Kunhi Thampatty P.K. v. The District Collector Kozhikode and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ## **`THURSDAY, THE 21[ST] DAY OF MARCH 2024 / 1ST CHAITHRA, 1946`** ## **`WP(C) NO. 5285 OF 2023`** ## **`PETITIONER:`** ``` KUNHI THAMPATTY P.K ( AMBADI KOVILAGAM VALIYA THAMBURATTY ) AGED 90 YEARS KULAPPURA MALIKA PUTHIYA KOVILAKAM THIRUVANNUR POST KOZHIKODE, PIN - 673601 ``` - **`BY ADVS. K.P.SUDHEER P.ANIRUDHAN`** ## **`RESPONDENTS:`** - **`1 THE DISTRICT COLLECTOR KOZHIKODE, CIVIL STATION, ERANHIPALAM, KOZHIKODE, PIN - 673020`** - **`2 REVENUE DIVISIONAL OFFICER/ LAND ACQUISITION OFFICER KOZHIKODE, CIVIL STATION, ERANHIPALAM, KOZHIKODE, PIN - 673020`** - **`3 ADDITIONAL THAHASILDAR KOZHIKODE, TALUK OFFICE, CIVIL STATION, ERANHIPALAM, KOZHIKODE, PIN - 673020`** - **`4 VILLAGE OFFICER PANNIYANKARA VILLAGE, VILLAGE OFFICE, PANNIYANKARA, KALLAI ROAD, KOZHIKODE, PIN - 673003`** - **`5 THE ASSISTANT EXECUTIVE ENGINEER ELECTRICAL SUB DIVISION, KERALA STATE ELECTRICITY BOARD, KALLAI, KOZHIKODE, PIN - 673003 BY SR.GP. - DEEPA NARAYANAN`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) No. 5285 of 2023 : 2 : ## **VIJU ABRAHAM , J. =========================== WP(C) No. 5285 of 2023 ============================ Dated this the 21[st] day of March, 2024** ## **J U D G M E N T** It is averred that 0.3006 Hectares of land in Panniyankara Village of Kozhikode Taluk was acquired for the construction of the Railway Over Bridge and Ext.P1 award was passed. Petitioner submits that out of the total extent 0.3006 Hectares, property having an extent of 0.0363 Hectares stands registered in the name of Ambady Kovilakath Valyathamburatty. A perusal of Ext.P1 award would show that the land is registered in the name of Ambady Kovilakath Valyathamburatty but nobody attended the award enquiry nor put forth any claim for compensation. Petitioner submits that in fact no notice as stated in Ext.P1 was served on the Kovilakam. The 5[th ] respondent KSEB appeared for the award enquiry, but they could not produce any original documents and the basic tax receipt and therefore the compensation amount of Rs. 25,76,220/was kept under revenue deposit, to be paid to the awardee on the production of documents to prove title. The petitioner submits that immediately on knowing about Ext.P1 award, Ext.P2 request was made by the petitioner before the land acquisition officer to refer the matter to the competent Civil Court for adjudication. Petitioner relies WP(C) No. 5285 of 2023 : 3 : on Ext.P3 ‘Adangal extract’ and Ext.P4 Survey Settlement register to prove the ownership of the petitioner over the property. In Ext.P1 award also there is a finding that the land is registered in the name of Ambady Kovilakath Valyathamburatty. The Samoothiri Raja Kudumba Kendra Samithi which was entrusted to followup the matter due to the petitioner’s old age has submitted representations before the District Collector and Revenue Divisional Officer including Ext.P12 before the District Collector requesting to refer the matter to the competent Civil Court for adjudication as provided in Section 30 of the Land Acquisition Act, 1894. The petitioner has also submitted Exts.P13 and P14 requests before the 1[st] and 2[nd] respondents. 2. A counter affidavit has been filed by the 5[th] respondent KSEB wherein it is contended that the subject land is in their possession for years together and that the same was transferred as per Ext.R5(a) Government Order to the Electricity Board and Ext R5(b) is the possession certificate. Pursuant to Ext.R5(c) notice, they appeared before the Land Acquisition Officer and an award was passed and the amount was kept in deposit for the production of necessary documents to prove title. The learned Standing Counsel for the 5[th] respondent would submit that the remedy available for the petitioner is to seek a reference under Section 18 of the Land Acquisition Act 1894, but the petitioners have not made any request WP(C) No. 5285 of 2023 : 4 : in this regard within the time prescribed therein and therefore their claim cannot be entertained now. 3. Admittedly, though Ext.P1 award was passed the amount was not paid to the petitioner or the 5[th] respondent. The Apex Court in **Arul Mighu Lekshminarasimhaswamy Temple Singirigudi v. Union of India and Others [(1996) 6 SCC 408]** wherein it was held that the land acquisition officer has to determine the extent of land, the person entitled for compensation and the compensation to be given and if he finds that if there is any dispute as to the person entitled to receive the compensation, necessarily he has to make deposit of the amount under Section 31 of Land Acquisition Act 1894 before the Court and refer the dispute for decision of the Court. Paragraphs 2 and 3 of the said judgment reads as follows: “2. On the admitted facts, the approach of both the learned Single Judge and of the Division Bench in the writ petition and the WA No.1358 of 1995 indicated in the impugned order made on 30-1-1996 cannot be sustained. Notification under Section 4(1) of the Land Acquisition Act, 1894 was published on 4-6-1987 acquiring the land in question for the public purpose. After compliance of the notice under Sections 9 and 10 of the Act and enquiring, the award came to be passed by the Land Acquisition Officer on 7-2-1990. The possession thereafter was taken on 30-10-1990. The question, therefore, would be: what would be the proper procedure to be adopted in case of dispute as to the title of the land acquired under the Act? The learned Single Judge declared title of the petitioner in the writ petition and the Division Bench directed the civil court to decide the title. Both views are obviously WP(C) No. 5285 of 2023 : 5 : erroneous in law. The Land Acquisition Officer has to determine the extent of the land, the persons entitled to compensation and the compensation to be determined under Section 23(1) of the Act. If he finds that there is any dispute as to the person entitled to receive the compensation, necessarily he has to deposit the amount under Section 31 of the Act into the Court to which reference would lie. On such a dispute having arisen, he has to make a reference to the Court under Section 30 of the Act to decide the dispute between the competing persons who set up rival title to the compensation. Under those circumstances, the only legal course open is that a direction be issued to the Land Acquisition Officer to make a reference under Section 30 to decide the inter se title to receive the compensation either by the appellant or by the 4[th] respondent, as the case may be and the Reference Court would decide the matter in accordance with law. 3. The appeal is accordingly allowed. The orders passed by the learned Single Judge and the Division Bench stand set aside. The Land Acquisition Officer is directed to make a reference to the Court under Section 30. We are informed that the compensation has already been deposited in interestearning security. Therefore, if the parties so require, the Reference Court may be approached in this behalf or the order of the learned Single Judge may continue in force till the reference is decided in accordance with law. The later would be the appropriate course. No costs.” ## **The Apex Court in Sharda Devi v. State of Bihar [(2003) 3 SCC 128] has held as follows:** “22. The two provisions contemplating power of the Collector to make reference as contained in Section 18 and Section 30 of the Act need a comparative study. Under Section 18 the subject-matter of reference can be a dispute as to any one or more of the following: (i) as to the measurement of the land, WP(C) No. 5285 of 2023 : 6 : (ii) as to the amount or the quantum of the compensation, (iii) as to the persons to whom the compensation is payable, (iv) as to the apportionment of the compensation among the persons interested. Under Section 30 the subject matter of dispute can be: (i) the apportionment of the amount of compensation or any part thereof, (ii) the persons to whom the amount of compensation or any part thereof is payable. Though the expression employed in Section 18 is 'the amount of compensation' while the expression employed in Section 30 is 'the amount of compensation or any part thereof', this distinction in legislative drafting is immaterial and insignificant and a dispute as to entitlement or apportionment of part of the compensation would also be covered by Section 18 of the Act on the principle that the whole includes a part too. Thus, at the first blush, it seems that Section 30 overlaps Section 18 in part; but as will be seen shortly hereinafter, it is not so. 23. Dr.G.H. Grant vs. State of Bihar (supra) is a three-Judge Bench decision of this Court wherein the scheme of the Act by reference to the power vesting in the Collector to make a reference came up for the consideration of the Court. The three-Judge Bench by a majority of 2:1 laid down the following principles : (i) There are two provisions in the Act under which the Collector can make a reference to the Court, namely, Section 18 and Section 30. The powers under the two sections are distinct and may be invoked in contingencies which do not overlap. A person shown in that part of the award which relates to apportionment of compensation who is present either personally or through a representative or on whom notice is issued under Section 12(2), must, if he does not accept the award, apply to the Collector to refer the matter to the Court under Section 18 within the time prescribed WP(C) No. 5285 of 2023 : 7 : thereunder. But a person who has not appeared in the acquisition proceedings before the Collector may, if he is not served with notice of filing, 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 Section 30, for determination of his right to compensation which may have existed before the award, or which may have devolved upon him since the award. For a reference under Section 30, no period of limitation is prescribed. (ii) It is not predicated of the exercise of the power to make a reference under Section 30 that the Collector has not apportioned the compensation money by his award. (iii) The award made by the Collector under Section 11 is not the source of the right to compensation. An award is strictly speaking only an offer made by the Government to the person interested in the land notified for acquisition; the person interested is not bound to accept it and the Government can also withdraw the acquisition u/s 48. It is only when possession of the land has been taken by the Government u/s 16 that the right of the owner of the land is extinguished. Therefore the appellant's contention that title to compensation is derived solely from and on the date of the award could not be accepted. (iv) The liability of the Government u/s 31 to pay compensation to the person entitled thereto under the award does not imply that only the persons to whom compensation is directed to be paid under the award may raise a dispute u/s 30. The scheme of apportionment by the Collector under Section 11 is conclusive only between the Collector and the persons interests and not among the persons interested. Payment of compensation u/s 31 of the persons declared in the award to be entitled thereto discharges the State of its WP(C) No. 5285 of 2023 : 8 : liability to pay compensation leaving it open to the claimant to compensation to agitate his right in a reference u/s 30 or by a separate suit. (v) Under the Bihar Land Reforms Act the title of the appellant to the land noticed for acquisition became vested in the State and therefore the right to compensation for the land acquired devolved upon the State. A dispute then arose between the State Government and the appellant "as to the persons to whom" compensation was payable. The State had no right to the compensation payable for the land under a title existing before the date of the award of the Collector and no application could be made by it as a person interested within the meaning of Section 18. But a dispute between the appellant and the State as to their conflicting claims to the compensation money was clearly a dispute which could be referred u/s 30 of the Act to the Court. There is nothing in Section 30 which excludes a reference to the Court of a dispute raised by a person on whom the title of the owner of the land has since the award, devolved” (emphasis supplied). Section 30 of the Land Acquisition Act, 1894 mandates that when the amount of compensation has been settled under Section 11, if any dispute arises as to the apportionment of the same, or any part thereof, or as to the persons to whom any part thereof is payable, the Collector may refer such dispute to the decision of the Court. Admittedly, the petitioner has preferred Ext.P2 request in this regard as early as in 2014. Subsequent requests were also made as is evident from Exts.P11 and P12. The dispute has to be resolved since the amount is now lying in the revenue deposit. The petitioner as WP(C) No. 5285 of 2023 : 9 : well as the 5[th] respondent are raising rival claim for the amount awarded as per Ext.P1. Therefore, the above writ petition is disposed of with a direction to respondents 1 and 2 to refer the matter to the Court for adjudication as provided in Section 30 and also to make deposit of the compensation amount in Court as provided in Section 31, as requested in Ext.P2, Ext.P11 and Ext.P12, as expeditiously as possible, at any rate within an outer limit of one month from the date of receipt of a copy of the judgment. Upon such reference, the Court shall finalize the proceedings without much delay with notice to the petitioner, the 5[th] respondent and any other affected party. Sd/- **VIJU ABRAHAM JUDGE** sbk/- WP(C) No. 5285 of 2023 : 10 : ## **`APPENDIX OF WP(C) 5285/2023`** |`PETITIONER EXHIBITS`|| |---|---| |`EXHIBIT P 1`|`TRUE COPY OF RELEVANT PAGES OF AWARD NO.`| ||`1/2012 DATED 30.6.2012 PASSED BY THE 2ND`| ||`RESPONDENT.`| |`EXHIBIT P 2`|`TRUE COPY OF REQUEST SUBMITTED DURING`| ||`DECEMBER 2014 TO THE 2ND RESPONDENT`| |`EXHIBIT P 3`|`TRUE COPY OF RELEVANT PAGE OF THE ADANGAL`| ||`EXTRACT ISSUED BY THE 4TH RESPONDENT.`| |`EXHIBIT P4`|`TRUE COPY OF EXTRACT OBTAINED FROM THE`| ||`DEPARTMENT OF ARCHIVES.`| |`EXHIBIT P 5`|`TRUE COPY OF THE REQUEST DATED 29.6.2015`| ||`SUBMITTED BY THE SECRETARY OF ZAMOODIRI`| ||`RAJA KUDUMBA KENDRA SAMITHI TO THE 2ND`| ||`RESPONDENT.`| |`EXHIBIT P 6`|`TRUE COPY OF ACKNOWLEDGMENT RECEIPT NO.`| ||`175 DATED 29.6.2015 ISSUED BY THE OFFICE`| ||`OF THE 2ND RESPONDENT.`| |`EXHIBIT P 7`|`TRUE COPY OF REQUEST DATED 13.8.2015`| ||`SUBMITTED BY ZAMOODIRI RAJA KUDUMBA KENDRA`| ||`SAMITHI BEFORE THE TAHASILDAR, KOZHIKODE.`| |`EXHIBIT P 8`|`TRUE COPY OF REPORT NO. VO. NO. 62/2015`| ||`DATED 22.8.2015 ISSUED BY THE 4TH`| ||`RESPONDENT TO THE TAHASILDAR, KOZHIKODE`| |`EXHIBIT P 9`|`TRUE COPY OF REQUEST DATED 16.10.2015`| ||`SUBMITTED BY ZAMOODIRI RAJA, KUDUMBA`| ||`KENDRA SAMITHI TO THE 2ND RESPONDENT`| |`EXHIBIT P 10`|`TRUE COPY OF LETTER NO. G3-29631/15 DATED`| ||`30.11.2015 ISSUED BY THE ADDITIONAL`| ||`TAHASILDAR, KOZHIKODE TO THE CHAIRMAN,`| ||`ZAMOODIRI RAJA KUDUMBA KENDRA SAMITHI`| ||`(WRONGLY WRITTEN AS KSHETHRA SAMITHI).`| |`EXHIBIT P 11`|`TRUE COPY OF REQUEST DATED 28.12.2015`| ||`SUBMITTED THE CHAIRMAN, ZAMOODIRI RAJA`| ||`KUDUMBA KENDRA SAMITHI TO THE 2ND`| ||`RESPONDENT.`| |`EXHIBIT P 12`|`TRUE COPY OF PETITION DATED 5.6.2018`| ||`SUBMITTED BY THE ZAMOODIRI RAJA KUDUMBA`| ||`KENDRA SAMITHI TO THE 1ST RESPONDENT`| ||`DISTRICT COLLECTOR.`| |`EXHIBIT P 13`|`TRUE COPY OF THE REQUEST DATED 13.7.2022`| ||`ALONG WITH ACKNOWLEDGMENT RECEIPT ISSUED`| ||`BY THE OFFICE OF THE 1ST RESPONDENT.`| |`EXHIBIT P 14`|`TRUE COPY OF THE REQUEST DATED 13.7.2022`| ||`ALONG WITH ACKNOWLEDGMENT RECEIPT ISSUED`| ||`BY THE OFFICE OF THE 2ND RESPONDENT`| WP(C) No. 5285 of 2023 : 11 : |`RESPONDENT EXHIBITS`|||| |---|---|---|---| |`Exhibit R5(a)`|`Treu copy of the GO. M.S.`|`379/PW`|`dated.`| ||`18-09-1963`||| |`Exhibit R5(c)`|`True copy of the notice dated 2-07-2012`||| ||`received by KSEB from Land Acquisition`||| ||`Officer and Revenue Divisional Officer,`||| ||`Kozhikode`||| |`Exhibit R5(b)`|`True Copy of the Possession Certificates`||| ||`dated 2-11-2011 issued by `|`the `|`Village`| ||`Officer, Panniyankara`||| |`Exhibit R5(d)`|`True`<br>`copy`<br>`of`<br>`the`|`Letter`|`No.`| ||`NODAL/KKD/LAND/2016-17/2873 `|`dated `|`21-11-`| ||`2016 of the Deputy Chief Engineer,`||| ||`Electrical Circle, Kozhikode`||| |`Exhibit R5(e)`|`True`<br>`copy`<br>`of`<br>`the`|`Letter`|`No.`| ||`NODAL/KKD/LAND/2016-17/2283 `|`dated `|`3-10-`| ||`2016`|||