RP 292 of 2017 in WA 1061 of 2015 - A.X Gilbert and others v State of Kerala, Greater Cochin Development Authority and Special Tahsildar (LA), GCDA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN TUESDAY, THE 24TH DAY OF OCTOBER 2017/2ND KARTHIKA, 1939 RP.No. 292 of 2017 () IN WA.1061/2015 --------------------------------------- AGAINST THE JUDGMENT IN WA 1061/2015 of HIGH COURT OF KERALA DATED 19-06-2015 PETITIONERS/APPELLANTS ----------------------- 1. A.X.GILBERT S/O.XAVIER, AGED 57 YEARS, ANJIPARAMBIL HOUSE, CBI ROAD, KALOOR P O, ERNAKULAM, PIN-682017. 2. A X EDWIN S/O.XAVIER, AGED 57 YEARS, ANJIPARAMBIL HOUSE, CBI ROAD, KALOOR P O, ERNAKULAM, PIN-682017. 3. ABRAHAM GODFREY S/O.XAVIER, AGED 60 YEARS, ANJIPARAMBIL HOUSE, CBI ROAD, KALOOR P O, ERNAKULAM, PIN-682017 4. A X LESLIE S/O.XAVIER, AGED 63 YEARS, ANJIPARAMBIL HOUSE, CBI ROAD, KALOOR P O, ERNAKULAM, PIN-682017 5. SANTHOSH XAVIER S/O.XAVIER, ANJIPARAMBIL HOUSE, CBI ROAD, KALOOR P O, ERNAKULAM, PIN-682017 6. JUDE XAVIER S/O.XAVIER, ANJIPARAMBILHOUSE, CBI ROAD, KALOOR P O, ERNAKULAM, PIN-682017 7. FRANKLIN CHELLATH S/O.XAVIER, AGED 70 YEARS, ANJIPARAMBIL HOUSE, CBI ROAD, KALOOR P O, ERNAKULAM, PIN-682017 BY ADVS.SRI.K.RAMAKUMAR (SR.) SRI.P.B.KRISHNAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SRI.P.M.NEELAKANDAN : 2: ## RESPONDENTS/RESPONDENTS: ----------------------- 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, LOCAL ADMINISTRATION AND TOWN PLANNING DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. GREATER COCHIN DEVELOPMENTAL AUTHORITY REPRESENTED BY ITS SECRETARY, KADAVANTHARA, PIN-682020. 3. SPECIAL TAHSILDAR(LA) GREATER COCHIN DEVELOPMENT AUTHORITY, KADAVANTHARA , PIN-682020. R2&3 BY ADV. SRI.K.NARAYANAN, SC, GCDA SPL.GOVERNMENT PLEADER SMT.LATHA T. THANKAPPAN THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 17/10/2017, THE COURT ON 24-10-2017 PASSED THE FOLLOWING: ## **R.P.NO.292 OF 2017** **------------------** ## **APPENDIX** **--------** ## **PETITIONER'S ANNEXURES** ## **----------------------** A: TRUE COPY OF AWARD NO.6/89 DATED 16/05/1989 MARKED AS EXT.P1 IN W.P.C.NO.2974/2015. B: TRUE COPY OF AWARD NO.7/89 DATED 16/05/1989 MARKED AS EXT.P2 IN WPC.NO.2974/2015. C: TRUE COPY OF E.P.34/2015 (AWARD 7/89) DATED 09/04/2015 ON THE FILE OF THE PRINCIPAL SUB COURT, KOCHI. D: TRUE COPY OF E.P.35/2015 (AWARD 6/89) DATED 09/04/2015 ON the FILE OF THE PRINCIPAL SUB COURT, KOCHI. E: TRUE COPY OF THE OBJECTION DATED 08/12/2015 FILED BY SPECIAL TAHSILDAR (LA) GCDA IN EP 35/2015IN LAR 275/90 (AWARD 6/89) F: TRUE COPY OF THE ORDER DATED 14/01/2016 OF THE PRINCIPAL SUB COURT, KOCHI IN E.P.34/2015 IN LAR 274/90. G: TRUE COPY OF THE STATEMENT DATED 01/02/2016 FILED BY THE PETITIONERS IN E.P.34/2015 (AWARD /89) ON THE FILE OF THE PRINCIPAL SUB COURT, KOCHI. H: TRUE COPY OF THE STATEMENT DATED 01/02/2016 FILED BY THE PETITIONERS IN E.P.35/2015 (AWARD 6/89) ON THE FILE OF THE PRINCIPAL SUB COURT, KOCHI. I: TRUE COPY OF THE ORDER DATED 17/02/2017 OF THE HON'BLE SUPREME COURT IN SPECIAL LEAVE TO APPEAL (C) NO.22084 OF 2015. J: TRUE COPY OF THE STATEMENT DATED 08/06/2015 FILED BY THE PETITIONERS IN E.P.NO.34/2015 (AWARD 7/89) RELATING TO LAR NO.274/90 ON THE FILE OF THE SUB COURT, KOCHI. K: TRUE COPY OF THE STATEMENT DATED 08/06/2015 FILED BY THE PETITIONERS IN E.P.NO.35/2015(AWARD 6/89) RELATING TO LAR 275/90 ON THE FILE OF THE SUB COURT, KOCHI. L: TRUE COPY OF BALANCE STATEMENT FILED BY THE SPL.TAHSILDAR (LA) GCDA IN LAR NO.274/90 ON THE FILE OF THE SUB COURT, KOCHI. M: TRUE COPY OF BALANCE STATEMENT FILED BY THE SPL.TAHSILDAR (LA) GCDA IN LAR 275/90 ON THE FILE OF THE SUB COURT, KOCHI. ## **RESPONDENTS' ANNEXURES ----------------------** NIL TRUE COPY P.S TO JUDGE ## **A.M.SHAFFIQUE, J & P.SOMARAJAN, J** ## *** * * * * * * * * * * * * *** Review Petition No.292 of 2017 in W.A.No.1061 of 2015 ---------------------------------------Dated this the 24[th] day of October 2017 ## **O R D E R** ## **Shaffique, J** The review petition is filed seeking to review the judgment dated 19/06/2015 in W.A.No.1061/2016. In the review petition, the main ground urged is that the review petitioner is entitled for compensation under the Right to Fair Compensation and Transparency in Land Acquisition,Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as 'the 2013 Act'). It is contended that in the light of Sec.24(2) of the 2013 Act, if the amount of compensation under an Award Under Section 11 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the LA Act'), which has been made five years or more prior to the commencement of the 2013 Act, has not been paid, the said proceedings shall deem to have lapsed. It is contended that as per the revised calculation submitted in LAR No.274/1990 which had arisen from Award No.7/1989, an amount of Rs.21,72,590/- R.P. No.292/2017 2 was the balance amount payable as on 05/12/1995, as evident from Ext.P3. Similarly, in the valuation submitted in LAR No.275/1990 filed in respect of Award No.6/1989, the balance amount payable as on 13/07/2001 is Rs.6,91,134/- and after deducting income tax and surcharge, the amount payable was Rs.4,50,553/- which is also evident from Ext.P3. The said amount has not been paid in full. It is contended that the awards were made on 16/05/1989, more than 5 years prior to the coming into force of the 2013 Act, which came into effect on 01/01/2014. It is contended that only part of the compensation as per Award Nos.6 and 7 of 1989 was paid on 12/07/2001 and 08/01/2004 respectively. In such circumstances, the awards are to be treated as lapsed and acquisition proceedings have to be initiated afresh as per the 2013 Act, in the light of Sec.24(2) of the 2013 Act. It is further stated that as against the judgment of this Court, though the matter was taken up before the Apex Court by filing SLP No.22084/2015, it was dismissed without assigning any reason. Alleging that there was error apparent on the face of the record and since the contention urged had not been considered by this Court, the review petition is filed. R.P. No.292/2017 3 2. Heard the learned counsel for the review petitioner, learned counsel for the 2[nd] respondent and the learned Government Pleader appearing on behalf of respondents 1 and 3. 3. The learned counsel for the review petitioner placed reliance upon the Constitution Bench judgment of the Apex Court in **Sunder v. Union of India** [(2001) 7 SCC 2011] wherein the Apex Court held that the amount awarded under Section 34 means the aggregate amount of compensation calculated in accordance with provisions of all the sub Sections of Section 23 including solatium as well. It is contended that when interest was not paid in terms of the award, there is a deficiency in the payment of compensation and therefore, Sec.24(2) of the 2013 Act becomes applicable. 4. On the other hand, learned counsel appearing for the 2[nd] respondent submits that there is no error apparent on the face of the record warranting a review and that apart, the entire amount as per the terms of the award has been paid in terms with the provisions of the LA Act and therefore the present contention is absolutely baseless. The entire matter has already been considered by this Court in the judgment under review. R.P. No.292/2017 4 5. Learned Government Pleader appearing on behalf of respondents 1 and 3 also submitted that the entire amount due has been paid and the decree itself has been fully satisfied. She also submitted that since possession of the property was taken much earlier there was no necessity to pay additional market value Under Section 23(1-A) of the LA Act and the said position has been held by the Apex Court in **R.L.Jain v. DDA and others** _[(2004) 4 SCC 79]_ and **Union of India v. Budh Singh and Others** _[(1995) 6 SCC 233]_ . 6. In fact, one of the reliefs sought for in the writ petition was for a declaration that a proceedings covered by Award No.6 and 7 of 1989 have lapsed and to restore possession to the petitioner or, in the alternative, direction to respondents 1 and 2 to take acquisition proceedings afresh and to pass an award under the 2013 Act. 7. The 2[nd] respondent had filed counter affidavit stating that the entire amount of compensation has already been received by the petitioners. The writ petition was dismissed observing that necessary details have not been brought on record by the petitioners and the petitioners are also guilty of R.P. No.292/2017 5 suppression of material facts regarding the earlier litigation. 8. Before the Division Bench, while impugning the aforesaid judgment, the main contention raised was that although compensation awarded by the Land Acquisition Officer for Award Nos.6 and 7 were paid, petitioners were not fully paid the compensation as enhanced by the Court. 9. On the other hand, respondents contended that the entire amount awarded by the special Land Acquisition Officer was paid and even the entire compensation awarded by the Reference Court was paid. 10. This Court clearly observed that the petitioners have no case that the amount awarded under Award Nos.6 and 7 which were the awards under Section 11 of 1894 Act have not been received by them. In other words, it is an admitted fact that the compensation which was payable to the petitioners pursuant to Award Nos.6 and 7 of 1989 was received by them. Therefore, this Court considered the question whether the word 'compensation' referred to in Section 24(2) of the 2013 Act includes the entire compensation awarded under Section 11 of 1894 Act or should include compensation enhanced by the Reference Court/ High R.P. No.292/2017 6 Court / Apex Court. The arguments were crystalised and the issue had been formulated in paragraph 15 of the judgment which reads as under: _“_ _**15.** Shri P.B.Krishnan, learned counsel for the appellant during his submissions emphasised that the word 'compensation' used under Section 24(2) of the 2013 Act means and includes the entire compensation including the enhanced compensation, hence we proceed to examine the legal issue.”_ 11. After quoting Section 24(2) of the 2013 Act, this Court had clearly held that “the word 'compensation' used in Section 24(2) does not embrace in itself any compensation which is subsequently awarded on a reference under Section 18. Award by the Reference Court Under Section 18 is different award and payment of enhanced compensation under Section 18 is not contemplated under Section 24(2)”. Though it was contended in paragraph 13 of the writ petition that “thus it can be seen that compensation amount legally payable to the petitioners as per awards 6 of 1989 and 7 of 89 is not fully paid”, when the matter R.P. No.292/2017 7 came up before this Court, the contention urged was that the compensation referred to in Section 24(2) includes the entire compensation payable including enhanced compensation awarded by the Reference Court, High Court etc. It is also evident from Exts.P1 and P2 that the amounts awarded by the District Collector under Section 11 has been deposited before Court. Therefore, it is not open for the review petitioner to contend that the amount awarded under Section 11 of the LA Act was not paid at the relevant point of time. Whatever amount had been awarded was deposited before Court, which itself amounts to a payment in terms of Section 24(2) of the 2013 Act. Having regard to the aforesaid factual situation, we do not find any bona fides in filing the above review petition and hence the same is dismissed. (sd/-) **(A.M.SHAFFIQUE, JUDGE)** (sd/-) ## **(P.SOMARAJAN, JUDGE)** jsr