Muhammed Basheer A. v. Nishad Muhammed Asharaf and The Special Deputy Collector & Competent Authority, Office of LA (NH), Civil Station, Kudappanakunnu, Thiruvananthapuram

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **MONDAY, THE 27[TH] DAY OF NOVEMBER 2023 / 6TH AGRAHAYANA, 1945** **OP(C) NO. 2392 OF 2023** **AGAINST OS 83/2020 OF ASSISTANT SESSIONS COURT/I ADDITIONAL SUB** **COURT,THIRUVANANTHAPURAM** ## **PETITIONER/PLAINTIFF:** MUHAMMED BASHEER .A AGED 75 YEARS S/O ABDUL JABAB, N.B NIVAS, ANDOORKONAM P.O, THIRUVANANTHAPURAM, PIN - 695584 BY ADVS. R.HARIKRISHNAN (KAMBISSERIL) NEERAJ NARAYAN GOKUL D. SUDHAKARAN ## **RESPONDENT/DEFENDANTS:** 1 NISHAD MUHAMMED ASHARAF AGED 28 YEARS S/O MUHAMMED ASHARAF, RESIDING AT RAGAM, VETTUROAD, KAZHAKKUTTAM P.O, KAZHAKKUTTAM VILLAGE, THIRUVANANTHAPURAM, PIN - 695582 2 THE SPECIAL DEPUTY COLLECTOR & COMPETENT AUTHORITY, OFFICE OF LA (NH), CIVIL STATION, KUDAPPANAKUNNU, THIRUVANANTHAPURAM, PIN – 695043 BY ADV. G. SUDHEER S. UNNIKRISHNAN (GP) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 27.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **O.P.(C).No. 2392 of 2023** **==> picture [37 x 9] intentionally omitted <==** ## **J U D G M E N T** ## _**Dated this the 27[th] day of November, 2023**_ **The plaintiff in O.S.No.83/2020 pending before the Additional Sub Court, Thiruvananthapuram, is the petitioner herein. He is aggrieved by Ext.P6 order, which dismissed the petitioner's application I.A.No.9/2023 and allowed the respondents' application, I.A.No.7/2023. The** **instant suit is one seeking specific performance of a contract. The subject matter of the contract is 4.45 ares. Out of the said 4.45 ares, after the agreement but before filing the suit, an extent of 1.30 ares was acquired under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 ('2013 Act' for short). The compensation in respect of the said 1.30 ares was deposited by the authority. By way of** **O.P.(C).No. 2392 of 2023** **==> picture [37 x 9] intentionally omitted <==** **I.A.No.7/2023, the respondents/ defendants/owners sought for a permission to receive the said amount, whereas, by virtue of I.A.No.9/2023, the petitioner/purchaser prayed for a relief to deposit the said amount in court. According to the learned counsel, the petitioner has got a claim over the said compensation amount, since the petitioner is entitled to damages in respect of the said extent of land, the same being incapable of performance. Learned counsel also relied on the judgment of the Hon'ble Supreme Court in Sukhbir v. Ajit Singh [2021 (6) SCC 54], in support thereof.** **2. Learned counsel for the respondent opposed the above arguments raised by the learned counsel for the petitioner. It was argued that the respondents herein, being the owners of the land, has every right to receive the compensation amount and that the contract in respect of the said extent of 1.30 ares has become impossible of performance.** **O.P.(C).No. 2392 of 2023** **==> picture [37 x 9] intentionally omitted <==** **2. Sri.S.Unnikrishnan, the learned Government Pleader appearing for the 2[nd] respondent was also heard.** **4. Having heard the learned counsel appearing for the respective parties, this Court finds little merit in the instant Original Petition. The first point which this Court should necessarily take notice is that, the performance in respect of the said 1.30 ares has become impossible, not on account of any default on the part of the respondents/owners; instead, the same became impossible on account of an acquisition under the 2013 Act. If a contract becomes impossible of performance, it will be open for the purchaser to repudiate the contract as whole, or to seek performance of the surviving interest of the seller in the property. The question as to whether the petitioner/purchaser can seek any compensation in respect of the unperformed part is** **O.P.(C).No. 2392 of 2023** **==> picture [37 x 9] intentionally omitted <==** **left open, for, it may not be appropriate for this Court, at this stage, to enter into a finding on that issue. The same may prejudice the final call to be taken in this regard by the learned Sub Judge. At any rate, this Court cannot find any illegality or infirmity with the impugned order, which permits the respondents, who are the owners of the property, to receive the compensation. The judgment relied upon by the learned counsel for the petitioner stands on different footing. That was a case in which specific performance is granted after ascertaining and finding the readiness and willingness of the purchaser and which is confirmed by the 1[st] appellant court. It was before passing the final decree that the acquisition takes place. In such circumstances, the Hon'ble Supreme Court held that the purchaser is entitled to the entire compensation amount, including the solatium and interest, which is due and payable on account of acquisition. The fact situation is completely different herein and** **O.P.(C).No. 2392 of 2023** ..6.. **therefore, the logic cannot be applied automatically at this stage in the suit. In these circumstances, this Original Petition is devoid of any merit or substance.** **5. One final contention after completion of hearing raised by the learned counsel for the petitioners is with respect to the authority of a Sub Court to issue a direction, enabling release of the amount deposited under the 2013 Act to the respondents herein. According to the learned counsel, the Land Acquisition Rehabilitation and Resettlement Authority is the competent body to decide on a dispute as regards the entitlement of the compensation amount. This Court finds that the said issue is not raised before the court below, or for that matter, before this Court in the Original Petition.** **6. In such circumstances, the said contention is not liable to be agitated in this Original** **O.P.(C).No. 2392 of 2023** **==> picture [37 x 9] intentionally omitted <==** **Petition now. Leaving open the remedies, if any, open to the petitioner in accordance with law in respect of that aspect, this Original Petition will stand dismissed.** Sd/-/- **C. JAYACHANDRAN JUDGE** **TR** **O.P.(C).No. 2392 of 2023** ..8.. ## **APPENDIX OF OP(C) 2392/2023** PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE PLAINT IN O.S NO. 83 OF 2020 ON THE FILES OF THE SUB COURT, THIRUVANANTHAPURAM Exhibit P2 THE TRUE COPY OF I.A NO. 7 OF 2023 IN O.S NO. 83 OF 2020 ON THE FILES OF THE SUB COURT, THIRUVANANTHAPURAM Exhibit P3 THE TRUE COPY OF THE OBJECTION FILED TO I.A NO.7 OF 2023 IN O.S NO.83 OF 2020 ON THE FILES OF SUB COURT, THIRUVANANTHAPURAM Exhibit P4 THE TRUE COPY OF I.A NO. 9 OF 2023 IN O.S NO. 83 OF 2020 ON THE FILES OF THE SUB COURT, THIRUVANANTHAPURAM Exhibit P5 THE TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE DEFENDANT Exhibit P6 . THE TRUE COPY OF THE COMMON ORDER DATED 06.10.2023 IN I.A NO. 7 OF 2023 AND I.A NO. 9 OF 2023 IN O.S NO. 83 OF 2020 ON THE FILES OF THE SUB COURT, THIRUVANANTHAPURAM