Baby Joseph, Peter P.J., Mercy and Praveen Peter v. Chief Secretary, Government of Kerala; District Collector, Kanayannur; Tahsildar, Kanayannur Taluk; Village Officer, Poonithura; Kochi Metro Rail Ltd., and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE THE CHIEF JUSTICE MR. ASHISH JITENDRA DESAI`** ## **`&`** ## **`THE HONOURABLE MR.JUSTICE V.G.ARUN`** ``` MONDAY, THE 24[TH] DAY OF JULY 2023 / 2ND SRAVANA, 1945 ``` ## **`WA NO. 1246 OF 2023`** ``` AGAINST THE ORDER IN RP 548/2023 OF HIGH COURT OF KERALA ``` ## **`APPELLANTS/PETITIONERS:`** ``` 1 BABY JOSEPH AGED 83 YEARS, W/O LATE JOSEPH, HOUSE NO: IV/513, THAIPPARAMBIL HOUSE, CHAMBAKKARA MARKET, POONITHURA.P.O, KANAYANNURTALUK, POONITHURA VILLAGE, ERNAKULAM, PIN – 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, ERNAKULAM, PIN – 682 038 3 MERCY AGED 51 YEARS, W/O PETER, HOUSE NO: IV/513, THAIPPARAMBIL HOUSE, CHAMBAKKARA MARKET, POONITHURA.P.O, KANAYANNURTALUK, POONITHURA VILLAGE, ERNAKULAM, PIN – 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 DISTRICT, PIN – 682 038 ``` ``` BY ADVS. T.R.S.KUMAR DEENA JOSEPH DEEPA R MENON AKSHAY JOSEPH ADHIKARAM THUSHARKRISHNAN K.U. SONA MARIA PAULOSE AMRUTHA PREMJITH ``` W.A.No.1246 of 2023 2 ## **`RESPONDENT/S:`** - `1 THE CHIEF SECRETARY GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695 001` - `2 THE DISTRICT COLLECTOR CIVIL STATION, ERNAKULAM, KAKKANAD P.O,, PIN – 682 030` - `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, PIN – 682 011` - `6 THE CHIEF ENGINEER (ROADS) PUBLIC WORKS DEPARTMENT, PUBLIC OFFICE COMPLEX, MUSEUM P.O, THIRUVANANTHPURAM, PIN – 695 033` - `7 SPECIAL TAHASILDAR (LA) NO:II, KERALA METRO RAIL PROJECT, KAKKANAD.P.O. ERNAKULAM, PIN – 682 030` - `8 KOCHI METRO RAIL LIMITED REP BY ITS MANAGING DIRECTOR, JLN METRO STATION, 4TH FLOOR, KALOOR,KOCHI,ERNAKULAM, PIN – 682 017 BY ADVS. K B ARUNKUMAR Advocate M.U.VIJAYALAKSHMI K.JAJU BABU (SR.)(K/116/1981) SR.GP. T.K.VIPINDAS` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 24.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.A.No.1246 of 2023 3 ## **JUDGMENT** Dated this the 24[th] day of July 2023 ## **A.J. Desai, C.J.** By way of the present appeal filed under section 5 of the Kerala High Court Act, 1958, the original petitioners have challenged the judgment dated 15.03.2023 in R.P.No.548 of 2023, filed against the judgment in W.P.(C)No.11928 of 2022, by which the learned single Judge dismissed the petition on the ground that the petitioners are yet to establish the title of the property in question by adverse possession and directed the respondents to deposit only the amount of compensation for the value of improvements affected by the petitioners in the land acquired for public purpose. 2. Mr.T.R.S. Kumar, learned counsel for the appellants would submit that the appellants have been in possession of the property for more than 6 to 7 decades and are residing there with the family members. He would submit that the appellants have already filed a civil suit for appropriate relief, including W.A.No.1246 of 2023 4 declaration of the title of the property, which is pending before the trial court. He would submit that there will be no harm if the respondents are directed to deposit the amount of compensation in the court as prayed for in the writ petition. He has taken us through sub-section (2) of section 77 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. He would submit that under sub-section (2), if there is a dispute about the title of the property, the authority is supposed to deposit the amount of compensation before the court. He would submit that the dispute about the title is already pending before the trial court. He would submit that the appeal be admitted, and the respondents be directed to deposit the amount awarded as compensation. 3. On the other hand, learned counsel appearing for the 8[th] respondent would submit that the appellants have already filed a suit, claiming their right over the property on the grounds of adverse possession. Insofar as the appellants are not W.A.No.1246 of 2023 5 declared as the owners of the property, the learned single Judge has rightly rejected the petition. By taking us through the impugned judgment, he would submit that the observation made in paragraph 7 of the judgment in W.P.(C)No.11928 of 2022 reveals that the learned single Judge has dealt with the question properly and hence, the judgment does not call for any interference in this appeal. 4. We have heard learned Advocates for the respective parties. We have also gone through the prayers made in the civil suit filed by the petitioners. The reliefs in the civil suit read as under: - “1. Grant a decree declaring the plaintiffs title and possession over the plaint schedule property. 2. Pass a decree of permanent prohibitory injunction restraining the defendants, their men and agents from forcibly evicting the plaintiffs without serving mandatory due notice as envisages under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2016. 3. Pass a decree of mandatory injunction directing the 5[th] defendant to disburse the compensation amount with respect to the building, structures etc directly to the W.A.No.1246 of 2023 6 plaintiffs and to deposit the compensation amount towards the land in a nationalized bank in the name of this Hon’ble Court. 4. Grant such other reliefs as may be prayed for, which deems fit and proper, during the course of the proceedings of the above case. 5. Allow costs of the proceedings from the defendants.” 5. When the petitioners prima facie could not establish the title of the property, the provisions of section 77(2) would not be applied. 6. We completely agree with the observation made by the learned single Judge in paragraph 7 of the judgment in W.P.(C)No.11928 of 2022. Paragraph 7 reads as under: “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 W.A.No.1246 of 2023 7 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:- “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 W.A.No.1246 of 2023 8 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 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 W.A.No.1246 of 2023 9 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 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.” ## Hence, we do not find any interference called for in this appeal. The appeal is dismissed. Sd/- **A.J. Desai Chief Justice** Sd/- **V.G. Arun Judge** **vpv** W.A.No.1246 of 2023 10 ## **`APPENDIX OF WA 1246/2023`** ``` PETITIONER ANNEXURES ``` ``` Annexure A1 TRUE COPY OF NOTICE DATED 23.06.2023 BEARING NO. A2-350/23 ``` ``` //true copy// ``` ``` P.A. to Judge ```