Cherattuthodi Abdul Azeez v. District Collector, Malappuram & Ors.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY ,THE 28TH DAY OF JANUARY 2019 / 8TH MAGHA, 1940** ## **WP(C).No. 12671 of 2018** ## **PETITIONER:** **CHERATTUTHODI ABDUL AZEEZ, AGED 50, S/O.MOHAMMED, HOLY VILLA, P.O.PAYYANAD, MALAMKULAM, MANJERI, MALAPPURAM DISTRICT, PIN-676122.** **BY ADVS.SRI.K.M.SATHYANATHA MENON SMT.KAVERY S THAMPI** ## **RESPONDENTS:** **1 THE DISTRICT COLLECTOR MALAPPURAM-676505.** - **2 THE SPECIAL TAHSILDAR LAND ACQUISITION (GENERAL), OFFICE OF THE SPECIAL TAHSILDAR L.A. (GENERAL),MALAPPURAM, PIN-676505.** - **3 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **4 THE INCOME TAX OFFICER DEPARTMENT OF INCOME TAX, TIRUR CIRCLE, MALAPPURAM DISTRICT, PIN-676101.** **BY ADVS.SRI.CHRISTOPHER ABRAHAM, INCOME TAX DEPARTMENT SRI.K.M.V.PANDALAI, INCOME TAX DEPARTMENT** ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER FOR R1 TO R3** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 12671 of 2018** ## **-:2:-** ## **ALEXANDER THOMAS, J.** ## **= = = = = = = = = = = = = = = = = W.P.(C) No. 12671 of 2018** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 28[th] day of January, 2019 ## **J U D G M E N T** ## The prayers in the above writ petition (Civil) are as follows: - _“i). Issue a writ of mandamus or any other appropriate writ order or direction, directing the respondents to compute the compensation payable to the petitioner under Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Kerala Rules 2015 forthwith in terms of Ext P3 fair value and pay the amount forthwith with interest at the rate of 12% per annum;_ - _ii). Issue a writ of mandamus or any other appropriate writ order or direction, directing the respondents to compute the interest for the amount paid to the petitioner under ExtP2 award while computing the compensation payable to the petitioner under Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Kerala Rules 2015 and pay the amount forthwith;_ - _iii) Issue a writ of mandamus or any other appropriate writ order or direction, directing the respondents to return petitioner's property falling sy.no:143/6 forthwith to the petitioner if petitioner is paying the amount received under the under ExtP2 award in L.A.R. No.2/2015 dated 6/11/2015;_ - _iv) To declare the deduction of income tax for the amount paid to the petitioner under ExtP2 award in L.A.R. No:2/2015 dated 6/11/2015 is illegal and unsustainable as under Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, the deduction of income tax is exempted and further direct the fourth_ **WP(C).No. 12671 of 2018** ## **-:3:-** _respondent to refund the amount deducted towards Income tax._ _iii) issue such other relief which may deem fit and proper on the facts and circumstances of the case; and_ _iv) allow this Writ Petition (Civil) with costs.”_ 2. Heard Sri.K.M. Sathyanatha Menon, the learned counsel appearing for the petitioner, Sri. Saigi Jacob Palatty, the learned Senior Government Pleader appearing for R-1 to R-3 and Sri. Christopher Abraham, the learned Standing Counsel for the Income Tax Department of the Government of India appearing for R-4. 3. In the instant case, notification under Section 4(1) of the Land Acquisition Act, 1894 was issued for compulsory acquisition of certain lands, including that of the petitioner's by the 2[nd] respondentSpecial Tahasildar, at a time when the provisions of the old Act (Land Acquisition Act,1894), was in vogue. Later, the Land Acquisition Act, 1894 was repealed and replaced by the new Act viz., the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Central Act 30 of 2013),which came into force from 01.01.2014. By the specific mandate made by the Parliament in Section 24 of the said new Act, in case award has not been passed in respect of land acquisition proceedings initiated already under the old Act before the coming into force of the new Act, the compensation **WP(C).No. 12671 of 2018** ## **-:4:-** aspect has to be determined in terms of the provisions contained in the new Act. Without adherence to the above said crucial provisions in the new Act, the 2[nd] respondent- Special Tahasildar had passed Award No.2/2014 dated 21.08.2014 in respect of the above said properties of the petitioner, under the old Act. This Court has held in a series of judgments as in _**Varghese M.V. v. State of Kerala and Ors.**_ [2015(4) KHC 200=2015 (3) KLT 625=ILR 2015 (3) Ker. 947=2015(3)KLT 781], that in such cases, where award has not been passed under the old Act on or before 31.12.2013, then the notified District Collector/Land Acquisition Officer is obliged in law to pass a revised/fresh award as envisaged in Section 24 of the new Act. The petitioner had approached this Court by filing W.P(C) No.6791 of 2015, in which this Court has finally disposed of Ext.P1 judgment rendered on 26.05.2015, by holding unequivocally that the petitioner is entitled in law to have the compensation determined in respect of the above said compulsory acquisition of the land, by virtue of Section 24(1)(a) of the new Act. Since Award No.2/2014 dated 21.08.2014 was already passed by the respondent, Land Acquisition Officer under the old Act by then, this Court had also taking note of the said reality, granted liberty of the petitioner to receive the said money under the Award, without prejudice to his claim to get the compensation so properly determined under the **WP(C).No. 12671 of 2018** ## **-:5:-** new Act. 4. Further it appears that the L.A.R. Court concerned (Sub Court, Manjeri), has later passed Ext-P2 award/judgment dated 06.11.2015 in L.A.R. No.2 of 2015 involving the claim of the petitioner holding that the petitioner is entitled for disbursal of the amounts covered by award No.2 of 2014 dated 21.08.2014. The L.A.R. Court has also clarified in Ext.P-2 award that the receipt of compensation as permitted in Ext.P-2 by the claimant, will be without prejudice to his entitlement for redetermination of the compensation under the provisions of the new Act. It appears that in spite of the direction issued by this Court, as per Ext.P-1 judgment as early as on 26.05.2015, so far the competent authority among the respondents have not passed revised/new award under the new Act in the case of the petitioner. Now it is stated in paragraph No.6 of the statement dated 29.11.2018 filed by the 2[nd] respondent- Special Tahasildar that redetermination under the new Act, a fresh basic valuation report has been prepared and has sent to the 1[st] respondent-District Collector, Malappuram, for approval and after the basic valuation report is approved, a new detailed valuation statement has to be prepared and it should also be approved by the 1[st] respondent- District Collector and based on that detailed valuation report, a fresh award will be prepared as per the provisions of the new **WP(C).No. 12671 of 2018** ## **-:6:-** 2013 Act etc. 5. Accordingly, it is ordered that the competent authority among respondents 1 / 2, who is empowered to pass new award under the new Act should immediately take up the matter of the petitioner for consideration so as to effectively and fully comply with the direction issued by this Court already in Ext.P-1 judgment rendered as early as on 26.05.2015. The process of approval of the detailed valuation statement etc. should be completed, without any further delay. Those are all internal aspects of the respondents and the petitioner cannot be penalised to wait any further. The petitioner will immediately approach the competent authority among respondents 1 & 2, who will then immediately inform him as to who is the authority to pass the fresh award under the new Act. Thereafter, the petitioner will be granted a reasonable opportunity of being heard and the said competent authority among respondents 1 and 2 will pass fresh revised/new award under the provisions of the new Act, after taking into consideration of the various submissions made by the petitioner, without much delay, preferably within a period of three months from the date of production of the certified copy of this judgment. 6. The petitioner has two other ancillary grievances in this regard. According to the petitioner, the first aspect of such matter is **WP(C).No. 12671 of 2018** ## **-:7:-** that since advance possession of the petitioner's land has only be taken under provisions of the old Act, he is entitled for interest from the date of taking of advance possession of the said land, and other benefits etc. That is an aspect which the petitioner could urge before the competent authority among respondents 1 and 2, during the process of consideration of passing of the new award and the said authority will consider those aspects also and should also adverted to those aspects in the matter, while passing new award. 7. The second aspect regarding the ancillary grievance of the petitioner is that income tax dues was illegally collected from the petitioner's amounts even after coming into force of the new Act. It is stated that in view of the provisions contained in Section 96 of the Central Act 30 of 2013 as well as Section 194LA of the Income Tax, such income tax dues could not have been collected after coming into force, where the entitlement of compensation is regulated by the provisions of the new 2013 Act. There is certainly a force in the said submission made by the petitioner, if as a matter of fact income tax dues has been already collected by the 2[nd] respondent- Special Tahasildar and forwarded to the 4[th] respondent -Income Tax Officer Award No.2 of 2014, is admittedly passed on 21.08.2014, at a time when the new Act has been in vogue and so, certainly such action is illegal and _ultra vires_ . **WP(C).No. 12671 of 2018** ## **-:8:-** The petitioner may make representation regarding the matter before the 2[nd] respondent-Special Tahasildar, who immediately will ascertain as to whether income tax has already been collected from the petitioner after coming into force of the new Act. If that be so, he will immediately make a requisition to the 4[th] respondent-Income Tax Officer for refund of the said amount and on such request made by the 2[nd] respondentSpecial Tahasildar, it shall be ensured by the 4[th] respondent-Income Tax Officer to make the refund of those amounts to the 2[nd] respondentSpecial Tahasildar, without any further delay. Thereafter, the 2[nd] respondent- Special Tahasildar will ensure that the said amounts are disbursed/refunded to the petitioner, without any further delay. The entire process in this regard should be duly completed by respondents 2 and 4, within three months from the date of submission of a representation made by the petitioner in this regard along with a certified copy of this judgment. With these observations and directions, this Writ Petition (Civil) will stand disposed of. **Sd/-** ## **ALEXANDER THOMAS** ## **JUDGE** DST **WP(C).No. 12671 of 2018** ## **-:9:-** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 26.5.2015 IN W.P.(C) NO.6791/2015.** **EXHIBIT P2 TRUE COPY OF THE AWARD IN L.A.R. NO.2/2015 DATED 6.11.2015 ON THE FILES OF THE COURT OF THE SUBORDINATE JUDGE OF MANJERI.** **EXHIBIT P3 TRUE COPY OF THE FINAL FAIR VALUE FIXED BY THE GOVERNMENT OF KERALA WITH RESPECT TO THE PROPERTY IN SY NO.143/6 AND AS PUBLISHED IN KERALA GAZETTE.** ## **RESPONDENTS' EXHIBITS:NIL** **//True copy//** **P.A.To Judge**