been filed, the petitioners cannot claim any compensation for the land under Section 27 of the Act. It is further submitted that there is no question of a notification being issued under the provisions of the Act for the ‘acquisition’ of land, which is clearly marked as _puramboke_ land especially when the status of the land is not disputed even by the petitioners. It is submitted that there was an application for the assignment of the land in the year 2009, and the W.P (C) No.11928/2022 -6- same was rejected as per Ext.P6. It is submitted that it is, therefore, extremely difficult for the petitioners to establish that they have perfected title by adverse possession, taking into consideration the fact that their application for the assignment had been rejected by Ext.P6 order. It is submitted that the petitioners have been found entitled to compensation for the building as also for the rehabilitation and resettlement package as contemplated by the Second Schedule of the Act, and therefore, the petitioners cannot have any further grievance in the matter. Learned Senior Government Pleader would submit with reference to the averments in the counter affidavit (paragraph No.8) that an amount of Rs.3,96,003/- (Rupees Three lakhs ninety-six thousand and three only) has been found payable to the petitioners. It is submitted that the question of providing alternative land and rehabilitating the petitioners by providing an alternative residential accommodation does not arise in the facts and circumstances of this case. It is submitted that the petitioners cannot be termed as an _‘affected family_ ’ as the land in question is, admittedly, a ‘ _puramboke’_ land. It is also submitted that the question of awarding solatium cannot be considered. It is submitted that where the land in question is admittedly _‘puramboke’_ land, the petitioners can only be awarded the value of the improvements and the solatium, which is awarded owing to the compulsory nature of the acquisition, cannot be paid to persons, W.P (C) No.11928/2022 -7- who are in illegal occupation of Government land. Learned Senior Government Pleader also places reliance on the provisions of Sections 4 and 5 of the Land Conservancy Act, 1957, to emphasise that occupation of government lands by the petitioners without the permission of the Government is clearly illegal. 4. Having heard the learned counsel appearing for the petitioners and the learned Senior Counsel appearing for the additional 8[th] respondent, and the learned Senior Government Pleader appearing for the official respondents, I am of the opinion that the issues that arise for consideration in this case, are _**(i)**_ Are the petitioners who are admittedly in occupation of government land (‘ _puramboke_ ’) entitled to claim that they are entitled to claim compensation for the land on account of long occupancy? _**(ii)**_ Is compensation payable on land to be determined and deposited as contemplated by Section 77 of the Act in the facts of the present case? _**(iii)**_ Are the petitioners entitled to claim a solatium on the value of land/improvements under Section 30 of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013? 5. Are the petitioners who are admittedly in occupation of government land (‘ _puramboke_ ’) entitled to claim that they are entitled to claim compensation for the land on account of long occupancy? Section 3 (r) of the Act defines ‘ _land owner’_ in the following manner:- W.P (C) No.11928/2022 -8- _3 (r) "land owner" includes any person,_ _(i) whose name is recorded as the owner of the land or building or part thereof, in the records of the authority concerned; or_ _(ii) any person who is granted forest rights under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (2 of 2007) or under any other law for the time being in force; or_ _(iii) who is entitled to be granted Patta rights on the land under any law of the State including assigned lands; or_ _(iv) any person who has been declared as such by an order of the court or Authority;_ A reading of Section 3(r) of the Act makes it clear that the term ‘land owner’ **includes** any person whose name is recorded as the owner of the land or building or part thereof in the records of the authority concerned or who is entitled to be granted _patta_ rights on the land under any law of the State including assigned lands or any person who has been declared as such by order of the court or authority. While I cannot ignore the fact that Section 3(r) of the Act is an inclusive definition (indicating that the categories of ownership mentioned therein are not in any manner exhaustive), it is clear that only persons who have a semblance of right over the land will fall within the definition of _‘land owner’_ . In the facts of the present case, the land is admittedly government ‘ _puramboke’._ By no stretch of imagination can it be said that such land must also be the subject matter of acquisition merely because it is under occupation by persons like the petitioners. A W.P (C) No.11928/2022 -9- reading of Section 27 of the Act makes it clear the compensation to be determined under that Section is to be paid to the _‘land owner’_ . The land in question is government land over which no acquisition proceedings are required to be initiated. The petitioners have no semblance of any right to insist that even when the land is admittedly government _‘puramboke_ ’, the same must be subjected to the process of acquisition and compensation must be paid for the land, for the sole reason that they have allegedly been in occupation for several years. Therefore the first issue is answered against the petitioners. However, it is clarified that this finding will not in any manner prevent the petitioners from establishing their rights over the land through the competent civil court. Once such right is established through the civil court, it may also be open to the petitioners to claim compensation on the basis of any declaration that the Civil Court may make. 6. Is compensation payable on land to be determined and deposited as contemplated by Section 77 of the Act in the facts of the present case? Section 77 of the Act reads as follows:- ## _“_ _**S.77 Payment of compensation or deposit of same in Authority**_ _(1) On making an award under section 30, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award and shall pay it to them by depositing the amount in their bank accounts unless_ W.P (C) No.11928/2022 -10- _prevented by someone or more of the contingencies mentioned in sub-section (2)._ _(2) If the person entitled to compensation shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the Authority to which a reference under section 64 would be submitted:_ _Provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount:_ _Provided further that no person who has received the amount otherwise than under protest shall be entitled to make any application under sub-section (1) of section 64:_ _Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto.”_ A reading of Section 77 of the Act and in particular, Section 77(2) of the Act indicates that the question of depositing the entire amount of compensation, including the compensation for the land, under Section 77(2) of the Act does not arise in the facts and circumstances of this case. In the present case, there is no dispute that, presently, the land is identified as ‘ _puramboke’_ and the petitioners are yet to establish any title to it. The provisions of Section 77(2) of the Act, on its plain reading, clearly suggest that the provision was never intended to be operated in a contingency like the present and that the provision was intended to tide over a situation where either the person entitled refuses to accept the amount of compensation determined or where W.P (C) No.11928/2022 -11- there is a dispute regarding the person or persons entitled to receive compensation or where there is no person competent to alienate the land. None of these contingencies are attracted here for the simple reason that the land in question is admittedly government land. Therefore the 2[nd] issue is also answered against the petitioners. 7. Are the petitioners entitled to claim a solatium on the value of land/improvements under Section 30 of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013? I have already held that the petitioners are not entitled to claim any compensation for the land at present and till their rights over the land are established in law. Still, the question remains as to whether any solatium has to be paid on the value fixed for the improvements. Solatium, as defined in _**Ramanatha Iyer - Advanced Law**_ ➖ _**Lexicon - 4th Edn.**_ is _“ ‘Solatium’ is an expression apt to describe an award of some amount to cover inconvenience and, in a proper case, distress caused by compulsory taking. It is quite inapt to describe an amount awarded for provable loss to which the claimant is entitled” (_ _**per Barber J. in March v. City of Frankston (1969) Victorian Reports 350** )_ The Supreme Court in _**Narain Das Jain v. Agra Nagar Mahapalika, (1991) 4 SCC 212**_ held:- W.P (C) No.11928/2022 -12- _“6. Section 23(2) of Land Acquisition Act, as it then was, provided that in addition to the market value of the land, as provided in sub-section (1) of Section 23, the court shall in every case award a sum of rupees fifteen per centum on such market value in consideration of the compulsory nature of acquisition. Solatium, as the word goes, is “money comfort”, quantified by the statute, and given as a conciliatory measure for the compulsory acquisition of the land of the citizen, by a welfare State such as ours. The concern for such a citizen was voiced by the Law Commission of India in its Report submitted in 1957 on the Need for Reform in the Land Acquisition by observing as follows:_ _“We are not also in favour of omitting Section 23(2) so as to exclude solatium of 15 per cent for the compulsory nature of the acquisition. It is not enough for a person to get the market value of the land as compensation in order to place himself in a position similar to that which he could have occupied had there been no acquisition, he may have to spend a considerable further amount for putting himself in the same position as before …. As pointed out by Fitzgerald the community has no right to enrich itself by deliberately taking away the property of any of its members in such circumstances without providing adequate compensation for it. This principle has been in force in India ever since the Act of 1870. The Select Committee which examined the Bill of 1893 did not think it necessary to omit the provision but on the other hand transferred it to Section 23.”_ _7. The importance of the award of solatium cannot be undermined by any procedural blockades. It follows automatically the market value of the land acquired, as a shadow would to a man. It springs up spontaneously as a part of the statutory growth on the determination and_ W.P (C) No.11928/2022 -13- _emergence of market value of the land acquired. It follows as a matter of course without any impediment. That it falls to be awarded by the court “in every case” leaves no discretion with the court in not awarding it in some cases and awarding in others. Since the award of solatium is in consideration of the compulsory nature of acquisition, it is a hanging mandate for the court to award and supply the omission at any stage where the court gets occasion to amend or rectify. This is the spirit of the provision, wherever made.”_ Solatium is thus the amount of money paid to offset the damage caused by the involuntary act of giving up the property in question, owing to the compulsory nature of the acquisition. It is clear that when the land in question continues to be _‘puramboke’_ land and the petitioners are yet to establish title either by adverse possession or otherwise, the question of paying compensation for the compulsory nature of acquisition (solatium) does not arise. If the petitioners establish title in the pending civil suit, they will certainly be entitled to claim solatium in terms of the provisions of Section 30 of the Act. Till such time as the petitioners are able to establish their title, they are entitled only to compensation for the value of improvements effected by them, and the same has already been determined. It is also not in dispute that certain amounts have also been determined towards the rehabilitation package. In other words, the question of paying compensation (solatium) owing to the compulsory nature of acquisition does not arise when the land in question is admittedly Government ‘ _puramboke’._ The W.P (C) No.11928/2022 -14- issue as to whether the petitioners are entitled to any solatium will also depend on the question as to whether they are able to establish title in the pending civil suit. It is open to the petitioners to receive the compensation presently fixed towards the value of impovements by providing the bank details to which such amount has to be transferred, and the receipt of such amount will not affect any further claim that they may have, subject to the result of the pending civil proceedings. The third issue is also answered against the petitioners. 8. Again, the question as to whether the petitioners are entitled to the provision of a separate plot or land and a house in terms of the provisions contained in the Second Schedule of the Act will depend on the establishment of the rights of the petitioners over the land in question, in the pending civil suit. Till such time as the petitioners establish title to the land in the pending civil suit, it cannot be said that the petitioners can be evicted only after providing all the benefits contemplated by the Second Schedule to the Act. No other point has been raised. The writ petition fails and it is accordingly dismissed. The petitioners shall forthwith provide the details of the bank account to which the amount of compensation now fixed towards the value of the building and towards the rehabilitation package are to be deposited. If the petitioners do not opt to receive the amount within a period of two weeks from the date of receipt of a W.P (C) No.11928/2022 -15- certified copy of this judgment, it will be open to the competent authority to deposit such amounts before the Reference Court and proceed to take possession of the property in question. I also make it clear that notwithstanding any findings/observations contained in this judgment, if the petitioners establish title over the land in question in the pending civil proceedings, the petitioners will also be entitled to all the benefits contemplated by the provisions of the Act and as provided to land owners similarly situated. ``` Sd/- GOPINATH P., JUDGE ``` rkj/ajt **==> picture [483 x 266] intentionally omitted <==** ## W.P (C) No.11928/2022 -16- ## **APPENDIX OF WP(C) 11928/2022** PETITIONER EXHIBITS - Exhibit P1 TRUE COPY OF RATION CARD NO.198329 ISSUED BY THE RATIONING AUTHORITY UNDER KERALA RATIONING RULES 1966. - Exhibit P2 TRUE COPY OF LAST TAX RECEIPT DATED 26.03.1974 PAID TO THE POONITHURA VILLAGE OFFICE. - Exhibit P3 TRUE COPY OF RATION CARD NO.198329 ISSUED BY THE RATIONING AUTHORITY UNDER KERALA RATIONING RULES 1966. - Exhibit P4 TRUE COPY OF SKETCH IN RESPECT OF THE PETITIONERS PROPERTY. - Exhibit P5 TRUE COPY OF PHOTOGRAPHS OF PETITIONERS RESIDENCE. - Exhibit P6 TRUE COPY OF REJECTION ORDER DATED 04.07.2009 BY THE DISTRICT COLLECTOR, ERNAKULAM. - Exhibit P7 TRUE COPY OF PLAINT DATED 08.02.2022 FILED BY THE PETITIONERS. - Exhibit P8 TRUE COPY OF COMMISSION REPORT DATED 05.03.2022 SUBMITTED BY ADVOCATE COMMISSIONER. - Exhibit P9 TRUE COPY OF NOTICE DATED 27.10.2021 ISSUED BY THE 7TH RESPONDENT. - Exhibit P10 TRUE COPY OF NOTICE DATED 16.03.2022 ISSUED BY THE 7TH RESPONDENT. - Exhibit P11 TRUE COPY OF THE GAZETTE NOTIFICATION G.O(P) NO.43/2020/RD DATED 18.06.2020