Kannur Association of Social and Economic Reforms Trust (KAOSAR) v Special Tahsildar (L.A) NH Unit-2 & Competent Authority, Collectorate, Kannur; The Project Director, National Highway Authority of India (NHAI)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ## **`FRIDAY, THE 2[ND] DAY OF FEBRUARY 2024 / 13TH MAGHA, 1945`** ## **`WP(C) NO. 5066 OF 2022`** ## **`PETITIONER:`** ``` KANNUR ASSOCIATION OF SOCIAL AND ECONOMIC REFORMS TRUST, (KAOSAR), AT KANNUR REPRESENTED BY ITS SECRETORY, K P ABDUL AZEEZ, AGED 73 YEARS, S/O. MOHAMMED KP, HIRA MANZIL, THAYATHERU, KANNUR DISTRICT. BY ADVS. SURESH KUMAR KODOTH K.P.ANTONY BINU ``` ## **`RESPONDENTS:`** ``` 1SPECIAL TAHSILDAR (L.A) NH UNIT -2 & COMPETENT AUTHORITY, COLLECTORATE, KANNUR 670 002. 2THE PROJECT DIRECTOR, NATIONAL HIGHWAY AUTHORITY OF INDIA, 34/743, BEHIND POPULAR VEHICLES, CIVIL STATION P.O., KOZHIKODE 670 020. ``` ``` BY ADV SHRI.MATHEWS K.PHILIP, SC, NHAI G.P. - DEEPA V. ``` ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) No. 5066 of 2022 : 2 : ## **VIJU ABRAHAM , J. =========================== WP(C) No. 5066 of 2022 ============================ Dated this the 2[nd] day of February, 2024** ## **J U D G M E N T** Petitioner has approached this Court seeking to quash Exts.P10, P11 and P12 proceedings to the extent it does not include petitioner's trust as land owner in respect of 0.5953 hectares comprised in Re.Sy. No.157/6 of Puzhathi Amsom Desom in Kannur Taluk. 2. The petitioner is a public charitable trust established and engaged in providing assistance and reliefs to deserving sections of society in the field of education, social and medical care etc. as is evident from Ext.P1 trust deed. A total extent of 1.16106 hectares of land, comprised in Re.Sy. No.154/3 and 157/6 (new Sy.No. 157/12) of Puzhathi Amsom Desom in Kannur Taluk, being part of the larger extent of 2.13.24 hectares belonging to the Trust as per various registered sale deeds was acquired for the development of National Highway 66 (old NH-17). Out of the total extent of 1.16106 hectares acquired from the petitioner, an extent of 0.5953 hectares comprised in Re.Sy. No.157/6 and 1.0149 hectares comprised in Re.Sy. No.154/3. Both these items are lying compact and contiguous. When acquisition proceedings commenced in respect of the land WP(C) No. 5066 of 2022 : 3 : comprised in Re.Sy. No. 154/3 petitioner staked claim for compensation on the basis of valid title, and the right was accepted by the competent authority, although the extent of land held by it was not determined for want of demarcation by the authority. However in respect of the property comprised in Re.Sy. No. 157/6, which belongs to the trust, petitioner remained not informed as to whether acquisitions takes in any portion of the land held by the Trust. Therefore, in the absence of notice and details of acquisition, petitioner was not in a position to make claim of ownership in regard to the said land, at the initial stage of the proceedings. 3. Petitioner further submits that though it is imperative and legally obligatory for the competent authority to demarcate the land required to be acquired, it was not done in so far as the land comprised in Re.Sy. No. 154/3 and 157/6 of Puzhathi Amsom Desom is concerned. In the proceedings for acquisition of land in Re.Sy. No.154/3 the petitioner Trust and two others were shown as land owners. The competent authority proceeded to determine compensation for the entire extent of 3.3318 hectares, without making fragmentation of the land held by different land owners, obviously due to the failure in conducting survey and demarcation. Thereupon Ext.P2 award was passed in respect of property comprised in Re.Sy. No. 154/3 wherein the inability to demarcate the land separately due to water logging in the area, was stated. When WP(C) No. 5066 of 2022 : 4 : the petitioner stated a claim for compensation pursuant to Ext.P2 award the competent authority reiterated their stand and expressed their inability to determine compensation payable to the petitioner individually, for want of identification and demarcation of land acquired from the petitioner separately. Petitioner thereupon conducted a survey through a competent Civil Engineer and prepared a sketch, which is produced as Ext.P4. In the said digital survey conducted by the petitioner it was noticed that land comprised in Re.Sy. No. 157/6 having an extent of 0.5953 hectares was also acquired. Thereupon Ext.P6 representation was submitted before the 1[st] respondent. While so, in respect of the land acquired which is comprised in Re.Sy. No.154/3 the competent authority expressed its inability to determine the extent of acquired land to make payment of compensation amount to the land owners, issued proceedings under Section 3H(4) of NH Act, 1956 making a reference to the Civil Court for adjudication as per Ext.P7. This reference was challenged by the petitioner and this Court by Ext.P8 judgment set aside the said reference and issued a further direction to the competent authority to determine compensation payable to the petitioner. While, so the petitioner have again moved the competent authority for payment of compensation in respect of 0.5953 hectares of land comprised in Re.Sy. No. 157/6 by filing Ext.P9 representation. The competent authority refused to accede to the legitimate WP(C) No. 5066 of 2022 : 5 : demand of the petitioner and rejected the claim as per Ext.P10 intimating that the claim was raised beyond the time already fixed and announced publicly. In Ext.P10 letter it was also informed that in respect of Re.Sy. No.156/7, since the competent authority though passed an award the demarcation of individual holdings could not be carried out due to water logging and therefore the entire matter was referred to the Civil Court for determination as is evident from Exts.P11 and P12. But in Ext.P10 it is further stated that since the petitioner did not make any claim within the time prescribed, petitioner's name was also not referred to in the reference order. Petitioner submits that 0.5953 hectares of land comprised in Re.Sy. No.157/6 which was acquired and taken possession is covered by 3 registered documents produced as Exts.P13, P14 and P15. Petitioner submits that all these happened only because of the fact that proper identification and demarcation of the land was not done by the authorities stating that the property is water logged. It is in the said circumstance that the petitioner has approached this Court. 4. A detailed counter affidavit has been filed by the 1[st] respondent wherein paragraphs 3, 6 and 12 reads as follows:- “3.It is submitted that as the land under acquisition in Resurvey No.154/3 and 157/6 is fully water logged and having no distinct physical boundanes between the lands held by alleged claimant, this office was not in a position to demarcate the land under acquisition of each claimant and hence the dispute was prevailed among alleged claimants, WP(C) No. 5066 of 2022 : 6 : the matter was referred to the Honourable Principal Civil Court, Thalassery. Hence the sketch of land to be acquired from the petitioner could not be prepared and so their extent of land under acquisition could not be reckoned. Though the petitioner was named in the mahazar prepared in Resurvey No. 154/3, the petitioner was not mentioned in the mahazar prepared in respect of Resurvey No.157/6 as they have not staked any claim over the land at the time of preparation mahazar. Later before referring the matter to the Principal Civil Court, though this office had entertained the request of the claim of the land from the alleged claimants through press release, the petitioner had not claimed right over the land in Resurvey No.157/6. Within stipulated time and hence the name of the petitioner was not mentioned in the reference application. 6.It is true that a representation dated 22.11.2021 from the petitioner claiming stake over the land under acquisition in Resurvey No.156/7 was received and this office had rejected their request of claim as the matter was already referred to the Honourable Principal Civil Court. 12.This office had referred the matter to the Principal Civil Court, Thalassery invoking Section 3H(4) NH Act as there were no physical boundaries of lands possessed by each claimant and a dispute regarding boundary was prevailed among the claimants. This office had done everything as per provisions in NH Act 1956 and it is respectfully submit that this office had done nothing arbitrary and unjust to the petitioner. The contention of the petitioner is devoid of merits and liable to be dismissed.” Going by the stand taken in the counter affidavit there is admission on the part of the respondent that the land under acquisition in Resurvey No.154/3 and 157/6 is fully water logged and has no WP(C) No. 5066 of 2022 : 7 : distinct physical boundaries between the lands held by the alleged claimant and therefore the competent authority is not in a position to demarcate the land under acquisition of each claimant and since the dispute was prevailing among alleged claimants, the matter was referred to the Principal Civil Court, Thalassery for adjudication. As regard the property comprised in Resurvey No.154/3 the petitioner's name was not mentioned in the mahazar prepared as they have not staked any claim over the land at the time of preparation of mahazar. Later, even before referring the matter to the Civil Court, though the Officers entertained the request of the claim of land from alleged claimant through a press release the petitioner has not claimed right over the land in Resurvey No.156/6 within stipulated time and hence the name of the petitioner was not mentioned in the reference application. 5. Heard the rival contentions of both sides. 6. Petitioner on the strength of Exts.P13, P14 and P15 documents would submit that the petitioner is in ownership and possession of 0.5953 hectares of land comprised in Resurvey No.157/6. The 1[st] respondent in Ext.P10 has specifically stated that as there was water logging in the area and therefore no attempt was made to identify and demarcate the property in respect of individual holding of each claimants and therefore the matter has been referred to the competent Civil Court for adjudication. It is also WP(C) No. 5066 of 2022 : 8 : stated that though the claims were called for no claim was raised by the petitioner within the time stipulated and therefore in the reference order the name of the petitioner is not mentioned. The question to be considered is as to whether a fresh award is to be passed taking into consideration the claim raised by the petitioner. A Full Bench of this Court in **Ranee Sidhan v. Special Tahsildar for Land Acquisition [1974 KLT 724 (F.B.)]** has held as follows:- “4. If the Collector does not apportion the compensation amount himself, he must under S.32 refer to the Court the dispute as to the apportionment of the same or any part thereof and the question as to whom the same or any part thereof is payable, depositing the compensation amount or part thereof as the case may be under S.33(2) of the **Act** . However, as already said the Collector is not bound to make such a reference. It is pointed out in Grant’s case already mentioned that the Collector ‘may relegate the person raising a dispute as to apportionment, or as to the person to whom compensation is payable, to agitate the dispute in a suit and pay the compensation in the manner declared by his **award** ’. The same decision is also authority for holding that ‘a person who has not appeared in the **acquisition** proceeding before the Collector may, if he is not served with notice of the filing (the **award** ), raise a dispute as to apportionment or as to the persons to whom it is payable, and apply to the Court for a reference under S.30, (S.32 of the Kerala **Act** ) , for determination of his right to compensation which may have existed before the **award** , or which may have devolved upon him since the **award** ’. 9. These decisions make it clear, (and we think, with respect, these to be the correct principles) that the functions WP(C) No. 5066 of 2022 : 9 : of the Collector making the **award** cease once the amount in deposited is court, and ‘all that is left is a dispute between interested people as to the extent of their interest’ in the acquired property ‘represented by a sum of money paid into court’ in respect of which dispute ‘the parties can proceed to litigate in the ordinary way or in the ordinary manner to determine what their right and titile, to the property may be.’ Shortly, once the dispute is before court under S.32, a person lawfully entitled to compensation or part thereof is entitled to establish his right as against any person as in a suit. The Court will, in deciding the dispute, be guided, governed and regulated by the provisions of the Code of Civil Procedure, 1908 (S.59 of the **Act** says so), and in our view, by the provisions of the Evidence **Act** , 1872. Here it is necessary to advert to one rule of evidence contained in the **Act** itself. We refer to S.31 of the Act whereby an **award** of apportionment by the Collector based on agreement of persons interested and specifying the particulars of such apportionment is made conclusive evidence of the correctness of apportionment, as between such persons, viz, persons who have agreed to the apportionment. But for this limitation there is nothing in the **Act** which will preclude a person lawfully entitled to compensation amount, or part thereof, from claiming and establishing, that he as the real person interested is entitled to the same. Failure on his part to claim the compensation or part thereof, or his failure to dispute the claims advanced by others, or, even an admission that another is entitled to the compensation amount, in proceedings before the Collector, cannot in our view, preclude him from advancing his claim and establishing the same, at any subsequent stage, before the Collector or before the Court, so long as the rule of conclusive evidence stated in S.31 of the **Act** is not in his WP(C) No. 5066 of 2022 : 10 : way. His conduct, failure to claim or to dispute another’s claim, or the admission, as the case may be, can, if established, be a relevant fact under the ordinary rules of evidence in assessing, the merits of his claim, but he is under those rules of evidence also entitled to explain away these facts, and to establish his title to compensation or part thereof.” In the present case the only objection is that the petitioner did not raised a claim at the proceedings before the 1[st] respondent while passing an award and making a reference to the competent Civil Court, but the Full Bench of this Court in **Ranee Sidhan's** case has categorically held that any person lawfully entitled for compensation amount cannot be precluded from raising a claim before reference Court even if he fails to dispute the claim or raise a claim before the Collector. In the facts and circumstances as stated above, I am of the view that the petitioner should be allowed to raise all the claims in respect of 0.5953 hectares of land comprised in Resurvey No. 157/6 of Puzhathi Amsom Desom in Kannur Taluk before the competent Civil Court (Principal Civil Court, Thalassery) before which the matter has been referred to by the 1[st] respondent. Therefore the petitioner shall raise a claim in respect of the property comprised in Resurvey No. 157/6 having an extent of 0.5953 hectares before the competent Civil Court i.e. Principal Civil Court, Thalassery and the same shall be adjudicated in accordance with law. WP(C) No. 5066 of 2022 : 11 : With the said observation and direction, the writ petition is disposed of. **Sd/-** **VIJU ABRAHAM JUDGE** sbk/- WP(C) No. 5066 of 2022 : 12 : ## **`APPENDIX OF WP(C) 5066/2022`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1TRUE COPY OF THE REGISTERED TRUST DEED DATED 30.10.1993. ``` - `Exhibit P2 TRUE COPY OF AWARD DATED 18.1.2021 PASSED UNDER SECTION 3G (1).` - `Exhibit P3 TRUE COPIES OF THE APPLICATION DATED 11.09.2021.` - `Exhibit P4 TRUE COPY OF SURVEY SKETCH OF THE PROPERTY .` - `Exhibit P5 TRUE COPY OF SATELLITE PHOTO OF THE PROPERTY.` - `Exhibit P6 TRUE COPY OF RE PRESENTATION DATED 25.10.2021 SUBMITTED BEFORE THE FIRST RESPONDENT.` - `Exhibit P7 TRUE COPY OF THE PROCEEDINGS DATED 31.08.2021 ISSUED UNDER SECTION 3H (4).` - `Exhibit P8 TRUE COPY OF JUDGMENT DATED 11.01.2022 IN WPC NO. 24124/2021.` - `Exhibit P9 TRUE COPY OF REPRESENTATION DATED 22.11.2021.` - `Exhibit P10 TRUE COPY OF THE OFFICIAL LETTER DATED 03.01.2022.` ``` Exhibit P11TRUE COPY OF LAC NO. 6452 DATED 18/1/2021. Exhibit P12TRUE COPY OF LAC NO. 6453 DATED 4.2021. Exhibit P13TRUE COPY OF REGISTERED DOCUMENT NO. 1380/1995 DATED 19.04.1995. ``` ``` Exhibit P14TRUE COPY OF REGISTERED DOCUMENT NO. 3995/2008 OF SRO KANNUR DATED 13.10.2008. Exhibit P15TRUE COPY OF REGISTERED DOCUMENT NO. 1875/2010 OF SRO KANNUR DATED 21.10.2010. ```