Raghavan Nair and Sarojini Amma v. State of Kerala, District Collector, Special Tahsildar LA No. I, Kochi Metro Rail Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 17TH DAY OF MARCH 2021 / 26TH PHALGUNA, 1942** ## **WP(C).No.33851 OF 2016(J)** ## **PETITIONER/S:** |**1**|**RAGHAVAN NAIR, AGED:59 YEARS,**| |---|---| ||**S/O (LATE) KUMARAN NAIR,**| ||**"GOKULAM”, VIJAYALAKSHMI MANDIRAM,**| ||**KANNAMKULAM TEMPLE ROAD, CHALAKKUDY EAST,**| ||**CHALAKKUDY PO, THRISSUR DISTRICT-680307.**| |**2**|**SAROJINI AMMA, AGED:84 YEARS,**| ||**W/O (LATE) KUMARAN NAIR,**| ||**VIJAYALAKSHMI MANDIRAM, CHALAKKUDY EAST,**| ||**CHALAKKUDY PO, THRISSUR DISTRICT-680307.**| **BY ADVS. SRI.P.B.KRISHNAN SRI.K.A.MANZOOR ALI** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY ITS SECRETARY TO**| ||**THE DEPARTMENT OF REVENUE,**| ||**GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695001.**| |**2**|**THE DISTRICT COLLECTOR,**| ||**ERNAKULAM, CIVIL STATION, KAKKANADU,**| ||**ERNAKULAM-682030.**| |**3**|**THE SPECIAL TAHSILDAR LA NO.I, KOCHI METRO RAIL**| ||**PROJECT, ERNAKULAM, KAKKANADU,**| ||**ERNAKULAM-682030.**| |**4**|**M/S. KOCHI METRO RAIL LIMITED**| ||**REPRESENTED BY ITS MANAGING DIRECTOR,**| ||**8TH FLOOR, REVENUE TOWER, PARK AVENUE,**| ||**ERNAKULAM-682011.**| **WP(C).No.33851 OF 2016(J)** **2** **R1 TO R3 BY GOVERNMENT PLEADER SRI Y.JAFAR KHAN BY ADV. SRI.K.JAJU BABU SR. BY SMT.M.U.VIJAYALAKSHMI, SC, KOCHI METRO RAIL LTD.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.33851 OF 2016(J)** **3** ## **JUDGMENT** This writ petition is filed seeking a declaration that the property owned by the petitioners and acquired for the purpose of construction of the Edappally Flyover can be acquired only by recourse to 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 direction to the respondents to honour their obligations under Exts.P3 and P6 agreements by drawing up an award under Section 24 of the Act 30 of 2013. 2. It is the case of the petitioners that they were the absolute owners of property having an extent of 2.09 Ares in Sy. No. 12/2, 4, 6 and 0.22 Ares in Sy. No.12/15 in Block No. 5 of Thrikkakkara North Village and it was the subject matter of a notification under Section 4(1) of the Land Acquisition Act, 1894. The property was intended to be acquired by the respondents 3 and 4 for the construction of ‘Edappally Flyover’. 3. While proceedings for acquisitions were pending, Act 30 of 2013 was enacted and the same came into force. The Government permitted the District Collector and Revenue authorities to negotiate with the owners of the land for speedy acquisition as the land was required for the Metro Rail Project. Based on the basic valuation report submitted by the Revenue authorities, the value of the property was fixed. The District Level Purchase Committee (DLPC) negotiated **WP(C).No.33851 OF 2016(J)** **4** with the land owners including the petitioner and thereafter a settlement was arrived at. The petitioners are stated to have agreed to hand over the property to the District Collector for a value fixed at Rs.31,60,000/- per cent. Thereafter, separate agreements were rendered on 16.6.2014 and as agreed upon, 80% of the total compensation amount was paid to the petitioners. In the agreements so executed, between the petitioners and the District Collector, among other clauses, it is specifically mentioned that the Relief and Rehabilitation Package, if applicable and as declared by the Government of Kerala under Act 30 of 2013 with regard to the purchase of the land described to the schedule would be implemented. As per the terms of the agreement, the parties agreed to execute the sale deed on the District Collector paying the balance 20% of the sale consideration to the land owners and after implementing the Relief and Rehabilitation Package to be declared by the Government of Kerala, if and as applicable as per Act 30 of 2013. It is contended that the matter was indefinitely prolonged and the request of the petitioners to execute the sale deed was not acceded to. Later, by Exts.P13 and P14 notices, the petitioners were informed that the agreements were executed under the Direct Purchase Scheme and therefore, they cannot insist on the applicability of the provisions of Act 30 of 2013 while executing the sale deed. It is the case of the petitioners that the intention of the respondents is to deny the lawful enhancement of compensation that the petitioners are entitled to under Act 30 of 2013. 4. A counter affidavit has been filed by the 3rd respondent. After **WP(C).No.33851 OF 2016(J)** **5** narrating the sequence of events, it is stated that the respondents are bound to pay only 20% of the total compensation after approval of the SLEC. It is further contended that the petitioners are not entitled to any compensation over and above the amount determined by the DLPC. The provisions of Act 30 of 2013 has no application as the purchase was under the Direct Purchase Scheme. 5. The 4th respondent has filed a memo requesting to adopt the counter affidavit filed by them in W.P.(C) No. 27191 of 2016 as the issue involved in both the cases are one and the same. It is stated that as per clause (2) and (3) of the agreement, the petitioners are eligible for Relief and Rehabilitation Package as per Act 30 of 2013 and according to them, no consideration other than what is specifically mentioned in the agreement is payable by the District collector to the land owners. It is contended that as the sale consideration offered to the petitioners was arrived at after taking into account the market value of the property by Direct Purchase method, the provisions of Act 30 of 2013 cannot be made applicable. 6. I have heard Sri. P.B. Krishnan, the learned counsel appearing for the petitioners, Sri.Jaju Babu, the learned senior counsel appearing for the 4th respondent and the learned Government Pleader. 7. It is the case of the petitioners that the possession of the land was taken over from their possession on 16.6.2014, the date of execution of the agreement. In Exhibit P6, among other clauses it has been stated thus “ And Whereas KMRL has agreed to implement the relief and **WP(C).No.33851 OF 2016(J)** **6** rehabilitation package if applicable and as declared by the Government of Kerala under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 ( hereinafter referred to as the ‘Act’) with regard to the purchase of the land/lands, described in the Schedule to this agreement. ## xxxxxxxxxxxxxx An amount being 80% of the sale consideration of ……….. and only balance 20% remains to be paid by the District Collector to the land owner. The parties hereby undertake and agree to execute the Sale Deed/Deeds immediately on District Collector paying the balance 20% of the sale consideration to the land owner and on implementation of the relief and rehabilitation package if and as applicable as per the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 as declared by the Government of Kerala in respect of lands. “ 8. When the petitioners contend that the matter is liable to be referred by the District Collector to the competent authority under section 64 of Act 30 of 2013 to enable them to get enhanced compensation, the respondents assert that the purchase was made by direct purchase method and recourse to Section 64 of the Act is not warranted. Faced with the similar situation, a Division Bench of this Court in **Kochi-Metro Rail Ltd. v. Shanavaz** (judgment dated 13.12.2017 in W.A.No.2158 of 2017), had occasion to hold as follows: 19. Sections 26 to 30 of the new Act deal with the **WP(C).No.33851 OF 2016(J)** **7** procedure for determining the compensation. Here, after negotiations, the parties have consensually fixed the sale consideration and entered into a transaction of sale. The sale is yet to be completed, though. On the strength of agreement, the Company paid substantial consideration and possessed the lands. The project has been completed, too. 20. Under these circumstances, it serves the interest of both the parties if we reckon the sale consideration under the agreements of sale as the amount awarded in the first instance by the primary authority or the Land Acquisition Authority. Therefore, the sale consideration must be the deemed award for the landowners to seek enhancement under section 64 of the new Act. 21. That accepted, it is open for the landowners to apply to the District Collector, who, in turn, will act on the landowners’ representations: He will refer the matters to the Competent Authority under section 64 of the new Act within six weeks from today. 22. As to the interest to be awarded, we clarify that in the absence of any notification, there could be no reckoning point. So, it may be reckoned from the date the land-owners parted with the possession. We also clarify that the Competent Authority, while calculating interest on the enhanced compensation, if any, will exclude the amounts already paid to the landowners: 80% of the sale consideration. 23. Needless to observe that the landowners may as well execute registered sale deeds and receive the remaining 20% sale consideration, pending the enhancement proceedings before the Competent Authority under section 64 of the new Act. 24. Now, it is brought to our notice that in about 12 agreements of sale, the above extracted-clause concerning the enhanced compensation in terms of the new Act is **WP(C).No.33851 OF 2016(J)** **8** absent. First, we must not forget that it is the State or its instrumentality that has entered into the contract. Second, inadvertent absence of the clause in certain agreements of similarly placed landowners should not act to their prejudice. Lest it should reek discrimination and inequity. In other words, those landowners, too, should be treated on a par with others with the protective clause in their agreements of sale. 9. However, the above judgment has been challenged by the Kochi Metro before the Apex Court and the matter is pending as Civil Appeal 7182 - 7190 of 2019. By an interim order dated 5.9.2019, the land owners were permitted to execute the conveyance deeds upon payment of the balance 20% amount to be paid by the Kochi Metro Rail. It was further ordered that the payment of the said amount will be subject to the final outcome of the appeals. 10. Sri.P.B.Krishnan submits that a learned Single Judge of this Court in W.P.(C) No.25373 of 2016 has issued certain directions and it is prayed that this writ petition be disposed of by issuing identical directions. He submits that the petitioners have no objection in executing the sale deed after receiving the balance sale consideration and they shall abide by the directions to be passed by the Apex Court in the Civil Appeal. 11. In that view of the matter, the instant writ petition will stand disposed of with the following directions. a) The petitioners shall execute the sale deed within a period of one month from today and on its execution, the balance amount due to them as **WP(C).No.33851 OF 2016(J)** **9** per the agreement shall be duly paid. b) The question as to whether the directions issued by the Division Bench in **Shanavaz** (supra) should be followed in this case will depend on the decision to be taken by the Apex Court in Civil Appeal Nos. 7182 - 7190 of 2019. **SD/-** ## **RAJA VIJAYARAGHAVAN V** **JUDGE** ps **WP(C).No.33851 OF 2016(J)** **10** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE INTIMATION DATED 12/12/2013 REGARDING THE LAND ACQUISITION NOTIFICATION RECEIVED BY THE PETITIONERS FROM RESPONDENT NO.3.** **EXHIBIT P2 A TRUE COPY OF THE NOTICE REFERENCE NO.CI-47588/2013 DATED 3/2/2014 ISSUED BY RESPONDENT NO.2. EXHIBIT P3 A TRUE COPY OF THE MEDIATION SETTLEMENT AGREEMENT DATED 7/2/2014 BETWEEN PETITIONERS AND RESPONDENT NO.2.** - **EXHIBIT P4 A TRUE COPY OF THE NOTICE DATED 24/4/2014 ISSUED BY THE PETITIONERS TO THE RESPONDENTS.** - **EXHIBIT P5 A TRUE COPY OF THE NOTICE DATED 02.06.2014 ISSUED BY THE RESPONDENT NO.3 TO PETITIONER NO.1.** - **EXHIBIT P5(a) A TRUE COPY OF THE NOTICE DATED 2/6/14 ISSUED BY THE RESPONDENT NO.3 TO PETITIONER NO.2.** - **EXHIBIT P6 A TRUE COPY OF THE AGREEMENT FOR SALE DATED 16/6/2014 BETWEEN PETITIONERS AND RESPONDENT NO.2.** - **EXHIBIT P7 A TRUE COPY OF THE LETTER DATED 20/6/2014 RECEIVED FROM THE BANK ENCLOSING THE OBJECTION BY THE TREASURY OFFICER FOR CLEARING THE CHEQUE FOR COMPENSATION ISSUED BY RESPONDENTS.** - **EXHIBIT P8 A TRUE COPY OF THE LETTER DATED NIL FROM THE PETITIONER TO RESPONDENT NO.2.** - **EXHIBIT P9 A TRUE COPY OF THE LETTER DATED 2/7/2014 FROM THE PETITIONER TO RESPONDENT NO.4.** **WP(C).No.33851 OF 2016(J)** **11** **EXHIBIT P10** **A TRUE COPY OF THE LETTER DATED 13/6/2015 FROM THE PETITIONER NO.1 TO RESPONDENT NO.3.** **EXHIBIT P11** - **A TRUE COPY OF THE REQUEST OF THE PETITIONERS DATED 20/6/2015 ADDRESSED TO RESPONDENT NO.3.** - **EXHIBIT P12 A TRUE COPY OF THE NOTICE OF THE PETITIONERS DATED 6/6/2015 ADDRESSED TO RESPONDENT NOS.2 TO 4.** **EXHIBIT P13 A TRUE COPY OF THE NOTICE DATED 3/8/2016 ISSUED BY THE RESPONDENT NO.3 TO PETITIONER NO.1** **EXHIBIT P14 A TRUE COPY OF THE NOTICE DATED 3/8/2016 ISSUED BY THE RESPONDENT NO.3 TO PETITIONER NO.2.** - **EXHIBIT P15 TRUE COPY OF THE CHALLAN 16.06.2014 RECEIVED BY THE PETITIONERS IN THE REVERSE OF FORM D.** - **EXHIBIT P15 (a) TRUE COPY OF THE CHALLAN 16.06.2014 RECEIVED BY THE PETITIONERS IN THE REVERSE OF FORM D.** ## **RESPONDENT'S/S EXHIBITS:** - **EXHIBIT R3 (a) A TRUE COPY OF THE GOVERNMENT ORDER DATED 22.05.2014.** - **EXHIBIT R3 (b) A TRUE COPY OF THE PROCEEDINGS OF DISTRICT COLLECTOR, ERNAKULAM DATED 20.06.2014.** - **EXHIBIT R3 (c) A TRUE COPY OF THE MINUTES DATED 05.04.2014 OF DLPC.** **EXHIBIT R3 (d) A TRUE COPY OF THE AGREEMENT DATED 16.06.2014. EXHIBIT R3 (e) A TRUE COPY OF THE AGREEMENT DATED 16.06.2014.** **WP(C).No.33851 OF 2016(J)** **12** **EXHIBIT R3 (f) A TRUE COPY OF THE COUNTER FOIL OF THE D-FORM CHEQUE DATED 16.06.2014. EXHIBIT R3 (g) A TRUE COPY OF THE CONSENT LETTERS.** **//TRUE COPY// P.A.TO JUDGE**