Dr. Bharathan v. Special Tahsildar (LA) No.1, Kochi Metro Rail Project, Deputy Collector (LA), Kochi Metro Rail Project, State of Kerala, District Collector Ernakulam, Kochi Metro Rail Limited (Represented by Managing Director)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943** ## **WP(C).No.5753 OF 2021(T)** ## **PETITIONER/S:** **DR. BHARATHAN AGED 74 YEARS SON OF SAROJINI AMMA, JAY VIJAY HOUSE, THRIPUNITHURA, PIN - 682 301 PROPRIETOR VIJAYA KUMARAN MENON HOSPITAL, THRIPUNITHURA (VKM HOSPITAL).** **BY ADVS. SRI.LEGITH T.KOTTAKKAL SRI.M.K.THANKAPPAN** ## **RESPONDENT/S:** **1 SPECIAL TAHSILDAR (L.A.) NO.1, KOCHI METRO RAIL PROJECT, CIVIL STATION, KAKKANAD, ERNAKULAM - 682 030. 2 DEPUTY COLLECTOR (LA) KOCHI METRO RAIL PROJECT, CIVIL STATION, KAKKANAD, ERNAKULAM - 682 030. 3 STATE OF KERALA REPRESENTED BY SECRETARY, REVENUE DEPARTMENT, THIRUVANANTHAPURAM - 695 001. 4 DISTRICT COLLECTOR ERNAKULAM, CIVIL STATION, KAKKANAD - 682 030. 5 KOCHI METRO RAIL LIMITED REVENUE TOWER, ERNAKULAM, PIN - 682 011. REPRESENTED BY THE MANAGING DIRECTOR.** **R5 BY ADV. SRI.K.JAJU BABU (SR.) R5 BY SMT.M.U.VIJAYALAKSHMI, SC, KOCHI METRO RAIL LTD** ## **SRI JAFAR KHAN, GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.5753 OF 2021(T)** **2** ## **JUDGMENT** Ext.P17 proceedings issued by the 1st respondent recommending the initiation of revenue recovery proceedings against the petitioner for recovering a sum of Rs.4,48,406/- is under challenge in this writ petition. The amount was paid to the petitioner towards the value of structures in connection with the acquisition of land in connection with the road widening from Petta to S.N. Junction, Tripunithura for the Kochi Metro Rail Project. 2. Brief facts may be stated at the outset :- The property having an extent of 1.98 Ares in Sy. No.12 in Block No. 260 of Nadama Village is owned by the petitioner. By Ext.P2 notice dated 16.2.2019 issued under Section 21 of Act 30 of 2013, the petitioner was informed that the Government intends to take possession of 0.34 Ares in Sy. No.12/85 owned by the petitioner. The petitioner states that he filed Ext.P3 claim statement under Section 21(2) before the Land Acquisition Officer, on 19.3.2019. On 17.5.2019, an award in Form No.12 was passed by the Land Acquisition Officer awarding a total sum of Rs.31,12,614/- out of which a sum of Rs. 2,24,203.04/- together with 100 % solatium for the said amount was for the buildings. Later, on 11.7.2019, the petitioner was informed that by a report dated 20.6.2019, it has been brought to the notice of the Special **WP(C).No.5753 OF 2021(T)** **3** Tahsildar (LA) that the petitioner, without the knowledge of the acquisition authorities, proceeded to demolish certain structures lying within the alignment for the acquisition. He was called upon to appear before the 1st respondent on 11.7.2019. The petitioner appeared and after hearing him Ext.P7 revised award was passed by the 1st respondent. As per the revised award, the petitioner was held entitled to a sum of Rs.26,64,208/- after deducting a sum of Rs.4,48,406.08/- towards the value of buildings. Being aggrieved, the petitioner approached this Court and filed W.P. (C) No 23668 of 2019. This Court by Exhibit P9 judgment went on to hold that the Government/requisition authority will not have any authority to review the award already passed. It was further held that the said methodology cannot be adopted for recovering any amount towards alleged damages from the prior owner, more so when the allegations are not admitted. When it was noticed that an application for enhancement of compensation was pending before the District Collector, this Court directed the respondents to refer the matter to the competent authority under Section 64 of Act 30 of 2013. In tune with the directions so issued, the 1st respondent referred the matter to the reference court by Ext.P14 communication. In the said communication, it is seen mentioned that as the land owner has demolished the structures, the amounts paid on that count shall be deducted from the amount to be awarded, if any, towards enhanced compensation. After referring the **WP(C).No.5753 OF 2021(T)** **4** matter as aforesaid, on 3.2.2021, the petitioner was informed by Ext.P15 notice that if he were not to repay a sum of Rs.4,48,406/- being the amount paid towards structures, proceedings under the Revenue Recovery Act would be initiated against him. The petitioner is stated to have filed Ext.P16 objection to the said notice. Thereafter, by Ext.P17 order, the 1st respondent has passed the impugned order requesting the 4th respondent to initiate revenue recovery proceedings against the petitioner for recovering a sum of Rs.4,48,406/-. 3. According to the petitioner, by issuing Ext.P17 order without any statutory or regulatory backing, the 1st respondent has clearly violated the provisions of law. It is contended that when the question as to whether the building was demolished stands disputed, the 1st respondent cannot quantify the damages by categorising the petitioner herein as a defaulting party. It is contended that after the passing of the award, the 1st respondent can only refer the matter to the authority under Section 64 of the Act, if an application is so made by the land owner, and only the said authority can adjudicate the question as to whether any excess amount has been paid or whether enhancement is to be ordered. 4. The 1st respondent has filed a counter affidavit wherein it is stated that they have every authority to realize the amount which was paid towards the value of the structure. It is further contended that Rule 13 and **WP(C).No.5753 OF 2021(T)** **5** 14 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement(Compensation, Rehabilitation and Resettlement and Development Plan) Rules, 2015 enables the respondent to recover the excess amount or to recover rehabilitation and resettlement benefits in certain circumstances. 5. I have considered the submissions advanced. 6. The contention of the respondents is that the petitioner after issuance of notification under Section 21 of Act 30 of 2013 demolished certain portions of the building and appropriated the same. It appears that on 17.5.2019, an award was passed fixing the compensation due to the land owner. In the award so passed, a sum of Rs.2,24,203.04/- was determined towards the value of the buildings. The petitioner was awarded 100% of the said amount towards solatium. The respondents contend that the compound wall, gate and paving tiles lying within the alignment of acquisition was demolished and the same was reused by the petitioner to construct a new boundary wall. The petitioner contend that he had filed objection under Rule 21(2) on 19.3.2019 and it was on 5.5.2019 that he had removed the structures to facilitate the acquisition of land. His contention is that a 200 bedded hospital is being run in the property and great care had to be taken when the demolition activities are conducted as the waste water treatment plant and the bio-gas plant were situated nearby. **WP(C).No.5753 OF 2021(T)** **6** The claim of the respondents and the quantum arrived at is stoutly resisted by the petitioner. 7. It appears from the records that the respondents had proceeded to review the award on an earlier occasion which was set aside by this Court and the respondents were directed to refer the matter to the reference court. It also appears that by Ext.P14 proceedings, the respondents have requested the competent authority under Section 64 of the Act to pass the award only after deducting the amount which was already paid to the petitioner towards structures. 8. It was when the adverse order was passed against the respondents by this Court that they have proceeded to recover the amount by invoking powers purportedly under Rule 13 and 14 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Compensation, Rehabilitation and Resettlement and Development Plan) Rules, 2015. The above misadventure cannot be sustained as the provisions of 2015 Rules are applicable only in cases, where the Central Government is the appropriate Government as per Act 30 of 2013. Section 2(e)(i) of Act 30 of 2013 states that the appropriate Government, in relation to acquisition of land situated within the territory of a State is the State Government. Furthermore, the State Government in exercise of powers under Rule 109 of Act 30 of 2013 has framed the Right **WP(C).No.5753 OF 2021(T)** **7** to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Kerala) Rules, 2015. The said Rules do not contain any provision for recovering the amount from the award which has already been passed. 9. There is yet another matter. The petitioner disputes the quantum of amount which has been arrived at by the respondents. Having considered the entire facets of the matter, I am of the opinion that there is considerable merit in the submission of the petitioner that the quantum has been arrived at by the respondent in a one sided manner and they have assumed the role of a judge in their own cause. In **Abdul Rahiman v. Divisional Forest Officer[1]** , Full Bench of this Court relying on the judgment of the Apex court in **State of Karnataka v. Rameswara Rice Mills, Thirthahalli[2]** had occasion to hold that when the State is one of the contracting parties and seeks to recover damages for breach of contract, they cannot be a judge in its own cause and cannot be its own arbiter to determine the liability and quantum of damages. Though the said judgment was rendered in different factual circumstances and in a case of breach of contract, the underlying principles laid down therein can be applied in the instant case as well. 10. Ext.P6 award has become final. As requested by the petitioner, 1 [1988 (2) KLT 290] - 2 [AIR 1987 SC 1359] **WP(C).No.5753 OF 2021(T)** **8** the award has been referred by the District Collector to the authority. Under Section 69 of the Act 30 of 2013, while determining the compensation the authority is to take into consideration whether the Collector has followed the parameters set out under Section 26 to 30 and the provisions under Chapter V of the Act. The award so passed is final and Section 70 of the Act speaks about the form of award. The award so passed is deemed to be a decree and the statement of the grounds of every such award is a judgment within the meaning of clause (2) and clause (9) of Section 2 of the Code of Civil Procedure. In that view of the matter, the question as to whether the value towards structures are to be deducted or not can very well be considered by the authority while considering the application for enhancement of compensation filed by the petitioner. If it is found on evidence that any amount is to be deducted from the compensation already awarded, the same can be deducted by the authority from the enhanced compensation, if any, to be passed in favour of the petitioner. Both sides will be able to let in evidence to substantiate their respective contentions. I am of the considered opinion that by following the said procedure, the dispute between the petitioner as well as the respondent can be resolved. In that view of the matter, Ext.P17 order will stand quashed. The authority before whom reference has been made under Ext.P14 proceedings **WP(C).No.5753 OF 2021(T)** **9** shall adjudicate the question whether the amount paid towards value of structures are to be deducted as has been requested in Ext.P14. This writ petition will stand disposed of. ## **Sd/-** **RAJA VIJAYARAGHAVAN V** **JUDGE** ps **WP(C).No.5753 OF 2021(T)** **10** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 COPY OF THE BASIC TAX REGISTER RECEIPT DATED 26/06/2018.** - **EXHIBIT P2 COPY OF THE NOTICE DATED 16/02/2019 FROM THE OFFICE OF 1ST RESPONDENT.** - **EXHIBIT P3 COPY OF THE OBJECTION DATED 19/03/2019 FILED BY THE PETITIONER.** - **EXHIBIT P4 COPY OF THE LETTER DATED 11/07/2019 FROM THE 1ST RESPONDENT.** - **EXHIBIT P5 COPY OF THE REPLY DATED 17/07/2019 SUBMITTED BY THE PETITIONER.** - **EXHIBIT P6 COPY OF THE AWARD NO.60/19 DATED 17/05/2019 IN LAC NO.143/2019 PASSED BY THE 1ST RESPONDENT.** - **EXHIBIT P7 COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT IN LAC NO.143/2019 DATED 19/07/2019.** - **EXHIBIT P8 COPY OF THE REPORT DATED 20/06/2019 OF REVENUE INSPECTOR OBTAINED UNDER THE RIGHT TO INFORMATION ACT.** - **EXHIBIT P9 COPY OF THE JUDGMENT DATED 19/11/2019 IN WP(C) 23668 OF 2019 HIGH COURT OF KERALA.** - **EXHIBIT P10 TRUE COPY OF THE NOTICE DATED 22/07/2019.** - **EXHIBIT P11 COPY OF THE NOTICE LAC 143/19 DATED 29/01/2020 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P12 COPY OF THE REPLY DATED 5/02/2020 TO EXHIBIT P11.** - **EXHIBIT P13 COPY OF THE BANK STATEMENT OF THE PETITIONER WITH CANARA BANK, THRIPUNITHURA BRANCH FOR THE PERIOD 01/05/2020 TO 31/05/2020.** **WP(C).No.5753 OF 2021(T)** **11** **EXHIBIT P14 TRUE COPY OF THE LETTER DATED 27/10/2020 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P15 COPY OF THE LETTER DATED 03/02/2021 ISSUED BY 1ST RESPONDENT. EXHIBIT P16 TRUE COPY OF THE REPLY DATED 10/02/2021 ISSUED BY PETITIONER TO EXHIBIT P15. EXHIBIT P17 COPY OF THE PROCEEDINGS LAC NO.143/2019 ISSUED BY 1ST RESPONDENT DATED 15/02/2021.** ## **RESPONDENT'S/S EXHIBITS:NIL** **//TRUE COPY// P.A TO JUDGE**