P.A. Kurien v. Special Tahsildar, Land Acquisition (General), Pathanamthitta Collectorate; District Collector, Pathanamthitta; Union of India; Principal Chief Engineer, Railway Construction Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 7TH DAY OF JUNE 2016/17TH JYAISHTA, 1938** **WP(C).No. 13600 of 2016 (Y) ----------------------------** **PETITIONER:** **-----------** ## **P.A.KURIEN, AGED 84 YEARS, S/O.P.K.ABRAHAM, PUTHENPURAYIL HOUSE, NEAR RAILWAY STATION, THIRUVALLA RAILWAY STATION POST, THIRUVALLA.** **BY ADVS.SRI.K.SASIKUMAR SRI.S.ARAVIND SRI.R.ROHITH SRI.P.S.RAGHUKUMAR** **RESPONDENT(S):** - **-------------** **1.THE SPECIAL TAHSILDAR, LAND ACQUISITION (GENERAL), COLLECTORATE, PATHANAMTHITTA-689 645.** - **2.THE DISTRICT COLLECTOR, PATHANAMTHITTA-689 645.** - **3.UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF RAILWAYS, RAIL BHAVAN, NEW DELHI-110 001.** **4.PRINCIPAL CHIEF ENGINEER, RAILWAY CONSTRUCTION BOARD, CONSTRUCTION HOUSE, SOUTHERN RAILWAYS, ERNAKULAM-682 016.** **R1 & R2 BY GOVT. PLEADER SRI.SOJAN JAMES R3 & R4 BY SRI.C.S.DIAS, SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 13600 of 2016 (Y) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** ## **-----------------------** **P1 : A TRUE COPY OF THE SALE DEED NO.170/76 DTD.21.1.1976. P2 : A TRUE COPY OF THE NOTIFICATION DTD.15.3.2009 PUBLISHED IN THE GAZETTE DTD.22.4.2009. P3 : A TRUE COPY OF THE NOTICE DTD.25.6.2009 ISSUED BY THE 1ST RESPONDENT.** - **P4 : A TRUE COPY OF THE INTERIM ORDER DTD.8.11.2010 IN IA NO.15297 OF 2010 IN WPC NO.29211/2009.** - **P5 : A TRUE COPY OF THE REPRESENTATION DTD.7.12.2009 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** - **P6 : A TRUE COPY OF THE NOTICE DTD.7.3.2011 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.** - **P7 : A TRUE COPY OF THE REPLY DTD.9.5.2011 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** - **P8 : A TRUE COPY OF THE NOTICE DTD.15.7.2011 ISSUED BY THE 1ST RESPONDENT.** - **P9 : A TRUE COPY OF THE JUDGMENT DTD.19.8.2015 IN WPC NO.29211/2009.** - **P10 : A TRUE COPY OF THE JUDGMENT DTD.23.3.2015 IN WA NO.2221/2015.** **RESPONDENT(S)' EXHIBITS: NIL -----------------------** **//TRUE COPY//** **P.S. TO JUDGE** **mbr/** ## **P.B. SURESH KUMAR, J.** **-----------------------------------------------W.P.(C).No. 13600 of 2016** **-----------------------------------------------Dated this the 7[th] day of June, 2016** ## **JUDGMENT** An item of property owned by the petitioner has been acquired for a public purpose of the Southern Railway pursuant to a notification dated 15.3.2009 issued under Section 4(1) of the Land Acquisition Act, 1894 (`the Act' for short). The petitioner and others who are affected by the acquisition challenged the said notification in a batch of writ petitions before this Court. As per Ext.P4 interim order, this Court directed that the petitioner and others shall not be dispossessed, pending the writ petitions. During the pendency of the writ petitions, the first respondent issued Ext.P6 notice to the petitioner directing him to participate in the award enquiry scheduled on W.P.(C).No. 13600 of 2016 -2- 09.05.2011. The petitioner sent Ext.P7 reply to Ext.P6 notice informing the land acquisition officer that the land acquisition proceedings are stayed in the writ petitions referred to above. Since the petitioner did not participate in the award enquiry, Ext.P8 award was passed ex parte in respect of the property of the petitioner. Since the petitioner did not participate in the award enquiry, the amount covered by the award has been deposited in court by the land acquisition officer as provided for under Section 31(2) of the Act. Later, though this Court quashed the notification referred to above as per Ext.P9 judgment dated 19.08.2015, the said judgment was reversed in appeal. Consequently, the acquisition proceedings are revived and the same are presently on the verge of its culmination. According to the petitioner, the authorities under the Act should not have completed the acquisition proceedings during the pendency of the writ petitions referred to above and on account of the said conduct of the W.P.(C).No. 13600 of 2016 -3- land acquisition authorities, the petitioner is not only deprived of an opportunity to raise a claim for compensation in the award enquiry, but also deprived of an opportunity to seek a reference of the issue relating to compensation for adjudication before the civil court, as provided for under Section 18 of the Act. The petitioner has also a case that the entire land proposed to be acquired from him is not required for the purpose intended and that if a portion of the same is excluded from the acquisition proceedings, he will be able to save his residential building. The writ petition is, therefore, filed seeking the following reliefs: “i. To declare that the land acquisition proceedings continued by the first respondent evidenced by Ext.P6 and Ext.P8 during the pendency of W.P.(C) No. 29211/2009 and in the light of Ext.P4 interim order without the proper and effective participation of the petitioner during the proceedings are illegal and incorrect. ii. To issue a writ in the nature of mandamus directing respondents 1 and 2 to reopen the land acquisition proceedings in the light of W.P.(C).No. 13600 of 2016 -4- Ext.P10 judgment giving sufficient opportunity to the petitioner to effectively present his contentions and claims in respect of the land acquisition; like land value and other items of compensation and his objection in respect area of land etc. iii. To issue a writ in the nature of mandamus directing respondents 1 and 2 to pass a fresh award considering the contentions to be raised by the petitioner in respect of the land value and other items of compensation to be claimed by the petitioner. iv. To issue a writ in the nature of mandamus directing the first respondent to give opportunity to the petitioner to file application for reference under Section 18 of the Land Acquisition Act if he is not satisfied with the compensation awarded. v. To declare that the respondents cannot acquire more area than that is directed to be acquired as per Ext.P3 notice. vi. To direct respondents that in case it is found that the area as given Exts.P6, P8 is found to be necessary, to change the alignment accordingly so that the petitioner's residential building is kept intact and left out from the acquisition. vii. to issue any other appropriate writ, order or direction as this Hon'ble Court may deem fit to grant in the facts and circumstances of this case, to meet the ends of justice, equity and good conscience.” W.P.(C).No. 13600 of 2016 -5- 2. Heard the learned counsel for the petitioner, the learned Government Pleader for respondents 1 and 2 and the learned Standing Counsel for respondents 3 and 4. 3. The case set up by the petitioner that the entire land proposed to be acquired from him as per the notification is not required for the purpose of the railway and that therefore the same is liable to be excluded from the acquisition proceedings is a case that should have been raised by him in the earlier round litigation challenging the notification, for, the same was also a ground available to him to challenge the notification at the time of filing the earlier writ petition. In so far as the petitioner has suffered a verdict in the earlier round litigation challenging the notification, the petitioner is not entitled to institute another writ petition on that ground. Prayers (v) and (vi) in the writ petition are thus rejected. 4. The prayers (i) to (iv) in the writ petition is in essence for an opportunity to get adequate compensation W.P.(C).No. 13600 of 2016 -6- for the land acquired from the petitioner. As noted above, the award enquiry was conducted at a point of time when the writ petitions filed by the petitioner and others challenging the notification were pending. There was also an interim order in the said writ petitions directing the respondents to refrain from dispossessing the petitioner and others from their respective properties pursuant to the land acquisition proceedings. True, there was no stay from this Court preventing the award enquiry. But, one thing is certain that when the writ petition challenging the land acquisition proceedings was pending before this Court and when the dispossession of the petitioner from the property was stayed, the petitioner could not have participated in the award enquiry, for, if he had participated in the award enquiry and received the compensation, he would not have been in a position to pursue the writ petition. As such, according to me, the authorities under the Act should not have completed the acquisition proceedings during the W.P.(C).No. 13600 of 2016 -7- pendency of the writ petitions. It is beyond dispute that grave prejudice has been caused to the petitioner on account of the conclusion of the land acquisition proceedings during the pendency of the writ petitions before this Court challenging the said proceedings. In the aforesaid peculiar facts, I am of the view that interests of justice demand that appropriate directions shall be issued to enable the petitioner to claim his legitimate dues by way of compensation. 5. In the result, the writ petition is disposed of on the following lines: i) The petitioner is permitted to file an application under Section 18 of the Act before the first respondent concerning his objection to the amount of compensation granted as per Ext.P8, within two weeks from the date of receipt of a copy of this judgment and if such an application is filed, the first respondent shall W.P.(C).No. 13600 of 2016 -8- make a reference under the said Section for determination of the issue by the court as if the petitioner has made an application for reference in accordance with the provisions of the Act. ii) The petitioner is free to raise appropriate claim before the reference court for enhanced compensation and if the petitioner/ raises a claim for enhanced compensation, the same shall be dealt with by the reference court as if the petitioner had objected the award passed by the Land Acquisition Officer. (iii) The petitioner is free to receive the amount covered by Ext.P8 award by filing appropriate application before the court. Sd/- **P.B. SURESH KUMAR JUDGE** bpr