Chellath Franklin and others v. Special Tahsildar (LA), Greater Cochin Development Authority, and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 30TH NOVEMBER 2010 / 9TH AGRAHAYANA 1932 WP(C).No. 18437 of 2008(T) -------------------------AGAINST THE ORDEREA NO.504/2004 IN IN EP 120/2001 IN LAR.274/1990 of SUB COURT,KOCHI .................... PETITIONER(S): --------------- 1. CHELLATH FRANKLIN ,S/O XAVIER, CHELLATH ANJIPARAMBIL HOUSE, GANDHINAGAR, COCHIN -17. 2. A.X.LESLIE,S/O DO., CHELLATH ANJIPARAMBIL HOUSE, KATHRIKADAVU, COCHIN -17. 3. ABRAHAM GODFREY, S/O DO.... DO....... 4. JULY ABRAHAM, S/O ABRAHAM GODFREY, DO....DO..... 5. A.X.EDWIN, S/O XAVIER, DO....DO.... 6. A.X.GILBERT, S/O DO.....DO..... 7. SANTHOSH, S/O DO, PULIYANATHU HOUSE, MUNDAVELI, COCHIN -1. 8. JUDE, S/O DO......DO..... BY ADV. SRI.V.R.VENKATAKRISHNAN, SENIOR ADVOCATE SRI.S.ANANTHAKRISHNAN SRI.N.K.SUBRAMANIAN RESPONDENT(S): --------------- 1. THE SPECIAL TAHSILDAR (LA) G.C.D.A., G.C.D.A. OFFICE, KADAVANTHARA, COCHIN. 2 WP(C) NO.18437/2008 2. GREATER COCHIN DEVELOPMENT AUTHORITY, REPRESENTED BY ITS SECRETARY, G.C.D.A. OFFICE, KADAVANTHARA. 3. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, ERNAKULAM CIVIL STATION, KAKKANAD. ADV. SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE FOR R2 GOVERNMENT PLEADER SHRI B JAYASURYA FOR R1 & R3 SRI.P.K.MANOJKUMAR FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.18437/2008 ## APPENDIX ## PETITIONERS' EXHIBITS: EXT.P1 A TRUE COPY OF ORDER IN EA NO.504/2004 IN EP NO.120/2001 IN LAR 274/2990 DATED 11.4.2008 OF SUB COURT, KOCHI EXT.P2 A TRUE COPY OF ORDER IN EA NO.505/2004 IN EP NO.121/2001 IN LAR 275/2990 DATED 11.4.2008 OF SUB COURT, KOCHI EXT.P3 A TRUE COPY OF THE REVIEW PETITION RP NO.677/2002 DATED 10.8.2002 EXT.P4 A TRUE COPY OF THE ORDER DATED 16.10.2003 IN RP NO.677/2002 EXT.P5 A TRUE COPY OF THE PETITION AND THE AFFIDAVIT DATED 11.11.2003 IN I.A. NO.2782/2003 IN RP NO.677/2002 & ANNEXURE-A EXT.P6 A TRUE COPY OF ORDER DATED 30.1.2004 IN IA NO.2782/2003 IN RP NO.677/2002 //TRUE COPY// ## **THOMAS P. JOSEPH, J.** ## **-------------------------------------W.P.(C) No.18437 of 2008 -------------------------------------Dated this the 30[th] day of November, 2010.** ## **JUDGMENT** This petition filed under Article 227 of the Constitution is in challenge of Exts.P1 and P2, orders dated April 11,2008 on E.A.Nos.504 of 2004 and 505 of 2004 in E.P.Nos.120 of 2001 and 121 of 2001 in L.A.R.Nos.274 of 1990 and 275 of 1990 of the court of learned Sub Judge, Kochi. Property which originally stood in the name of predecessor-in-interest of petitioners was acquired by the Government for the purpose of respondent No.2, the Greater Cochin Development Authority. The Land Acquisition Officer awarded compensation to the land owner. Petitioners sought a reference of the matter to the civil court which enhanced the compensation. There was an appeal to this Court and the Supreme Court. Supreme Court did not interfere in the matter. Compensation awarded by the Land Acquisition Officer and enhanced by court was received by petitioners. While so, petitioners filed O.P.No.2895 of 1994 challenging acquisition proceedings on the ground that there was no notice to them under Section 5 of the Land Acquisition Act (for short, “the Act”). Learned Single Judge allowed the petition holding that there was no proper notice served on petitioners (since the original owner expired on 24.04.1987). Respondents challenged judgment of learned Single Judge in W.A.Nos.1965 of 1999 and 2032 of 1999 and those appeals were allowed. O.P.No.2895 of 1994 was dismissed. Petitioners approached the Division Bench with R.P.No.677 of 2002 for review of the judgment in the Writ Appeals. That review petition was dismissed by Ext.P4, order. Later, petitioners filed I.A.No.2782 of 2003 (Ext.P5) **WP(C) No.18437/2008** 2 seeking clarification of the order on the review petition. That application also ended in a dismissal vide Ext.P6, order dated 30.01.2004. In the meantime, petitioners had initiated execution proceedings in the court of learned Sub Judge obviously to execute the decree. It is in that execution proceeding that petitioners filed E.A.Nos.504 of 2004 and 505 of 2004 challenging the award on the ground of inherent lack of jurisdiction for the District Collector to pass that award for the reasons that there was no individual notice given to the parties as required under Section 5 of the Act and that award passed by the District Collector was without authority. The applications were resisted by the respondents mainly contending that the applications are not maintainable and that at any rate, petitioners having sought for reference of the claim for enhancement to the civil court, obtained decree enhancing compensation and received compensation are not entitled to raise any such a contention. It was also contended that allegation that the District Collector had no jurisdiction to pass the award was not correct. At any rate, in the light of the decisions in the Writ Appeals, review petition and clarification petition referred to above, petitioners are not entitled to raise any such contention, it was contended. Learned Sub Judge observed that once the notification under Section 4(1) of the Act is published there could be no challenge to the proceedings relating to its execution except through the power of the High Court or Supreme Court under Articles 226 or 32 of the Constitution. Applications were dismissed by separate orders which are under challenge in this petition. It is contended by learned Senior Advocate, Shri V.R.Venkatakrishnan that as the District Collector had no jurisdiction to pass the award it is a nullity which could be raised at any time **WP(C) No.18437/2008** 3 and that executing court had the power to hold that the award is a nullity and hence not executable. It is also contended by learned Senior Advocate that absence of individual notice to the petitioners affected the very jurisdiction of the Land Acquisition Officer to initiate proceedings. Reliance is placed on the decisions in **Rambhai v. State of Gujarat (1995 (2) KLT 16)** and **Sarwan Kumar and another v. Madan Lal Aggarwal ((2003) 4 SCC 147)** . 2. It is contended by learned Senior Advocate, Shri N.Nandakumara Menon and the learned Government Pleader appearing for respondents that in the light of the decisions in Writ Appeals, review petition and clarification petition, petitioners cannot contend that the award is a nullity or that the District Collector had no jurisdiction to pass the award. It is also contended by learned Senior Advocate and the Government Pleader that petitioners received the amount, sought enhancement of the amount, got award in their favour and that was confirmed in appeal and by the Supreme Court in Civil Appeal and hence it is idle for petitioners to contend that the award is a nullity and hence fresh award is to be passed. Learned Senior Advocate contends that this petition is nothing but an abuse of process of court. 3. It is not disputed before me that the original owner of the property expired on 24.04.1987. Award was passed by the Land Acquisition Officer on 16.05.1989 according to the respondents, after having obtained approval from the District Collector on 11.05.1989. It is not disputed before me that **WP(C) No.18437/2008** 4 challenging the acquisition proceedings petitioners filed O.P.No.2895 of 1994 and learned Single Judge was pleased to allow it on the ground that there was no notice to petitioners. But the decision of learned Single Judge was set aside in the Writ Appeals which I have referred to above. Then came R.P.No.677 of 2002 which was dismissed as per Ext.P4, order. In Ext.P3, application for review it was contended that the Rules which permitted the Land Acquisition Officer to pass award without approval upto a sum of `.50 lakhs came into force only on 18.05.1990 and the award in the present case having been passed prior to that, could have been made only with prior approval of the Government as per the first proviso to Section 11 of the Act. The application for review ended in Ext.P4, order as per which that request was turned down. It is thereafter that petitioners filed I.A.No.2782 of 2003 where it was pointed out that the letter which was produced on behalf of respondents before the Division Bench at the time the review petition was disposed of though referred to the power of the Land Acquisition Officer to pass award without approval of the District Collector or the Government as the case may be stated the period to be upto 01.041985, the date “01.04.1985” which appeared in the letter produced before the Division Bench was either not clear or smudged. Hence clarification was sought for the order on the review petition. Petitioners appended to the clarification petition a copy of letter dated 05.12.1984 which the respondents had produced before the Division Bench at the time the review petition was disposed of. (That letter is appended to Ext.P5 at page 68.) Learned Senior Advocate has invited my attention to paragraph 8 of that letter where it is stated that power of Land Acquisition Officer to pass award without reference to the Government was till **WP(C) No.18437/2008** 5 “01.04.1985”. It is based on the above that it is contended that the award passed in this case in the year 1989 is without jurisdiction and hence void. But, the Division Bench was not inclined to entertain I.A.No.2782 of 2003 (application for clarification) and by Ext.P6, order the Division Bench observed thus: “It is true that a mistake has been committed by the Government with regard to the letter produced. It appears that the Government authorization applied only to award passed upto 01.04.1985. In this case, the award was passed subsequently. But according to the facts of the case, the petitioners are not entitled to any relief. A resume of the facts in this case will show that the amount under the award has been accepted by the petitioners and further the award has been challenged before the Sub Court for enhancement and thereafter to the High Court also. The original proceedings started in 1979. According to us, the award in this case was passed early. At this distance of time, we don't think, any remedy can be given to the petitioners.” 4. Now the question is whether the challenge to the award on the ground that the District Collector had no power or there was lack of jurisdiction to pass the award is entertainable. Learned Senior Advocate relied on the decision referred to supra ( **Rambhai v. State of Gujarat)** where it was held: **WP(C) No.18437/2008** 6 “Right of hearing is mandatory under S. 5-A(2) and the Land Acquisition Officer is enjoined to give the opportunity of hearing to the owner or person known to be interested in the land. The procedure for inquiry under S.5-A is not like an elaborate trial. S.5A(2) was amended and right of hearing was made mandatory consistent with development of law of natural justice. It would be open to the claimant to avail of the remedy of hearing. .....” So far as lack of jurisdiction for the District Collector to pass the award is concerned, reliance is placed on **Sarwan Kumar and another v. Madan Lal Aggarwal** referred to supra. There, in paragraph 20 it was held: “.......... The civil court lacked the inherent jurisdiction to take cognizance of the cause and to pass a decree. Challenge to such a decree on the ground of nullity could be raised at any later stage including the execution proceedings. .............” That was a case where notwithstanding the provisions of the Rent Control Act the civil court passed a decree and that decree was sought to be enforced. The tenant challenged executability of the decree on the ground that the civil court lacked jurisdiction to pass such a decree in view of the relevant provisions of the Rent Control Act. It was held by the Supreme Court that since the Rent Control **WP(C) No.18437/2008** 7 Act took away jurisdiction of the civil court to pass a decree, it was within the right of tenant to object to the executability and resist execution notwithstanding that the decree of the civil court was confirmed in appeal. 5. The question is whether that principle can be applied to the facts of the present case. Two points raised are – firstly, there was no notice to the petitioners notwithstanding that the Government was aware that the original owner of the property had expired. Learned Senior Advocate invited my attention to the award passed by the Land Acquisition Officer where compensation was directed to be disbursed among legal representatives of the original owner. That indicated that the Land Acquisition Officer was aware that the original owner prior to his death on 24.04.1987 had settled the properties in favour of petitioners in which case petitioners were entitled to get individual notice. 6. So far as the issue regarding notice is concerned, I am not persuaded to think that absence of notice rendered the award a nullity or without jurisdiction affecting executability of the award. Certainly, award passed may be illegal in the sense if there was no notice issued to the party concerned. But the award was not challenged on that ground at the appropriate stage. Instead, petitioners got their claim for enhanced referred to the civil court and got enhanced compensation from the reference court and appellate court. It is true that thereafter the award was challenged in O.P.No.2895 of 1994 contending that there was no notice to the petitioners. But as I aforesaid that **WP(C) No.18437/2008** 8 challenge failed. Petitioners who took benefit under the award cannot contend that the award is not valid. Hence challenge to the award in the executing court on the ground of want of notice to petitioners has to fail. 7. The second point is that in the absence of prior approval for the award passed by the Land Acquisition Officer or District Collector as the case may be as the first proviso to Section 11 of the Act required, the award is without jurisdiction and that involves total lack of jurisdiction to pass the award which could be challenged in execution. Petitioners lost that contention in the Writ Appeals, review petition and the clarification petition. They, therefore cannot urge that question again in execution. Moreover, having already received compensation awarded by the Land Acquisition Officer and obtained enhancement of compensation through civil court, petitioners cannot urge such a challenge. No doubt, proviso to Section 11 of the Act states “no award shall be made by the Collector under this sub-section without the previous approval of the appropriate Government or of such officer as the appropriate Government may authorises in this behalf.” 8. I am not persuaded to think that an award passed without compliance of proviso to Section 11 of the Act made the award a total nullity in the sense that District Collector lacked jurisdiction to pass the award. The worst that could be said is that the award passed by the District Collector so far as the State Government is concerned is illegal or not binding on it. The proviso to Section 11 of the Act is more for the protection of the State **WP(C) No.18437/2008** 9 Government than for the awardee. The decision relied on by the learned Senior Advocate cannot apply to the facts of the case, for, that was a case where there was total lack of jurisdiction for the civil court to order eviction of the tenant in view of relevant provisions of the Rent Control Act and it was within the power of executing court to consider whether the decree for eviction was passed without jurisdiction. 9. As I stated earlier, benefit of the award has been enjoyed by the petitioners by receiving compensation and obtaining enhancement from the civil court. The award was passed as early as on 16.05.1989 and challenge to the award on the ground of lack of jurisdiction came in the year 2004. The Supreme ## Court in **State of Rajasthan and others v. D.R.Laxmi and others** **((1996) 6 SCC 445)** held that an order on the ground that it is void being issued beyond the powers of the authorities concerned is not to be set aside if the party has not approached the court within a reasonable time. Learned Senior Advocate appearing for respondent No.2 has placed reliance on the decisions in **C.Padma and others v. Dy. Secretary to the Govt. of T.N. and others ((1997) 2 SCC 627)** and **Swaika Properties (P) Ltd. and another v. State of Rajasthan and others ((2008) 4 SCC** **695)** where also it was held that when challenge is made after lapse of considerable time, delay and laches would defeat claim of the party aggrieved. Having heard learned Senior Advocates on both sides and the learned Government Pleader for respondent No.1 and in the facts and circumstances of **WP(C) No.18437/2008** 10 the case and particularly in the light of decision of the Division Bench in Writ Appeals, review petition and clarification petition I am not persuaded to think that this is a case where the award was passed without jurisdiction as pleaded by petitioners. Executing court is justified in dismissing E.A.Nos.504 of 2004 and 505 of 2004. I find no reason to interfere. Petition fails. It is dismissed. No costs. **THOMAS P.JOSEPH, Judge.** **cks**