P. Sreeraman Namboodiri v. Gas Authority of India Ltd and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY ,THE 26TH DAY OF FEBRUARY 2019 / 7TH PHALGUNA, 1940** ## **WP(C).No. 8228 of 2018** ## **PETITIONER:** ## **P.SREERAMAN NAMBOODIRI** **S/O.V.P.GOVINDAN NAMBOODIRI, AGED 71 YEARS,RESIDING AT PUTHUMANA ILLAM,VAZHAKKODE, KOTTAPARA, AMBALATHARA VILLAGE, PULLUR P.O., HOSDURG TALUK, KASARAGOD DISTRICT.** **BY ADVS. SRI.T.MADHU SMT.C.R.SARADAMANI SRI.P.B.KRISHNAN** ## **RESPONDENTS:** - **1 THE GAS AUTHORITY OF INDIA LTD CORPORATE OFFICE, GAIL BHAVAN, 16 BHIKAJI CAMA PLACE,R.K.PURAM, NEW DELHI-110 066** - **2 THE DEPUTY GENERAL MANAGER GAIL INDIA LTD., M.G.ROAD, ERNAKULAM, KOCHI-682 016** - **3 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001** - **4 THE DISTRICT COLLECTOR KASARAGOD, CIVIL STATION, VIDYANAGAR P.O., KASARAGOD-671 123** - **5 THE SPECIAL TAHSILDAR LA KASARAGOD-671 121** - **6 THE DISTRICT SURVEYOR KASARAGOD-671 212** - **7 TEH VILLAGE OFFICER AMBALATHARA VILLAGE, AMBALATHARA P.O, HOSDURG TALUK,KASARAGOD DISTRICT-671 531** W.P(C)No.8228 of 2018 2 **BY ADVS. SRI.JOSEPH SEBASTIAN (PARACKAL) SRI.K.V.SOHAN, STATE ATTORNEY FOR R3 TO R7 SMT.LATHA ANAND SC GAIL INDIA LIMITED FOR R1 AND R2** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C)No.8228 of 2018 3 ## **ALEXANDER THOMAS, J.** ## **=========================== W.P(C)No.8228 of 2018** **===========================** Dated this the 26[th] day of February, 2019 ## **JUDGMENT** The prayers in the above Writ Petition (Civil) are as follows: - _“(i) Issue writ of certiorari and quash Exhibit P10 proceedings dated 20/2/2018 of the fourth respondent, so as to secure the ends of justice._ - _(ii) Declare that the Exhibit P5 Award dated 7/3/2015 is passed by the fifth respondent by resorting to the provisions of the Land Acquisition Act 1894 which is repealed on 1/1/2014, the Exhibit P5 award is a nullity in the eye of law and no rights or obligations are created by the above Award, so as to secure the ends of justice._ - _(iii) Declare that, since the Exhibit P5 award is a nullity in the eye of law, the respondents 1 to 5 are not having any manner of right in the property covered by Exhibit P54 award, so as to secure the ends of justice._ ## _OR IN THE ALTERNATIVE;_ - _(iv) Issue a writ of mandamus or any other appropriate writ, direction or order directing the respondents 4 and 5 to recalculate the benefits available to the petitioner in view of the coming into force of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013 with respect to the property covered by Exhibit P5 Award and to disburse the benefits so accrued to the petitioner as expeditiously as possible and within a time frame fixed by this Honourable Court, so as to secure the ends of justice._ - _(v) Declare that in view of the Constitutional protection guaranteed under Article 300A of the Constitution of India, the respondents are not having any manner of right to enter into the property of the petitioner without getting surrender of the same to the respondents by the petitioner or getting the same acquired under the provisions of law._ ## _and_ - _(vi) Such other relief's as this Hon'ble Court may deem fit and proper in the circumstances of the case.”_ W.P(C)No.8228 of 2018 4 2. Heard Sri.T.Madhu, learned counsel appearing for the petitioner, Smt.Latha Anand, learned Standing Counsel for the Gas Authority of India Ltd. (GAIL), appearing for respondents 1 & 2 and Sri.K.V.Sohan, learned State Attorney, appearing for R-3 to R-7. 3. As per the case projected in this writ petition even though the land acquisition proceedings has been initiated against the subject property of the petitioner in terms of the provisions contained in the Land Acquisition Act, 1894, award thereunder was not passed before the repeal of the said Act and before the coming into force of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013, which came into force on 01.01.2014. It appears that the impugned Ext.P-5 award was rendered only on 07.03.2015 by the 5[th] respondent-Land Acquisition Officer/Special Tahsildar. It is now well established that where that the land acquisition proceedings had been initiated under the old Act and where Award has not been passed before the coming into force of the new Act, then the Land Acquisition Officer is obliged to pass an award under the provisions of the new Act by virtue of the mandate in Sec.24 of the said new Act (see _**Varghese.M.V v. State of Kerala & others**_ [2015(4)KHC 200=2015(3)KTT 625]). 4. Respondent No.1 (GAIL) is the requisitioning authority in W.P(C)No.8228 of 2018 5 this case on whose requisition, the impugned land acquisition has been initiated by the 5[th] respondent-Land Acquisition Officer. One of the contentions raised by respondents 1 & 2 in their pleadings is that the compensation which are otherwise payable to the petitioners under the new Act would be much less than what has already given to him by Ext.P-5. 5. The petitioner has specifically pleaded in paragraph 13 of the W.P(C) that the said contention has been made by the respondents because Ext.P-5 award has been based on the fair value fixed by the Government for the purpose of stamp duty in connection with the registration of the documents property, but that as per Sec.28 of the new Act, the notified Collector, while determining the compensation will have to consider the market value as determined under Sec.26 of the new Act. Thereafter, the notified Collector will have to pass the award under Sec.30 of the new Act by granting solatium equivalent to 100% of the compensation amount and that therefore, the said contention of the respondents is on account of misapplication of the law and on misconstruing the provisions of the new Act, it is urged. 6. Without getting into the merits of the controversy, as the petitioner is insisting that a revised award is liable to be passed under W.P(C)No.8228 of 2018 6 the new Act and in the light of the dictum laid down by this Court in a catena of rulings as in the aforecited judgments, it is ordered that the competent authorities among respondents 4 & 5 will immediately take up the matter and after conducting due award enquiry process as mandated in the new Act and after affording a reasonable opportunity of being heard to the petitioner, will pass a revised award in terms of the provisions contained in the new Act, without much delay, preferably within a period of four months from the date of production of a certified copy of this judgment. With these observations and directions, this Writ Petition (Civil) will stand disposed of. Sd/- **ALEXANDER THOMAS JUDGE** vgd/05.03.19 W.P(C)No.8228 of 2018 7 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 THE TRUE COPY OF THE PROCEEDINGS DATED 6/11/2013 OF THE VILLAGE OFFICE, AMBALATHARA VILLAGE.** - **EXHIBIT P2 THE TRUE COPY OF THE NOTIFICATION DATED 27/9/2013 ISSUED BY THE FIFTH RESPONDENT** - **EXHIBIT P3 THE TRUE COPY OF THE AGREEMENT DATED 10/12/2014 ENTERED INTO BETWEEN THE PETITIONER AND THE FIFTH RESPONDENT** - **EXHIBIT P4 THE TRUE COPY OF THE AWARD NOTE DATED 7/3/2015 PREPARED BY THE FIFTH RESPONDENT** - **EXHIBIT P5 THE TRUE COPY OF THE AWARD DATED 7/3/2015 PASSED BY THE FIFTH RESPONDENT** - **EXHIBIT P6 THE TRUE COPY OF THE NOTICE DATED 30/6/2017 ISSUED BY THE FIFTH RESPONDENT IN THE NAME OF THE MOTHER OF THE PETITIONER** - **EXHIBIT P7 THE TRUE COPY OF THE OBJECTION FIELD BY THE PETITIONER BEFORE THE FIFTH RESPONDENT AND ALSO BEFORE THE DISTRICT COLLECTOR, KASARAGOD DATED 1/7/2017** - **EXHIBIT P8 THE TRUE COPY OF THE JUDGMENT DATED 16/1/2018 IN W.P.(C) NO.606/2018 ON THE FILES O THIS HONOURABLE COURT.** - **EXHIBIT P9 THE TRUE COPY OF THE REPRESENTATION DATED 20/1/2018 SUBMITTED BY THE PETITIONER BEFORE THE FOURTH RESPONDENT** - **EXHIBIT P10 THE TRUE COPY OF THE PROCEEDINGS DATED 20/2/2018 AND BEARING NO.L1-30302/2018** W.P(C)No.8228 of 2018 8 |**EXHIBIT P10**|**THE TRUE COPY OF THE PLAINT IN**| |---|---| ||**O.S.NO.118/2018 BEFORE THE MUNSIFF'S**| ||**COURT, HOSDURG.**| |**EXHIBIT P11**|**THE TRUE COPY OF THE COMMISSION REPORT**| ||**DATED 8/6/2018 IN O.S.NO.118/2018 ON THE**| ||**FILES OF THE MUNSIFF'S COURT, HOSDURG.**| |**EXHIBIT P12**|**THE TRUE COPY OF THE SKETCH PREPARED BY**| ||**THE**<br>**ADVOCATE**<br>**COMMISSIONER**<br>**IN**| ||**O.S.NO.118/2018 ON THE FILES OF THE**| ||**MUNSIFF'S COURT, HOSDURG.**|