K B Abdul Kareem v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 05TH DAY OF NOVEMBER 2020 / 14TH KARTHIKA, 1942** ## **W.P.(C)No.16942 OF 2019(P)** ## **PETITIONER:** **K B ABDUL KAREEM AGED 70 YEARS MANGALAPPILLY HOUSE, PLOT NO.112, GCDA COLONY, CONVENT ROAD - 1, THOTTAKATTUKARA P. O., ALUVA - 683108** **BY ADVS. SRI.E.N.VISHNU NAMBOODIRI SRI.M.K.SASEENDRAN (MELEL) SRI.P.SANKARAN NAMPOOTHIRI SRI.NARAYANAN P POTTY** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY ITS CHIEF SECRETARY,**| ||**GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM -**| ||**695001**| |**2**|**DISTRICT LEVEL PURCHASE COMMITTEE**| ||**(LAND ACQUISITION AUTHORITY), REPRESENTED BY**| ||**ITS CHAIRMAN, DISTRICT COLLECTOR,**| ||**ERNAKULAM - 682030**| |**3**|**SPECIAL TAHSILDAR (LA) NO.III**| ||**KOCHI INTERNATIONAL AIRPORT, NEDUMBASSERY,**| ||**NAYATHODE P. O., ERNAKULAM DISTRICT, PIN**| ||**-673572**| -2- W.P.(C)No.16942 OF 2019(P) - **4 ROADS AND BRIDGES DEVELOPMENT CORPORATION OF KERALA LTD.** **2ND FLOOR, PREETHI BUILDING, M. V. ROAD, PADIVATTOM, KOCHI - 682 025, REPRESENTED BY ITS MANAGING DIRECTOR** **5 THE LAND REVENUE COMMISSINER OFFICE OF THE LAND REVENUE COMMISSIONER, VIKHAS BHAVAN P. O., THIRUVANANTHAPURAM - 695033** - **6 THE VILLAGE OFFICER CHOVVARA VILLAGE OFFICE, CHOVVARA, ALUVA - 683 571** - ***ADDL. R7 ADDITIONAL CHIEF SECRETARY REVENUE (B) DEPARTMENT, GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM-695001** **IS SUOMOTU IMPLEADED AS ADDL.R7 AS PER ORDER DATED 05.11.2020.** **R1 TO 3 AND R5 TO 6 BY SMT LATHA THANKAPPANSPL GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -3- W.P.(C)No.16942 OF 2019(P) ## **JUDGMENT** The petitioner, who is holding Ext.P1 certificate of title issued by the Land Tribunal, Ernakulam dated 28.12.2016 in OA-17/16/7E in respect of land having an extent of 10.50 Ares in Sy.No.574, Re.Sy.No.473/9 of Chovvara Village in Aluva Taluk, has filed this writ petition under Article 226 of the Constitution of India to “direct the respondents concerned to consider Ext.P5 representation and solve the issue mentioned therein within a very short time limit”. On 28.09.2020, the petitioner filed I.A.No.1 of 2020 seeking an order to amend the relief sought for in the writ petition as follows; “direct the respondent concerned to pay the compensation payable to the petitioner for the acquired land of the petitioner as per the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, within a very short time after complying the legal formalities, if any”. The application for amendment was allowed as per the order dated 23.10.2020. -4- W.P.(C)No.16942 OF 2019(P) 2. On 11.11.2019, when this writ petition came up for admission this Court admitted the matter on file. 3. The 1[st] and 2[nd] respondents have filed separate counter affidavits and the 3[rd] respondent has filed statement opposing the reliefs sought for in this writ petition. The petitioner has filed I.A.No.1 of 2019 seeking an order to accept Exts.P8 to P11 as additional documents. 4. Heard the learned counsel for the petitioner and also the learned Special Government Pleader appearing for the respondents. 5. The pleadings and materials on record would show that the 4[th] respondent Roads and Bridges Development Corporation of Kerala made requisition for acquiring 2.65 Hectares of land comprised in various survey numbers of Aluva East, Chengamanadu and Chowara Villages for the construction of two bridges as part of Seaport-Airport Road Phase II. By G.O(Rt.)No.517/2001/PWD dated 09.05.2001, the 1[st] respondent State accorded administrative sanction for -5- W.P.(C)No.16942 OF 2019(P) invoking urgency clause. The 3[rd] respondent Special Tahsildar (LA-III) was appointed as the Land Acquisition Officer and Ext.P2 notification under Section 4(1) of the Land Acquisition Act, 1984 was published in the Kerala Gazette on 11.10.2012. It was decided to acquire land on negotiation and the 2[nd] respondent District Level Purchase Committee conducted meetings on 24.08.2012 and 09.11.2012 in order to fix land value. On 09.11.2012, the 2[nd] respondent fixed value of the land under acquisition in Chowara Village at Rs.11,11,500/per Are, which was approved by State Level Empowered Committee vide Ext.P4 Government order, i.e., G.O.(P)No. 1052/12/RD dated 28.02.2013. 6. While the acquisition proceedings are in progress, the Tahsildar, Aluva informed the 3[rd] respondent Special Tahsildar that land having an extent of 61.92 Ares in Re.Sy.No.473/9 and 40.47 Ares in Re.Sy.No.474/1 of Chowara Village had been taken possession as excess land from one K.C.M. Mather and his wife Suhara Beevi, on 02.05.2003 and -6- W.P.(C)No.16942 OF 2019(P) 06.05.2003, respectively as per the order of this Court dated 23.06.1997 in C.R.P. No.2736 of 1996. The land in possession of the petitioner, which forms part of the aforesaid extent of 61.92 Ares in Re.Sy.No.473/9 of Chowara Village, was included in Section 4(1) notification as excess land. Therefore, while issuing Ext.R1(a) declaration on 03.06.2013, the petitioner’s land was excluded and no compensation was awarded. After the completion of acquisition proceedings, the land was handed over to the 4[th] respondent Requisitioning Authority on 14.07.2016. In the year 2016, the petitioner claimed the benefit of Section 7E of the Kerala Land Reforms Act, 1963 and obtained Ext.P1 certificate of title issued by the Land Tribunal, Ernakulam dated 28.12.2016 in OA-17/16/7E in respect of land having an extent of 10.50 Ares in Re.Sy.No.473/9 of Chovvara Village. Thereafter, the petitioner submitted Ext.P5 representation dated 28.11.2017 before the District Collector, Ernakulam claiming compensation for 0.56 Ares and 1.64 Ares of land in Re.Sy.No.473/9 of Chowara -7- W.P.(C)No.16942 OF 2019(P) Village. In support of the claim for compensation, the petitioner would rely on Ext.P11 judgment of a learned Judge of this Court dated 25.06.2015 in W.P.(C)14514 of 2013 and Ext.P6 judgment of the Division Bench dated 20.12.2017 in W.A.No.2345 of 2015. 7. As per Section 7E of the Kerala Land Reforms Act, 1963, inserted by Act 21 of 2006, which came into force with effect from 18.10.2006, notwithstanding anything to the contrary contained in Section 74 or Section 84 or in any other provisions of this Act, or in any other law for the time being in force or in any contract, custom or usage, or in any judgment, decree or order of any Court, Tribunal or other authority, a person who at the commencement of the Kerala Land Reforms (Amendment) Act, 2005, is in possession of any land, not exceeding four hectares in extent, acquired by him or his predecessor-in-interest by way of purchase or otherwise on payment of consideration from any person holding land in excess of the ceiling area, during the period between the date -8- W.P.(C)No.16942 OF 2019(P) of the commencement of the Kerala land Reforms Act, 1963 and the date of commencement of the Kerala Land Reforms (Amendment) Act, 2005, shall be deemed to be a tenant. By Act 6 of 2015, which came into force with effect from 18.10.2006, the words “four hectares” in Section 7E was substituted by the words “1 hectare 61 ares and 87 square metres”. As per sub-section (4) of Section 84 of the said Act, inserted by Act 21 of 2006, which came into force with effect from 18.10.2006, notwithstanding anything contained in subsections (1), (1A) or (2), or in any judgment, decree, or order of any Court, Tribunal or other authority, no acquisition of land referred to in Section 7E shall be deemed to be invalid, or ever to have been invalid by reason only of the fact that the land so acquired was found included as, or forming part of, the land liable to be surrendered by the transferor as excess land under the provisions of this Act and no suit or other proceedings including proceedings for eviction relating to the said land shall be instituted, maintained or continued in any -9- W.P.(C)No.16942 OF 2019(P) Court or Tribunal against any person who is a deemed tenant under Section 7E and every such suit or proceedings pending shall stand abated. As per the first proviso to sub-section (4) of Section 84, no ceiling cases wherein excess land has been physically taken over and distributed to landless labourers or reserved for public purposes as provided in this Act shall be reopened. 8. In the counter affidavit filed on behalf of the 1[st] respondent, State it is pointed out that the petitioner submitted application for Section 7E exemption only in the year 2016 and obtained Ext.P1 title certificate from the Land Tribunal, Tripunithura only on 28.12.2016. On the other hand, by Ext.P2 notification under Section 4(1) of the Land Acquisition Act, 1984, published in the Kerala Gazette on 11.10.2012, the land utilised for the construction of Seaport Airport Road Phase II has been reserved for public purpose. In view of the provisions under sub-section (4) of Section 84 of the Act, i.e., the first proviso to sub-section (4) of Section 84, -10- W.P.(C)No.16942 OF 2019(P) no title certificate can be issued in respect of the land reserved for public purpose, i.e., construction of Seaport Airport Road Phase II. 9. In the counter affidavit filed on behalf of the 1[st] respondent State it is stated that, the State is awaiting legal opinion in the matter. Further action, either to give compensation or to initiate disciplinary action against delinquent officers in having issued Ext.P1 title certificate in respect of land in possession of the Government shall be taken after getting legal opinion. In the counter affidavit filed by the 2[nd] respondent it is stated that, the 2[nd] respondent vide Ext.R2(a) letter dated 18.01.2019 sought clarification from the Additional Chief Secretary, Revenue (B) Department, the additional 7[th] respondent in this writ petition, on Ext.P5 application made by the petitioner. The Principal Secretary to Government, Revenue Department, vide letter No.B2/17/2019 Rev. dated 12.04.2019 called for a detailed report from the Secretary, Land Board as to how the petitioner claimed the -11- W.P.(C)No.16942 OF 2019(P) benefit of Section 7E of the Kerala Land Reforms Act and obtained Ext.P1 title certificate from the Land Tribunal, Ernakulam in respect of the land in possession of the Government. 10. The request made by the petitioner in Ext.P5 representation is pending consideration before the additional 7[th] respondent Additional Chief Secretary, Revenue (B) Department and the Principal Secretary to Government, Revenue Department has already called for a report from the Secretary, Land Board as to how the petitioner claimed the benefit of Section 7E of the Kerala Land Reforms Act and obtained Ext.P1 title certificate from the Land Tribunal, Ernakulam in respect of the land in possession of the Government. In such circumstances, this writ petition is disposed of by directing the additional 7[th] respondent to take an appropriate decision on Ext.P5 representation made by the petitioner, after obtaining a report from the Secretary, Land Board, through the Principal Secretary to Government, -12- W.P.(C)No.16942 OF 2019(P) Revenue Department, with notice to the petitioner and after affording him an opportunity of being heard, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this judgment. 11. 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. 12. Therefore, the direction contained in this judgment to the additional 7[th] respondent Additional Chief Secretary, Revenue (B) Department is for taking an appropriate decision -13- W.P.(C)No.16942 OF 2019(P) on the matter, strictly in accordance with law, taking note of the relevant statutory provisions and also the law on that point. No order as to costs. **Sd/-** **ANIL K. NARENDRAN, JUDGE** AV -14- W.P.(C)No.16942 OF 2019(P) ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF CERTIFICATE OF TITLE ISSUED BY THE HON'BLE LAND TRIBUNAL, ERNAKULAM DATED 28.12.2016 IN OA-17/16 (7E)** **EXHIBIT P2 TRUE COPY OF GAZETTE NOTIFICATION DATED 09.10.2012 ISSUED BY 1ST RESPONDENT EXHIBIT P3 TRUE COPY OF ORDER IN G.O.(RT) NO.3189/15/RD DATED 20.05.2015 EXHIBIT P4 TRUE COPY OF ORDER IN G.O.(RT) NO.1052/13/RD DATED 28.02.2013 EXHIBIT P5 TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE 2ND RESPONDENT DATED 28.11.2017 EXHIBIT P6 TRUE COPY OF JUDGMENT DATED 20.12.2017 IN W.A.NO.2345/2015 IN W.P.(C) NO.14514/2013 OF THIS HON'BLE COURT EXHIBIT P7 TRUE COPY OF ORDER IN G.O.(RT) NO.1388/13/RD DATED 13.03.2013 OF THE 1ST RESPONDENT EXHIBIT P8 TRUE COPY OF SALE DEED NO.1566/1975 OF S.R.O., SREEMOOLANAGARAM. EXHIBIT P9 TRUE COPY OF PARTITION DEED NO. 2724/1981 OF S.R.O., SREEMOOLANAGARAM. EXHIBIT P10 TRUE COPY OF PROCEEDINGS NO. L4-SM2/78/ALY DATED 14.7.2017 OF THE TALUK LAND BOARD, ALUVA.** -15- W.P.(C)No.16942 OF 2019(P) **EXHIBIT P11** **TRUE COPY OF JUDGMENT IN W.P.(C) NO.14514/2013 DATED 25.06.2015 OF THIS HON'BLE COURT.** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R1 A TRUE COPY OF THE DECLARATION DATED 03/06/2013. EXHIBIT R2 A TRUE COPY OF THE LETTER NO.DCEKM/12180/2017-C6 DATED 18.01.2019.**