Leela M.M v. K.K.Karthiyayini and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **WEDNESDAY, THE 5TH DAY OF JULY 2017/14TH ASHADHA, 1939** **OP(C).No. 848 of 2017 (O) --------------------------** **LAR 86/2013 of PRL.S.C.,THALASSERY** ## **PETITIONER(S):** ## **-------------** **LEELA M.M AGED 55 YEARS, W/O. PRABHAKARAN, RESIDING AT LEELA MANDIRAM, ELAMPARA P.O., KEEZHALLUR VILLAGE, KANNUR.** **BY ADVS.SRI.V.V.SURENDRAN SRI.P.A.HARISH** ## **RESPONDENT(S):** **--------------** ## **1. K.K.KARTHIYAYINI** **AGED 79 YEARS, W/O. NARAYANAN NAMBIAR, RESIDING AT KODANKOTTU HOUSE, P.O.EDAVANNUR, KEEZHALLUR, KANNUR - 670 675.** ## **2. M.MANJULA** **AGED 43 YEARS, D/O. NARAYANAN NAMBIAR, RESIDING AT KODANKOTTU HOUSE, P.O.EDAVANNUR, KEEZHALLUR, KANNUR - 670 675.** ## **3. M.M.MANOHARAN** **AGED 45 YEARS, S/O. NARAYANAN NAMBIAR, RESIDING AT KODANKOTTU HOUSE, P.O.EDAVANNUR, KEEZHALLUR, KANNUR - 670 675.** ## **4. T.M.PARVATHI AMMA** - **D/O. KUNHIRAMAN, VIMALALAYAM, ELAMPARA P.O., KANNUR - 670 595.** ## **5. T.M.GANGADHARAN** - **S/O. KUNHIRAMAN, SHEEJA NIVAS, ELAMPARA P.O., KANNUR - 670 595.** **6. T.M.OMANA** - **D/O. KUNHIRAMAN, RESIDING NARAYANI NIVAS, KOTHERI, MATTANNUR P.O., KANNUR - 670 702.** **7. T.M.RAMAKRISHNAN S/O. JANAKI AMMA, RESIDING GREESHMAM, KOODALI P.O., KANNUR - 670 592.** **8. T.M.VENUGOPALAN S/O. JANAKI AMMA, RESIDING GREESHMAM, KOODALI P.O., KANNUR - 670 592.** **OP(C).No. 848 of 2017 (O)** **2** **--------------------------** ## **9. T.M.PRASANNA KUMARI** - **D/O. JANAKI AMMA, RESIDING GREESHMAM, KOODALI P.O., KANNUR - 670 592.** ## **10. T.M.SASIDHARAN** **S/O. SAROJINI, THULASI MANDRIRAM, PADIYOOR P.O., KANNUR - 670 703.** ## **11. T.M.KANJANAVALLI** **D/O. SAROJINI, THULASI MANDIRAM, PADIYOOR P.O., KANNUR - 670 703.** ## **12. T.M.PARIMALAVALLI** - **D/O. SAROJINI, THULASI MANDIRAM, PADIYOOR P.O., KANNUR - 670 703.** ## **13. T.M.MURALIDHARAN** - **S/O. SAROJINI, THULASI MANDIRAM, PADIYOOR P.O., KANNUR - 670 703.** ## **14. T.M.THULASIDHARAN** - **S/O. SAROJINI, THULASI MANDIRAM, PADIYOOR P.O., KANNUR - 670 703.** ## **15. AMBUJAKSHI P.R** **W/O. LATE T.M.NARAYANAN NAMBIAR, THALIMADATHIL HOUSE, P.O.MUNDERI, KANNUR - 670 591.** ## **16. HARIKRISHNAN P.R** **S/O.LATE T.M.NARAYANAN NAMBIAR, THALIMADATHIL HOUSE, P.O.MUNDERI, KANNUR - 670 591.** **17. THANOOJA P.R** **D/O.LATE T.M.NARAYANAN NAMBIAR, THALIMADATHIL HOUSE, P.O.MUNDERI, KANNUR - 670 591.** **18. GOVERNMENT OF KERALA REPRESENTED BY DISTRICT COLLECTOR, KANNUR - 670 002.** **19. MANAGING DIRECTOR KINFRA, VELLAYAMBALAM, THIRUVANANTHAPURAM.** **20. SPECIAL TAHSILDAR LA AIRPORT NO.1 MATTANNUR, KANNUR - 670 702.** **R19 BY ADV. SRI.G.S.REGHUNATH R4-R17 BY ADV. SRI.SERGI JOSEPH THOMAS R1-R3 BY ADV. SRI.K.V.SADANANDA PRABHU R BY GOVERNMENT PLEADER** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 05-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(C).No. 848 of 2017 (O) --------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **P1 TRUE COPY OF THE COMBINED SKETCH ALONG WITH THE LIST OF HOLDERS IN R.S.44.** **P2 TRUE COY OF THE PROPOSED STATEMENT OF THE LA OFFICER IN LAR 86/13.** **P3 TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN OPC 1655/16 DATED 23.1.2017.** **P4 TRUE COPY OF THE AFFIDAVIT FILED IN SUPPORT OF IA 2221/15 DATED 25.9.2015.** **P5 TRUE COPY OF THE COUNTER TO IA 2221/15.** **P6 TRUE COPY OF THE AFFIDAVIT FILED IN SUPPORT OF IA 299/17 DATED 13.2.2017.** **P7 TRUE COPY OF THE COUNTER TO IA 299/17.** **P8 TRUE COPY OF THE AFFIDAVIT FILED IN SUPPORT OF IA 342/17 DATED 22.2.2017.** **P9 TRUE COPY OF THE AFFIDAVIT FILED IN SUPPORT OF IA 298/17 DATED 14.2.2017.** **P10 TRUE COPY OF THE COUNTER TO IA 298/17.** **RESPONDENT(S)' EXHIBITS** : N I L **-----------------------** **//TRUE COPY//** **PA TO JUDGE** ## **A. HARIPRASAD, J. ------------------------------O.P.(C).No.848 of 2017** ## **---------------------------------------------Dated this the 5[th] day of July, 2017** ## **JUDGMENT** Petitioner is the 33[rd] supplemental claimant in LAR No.86 of 2013 on the file of the Sub Court, Thalassery. The reference is under Section 30 of the Land Acquisition Act, 1894 (in short, the Act). She is the legal representative of the 1[st] claimant in the reference. 2. Heard the learned counsel for the petitioner and contesting respondents, and also the learned Senior Government Pleader. 3. Prayers in the petition read thus: - i) Direct the court below to dispose of Exts.P4, P6 and P8 immediately relying upon the dictum laid down in Ext.P3 judgment and thereafter dispose of LAR 86/13 before the court closes for midsummer vacation. - ii) direct the court below to simultaneously try and dispose of LAR 86/13 along with LAR 85/13 pending before that court. **O.P.(C).No.848/2017** **2** - iii) Issue any other appropriate order which this Honourable Court may deem just fit and proper in the facts and circumstances of the case and sufficient for the redressal of the grievances of the petitioner. 4. The reference was necessitated in view of the claim raised by respondents 4 to 14 and one Narayanan Nambiar, the predecessor in interest of respondents 15 to 17 claiming right over the property and the compensation amount. 5. An extent of 0.8904 hectors of land in R.S.No.44 of Keezhallur Village, Elampara Desom of Thalassery Taluk was acquired for the purpose of Kannur airport project. According to the petitioner, the property was allotted to the share of one Mathu Amma, as per a partition deed bearing No.2405/1946 of SRO Anjarakandi. The petitioner would contend that the property is included in Item No.6 of A schedule in the said partition deed. As per the said deed, an extent of 5.80 acres was allotted to the branch of one Kunhiraman Nambiar, the predecessor in interest of respondents 1 to 17, described in item No.2 to C schedule. Kunhiraman Nambiar had executed a Will bequeathing an extent of 8.70 acres of land in favour of his children as against 5.80 acres over which he had title is the **O.P.(C).No.848/2017** **3** contention raised by the petitioner. Respondents 1 to 15 are the purchasers of the additional 2.90 acres from the children of Kunhiraman Nambiar. 6. Ext.P1 is the details of persons in possession of various plots shown in the combined sketch. Item No.22 in Ext.P1 sketch is the property claimed by the petitioner in LAR No.86 of 2013. Item Nos.23 to 27 are the properties included in LAR No.85 of 2013 pending before the same court. Contention of the petitioner is that the respondents 1 to 15 claimed a larger extent on the basis of a Will executed by Kunhiraman Nambiar and on that basis, the Land Acquisition Officer made a reference under Section 30 of the Act in respect of all the properties. 7. Ext.P6 is the affidavit filed by the 2[nd] respondent narrating title in respect of the properties claimed by them. 8. After hearing the learned counsel for the petitioner and contesting respondents, it has become clear that the dispute is in respect of an early disposal of Ext.P4 impleading petition, derivation of title narrated as per Ext.P6 and Ext.P8 application for issuance of Commission. 9. Some of the parties are common in LAR No.85 of 2013 **O.P.(C).No.848/2017** **4** pending before the Court. The petitioner herein approached this Court with O.P.(C).No.1655 of 2016 against the order passed by the reference court declining to implead her in LAR No.85 of 2013. This Court, as per Ext.P3 judgment dated 23.1.2017, disposed of the matter with following observations: “Essentially the claim of the 3[rd] party is that a Commissioner was taken out in the matter and commissioner wrongly included the property of the petitioner also in his report as of the claimants. The court below dismissed the application stating that 3[rd] party has no audience in Section 30 application. Essentially the court below decided the matter on the premise that in Section 30 only question to be decided is with regard to apportionment and no question of title would arise. It is also observed that any question of dispute regarding extent of the property which is the subject matter of this case also does not arise in such proceedings. I am also of the view that the court below is right in observing so as a scope of reference under Section 30 cannot be enlarged at the instance of third party. The scope of Section 30 is only to determine the apportionment among different claimants. I don't understand why the Commissioner was taken out in this matter. It appears that it is on account of this aspect that the petitioner approached the court below to get themselves impleaded. The only question, **O.P.(C).No.848/2017** **5** according to me, to be decided by the court below is only regarding the apportionment among the claimants, who are in the party array in the claim petition and court cannot decide any issue beyond that . In that view of the matter, even commissioner report cannot have any significance. Secondly, the petitioner's right, if any, will not be affected on account of the apportionment among the claimants. Therefore, this Court is of the view that the impugned order need not be interfered. However, the court below shall ensure that while considering the matter only the question regarding the apportionment alone need be decided, and no other question, including extent of the property need be considered. The court below shall dispose the reference before the LAR, before summer vacation. It is made clear that jurisdiction of a court while deciding the apportionment is only to the limited extent of apportioning the amount in respect of which the compensation has been determined including the extent for which compensation has been determined by the Land Acquisition Officer.” 10. Learned counsel for the petitioner contended that the same yardstick must be applied to the contesting respondents in the matter of their claim to get themselves impleaded in LAR No.86 of 2013 and it should be rejected. Learned counsel for respondents 1 to 3 contended that the view taken by a learned **O.P.(C).No.848/2017** **6** Single Judge of this Court as per Ext.P3 may not be fully correct in the light of a Constitution Bench decision of the Supreme Court reported in **Sardar Amarjit Singh Kalra v. Pramod Gupta [2003 (3) SCC 272** . Reliance is placed on paragraphs 5, 12 and 13 of the decision to contend a proposition that even in a reference under Section 30 of the Act, in appropriate cases, a party can be impleaded for resolving the dispute. Reliance is also placed on the decision reported in **Chandramohan Nair v.** **State of Kerala [2015 KHC 401]** and paragraph 10, 64, 69, 70, 74, 77 and 78 of the judgment. 11. Learned counsel for the petitioner contended that **Sardar Amarjit's case** does not lay down a proposition that under all circumstances, an additional party can be impleaded in a reference under Section 30 of the Act. It is also submitted that the issue referred before the apex court was different as is borne out from paragraph 34. It is also contended by the learned counsel for the petitioner relying on **Ramji Gupta v. Gopi Krishnan Agrawal [AIR 2013 SC 3099]** that a two-Judge Bench of the Supreme Court has stated the law clearly in the following terms: **O.P.(C).No.848/2017** **7** “In view of the above, the legal issues involved herein, can be summarised as under:- (i) An application under Order IX, Rule 13, CPC cannot be filed by a person who was not initially a party to the proceedings; (ii) Inherent powers under Section 151 CPC can be exercised by the Court to redress only such a grievance, for which no remedy is provided for under the CPC; (iii) In the event that an order has been obtained from the Court by playing fraud upon it, it is always open to the Court to recall the said order on the application of the person aggrieved, and such power can also be exercised by the appellate court; (iv) Where the fraud has been committed upon a party, the court cannot investigate such a factual issue, and in such an eventuality, a party has the right to get the said judgment or order set aside, by filing an independent suit; (v) A person aggrieved may maintain an application before the Land Acquisition Collector for reference under Section 18 or 30 of the Act, 1894, but cannot make an application for impleadment or apportionment before the Reference Court. 12. Learned counsel for respondents 1 to 3 distinguished **Ramji Gupta's case** by contending that a decision by a lesser Bench, in case of any conflict, should not be preferred over a **O.P.(C).No.848/2017** **8** Constitution Bench decision of the apex court. However, this Court does not intend to foreclose the issue as the matter has to be decided on evidence by the reference court. 13. Learned counsel for respondents 4 to 17 would contend that they are the original claimants and their rights as per the partition deed has to be recognized while deciding the issue regarding apportionment of compensation. The contesting respondents in this case, although were impleaded in LAR No.85 of 2013, have filed statements stating that they have no interest over the property involved in LAR No.85 of 2013. 14. Learned counsel for the petitioner contended that LAR No.85 of 2013, which is pending before the Court should be tried jointly with LAR No.86 of 2013 in which this proceedings arise. Learned counsel for the respondents opposed the submission saying that LAR No.85 of 2013 is ripe for trial and Rs.1.67 crores is involved in that case. It is contended by the learned counsel for respondents 4 to 17 that undisputed properties belonging to them are also included in LAR No.85 of 2013 and therefore, delayed disposal will cause prejudice to them. **O.P.(C).No.848/2017** **9** 15. In the matter of joint trial, identity of the parties may not be the sole criterion. The legal issues involved and evidence to be adduced must be the same. Of course, identity of the parties is one of the parameters to be satisfied for allowing joint trial of matters. It is submitted by the contesting respondents that once the petitioner approached a reference court for simultaneous trial of these two LARs which was dismissed on 8.3.2017. It is made clear that an application, if actually a simultaneous trial is required, can be again filed by the petitioner as there is no res judicata applicable in such matters. However, this Court does not make any observation regarding the feasibility of such a course and it has to be decided by the trial court. In the result, this Original Petition is disposed of directing the reference court to dispose of Exts.P4, P6 and P8 pending before it in the light of the legal principles mentioned above, within a period of one month from the date of production of a copy of this judgment. Sd/- **A. HARIPRASAD JUDGE** JV