P.A. Mohammed v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942** ## **WP(C).No.28652 OF 2020(F)** ## **PETITIONER:** **P.A.MOHAMMED, AGED 71 YEARS** **S/O. ALIAR RAVUTHAR, M.S. MANZIL, MANDIRAM P.O, RANNY-689672** **BY ADVS. SRI.V.PHILIP MATHEWS SRI.JEPH JOSEPH** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF PUBLIC WORKS, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001** - **2 THE DISTRICT COLLECTOR, COLLECTORATE, PATHANAMTHITTA-689645** - **3 THE SPECIAL TAHSILDAR (LAND ACQUISITION-N.H), RANNY, PATHANAMTHITTA DISTRICT-689672** - **4 THE EXECUTIVE ENGINEER, KERALA PUBLIC WORKS DEPARTMENT, KSTP PROJECT DIVISION, PONKUNNAM, KANJIRAPPALLY P.O-686 507 R1-4 BY SMT MABLE C KURIAN,GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.28652 OF 2020** **2** ## **JUDGMENT** This writ petition is filed seeking for a declaration that the land acquisition proceedings initiated by the respondents pursuant to notification dated 23.9.2006 has lapsed in view of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Act 30 of 2013) and for a further direction to the respondents to initiate the proceedings afresh in accordance with Act 30 of 2013 and for incidental reliefs. 2. In essence the facts of the case are as follows: The petitioner states that he is the owner in title and possession of property having an extent of 18 cents together with a residential building situated therein comprised in Re-Sy. No.264/7-12 of Ranni Village. In the year 2004, for the development and widening of the Punalur-Muvattupuzha road, about 330 sq.mt. of property owned by the petitioner was earmarked for acquisition. His request before the appropriate Government to shift the alignment was not acceded to. In the said circumstances, he approached this Court challenging the notification issued under Section 4(1) of the Land Acquisition Act, 1894. By Ext.P3 judgment dated 9.3.2005, the petitioner was asked to approach the concerned authority and raise his objections and the said authority was ordered to take a decision in accordance with law. The petitioner was heard and his objection was rejected by Ext.P4 order. Immediately thereafter, Ext.P5 notice was served on the petitioner calling upon him to appear before the District Level Purchase Committee on **WP(C).No.28652 OF 2020** **3** 19.2.2007 with the relevant documents so that the compensation due to him could be disbursed. He approached the respondents and reiterated his request to exempt his property. The same was rejected and on 17.11.2008, Ext.P6 notice of award was issued to the petitioner informing him that the award amount has been deposited in the Sub Court, Pathanamthitta. Simultaneously, Ext.P7 notice dated 17.11.2008, was issued informing the petitioner that the property notified for acquisition would be taken possession on 12.1.2009. Being aggrieved, the petitioner approached this Court and filed W.P.(C) No.20040/2009. By judgment dated 22.6.2012, his challenge was repelled. It was held that the reasons stated by the authority for refusing to change the alignment as requested by the petitioner was not liable to be interfered with. It appears that the petitioner again approached the respondents 2 and 3 and submitted Ext.P9 and P10 representations seeking either to change the alignment or to acquire the entire property. In the meantime, the reference made to the Subordinate Judge, Pathanamthitta under section 31(2) of the Land Acquisition Act, 1894 was answered and the petitioner was held entitled to receive the amount which was deposited in court. Ext.P11 is the judgment and Ext.P12 is the decree passed by the learned Subordinate Judge. On 30.11.2020, he was served with Ext.P15 notice calling upon him to remove the structures situated in the right of way. In response, Ext.P17 reply was submitted by the petitioner herein reiterating that his residential home be exempted. Immediately thereafter, the instant writ petition was filed seeking the following reliefs: (i) Declare that the land acquisition proceedings initiated by the **WP(C).No.28652 OF 2020** **4** respondents through Exhibits P6 and P7 in respect of petitioner’s building and property covered by Exhibit P1 have lapsed in view of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. ii) Issue a writ of mandamus or other appropriate writ or order directing respondents to initiate the proceedings of land acquisition afresh in accordance with the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. iii) Issue a writ of mandamus or other appropriate writ or order directing the respondents to acquire entire land covered by Exhibit P1 and building of the petitioner if it is not possible to exempt petitioner’s house from the acquisition proceedings. iv) Issue a writ of mandamus or other appropriate writ or order commanding respondents not to dispossess the petitioner from his building and property covered by Exhibit P1 before a decision is taken under Section 94 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 as to whether whole building or portion of the building is to be acquired. v) Issue a writ of mandamus or other appropriate writ or order directing the 2nd respondent to refer the matter as provided under Section 64 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 for the determination of the Authority. (vi) Issue a writ of mandamus or other appropriate writ or order directing respondents to pay proper and adequate compensation to the petitioner for demolishing the residential building of the petitioner. 3. A counter affidavit has been filed by the 4th respondent. It is stated that the KSTP has acquired 330 sq.mts of land from Re-Sy.No.264/7-12 of Ranni Village as per award No.3/08 dated 15.10.2008 for the development of Punalur - Muvattupuzha road and a sum of Rs.8,35,588/- was deposited towards cost of **WP(C).No.28652 OF 2020** **5** land and affected structures. The sequence of events is narrated and it is stated that this Court on two occasions had repelled the request of the petitioner to change the alignment. It is stated that the portion of the residential building was acquired by the revenue authorities and the same was handed over to the KSTP on 3.1.2009. He had no claim either under Section 18 or under Section 49 of the Land Acquisition Act, 1894 at that time, and his only request was that the alignment should be changed. It is stated that on 22.1.2013, the petitioner had submitted a request to acquire the entire property. However his request was rejected as the acquisition proceedings were completed in the year 2008 itself. It is further stated that the claim of the petitioner that he is entitled to claim compensation in accordance with the provisions of Act 30 of 2013 cannot be sustained in view of the judgment of the Apex Court in **Indore Development Authority v. Manoharlal and Ors.[1]** . It is further stated that the compensation was tendered to the petitioner in 2008 itself and in that view of the matter, it would not be open to the petitioner to claim that the acquisition has lapsed under Section 24(2) of Act 30 of 2013 due to non payment or non deposit of the compensation in Court. It is further stated that the obligation to pay is complete by tendering the amount under Section 31(1) and those landowners who refused to accept compensation or those who sought reference for higher compensation cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the Act 30 of 2013. It has further stated that Ext.P15 notice was issued to give an opportunity to remove the structures situated in the acquired portion as some of the landowners have failed to remove the structures which have been put up by 1 [AIR 2020 SC 1496] **WP(C).No.28652 OF 2020** **6** them. 4. I have considered the submissions advanced. Essentially, the contention of the petitioner is that the acquisition proceedings initiated by the respondents have lapsed in view of Section 24 of Act 30 of 2013. He also has a prayer that the 2nd respondent be directed to refer the matter as provided under Section 64 of Act 30 of 2013. All other prayers are incidental to the above prayers. 5. Certain facts are undisputed. Section 4(1) notification under the Act of 1894 was in the year 2006. The petitioner had approached this Court on earlier occasions seeking modification of alignment and his request was rejected by Ext.P3 and P8 judgments. The notice of award was issued on 17.11.2008 fixing the compensation at Rs.7,50,358/-. Under Section 31 of the Act, the Collector is required to tender payment of compensation awarded by him to the persons entitled thereto. Since the petitioner refused to accept the award amount demanding change of alignment, the amount was deposited in the Subordinate Judges Court, Pathanamthitta. 6. Now the question is whether the proceedings under Act of 1894 would have deemed to have lapsed in view of Section 24 of the Act 30 of 2013. The aforesaid question was laid to rest by the Hon’ble Apex Court in the larger bench decision rendered in **Indore Development Authority v. Manoharlal[2]** . The final conclusions of the Hon’ble Supreme Court can be found from Paragraph Nos.365 and 366 of the judgment. 2 [(2020) 8 SCC 129] **WP(C).No.28652 OF 2020** **7** **365.** Resultantly, the decision rendered in Pune Municipal Corpn. [Pune Municipal Corpn. v. Harakchand Misirimal Solanki, (2014) 3 SCC 183 is hereby overruled and all other decisions in which Pune Municipal Corpn. [Pune Municipal Corpn. v. Harakchand Misirimal Solanki, (2014) 3 SCC 183 has been followed, are also overruled. The decision in Sree Balaji Nagar Residential Assn. [Sree Balaji Nagar Residential Assn. v. State of T.N., (2015) 3 SCC 353] cannot be said to be laying down good law, is overruled and other decisions following the same are also overruled. In Indore Development Authority v. Shailendra [Indore Development Authority v. Shailendra, (2018) 3 SCC 412 ] , the aspect with respect to the proviso to Section 24(2) and whether “or” has to be read as “nor” or as “and” was not placed for consideration. Therefore, that decision too cannot prevail, in the light of the discussion in the present judgment. **366.** In view of the aforesaid discussion, we answer the questions as under: **366.1.** Under the provisions of Section 24(1)(a) in case the award is not made as on 1-1-2014, the date of commencement of the 2013 Act, there is no lapse of proceedings. Compensation has to be determined under the provisions of the 2013 Act. **366.2.** In case the award has been passed within the window period of five years excluding the period covered by an interim order of the court, then proceedings shall continue as provided under Section 24(1)(b) of the 2013 Act under the 1894 Act as if it has not been repealed. **366.3.** The word “or” used in Section 24(2) between possession and compensation has to be read as “nor” or as “and”. The deemed lapse of land acquisition proceedings under Section 24(2) of the 2013 Act takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid. In other words, in case possession has been taken, compensation has not been paid then there is no lapse. Similarly, if **WP(C).No.28652 OF 2020** **8** compensation has been paid, possession has not been taken then there is no lapse. **366.4.** The expression “paid” in the main part of Section 24(2) of the 2013 Act does not include a deposit of compensation in court. The consequence of non-deposit is provided in the proviso to Section 24(2) in case it has not been deposited with respect to majority of landholdings then all beneficiaries (landowners) as on the date of notification for land acquisition under Section 4 of the 1894 Act shall be entitled to compensation in accordance with the provisions of the 2013 Act. In case the obligation under Section 31 of the Land Acquisition Act, 1894 has not been fulfilled, interest under Section 34 of the said Act can be granted. Non-deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of non-deposit with respect to the majority of holdings for five years or more, compensation under the 2013 Act has to be paid to the “landowners” as on the date of notification for land acquisition under Section 4 of the 1894 Act. **366.5.** In case a person has been tendered the compensation as provided under Section 31(1) of the 1894 Act, it is not open to him - to claim that acquisition has lapsed under Section 24(2) due to non - payment or non deposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1). The landowners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the 2013 Act. **366.6.** The proviso to Section 24(2) of the 2013 Act is to be treated as part of Section 24(2), not part of Section 24(1)(b). **366.7.** The mode of taking possession under the 1894 Act and as contemplated under Section 24(2) is by drawing of inquest report/memorandum. Once award has been passed on taking possession under Section 16 of the 1894 Act, the land vests in State there is no divesting provided under Section 24(2) of the 2013 Act, as once possession has been taken there is no lapse under Section 24(2). **WP(C).No.28652 OF 2020** **9** **366.8.** The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the 2013 Act came into force, in a proceeding for land acquisition pending with the authority concerned as on 1-1-2014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years. **366.9.** Section 24(2) of the 2013 Act does not give rise to new cause of action to question the legality of concluded proceedings of land acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the 2013 Act i.e. 1-1-2014. It does not revive stale and time-barred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition. (emphasis supplied). 7. Going by the sequence of events in the instant case , Exhibit P6 notice of award was issued on 17.11.2008 and the possession was taken on the same day as is evident from Exhibit P7. Since the petitioner refused to accept the compensation, the amount was deposited in the Court of the Subordinate Judge, Pathanamthitta under Section 31(2) of the Act. As held by the Apex Court, it would then be not open to the petitioner to claim that acquisition has lapsed under Section 24 of the Act. The obligation to pay is complete by tendering the amount under Section 31(1). The landowners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the 2013 Act. Once award has been passed on taking possession under Section 16 of the 1894 Act, the land vests **WP(C).No.28652 OF 2020** **10** in State there is no divesting provided under Section 24(2) of the 2013 Act, as once possession has been taken there is no lapse under Section 24(2). In that view of the matter, the contention of the petitioner that the acquisition proceedings have lapsed in view of Section 24 of the Act cannot be sustained. In that view of the matter, the petitioner is not entitled for a direction to the respondents to initiate proceedings of land acquisition afresh under Act 30 of 2013. At this stage, Sri. V. Philip Mathews, the learned counsel submitted that the petitioner herein had submitted representations before the 3rd respondent as is evidenced by Exts.P13 and P14 and according to him, no orders have been passed on the same. All that the petitioner herein has produced are receipts acknowledging the receipt of representation. If any representation is pending before the 3rd respondent, the same shall be taken up and appropriate orders in accordance with law shall be passed within a period of two months from the date of receipt of a copy of this judgment. This Writ Petition will stand dismissed. **Sd/-** ## **RAJA VIJAYARAGHAVAN V** ## **JUDGE** ps **WP(C).No.28652 OF 2020** **11** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **COPY OF SALE DEED NO.4267 DATED 29.8.1989.** **EXHIBIT P2 COPY OF LAND TAX RECEIPT DATED 20.02.2020.** - **EXHIBIT P3 COPY OF JUDGMENT DATED 9.3.2005 IN W.P.C NO. 2438 OF 2005(M)** - **EXHIBIT P4 COPY OF LETTER NO.PNF/20/02 DATED 22.04.2005 FROM 4TH RESPONDENT.** **EXHIBIT P5 COPY OF LETTER DATED 3.2.2007 FROM 4TH RESPONDENT.** - **EXHIBIT P6 COPY OF NOTICE OF AWARD DATED 17.11.2008 ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT P7 COPY OF NOTICE OF TAKING OVER POSSESSION.** - **EXHIBIT P8 COPY OF JUDGMENT IN W.P.C NO. 20040/2009 EXHIBIT P9 COPY OF APPLICATION DATED 22.01.2013 BEFORE 2ND RESPONDENT.** **EXHIBIT P10 COPY OF APPLICATION DATED 20.02.2015 TO 3RD RESPONDENT.** - **EXHIBIT P11 COPY OF JUDGMENT IN LAR NO.01/2016 PASSED BY SUB COURT OF PATHANAMTHITTA.** - **EXHIBIT P12 COPY OF DECREE IN LAR NO.01/2016 PASSED BY SUB COURT OF PATHANAMTHITTA.** - **EXHIBIT P13 COPY OF RECEIPT DATED 22.09.2017 FROM 3RD RESPONDENT.** - **EXHIBIT P14 COPY OF RECEIPT DATED 01.02.2018 FROM 3RD RESPONDENT.** - **EXHIBIT P15 COPY OF LETTER DATED 30.11.2020 FROM 4TH RESPONDENT REGARDING DEMOLITION OF HOUSE.** **EXHIBIT P16 COPY OF PLAN SHOWING PORTION OF BUILDING TO BE DEMOLISHED.** **WP(C).No.28652 OF 2020** **12** **EXHIBIT P17 COPY OF REPLY DATED 11.12.2020 SUBMITTED BY THE PETITIONER AGAINST EXHIBIT P15. EXHIBIT P18 PHOTOGRAPH OF PETITIONER'S HOUSE PROPOSED TO BE DEMOLISHED.** ## **RESPONDENTS' EXHIBITS:** NIL