Kunnukara Grama Panchayat represented by its Secretary v The State of Kerala and Others (W.P.(C). Nos. 18154 & 18155 of 2014)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 29[TH] DAY OF JULY 2021 / 7TH SRAVANA, 1943 WP(C) NO. 18154 OF 2014** **AGAINST THE ORDER/JUDGMENT IN LAR 1/2011 OF ADDITIONAL SUB COURT,NORTH PARAVUR, ERNAKULAM** ## **PETITIONER:** KUNNUKARA GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, KUNNUKARA P.O., ERNAKULAM DISTRICT. BY ADVS. SRI.S.SHANAVAS KHAN SMT.S.INDU ## **RESPONDENTS:** 1 THE STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT/LOCAL SELF GOVT. DEPAT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001 2 THE DISTRICT COLLECTOR CIVIL STATION, KAKKANAD, ERNAKULAM-682030 3 THE SPECIAL TAHSILDAR LAND ACQUISITION OFFICE OF THE SPECIAL TAHSILDAR (L.A), N.H.NO.2, ALUVA, ERNAKULAM-683101 4 PATHROSE S/O.THOMAS, MANAVALAN HOUSE, KUNNUKARA, NORTH PARAVUR, ERNAKULAM DISTRICT-683513 BY ADV SRI.M.G.JEEVAN SMT.MABLE C.KURIAN, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.07.2021, ALONG WITH WP(C).18155/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **W.P.(C).No.18154 & 18155 of 2014** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 29[TH] DAY OF JULY 2021 / 7TH SRAVANA, 1943 WP(C) NO. 18155 OF 2014** **AGAINST THE ORDER/JUDGMENT IN LAR 2/2011 OF ADDITIONAL** ## **SUB COURT,NORTH PARAVUR, ERNAKULAM** ## **PETITIONER:** KUNNUKKARA GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, KUNNUKARA (P.O.), ERNAKULAM. BY ADVS. SRI.S.SHANAVAS KHAN SMT.S.INDU ## **RESPONDENTS:** 1 THE LOCAL SELF GOVERNMENT DEPARTMENT REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001 2 THE DISTRICT COLLECTOR CIVIL STATION, KAKKANAD, ERNAKULAM682030 3 THE SPECIAL TAHSILDAR LAND ACQUISITION OFFICE OF THE SPECIAL TAHASILDAR (L.A), N.H.NO.2, ALUVA, ERNAKULAM683101 4 SHAMSUDHEEN S/O.MEETHIYANKUTTY, ARAKKAL HOUSE, KUNNUKARA VILLAGE, KUNNUKARA, NORTH PARAVUR, ERNAKULAM DISTRICT683513 5 N.C.CHAKKAPPAN NAYATHODAN HOUSE, KUNNUKARA VILLAGE, KUNNUKARA, NORTH PARAVUR, ERNAKULAM DISTRICT-683513 BY ADV SRI.M.G.JEEVAN SMT.SHEEJA C.S., GP **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.07.2021, ALONG WITH WP(C).18154/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C).No.18154 & 18155 of 2014** **3** **P.V.KUNHIKRISHNAN, J. ------------------------------W.P.(C).Nos.18154 & 18155 of 2014 ---------------------------------------------Dated this the 29[th] day of July, 2021** ## **JUDGMENT** These two writ petitions are connected and therefore, I am disposing these writ petitions by a common judgment. These writ petitions are filed by the requisition authority, in a land acquisition matter. Based on the request from the petitioner Grama Panchayat, an acquisition proceedings was initiated. The land was already acquired for expanding an existing burial ground. After the proceedings under the Land Acquisition Act, an award was passed. Aggrieved by the award, the claimants filed applications for reference under Section 18 the Land Acquisition Act. The matter reached the reference court. Exts.P13 and P14 in these writ petitions are the judgment and decree in L.A.R.Nos.1/11 and 2/11 on the file of the Additional Sub Judge, North Paravur in the reference cases. It is a common award passed by the Tribunal under Section 18 of the Land Acquisition Act. **4** ## **W.P.(C).No.18154 & 18155 of 2014** 2. The short point raised by the petitioners is that the reference court passed the award without hearing the petitioner, who is the requisition authority. The Counsel relied on the judgments of the Apex Court in **Kerala State Warehousing Corporation v. State of Kerala and Others [2009 (3) KHC 523]** , **Kanak and Another v. U.P. Avas Evam Vikas Parishad and Others [2003 (7) SCC 693]** and **Agra Development Authority v. Special Land Acquisition Officer and Others [2001 (2) SCC 646]** . The counsel submitted that in the light of the above judgments of the Apex Court, this Court can set aside the impugned award passed by the reference court, invoking the powers under Section 226 of the Constitution of India because the reference court passed the award without issuing notice to the requisition authority. The Government Pleader submitted that the award is passed without giving notice to the requisition authority because it is evident from the judgment and decree of the reference court. The counsel for the claimants submitted that it is true that the requisition authority was not heard. But the counsel relied on the judgment of the Apex Court in **Abdul Rasak and Others v. Kerala Water Authority and Others [2002 (3) SCC 228]** **W.P.(C).No.18154 & 18155 of 2014** **5** in which it is stated that a de nova trial is not necessary. Certain guidelines are mentioned by the Apex Court for proceeding with the trial in such cases. The counsel relied on paragraph 11 of the judgment of the Apex Court. 3. After hearing both sides, I think these writ petitions can be disposed, setting aside the judgment and decree of the reference court in the light of the judgment of the Apex Court. Admittedly the petitioner Panchayat is the requisition authority in the land acquisition proceedings. The reference court passed the award without hearing the requisition authority. Therefore, the award is to be set aside. But the grievance of the claimants is also to be considered. They are waiting for getting compensation from 2008 onwards. According to me, there can be direction to dispose the reference cases by the reference court within a time limit. The parties can be allowed to adduce additional evidence, if any. The reference court will follow the directions of the Apex Court in the judgment in **Abdul Rasak's case (supra).** The relevant portion of the judgment is extracted hereunder: _“11. Keeping in view the fact that the Constitution Bench judgment of this Court was delivered during the pendency of appeals before the High Court and_ **6** ## **W.P.(C).No.18154 & 18155 of 2014** _the manner in which K.W.A. also came to be constituted after commencement of land acquisition proceedings and the delay which has already taken place in the conclusion of the proceedings for finalising compensation which delay is not attributable to the claimants though, we maintain the order of demand made by the High Court but make the following directions:_ _1. The Kerala Water Authority shall be deemed to have been brought on record in the reference cases as defendant. The cause-title of the reference cases shall be amended accordingly. The K.W.A. may file its written statement to the claim petition filed by the claimants;_ _2. The Civil Court shall expeditiously proceed to try the reference cases in compliance with the order of remand made by the High Court;_ _3. The statement of the witnesses already recorded on behalf of the claimants need not be recorded afresh;_ _4. The Kerala Water Authority shall be allowed an opportunity of cross examining the witnesses which have already been examined. However, such of the witnesses as are not available, and, therefore, cannot be called before the Court, their statements shall not be excluded from consideration and shall be read in evidence;_ _5. The claimants may adduce such other evidence as they may propose to do and both the State of Kerala_ **7** ## **W.P.(C).No.18154 & 18155 of 2014** _and Kerala Water Authority shall have the liberty of cross examining such witnesses who are now examined by the claimants;_ _6. The Kerala Water Authority shall have the liberty of adducing such evidence as it may propose to do.”_ Therefore, these writ petitions are disposed in the following manner: 1. Exts.P13 and P14 in W.P.(C).No.18154 of 2014 and W.P.(C).No.18155 of 2014 are quashed. 2. The Additional Sub Judge, North Paravur is directed to restore L.A.R.No.1/11 and 2/11 and dispose the same in accordance to the principle laid down by the Apex Court in **Abdul Rasak and Others v. Kerala Water Authority and Others [2002 (3) SCC 228].** 3. The petitioner and the respondents should be given an opportunity to adduce further evidence, if any. 4. The reference court will dispose the reference cases, as expeditiously as possible, at any rate, within four months from the date of receipt of a copy of this judgment. **8** ## **W.P.(C).No.18154 & 18155 of 2014** 5. The parties will appear before the reference court on 24.08.2021. sd/- **P.V.KUNHIKRISHNAN JUDGE** JV **9** ## **W.P.(C).No.18154 & 18155 of 2014** ## **APPENDIX OF WP(C) 18155/2014** PETITIONER EXHIBITS EXHIBIT-P1:TRUE COPY OF THE ORDER DATED 12/11/2008 OF THE FIRST RESPONDENT. EXHIBIT-P2:TRUE COPY OF REQUISITION OF THE PETITIONER. EXHIBIT-P3:TRUE COPY OF THE LOCATION SKETH EVIDENCING THE NATURE AND LIE OF THE PROPERTY AND EXISTING BURIAL GROUND. EXHIBIT-P4:TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 12/12/2008. EXHIBIT-P5:TRUE COPY OF THE COMMUNICATION DATED 5/3/2010 OF THE THIRD RESPONDENT. EXHIBIT-P6:TRUE COPY OF THE AWARD NO.1/2010 DATED 17/5/2010 OF THE 3RD RESPONDENT. EXHIBIT-P7:TRUE COPY OF THE LETTER DATED 18/4/2009 OF THE GOVERNMENT. EXHIBIT-P8:TRUE COPY OF THE CONSENT LETTER 12/8/2010 OF THE 4TH RESPONDENT. EXHIBIT-P9:TRUE COPY OF THE SALE DEED NO.4228/11 EXECUTED BY ABDUL LATHEEF, INFAVOUR OF 4TH RESPONDENT. EXHIBIT-P10:TRUE COPY OF THE CONTINGENT BILL EVIDENCING THE PAYMENT OF AMOUNT. EXHIBIT-P11:TRUE COPY OF THE CONSENT LETTER ISSUED BY THE FOURTH RESPONDENT. EXHIBIT-P12: TRUE COPY OF THE MEMO EVIDENCING THE RECEIPT OF AMOUNT BY ABDUL LATHEEF. EXHIBIT-P13:TRUE COPY OF THE COMMON JUDGMENT IN LAR NO.1/11 AND LAR NO.2/11. EXHIBIT-P14:TRUE COPY OF THE DECREE IN LAR NO.2/2011. EXHIBIT-P15:TRUE COPY OF THE EXECUTION PETITION FILED BY THE 4TH RESPONDENT BEFORE THE SUBORDINAT JUDGES COURT, N.PARAVUR CLAIMING AN AMOUNT OF RS.4,32,638/-. EXHIBIT-P16:TRUE COPY OF THE NOTICE DATED 29/5/14 ISSUED BY THE THIRD RSPONDENT. ## **W.P.(C).No.18154 & 18155 of 2014** ## **10** ## **APPENDIX OF WP(C) 18154/2014** PETITIONER EXHIBITS P1: TRUE COPY OF THE ORDER DATED 12/11/2008 OF THE FIRST RESPONDENT. P2: TRUE COPY OF THE REQUISITION OF THE PETITIONER. P3: TRUE COPY FO THE LOCATION SKETCH EVIDENCING THE NATURE AND LIE OF THE PROPERTY AND EXISTING BURIAL GROUND. P4: TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 12/12/2008. P5; TRUE COPY OF THE COMMUNICATION DATED 5/3/2010 OF THE THIRD RESPONDENT. P6: TRUE COPY OF THE AWARD NO.2/210 DATED 17/5/2010 OF THE 3RD RESPONDENT. P7: TRUE COPY OF THE LETTER DATED 18/4/09 OF THE GOVERNMENT. P8: TRUE COPY OF THE CONSENT LETTER DATED 18/4/09 OF THE GOVERNMENT. P9: TRUE COPY OF THE SALE DEED NO.406/2012 EXECUTED BY ANSART IN FAVOUR OF 4TH RESPONDENT. P10: TRUE COPY OF THE CONTINGENT BILL EVIDENCING THE PAYMENT OF AMOUNT. P11: TRUE COPY OF THE CONSENT LETTER ISSUED BY THE FOURTH RESPONDENT. P12: TRUE COPY OF THE MEMO EVIDENCING THE RECEIPT OF AMOUNT BY ANSARI. P13: TRUE COPY OF THE COMMON JUDGMENT IN LAR NO.2/2011 AND LAR NO.2/2011 P14: TRUE COPY OF THE DECREE IN LAR NO.1/2011. P15: TRUE COPY OF THE EXECUTION FILED BY THE 4TH RESPONDENT BEFORE THE SUBORDINATE JUDGES COURT, N.PARAVUR CLAIMING AN AMOUNT OF RS.4,26,831/P16: TRUE COPY OF THE NOTICE DATED 29/5/14 ISSUED BY THE 3RD RESPONDENT.