K.B. Aysha Beevi and K.B. Muhammed Ashraf 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** ## **WP(C).No.23751 OF 2019(T)** ## **PETITIONERS:** |**1**|**K.B.AYSHA BEEVI**| |---|---| ||**AGED 73 YEARS**| ||**GANIS, CONVENT ROAD 1, THOTTAKATTUKARA P.O.,**| ||**ALUVA-683 571**| |**2**|**K.B.MUHAMMED ASHRAF,**| ||**KAVUNGADA MANGALAPPILLY HOUSE, CHOWARA P.O.,**| ||**ALUVA-683 571**| ||**BY ADVS.**| ||**SRI.E.N.VISHNU NAMBOODIRI**| ||**SRI.M.K.SASEENDRAN (MELEL)**| ||**SRI.P.SANKARAN NAMPOOTHIRI**| ||**SRI.NARAYANAN P POTTY**| ||**SRI.P.REJINARK**| ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT**| ||**SECRETARIAT, THIRUVANANTHAPURAM-695 001**| |**2**|**DISTRICT LEVEL PURCHASE COMMITTEE,**| ||**(LAND ACQUISITION AUTHORITY), REPRESNTED BY**| ||**ITS CHAIRMAN, DISTRICT COLLECTOR, ERNAKULAM-**| ||**682 030**| |**3**|**SPECIAL TAHSILDAR (LA) NO.III,**| ||**KOCHI INTERNATIONAL AIRPORT, NEDUMBASSERY,**| ||**NAYATHODE P.O., ERNAKULAM DISTRICT,PIN-673 572**| -2- WP(C).No.23751 OF 2019(T) ***ADDL R4 COCHIN INTERNATIONAL AIRPORT LTD. . REPRESENTED BY ITS MANAGING DIRECTOR, COCHIN-683 111.** **ADDL.R4 IMPLEADED AS PER ORDER DATED 30.09.2019 IN IA NO.1/19 IN W.P.(C) 23751/19. *ADDL R5 ADDITIONAL CHIEF SECRETARY . REVENUE (B) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **ADDL. R5 IS SUO MOTU IMPLEADED AS PER ORDER DATED 05.11.2020 IN WP(C)23751/2019.** **R1 TO R3 AND ADDL.R5 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- WP(C).No.23751 OF 2019(T) ## **JUDGMENT** The 1[st] petitioner, who is holding Ext.P10 certificate of title issued by the Land Tribunal, Ernakulam dated 28.12.2016 in OA-16/16/7E in respect of land having an extent of 0.10.50 Ares in Sy.No.574, Re-Sy.No.473/9 of Chowara Village and the 2[nd] petitioner, who is holding Ext.P12 certificate of title issued by the Land Tribunal Ernakulam dated 27.12.2016 in OA14/16/7E in respect of land having an extent of 21.02 Ares in Sy.No.574, Re-Sy.No.473/9 of Chowara Village, have filed this writ petition under Article 226 of the Constitution of India to “direct the respondents concerned to pay the compensation payable to the petitioners for acquisition of their land situated at Chovvara Village of Aluva Taluk, Ernakulam District”. On 28.09.2020, the petitioners 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 petitioners for the acquired land of petitioners 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”. That application was WP(C).No.23751 OF 2019(T) -4- allowed as per the order dated 23.10.2020. 3. The 1[st] respondent has filed a counter affidavit and the 3[rd] respondent has filed a statement opposing the reliefs sought for in this writ petition. The petitioners have filed I.A.No.2 of 2019 seeking an order to accept Exts.P4 to P13 as additional documents. 4. Heard the learned counsel for the petitioners and also the learned Special Government Pleader appearing for the respondents. 5. This writ petition is heard along with W.P. (C)No.16942 of 2019 in which respondents 1 and 3 have filed counter affidavits raising similar contentions. The pleadings and materials on record would show that the 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 SeaportAirport Road Phase II. By G.O(Rt.)No.517/2001/PWD dated 09.05.2001, the 1[st] respondent State accorded administrative sanction for invoking urgency clause. The 3[rd] respondent Special Tahsildar (LA-III) was appointed as the Land -5- WP(C).No.23751 OF 2019(T) Acquisition Officer and Ext.P7 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 District Level Purchase Committee conducted meetings on 24.08.2012 and 09.11.2012 in order to fix land value and on 09.11.2012, 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 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 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 petitioners, 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, -6- WP(C).No.23751 OF 2019(T) while issuing Ext.R1(a) declaration on 03.06.2013, the petitioners' land was excluded and no compensation was awarded. After the completion of acquisition proceedings, the land was handed over to the Requisitioning Authority on 14.07.2016. In the year 2016, the petitioners claimed the benefit of Section 7E of the Kerala Land Reforms Act, 1963 and the 1[st] petitioner obtained Ext.P10 certificate of title issued by the Land Tribunal, Ernakulam dated 28.12.2016 in OA-16/16/7E in respect of land having an extent of 0.10.50 Ares in Sy.No.574, Re-Sy.No.473/9 of Chowara Village and the 2[nd] petitioner obtained Ext.P12 certificate of title issued by the Land Tribunal Ernakulam dated 27.12.2016 in OA-14/16/7E in respect of land having an extent of 21.02 Ares in Sy.No.574, Re-Sy.No.473/9 of Chowara Village. Thereafter, the petitioners submitted representation before the District Collector, Ernakulam claiming compensation for 0.10.50 Ares in Sy.No.574, Re-Sy.No.473/9 of Chowara Village and for 21.02 Ares in Sy.No.574, Re-Sy.No.473/9 of Chowara Village. In support of the claim for compensation, the petitioners would rely on Ext.P8 judgment of a learned Judge of this Court dated 25.06.2015 in W.P.(C)14514 of 2013 and the judgment of the -7- WP(C).No.23751 OF 2019(T) 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 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, -8- WP(C).No.23751 OF 2019(T) 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 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 petitioners submitted application for Section 7E exemption only in the -9- WP(C).No.23751 OF 2019(T) year 2016 and obtained Exts.P10 and P12 title certificates from the Land Tribunal, Tripunithura only on 28.12.2016 and 27.12.2016 respectively. On the other hand, by Ext.P7 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, 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 Exts.P10 and P12 title certificates in respect of land in possession of the Government shall be taken after getting legal opinion. 10. The request made by the petitioners claiming compensation is pending consideration before the additional -10- WP(C).No.23751 OF 2019(T) 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 Exts.P10 and P12 title certificates 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 the request made by the petitioners, after obtaining a report from the Secretary, Land Board, through the Principal Secretary to Government, Revenue Department, with notice to the petitioners and after affording them 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 -11- WP(C).No.23751 OF 2019(T) 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 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/24/11 -12- WP(C).No.23751 OF 2019(T) The words “additional 7[th] respondent” occurring in the 3[rd] and 11[th] line of paragraph 10 and in the 2[nd] line of paragraph 12 of the judgment dated 05.11.2020 in W.P.(C)No.23751 of 2019 is corrected as “additional 5[th] respondent” as per order dated 16.12.2020 in W.P.(C)No.23751 of 2019 (T). **Sd/Joint Registrar** -13- WP(C).No.23751 OF 2019(T) ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF JUDGMENT DATED 17.06.2019 IN WPC NO.16411/2019 OF THIS HON'BLE COURT.** - **EXHIBIT P2 TRUE COPY OF HEARING NOTE SUBMITTED BY PETITIONERS ADVOCATE BEFORE 3RD RESPONDENT DATED 8.8.2019.** - **EXHIBIT P3 TRUE COPY OF ORDER IN GO(RT) NO.1388/13/RD DATED 13.3.2013 OF THE 1ST RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF SALE DEED BEARING NO.1566/1975 OF S.R.O., SREEMOOLANAGARAM.** - **EXHIBIT P5 TRUE COPY OF PARTITION DEED BEARING NO.2724/1981 OF S.R.O., SREEMOOLANAGARAM** - **EXHIBIT P6 TRUE COPY OF PROCEEDINGS NO.L4-SM2/78/ALY DATED 14/7/2017 ISSUED BY THE TALUK LAND BOARD, ALUVA** - **EXHIBIT P7 TRUE COPY OF EXTRA ORDINARY GAZETTE NOTIFICATION NO.875 DATED 11/10/2012** - **EXHIBIT P8 TRUE COPY OF JUDGMENT IN WPC NO.14514/2013 DATED 25/6/2015 OF THIS HON'BLE COURT** - **EXHIBIT P9 TRUE COPY OF JUDGMENT IN W.A NO.2158/2017 DATED 13/12/2017 OF THIS HON'BLE COURT** - **EXHIBIT P10 TRUE COPY OF CERTIFICATE OF TITLE DATED 28/12/2016 IN OA-16/16/7E ISSUED BY THE HON'BLE LAND TRIBUNAL, ERNAKULAM** **EXHIBIT P11 TRUE COPY OF ORDER IN OA.NO.16/16(7E) DATED 24/9/2016 PASSED BY THE HON'BLE LAND TRIBUNAL, ERNAKULAM** -14- WP(C).No.23751 OF 2019(T) **EXHIBIT P12 TRUE COPY OF CERTIFICATE OF TITLE DATED 27/12/2016 IN OA-14/16/7E ISSUED BY THE HON'BLE LAND TRIBUNAL, ERNAKULAM EXHIBIT P13 TRUE COPY OF ORDER IN OA.NO.14/16(7E) DATED 24/9/2016 PASSED BY THE HON'BLE LAND TRIBUNAL, ERNAKULAM** **RESPONDENTS' EXHIBITS : EXHIBITS R1(A) TRUE COPY OF THE DECLARATION DATED 03.06.2013**