Chandroth Ramachandran Nair v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 24TH DAY OF NOVEMBER 2020 / 3RD AGRAHAYANA, 1942** ## **W.P.(C)No.14066 OF 2020(G)** ## **PETITIONER:** ## **CHANDROTH RAMCHANDRAN NAIR** **AGED 68 YEARS S/O.RAMAN NAIR, RESIDING AT CHANDROTH HOUSE, MATTANNUR COLLEGE P.O., KEEZHALLUR, THALASSERY, KANNUR DISTRICT.** **BY ADVS. SRI.JOBY JACOB PULICKEKUDY SRI.ANIL GEORGE SRI.T.ANCY SMT.N.B.FATHIMA SULFATH SHRI.DAJISH JOHN SHRI.BASIL PAUL** ## **RESPONDENTS:** **1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2 THE DISTRICT COLLECTOR KANNUR, CIVIL STATION, KANNUR-670 002.** -2- ## W.P.(C)No.14066 OF 2020(G) - **3 THE SPECIAL TAHSILDAR LA(NH), NO.II, MATTANNUR, KANNUR-670 102. CORRECTED** **THE NAME OF THE THIRD RESPONDENT IS CORRECTED AS SPECIAL TAHSILDAR (L.A), AIRPORT NO.2. AS PER ORDER DATED 23-07-20 IN IA 1/20.** **R BY SMT A.C.VIDHYA- GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -3- W.P.(C)No.14066 OF 2020(G) ## **JUDGMENT** According to the petitioner, he is the owner in possession of 50 cents of land in Re.Sy.No.17/1 and another extent of 50 cents in Sy.No.3/1(i) [Re.Sy.No.3/1C] of Keezhalloor Village covered by Ext.P1 settlement deed bearing No.1552/1994 of the Sub Registrar Office, Mattannur. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 2[nd] respondent District Collector to take action on Ext.P8 representation dated 19.03.2020 and Ext.P9 application dated 31.03.2020 by resolving the dispute raised in it or in case he cannot resolve the dispute regarding the ownership or other interest, direct to make a report of the claim/objection, after conducting enquiry, and thereafter, direct the petitioner to have it resolved by a competent court of law and till such dispute is resolved by a court of law, mark the land in question in the revenue records as ‘disputed’ for the purpose of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and take possession of the property only after the dispute is thus resolved. -4- W.P.(C)No.14066 OF 2020(G) 2. On 13.07.2020, when this writ petition came up for admission, the learned Government Pleader took notice for respondents 1 and 2. 3. A statement has been filed on behalf of the 2[nd] respondent. The petitioner has filed I.A.No.2 of 2020 seeking an order to accept Ext.P10 as additional document. 4. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondents. 5. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for brevity, 'the Act') was enacted by the Parliament to ensure, in consultation with institutions of local selfgovernment and Gram Sabhas established under the Constitution, a humane, participative, informed and transparent process for land acquisition for industrialisation, development of essential infrastructural facilities and urbanisation with the least disturbance to the owners of the land and other affected families and provide just and fair compensation to the affected families whose land has been -5- ## W.P.(C)No.14066 OF 2020(G) acquired or proposed to be acquired or are affected by such acquisition and make adequate provisions for such affected persons for their rehabilitation and resettlement and for ensuring that the cumulative outcome of compulsory acquisition should be that affected persons become partners in development leading to an improvement in their post acquisition social and economic status and for matters connected therewith or incidental thereto. 6. Clause (e) of Section 3 of the Act, unless the context otherwise requires, 'appropriate Government' means, (i) in relation to acquisition of land situated within the territory of a State, the State Government; (ii) in relation to acquisition of land situated within a Union Territory (except Puducherry), the Central Government; (iii) in relation to acquisition of land situated within the Union Territory of Puducherry, the Government of Union Territory of Puducherry; (iv) in relation to acquisition of land for public purpose in more than one State, the Central Government, in consultation with the concerned State Governments or Union territories; and (v) in relation to the acquisition of land for the purpose of the Union -6- ## W.P.(C)No.14066 OF 2020(G) as may be specified by notification, the Central Government. As per the proviso to clause (e) of Section 3, in respect of a public purpose in a District for an area not exceeding such as may be notified by the appropriate Government, the Collector of such District shall be deemed to be the appropriate Government. Clause (g) of Section 3 of the Act, unless the context otherwise requires, 'Collector' means the Collector of a revenue district, and includes a Deputy Commissioner and any officer specially designated by the appropriate Government to perform the functions of a Collector under this Act. Section 11 of the Act deals with publication of preliminary notification and power of officers thereupon. 7. In exercise of the powers conferred under Section 109 of the Act, the Government of Kerala made the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Kerala) Rules, 2015 (for brevity, 'the Kerala Rules'). Chapter V of the Kerala Rules deals with preliminary notification. Rule 18 deals with publication of preliminary notification. As per sub-rule (1) of Rule 18, whenever the Government decides to proceed with -7- ## W.P.(C)No.14066 OF 2020(G) the land acquisition, the Government shall publish a preliminary notification as provided in sub-section (1) of Section 11 of the Act showing the details of the land proposed to be acquired, categorising them separately as rural or urban areas as applicable in Form No.7 and in the case of notifications as provided in sub-section (4) of Section 40 of the Act in Form No.7A. As per sub-rule (2) of Rule 18, the date of publication of the notification shall be the date on which the latest publication was made along the various modes in which the notification as per Clauses (a) to (e) of sub-section (1) of Section 11 is published. 8. As per sub-rule (3) of Rule 18 of the Act, any person who owns land or has any other interest in the land covered by a preliminary notification, shall within fifteen days of the notice published by the Collector report to the concerned offices of the Government and stake his claim on the said land as provided under any law for the time being in force. As per sub-rule (4) of Rule 18, all disputes arising out of any application made by any persons claiming ownership or other interest in respect of any land included in the -8- ## W.P.(C)No.14066 OF 2020(G) preliminary notification to update the concerned records with the Government or its officers, shall be referred by the officer concerned to the Collector who shall endeavor to resolve it in accordance with any law for the time being in force regarding resolution of such disputes. As per sub-rule (5) of Rule 18, if for any reason the Collector concerned cannot resolve the dispute regarding the ownership or other interest claimed by any person in respect of any land covered in the preliminary notification, the Collector concerned shall make a report of the claim, the objections raised, if any, and the disputed questions and shall direct the parties concerned to have it resolved by a competent c ourt of law or by any other agency/tribunal/forum vested with jurisdiction to resolve the said dispute as per any law for the time being in force. As per sub-rule (6) of Rule 18, till the dispute is resolved by a court of law, or by any other agency/tribunal/forum, the land in question shall be marked in the revenue records as disputed property for the purpose of the Act and the Kerala Rules. Any claims for compensation, rehabilitation or resettlement in respect of any person interested in a land over which any right is disputed shall only -9- ## W.P.(C)No.14066 OF 2020(G) be settled after the dispute is resolved by a competent court of law or by any agency, tribunal or forum empowered to settle such disputes under any law for the time being in force. 9. In the instant case, going by the pleadings and materials on record, the Government of Kerala vide G.O. (Ms.)No.37/2009/Trans. dated 25.06.2009 accorded sanction to acquire 316.8976 hectares of land in Keezhalloor Amsom Kotheri Desam in Kannur District for the purpose of Additional Development of Kannur International Airport – Phase III. Notification under sub-section (1) of Section 4 of the Land Acquisition Act, 1894 was published in Kerala Gazette Ext.No.1366 dated 25.07.2009. Since the said notification in respect of certain extent of land lapsed, the Government, vide G.O.(Rt.)No.4873/14/RD dated 10.10.2014, accorded sanction to the 2[nd] respondent District Collector to resort to negotiation to purchase 53.2204 hectares of land in various survey numbers in Kotheri, Kanad and Therur desom in Keezhalloor Village in Thalassery Taluk. The Government, vide G.O. (Rt.)No.4272/15/RD on 11.08.2015, approved the land value fixed by the District Level Purchase Committee in its meeting -10- ## W.P.(C)No.14066 OF 2020(G) held on 25.05.2015. It was decided to purchase 27.6007 hectares through negotiation and to acquire the remaining extend by resorting land acquisition proceedings. Accordingly, the Government issued notification, vide G.O.(Rt)No.95/2017/ Trans dated 01.03.2017, to acquire 19.7245 hectares of land. 10. According to the petitioner, the land having an extent of 50 cents in Re.Sy.No.17/1 of Keezhalloor Village was purchased by the Kerala Industrial Infrastructure Development Corporation (KINFRA) on 21.04.2017 and a further extent of 50 cents in Re.Sy.No.3/1C of the said village was purchased on 06.02.2017. Relying on Ext.P2 certificate dated 29.09.2016 issued by the Village Officer, Keezhalloor the petitioner would claim that he is in possession of a further extent of 3.22 ares in Re.Sy.No.3/1C of Keezhalloor Village, which is included in the schedule of Ext.P3 notification dated 28.07.2018, issued by the 3[rd] respondent Special Tahsildar, which appeared in Mathrubhoomi daily dated 23.02.2019. The petitioner was issued with Ext.P4 notice dated 14.06.2019 regarding the inspection scheduled on 05.07.2019. Thereafter, the petitioner was issued with Ext.P5 notice dated 30.07.2019, which was -11- ## W.P.(C)No.14066 OF 2020(G) followed by Ext.P6 notice dated 27.01.2020 under Section 21 of the Act. The petitioner submitted Ext.P7 objection dated 27.01.2020, which was followed by Ext.P8 representation dated 19.03.2020. Since no action under sub-rule (4) of Rule 18 of the Kerala Rules was taken on Exts.P6 and P7, the petitioner submitted Ext.P9 application before the 2[nd] respondent, under sub-rule (5) of Rule 18 of the said Rules. 11. The 2[nd] respondent has filed a statement in which it is stated that, an extent of 0.0129 hectare of land in the possession of the petitioner was measured by the Surveyor and the sub divisional records and sketch was scrutinised by District Survey Superintendent Kannur. As per survey records, an extent of 0.0129 hectare land is now in the possession of the petitioner and his brother Damodaran Nair, jointly. The petitioner was issued with notice under Section 21 of the Act to present before the 3[rd] respondent along with relevant documents to prove his title. The petitioner appeared on the appointed day but no document was produced except the basic tax receipt. The petitioner submitted an objection stating the extent of land and for measurement of the -12- ## W.P.(C)No.14066 OF 2020(G) property. Based on that objection, the 3[rd] respondent issued another notice in order to gave one more chance to the petitioner for personal hearing. The petitioner did not turn up on that notice. Instead, the petitioner had caused to issue the 2[nd] respondent a lawyer notice dated 19.03.2020, to which the 2[nd] respondent sent a reply denying all the allegations raised in that notice. The petitioner submitted another representation dated 31.03.2020 before the 2[nd] respondent alleging inaction on the part of the 3[rd] respondent on his request. The 2[nd] respondent has already directed the 3[rd] respondent to consider the representation made by the petitioner, once again, and to take further action in the matter, within one month. 12. Subsequent to the filing of statement by the 2[nd] respondent District Collector, the 3[rd] respondent Special Tahsildar has issued a notice requiring the petitioner to submit statement. Accordingly, the petitioner submitted Ext.P10 statement dated 15.10.2020, a copy of which is placed on record along with I.A.No.2 of 2020. 13. In view of the provisions under sub-rule (4) of Rule -13- ## W.P.(C)No.14066 OF 2020(G) 18 of the Kerala Rules, all disputes arising out of any application made by any persons claiming ownership or other interest in respect of any land included in the preliminary notification to update the concerned records with the Government or its officers, shall be referred by the officer concerned to the Collector who shall endeavor to resolve it in accordance with any law for the time being in force regarding resolution of such disputes. Therefore, the 3[rd] respondent Special Tahsildar, who has been designated by the State Government to perform the functions of the 2[nd] respondent Collector under the Act, shall endeavor to resolve the claim made by the petitioner in Ext.P7, in accordance with any law. If for any reason the 3[rd] respondent cannot resolve the said objection/claim made by the petitioner, he shall make a report on the objection/claim as provided under sub-rule (5) of Rule 18, and direct the parties concerned to have it resolved by a competent court of law or by any other agency/tribunal/forum vested with jurisdiction to resolve the said dispute as per any law for the time being in force. Till the dispute is resolved by a court of law, or by any other agency/tribunal/forum, the land -14- ## W.P.(C)No.14066 OF 2020(G) in question shall be marked in the revenue records as disputed property for the purpose of the Act and the Kerala Rules, as provided in sub-rule (6) of Rule 18 of the said Rules. Any claim for compensation, rehabilitation or resettlement in respect of the said property shall only be settled after the dispute is resolved by a competent court of law or by any agency, tribunal or forum empowered to settle such disputes under any law for the time being in force. 14. In the result, this writ petition is disposed of by directing the 3[rd] respondent Special Tahsildar to consider the claim made by the petitioner in Ext.P7 objections, in terms of the provisions under sub-rule (4) of Rule 18 of the Kerala Rules, read with sub-rules (5) and (6) of Rule 18, taking note of the legal and factual contentions raised in Ext.P10 statement dated 15.10.2020, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of the judgment. Till the said objection/claim is resolved in accordance with law, the land in question shall be marked as ‘disputed property’ in the revenue records, as provided in sub-rule (6) of Rule 18 of the Kerala -15- W.P.(C)No.14066 OF 2020(G) Rules. 15. In **State of U.P. v. Harish Chandra [(1996) 9 SCC 309]** the Apex Court held that no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. In **Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259]** the Apex Court reiterated that, generally, no Court has competence to issue a direction contrary to law nor can the Court direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law. 16. Therefore, the 3[rd] respondent Special Tahsildar shall take an appropriate decision on the matter, strictly in accordance with law, taking note of the relevant statutory provisions. No order as to costs. **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/25/11 -16- W.P.(C)No.14066 OF 2020(G) ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE PHOTOCOPY OF SETTLEMENT DEED NO.1552/1994 OF SRO, MATTANNUR.** **EXHIBIT P2 TRUE PHOTOCOPY OF CERTIFICATE DATED 29.09.2016 ISSUED BY THE VILLAGE OFFICER, KEEZHALLUR.** - **EXHIBIT P3 TRUE PHOTOCOPY OF NOTIFICATION DATED 28.07.2018 PUBLISHED IN MATHRUBHUMI DAILY DATED 23.02.2019.** - **EXHIBIT P4 TRUE PHOTOCOPY OF NOTICE DATED 14.06.2019.** - **EXHIBIT P5 TRUE PHOTOCOPY OF NOTICE DATED 30.07.2019 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P6 TRUE PHOTOCOPY OF NOTICE NO.120/2018 ISSUED BY THE 3RD RESPONDENT REQUESTING TO APPEAR THE PETITIONER ON 27.01.2020.** - **EXHIBIT P7 TRUE PHOTOCOPY OF OBJECTION SUBMITTED BY THE PETITIONER DATED 27.01.2020.** - **EXHIBIT P8 TRUE PHOTOCOPY OF REPRESENTATION DATED 19.03.2020 SUBMITTED BEFORE THE RESPONDENTS 2 AND 3 BY THE PETITIONER.** **EXHIBIT P9 TRUE PHOTOCOPY OF APPLICATION SUBMITTED UNDER RULE 18(5) DATED 31.03.2020. EXHIBIT P10 TRUE PHOTOCOPY OF STATEMENT FILED BY THE PETITIONER BEFORE THE SPECIAL TAHSILDAR**