Mary (Mary, wife of Varghese) and Varghese v. State of Kerala and Kerala Water Authority

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THURSDAY, THE 29TH MAY 2008 / 8TH JYAISHTA 1930 WP(C).No. 22390 of 2005(M) -------------------------LAR.15/2003 of SUB COURT, CHERTHALA .................... PETITIONER: - ------------ 1. MARY, W/O.VARGHESE, KALAMPARAMBIL, THYCATTUSSERI. 2. VARGHESE, KALAMPARAMBIL, THYCATTUSSERY. BY ADV. SRI.T.M.ABDUL LATHEEF SMT.P.RESHMA KABIR RESPONDENTS: ------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SPECIAL TAHSILDAR (LA) GENERAL, ALAPPUZHA. 2. THE PROJECT OFFICER, NO.III, OECF PROJECT, KERALA WATER AUTHORITY, VELLAYAMBALAM, THIRUVANANTHAPURAM. BY ADV. SRI.BABU VARGHESE, SC, KWA FOR R2 GOVT. PLEADER SMT.LATHA THANKAPPAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## APPENDIX IN W.P.C.NO.22390/05 ## PETITIONER'S EXHIBITS EXT.P1 TRUE COPY OF THE REFERENCE APPLICATION DATED 8-7-02 SUBMITTED BY THE PETITIONERS BEFORE THE FIRST RESPONDENT. EXT.P2 TRUE COPY OF THE COMPLAINT DATED 25-11-2002 SUBMITTED BY THE FIRST PETITIONER BEFORE THE DISTRICT COLLECTOR, ALAPPUZHA EXT.P3 TRUE COPY OF THE COMPLAINT DATED 7-12-2002 SUBMITTED BY THE FIRST PETITIONER BEFORE THE FIRST RESPONDENT. EXT.P4 TRUE COPY OF THE PROOF AFFIDAVIT DATED 2-6-05 FILED BY THE PETITIONERS BEFORE THE SUB COURT, CHERTHALA IN L.A.R.NO.15/03 EXT.P5 TRUE COPY OF THE JUDGMENT DATED 25-6-05 PASSED BY THE SUB COURT, CHERTHALA IN L.A.R.NO.15/03 /True Copy/ PA to Judge. ## **PIUS.C.KURIAKOSE, J.** - - - - - - - - - - - - - - - - - - - - - ## **W.P.(c).No.22390 OF 2005** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29[th] day of May, 2008 ## **JUDGMENT** In this writ petition under Article 227 of the Constitution, the petitioners impugn Ext.P5 judgment and the corresponding decree of the Land Acquisition Reference Court, Cherthala in L.A.R.No.15/03. Within the statutory period after the award was passed, the petitioners filed an application under Section 18(2) requesting the question of correct compensation payable to him for their acquired property be referred to a competent civil court. Land Acquisition Officer on noticing that the application was filed within the time did make a reference. But in the reference letter it was stated that the original compensation amount was received by the petitioner without any protest. The court on receiving the letter of reference from the Land Acquisition Officer registered the case as L.A.R. No.15/03 and invited claim statements from the parties. Petitioners filed claim statement. But the Government and the requisitioning authority namely the Kerala Water Authority did not file claim statements. The reference was WPC.No.22390/05 2 enquired into and at trial, the evidence on the side of the petitionersclaimants consisted of Exts.A1 to A5 documents and oral evidence of one of the petitioners as AW1. On the side of the respondents Ext.R1land acquisition file was produced. Reference court after the evidence was over perused the file- Ext.R1 and noticed that according to the land acquisition officer the original compensation awarded by the officer was received by the petitioners without any protest. The court followed the judgment of this court in **Pathootty v. District Collector** (2004(3)KLT 348) which takes the view that receiving the amount without protest is sine qua non for making a valid reference and found that the reference which the land acquisition officer had sent and on the basis of which the reference case was registered was not a valid reference. On that basis the judgment was passed holding that the petitioners are not entitled for any enhanced compensation. 2. I have heard the submissions of Sri.T.M.Abdul Lathiff, counsel for the petitioner, Smt.Latha Thankappan, learned Government Pleader and also Sri.Babu Varghese, standing counsel for the Water Authority. Sri.T.M.Abdul Lathiff would read over to me the entirety WPC.No.22390/05 3 of the deposition rendered before the court by AW1 and submit that it was not even suggested to AW1 that he had received the original compensation without any protest. He submitted that till the evidence was closed, every body proceeded on the basis that reference was a valid one and that reference will be adjudicated on its merits. The amount of original compensation had been received by the petitioner with protest though the protest was not in writing. According to him, the very circumstance that the petitioner readily filed an application for reference under Section 18(2) will show that the amount was received with protest and not without protest. 3. Learned Government Pleader would resist the submissions of the Sri.T.M.Abdul Lathiff. According to her, if there was protest an endorsement in that regard would have been made in the counter foil of the cheque which was given to the petitioner. Learned Subordinate Judge was justified in following the judgment of this court which is referred to in the judgment, submitted the learned Government Pleader. 4. Sri.Lathiff would in reply draw my attention to the judgment of the Supreme Court in **U.P.State Industrial Development** WPC.No.22390/05 4 **Corpn. v. Rishabh ispat Ltd. and others** ( 2007 (2) Supreme Court Cases 248) and submit that the fact situation which obtains in this case is almost identical to one which obtained in that case. 5. I have considered the rival submissions. The Supreme Court has held inter alia in U.P.State Industrial Development Corpn. v. Rishabh ispat Ltd. and others ( 2007 (2)SCC 248) as follows; “ The question whether the compensation offered was accepted without protest is essentially a question of fact to be determined on the basis of the evidence on record. We have perused the material on record and the finding recorded by the High Court in this regard. The High Court found that the Collector made his award on 27-6-1985 and an application for a reference was filed within time on making 6-8-1985. The claimants examined themselves on oath, and it was not even suggested to them that they had accepted the compensation without protest. No evidence was brought on record to establish that the compensation was accepted by the claimants without protest. On the other hand the fact that the claimants promptly filed their objections and sought reference under Section 18 of the Act established that the WPC.No.22390/05 5 claimants had not accepted the compensation without protest, but their acceptance was subject to the order that the Reference Court or any other superior court may pass. The High Court was, therefore justified in holding that there was no material to substantiate the contention that the compensation had been accepted without protest by the claimants. The above view of the Supreme Court as quoted above is certainly applicable to the facts of this case. Here also AW1- the claimant petitioner was cross examined not only by the government pleader but also by the counsel for the requisitioning authority. Not even a faint suggestion was made that AW1 had received the original compensation amount without protest. Every body concerned proceeded till the evidence came to a close that there was a valid reference which was to be answered after adjudication. In this case also the petitioners had promptly filed reference application. It is considering that application that the Land Acquisition Officer made the reference to the court. May be the Land Acquisition Officer is correct in stating that no written protest was made. But protest by the petitioners to the compensation determined by the Land Acquisition WPC.No.22390/05 6 Officer is discernible from the circumstance that he had without delay applied for a reference to the court. I follow the judgment of the Supreme Court and allow the writ petition. Ext.P5 is quashed and the learned Subordinate Judge, Cherthala is directed to decide the L.A.R. on its merit on the basis of the evidence already on record and any further evidence which the parties may adduce. Fresh judgment as directed above shall be passed by the court the earliest and at any rate within three months of receiving copy of this judgment. **PIUS.C.KURIAKOSE JUDGE** sv. WPC.No.22390/05 7