Holiday Ayurvedic Resorts Pvt. Ltd. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 17TH DAY OF OCTOBER 2016/25TH ASWINA, 1938** ## **WP(C).No. 30926 of 2016 (M)** **----------------------------** ## **PETITIONER(S):** **-----------------------** **M/S. HOLIDAY AYURVEDIC RESORTS PVT. LTD., HIG PANAMPILLY NAGAR, KOCHI, REPRESENTED BY ITS DIRECTOR C.C. THAMPI, AGED 58, S/O CHATHUTTY, CHERUVATTOOR, KOTTAL DESOM, THALAPPILLY TALUK.** ## **BY ADVS.SRI.V.RAJENDRAN (PERUMBAVOOR), SRI.GEORGE VARGHESE KIZHAKKAMBALAM, SRI.N.RAJESH.** - **RESPONDENT(S): -------------------------** **1. STATE OF KERALA, REP. BY PRINCIPAL SECRETARY, LOCAL ADMINISTRATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. DISTRICT COLLECTOR, ERNAKULAM, CIVIL STATION, KAKKANAD -682 030.** **3. KOCHI METRO RAIL LTD, REP. BY MANAGING DIRECTOR, REVENUE TOWER, KOCHI-11.** **4. SPECIAL TAHSILDAR (LA), NO.II, KOCHI METRO RAIL PROJECT, ERNAKULAM, KAKKANAD -682 030.** - **R1, R2 & R4 BY GOVT. PLEADER SRI.JAFAR KHAN. Y. R3 BY SRI.K.JAJU BABU , SENIOR SC, ADV. SMT.M.U.VIJAYALAKSHMI, SC.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** rs. **WP(C).No. 30926 of 2016 (M)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN LAR.20/14 DATED 30.07.2015 OF SUB COURT, NORTH PARAVUR.** - **EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN LAR.47/14 DATED 30.07.2015 OF SUB COURT, NORTH PARAVUR.** - **EXHIBIT P3 TRUE COPY OF PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT ON 29.12.2015.** - **EXHIBIT P4 TRUE COPY OF RECEIPT NO.7630/15 DATED 29.12.2015 ISSUED FOR RECEIVING EXHIBIT P3 PETITION.** **RESPONDENT'S EXHIBITS:NIL.** ## **//TRUE COPY//** ## **P.S. TO JUDGE** rs. ## **SHAJI P. CHALY, J.** ----------------------------------------------- ## **W.P.(C). No.30926 of 2016 ----------------------------------------------Dated this the 17[th] day of October, 2016** ## **JUDGMENT** This writ petition is filed by the petitioner seeking direction to respondents 2 and 4 either to award compensation for properties covered by Exts.P1 and P2, of petitioner company on the basis of the price fixed by DLPC and paid to the petitioner for the remaining properties of the company at the rate of Rs.1,02,000/- per cent and for other related reliefs. 2. Material facts for the disposal of the writ petition are as follows; a portion of the property of the petitioner company was proposed to be acquired by Metro Rail Project. Acquisition proceedings were initiated under Land Acquisition Act, 1894. There arose some dispute regarding survey number of an extent of 12.75 Ares of property and the matter was referred to Sub Court, North Paravur under Section 31(2) of the Act. The matter was settled in the reference case and the award amount was received from the court. Even though W.P.(C). No.30926 of 2016 2 acquisition proceedings were taken with respect to remaining properties, later by interference of DLPC, a purchase price was fixed and the properties were assigned by the company to the 3[rd] respondent. The award passed regarding the disputed 12.75 Ares was much lower than the settled price for the remaining property even though the properties are lying contiguous. Petitioner company filed a petition before the 2[nd] respondent for awarding compensation at the rate fixed by the DLPC for the remaining property. It is thereupon contended, there is total inaction on the part of respondents for awarding the amount. That apart it is also contended, in view of introduction of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, [hereinafter called “Act 30 of 2013”], petitioner is entitled to get compensation as per the provisions of the new Act. It is in this background seeking appropriate direction this writ petition is filed. 3. Heard learned counsel for petitioner, learned Senior Government Pleader and perused the documents on record W.P.(C). No.30926 of 2016 3 and the pleadings put forth by the petitioner. 4. Learned counsel for petitioner reiterated the contentions raised in the writ petition. However, learned Government Pleader has brought my attention to the judgment rendered by a Division Bench of this court in **Varghese.M.V. v. State of Kerala and others** [2015(4) KHC 200], wherein, similar question was considered and held that, petitioner therein is entitled for a supplementary award as per the provisions of Act, 2013. In paragraph 7 to 9, the Division Bench held as follows: “7. We have considered the submission of the learned counsel for the parties and perused the records. In the present case, notification under Sections 4 and 6 having been issued prior to enforcement of Act 2013, determination of amount of compensation has to be made as per Section 24(1) of 2013 Act. Thus, the provisions for determination of amount of compensation are contained in Sections 26 to 30 of Chapter IV of 2013 Act. There cannot be any dispute to the submission of the learned counsel for the appellant that determination of the amount of compensation with regard to petitioner's land has W.P.(C). No.30926 of 2016 4 to be made as per 2013 Act. Now, an award has been declared by the State Government dated 29.01.2014. A perusal of the content of the award clearly indicates that the said award is not on the basis of the provisions for determination of the amount of compensation as per Sections 26 to 30 of the 2013 Act. The learned Government Pleader is also not disputing the factual position that the award Ext.P1 is not in accordance with the 2013 Act. He submits that difficulty was being faced by the State in preparing the award as per the 2013 Act on account of the non-framing of the rules and non-notification of multiplier factor. Section 26(2), reference of which has been made by the parties, is extracted below: **“26(2).** The market value calculated as per subsection (1) shall be multiplied by a factor to be specified in the First Schedule.” 8. The First Schedule refers to compensation for land owners and a perusal of item Nos.3 to 7 of the First Schedule indicates that there is no requirement of any notification or any multiplier factor for determining the compensation. There is no dispute between the parties about the fact that the petitioner's land is situated in the urban area. Section 109 of the 2013 Act gives power to the State Government to make rules for carrying out W.P.(C). No.30926 of 2016 5 the provisions of the Act. Sub-section (2) of Section 109 enumerate the matters on which rules can be framed 9. The Act 2013 having been enforced, all provisions of the Act have to be given effect to. That the State has not framed rules cannot be the reason for not carrying out the provisions of the Act nor for taking away the right accrued to the owner under the 2013 Act under the pretext that rules have not been framed by the State. In any view of the matter, for the determination of the amount of compensation in the present case, there is no necessity for awaiting the framing of the rules by the State and the determination of the amount of compensation as per the 2013 Act could have been very well carried out by the respondents.” 5. On a reading of the said judgment, it is evident that, without setting aside the award, the authority is given the liberty to pass a supplementary award. This may be also due to the fact that as per the award passed under the Land Acquisition Act, 1894, petitioner therein received money. Here also, the case is similar. Therefore, in spite of the W.P.(C). No.30926 of 2016 6 passage of award under the provisions of Act, 1894, the 4[th] respondent is directed to pass a supplementary award taking note of the provisions contained under Act 30 of 2013. Since the matter is pending long, I think it is only appropriate that, a time limit is fixed to pass the supplementary award in terms of the directions contained above. 6. Therefore, 4[th] respondent is directed to pass the supplementary award in accordance with the directions contained above and as directed by the Division Bench of this court quoted above, within a period of four months from the date of receipt of a copy of this judgment. Writ petition is disposed of accordingly. Sd/- **SHAJI P. CHALY JUDGE** smv 17.10.2016