Sebastian Chokkattu and Philomina Chokkattu v. District Collector, Ernakulam; Special Tahsildar (LA) (General); Tahsildar (Revenue Recovery); Kerala State Industrial Development Corporation (KSIDC) and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE FRIDAY, THE 19TH SEPTEMBER 2008 / 28TH BHADRA 1930 WP(C).No. 6144 of 2007(F) ------------------------------ PETITIONERS: - ---------------- 1. SEBASTIAN CHOKKATTU, SUMMER CASTLE APARTMENTS, DESOM P.O., ALUVA, ERNAKULAM. 2. PHILOMINA CHOKKATTU, SUMMER CASTLE APARTMENTS, DESOM P.O., ALUVA, ERNAKULAM, REP. BY ITS POWER OF ATTORNEY HOLDER, MR.SUNIL KUMAR, SOUBHAGYA, PIPE LINE ROAD, CHANGAMPUZHA NAGAR P.O., COCHIN - 33. BY MR.M.P.ASHOK KUMAR, ADVOCATE. MS.PRIYA RAMESH, ADVOCATE. MS.SANGIMOL A.MENACHERY, ADVOCATE. RESPONDENTS: - ------------------ 1. THE DISTRICT COLLECTOR, CIVIL STATION, KAKKANAD, ERNAKULAM. 2. THE SPECIAL TAHSILDAR, LAND ACQUISITION (GENERAL), COCHIN REFINERIES LTD. VYTTILA AT THRIPPUNITHURA. ADDL.R3. THE TAHSILDAR, REVENUE RECOVERY, KANAYANNOOR TALUK, ERNAKULAM DISTRICT. ADDL.R4. THE KERALA STATE INDUSTRIAL DEVELOPMENT CORPORATION, SECOND FLOOR, CHOICE TOWERS, MANORAMA JUNCTION, COCHIN-16, REP. BY ITS MANAGING DIRECTOR. WP(C).No. 6144/2007 ...2... (ADDL.R3 AND R4 IMPLEADED AS PER ORDER DTD.8/2/08 IN I.A.1471/08). MR.M.PATHROSE MATTHAI, SENIOR ADVOCATE FOR ADDL.R4. MR. D. ANILKUMAR, SR. GOVERNMENT PLEADER MR.K.K.CHANDRAN PILLAI, ADVOCATE, FOR ADDL.R3. MR.A.S.SAJUSH PAUL, ADVOCATE, FOR ADDL.R3. MR.SAJI VARGHESE, ADVOCATE, FOR ADDL.R4. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/09/2008, ALONG WITH W.P.(C) No.5128 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 6144/2007 A P P E N D I X ## PETITIONER'S EXHIBITS: EXT. P1 : COPY OF THE TAX RECEIPTS DTD. 12.10.1999. EXT. P2 : COPY OF THE TAX RECEIPTS DTD.16.10.1999. EXT. P3 : COPY OF THE NOTIFICATION PUBLISHED IN MATHRUBHUMI DAILY DTD. 16.05.04. EXT. P4 : COPY OF THE REPRESENTATIONS DTD. 15.3.2004. EXT. P5 : COPY OF THE REPRESENTATIONS DTD. 12.01.2006. EXT. P6 : COPY OF THE ACKNOWLEDGEMENT CARD SHOWING THE RECEIPT OF LETTER DTD. 15.03.2004. EXT. P7 : COPY OF THE ACKNOWLEDGEMENT CARD SHOWING THE RECEIPT OF LETTER DTD. 12.01.2006. EXT. P8 : COPY OF THE AWARD IN LAC 99/05. EXT. P9 : COPY OF THE AWARD IN LAC 139/05. EXT. P10 : COPY OF THE APPLICATION DTD. 12.01.2006. EXT. P11 : COPY OF the LETTER No.C10/2984/06 DTD. 13.02.2006. EXT. P12 : COPY OF THE LETTER No.C10/2985/06 DTD. 13.02.2006. EXT. P13 : COPY OF THE REPLY DTD. 26.11.2007 ISSUED BY THE ASSISTANT PUBLIC INFORMATION OFFICER, SUB COURT, ERNAKULAM. EXT. P14 : COPY OF THE LETTER DTD. 30.11.2007 ISSUED BY THE TAHSILDAR REVENUE RECOVERY, KANAYANNOOR TALUK. EXT. P15 : COPY OF the LETTER DTD. 13.12.2007 ISSUED BY CHIEF MANAGER, STATE BANK OF INDIA, COCHIN. EXT. P16 : COPY OF THE LETTER DTD. 04.12.2007 ISSUED BY THE PUBLIC INFORMATION OFFICER, SPECIAL TAHSILDAR (LA). ## I.A.No.9151/2008 EXT. P13 : COPY OF THE RELEVANT PAGES OF the DISPATCH CUM STAMP REGISTER DTD. 12.09.2006, 13.09.2006, 15.09.2006 AND 19.09.2006. WP(C).No. 6144/2007 2ND RESPONDENT'S EXHIBITS: EXT. R2(a) : COPY OF THE PROCEEDINGS SHOWING THAT IT WAS PUBLISHED IN LOCALITY ON 18.11.2003. EXT. R2(b) : COPY OF THE PROCEEDINGS SHOWING THAT IT WAS PUBLISHED ON 25.10.2004. EXT. R2(c) : COPY OF THE AWARD IN LAC No.99/2005. EXT. R2(d) : COPY OF THE AWARD IN LAC No.139/2005. EXT. R2(e) : COPY OF THE ENDORSEMENT RECEIVED FROM THE POSTAL DEPARTMENT. EXT. R2(f) : COPY OF THE ENDORSEMENT RECEIVED FROM THE POSTAL DEPARTMENT. ADDL.4TH RESPONDENT'S EXHIBITS: EXT. R4(a) : COPY OF THE JUDGMENT DTD. 17TH SEPTEMBER 2002 IN O.P.No.26466 OF 2002 OF THIS HON'BLE COURT. // True Copy // P.S. to Judge. smp ## **PIUS C. KURIAKOSE, J.** ----------------------------------------------W.P.(C)Nos. 6144 of 2007 & 5128 of 2008 ----------------------------------------------Dated this the 19th day of September, 2008 ## **J U D G M E N T** WP(C). 6144 of 2007 is filed by Sri.Sebastian Chokkattu and his wife Smt.Philomina Chokkattu. The first petitioner claims to be the owner of 89.43 Ares of land in R.S. No. 712/3, 705/4 and 712/6 of Kakkanad Village, 63.12 Ares of land in R.S. No.750/4 and 712/4 and 31.77 Ares of land in R.S. No.712/3 of the same village. The second petitioner claims to be the owner of 36.57 Ares of land in R.S. No.711/1, 712/4, 712/5 of Kakkanad Village and they claim to be the joint owners of 75.23 Ares of land in Sy. No. 705/4 of Kakkanad Village and Exts. P1 and P2 tax receipts pertain to remittance of basic tax by them in respect of their properties. First respondent is the District Collector, Ernakulam, second respondent is the Special Tahsildar (LA) (General) and additional respondents 3 and 4 are respectively the Tahsildar (Revenue Recovery) and the WP(C)N0.6144/07 -2- Kerala State Industrial Development Corporation. Ext.P3 is copy of the notification under section 4(1) of the L.A. Act published on 22-9-03 by the Government through the second respondent for acquisition of the petitioners' properties along with other properties for the expansion of Kinfra Park at Kakkanad. Petitioners' complaint is that though they are the title holders of the property, they were not issued any notice in Form No.4B. They refer to rule 7(2) of the Land Acquisition Rules and contend that it is obligatory that notice of acquisition is given to all the land owners. On coming to know about the proposal to acquire their property, the petitioners sent letter to the second respondent under copy to all the authorities intimating their present address for communication. Exts.P4 and P5 are copies of those letters. The petitioners contend that since the notification under section 4(1) was issued on 28-9-03, the entire land acquisition proceedings pursuant to Ext.P2 WP(C)N0.6144/07 -3- has lapsed consequent to the operation of section 11A. On enquiry the petitioner was orally informed by the second respondent that no notice will be issued to them as their property was attached by the Tahsildar, Kanayannoor as per the requisition of KSIDC. Disputing the demand made by KSIDC the petitioners filed O.P. No. 18343/01 before this court. The same is pending. Since the District Collector, Ernakulam was a party to the said O.P. the first respondent is aware of the pendency of the O.P. and the nature of the dispute raised by the petitioners therein. The petitioners contend that even if a particular property is involved in revenue recovery proceedings, the Recovery Officer is bound to issue notice to the owner of the property. The Tahsildar is not entitled to take a decision not to send judicial or administrative notice with regard to the attachment of the property to the landowner. Till this date no notice was issued to the petitioner by the revenue WP(C)N0.6144/07 -4- authorities. The property continues to be under the possession of the petitioners. On these facts the petitioners have raised grounds (A) to (E) and filed the writ petition seeking the following reliefs: - a) Declare that the land acquisition proceedings initiated against the petitioner pursuant to Ext.P3 notification has lapsed under section 11A of the Land Acquisition Act. - b) Issue a writ of prohibition restraining the revenue officials from acquiring the property owned by the petitioners as the notification was lapsed. - c) Declare that the petitioner is entitled and eligible to current market rate for their land as compensation amount in case the Govt. acquires their landed property situated in R.Sy. Nos.712/3, 705/4, 712/6, 750/4, 712/4, 712/5 in Block No.9 of Kakkanad Village, Kanayannur Taluk. - d) Declare that the petitioners' properpty cannot be acquired without issuing notice under Land Acquisition Act to them. 2. The second respondent Special Tahsildar (LA) has filed counter affidavit refuting the grounds and denying the WP(C)N0.6144/07 -5- allegations Ext.R2(a) is copy of the proceedings which will show that the notification under section 4(1) was published in the locality on 18-11-2003. R2(b) is copy of the proceeding showing that the declaration under section 6 was published in the locality on 25-10-2004. Thus 25-10-04 is the last date of publication of the declaration under section 6. In respect of the property belonging to the petitioners 1 and 2 LAC. 99/05 was registered and in respect of the property owned by second petitioner alone LAC. 139/05 was registered. Award was passed in respect of LAC. No.139/05 on 11-10-06 and award was passed in respect of LAC No.99/05 on 23-10-06. It is contended that both the awards were passed within two years from the last date of publication of declaration under section 6. R2(c) and R2(d) copies of the respective awards in LAC. 99/05 and 139/05 are relied on. Denying the contention that notices were not issued to the petitioner, R2(e) and R2(f) true copy of the WP(C)N0.6144/07 -6- endorsement received from the postal department showing that notices were issued to them are produced. It is alleged that the petitioners did not participate in the award enquiry. It is then contended that since there was an attachment already from KSIDC in respect of the property included in the L.A. proceedings notices were issued to the Special Tahsildar (RR). In LAC. 139/05 Special Tahsildar (RR) appeared. In LAC. 99/05 Special Tahsildar (RR) did not appear, but he filed claim statement. In LAC. 139/05 an amount of Rs.10,67,913/- and in LAC. No. 99/05 an amount of Rs.2,67,35,811/- have been awarded. Since there was already an attachment by the Special Tahsildar (RR) in respect of dues to the KSIDC, the amount awarded under the land acquisition proceedings was given to Special Tahsildar (RR) after deducting income tax. The properties in question have been taken possession and handed over to the requisitioning authority. WP(C)N0.6144/07 -7- 3. On the basis of the counter affidavit the writ petition was amended and as per the amended writ petition the following additional prayers were included. - f) Call for the records/files from the office of the 2[nd] respondent with regard to the passing of the award in LAC. 99/05 and LAC. 139/05. - g) Issue a writ of certiorari or other appropriate writ or order quashing Exts.P8 and P9 awards in LAC. 99/05 and LAC. 139/05 - h) Declare that Exts.P8 and P9 awards passed by the land acquisition authorities in LAC.99/05 and in LAC. 139/05 are not awards under the land acquisition Act, as no enquiry was conducted before passing award and no notice was issued to the petitioners and as such the entire land acquisition proceedings has lapsed. - i) Declare that the entire acquisition proceedings initiated by the Govt. as per Ext.P1 notification is lapsed as the purpose of the acquisition was not for the benefit of general public. - j) Declare that the utilization of the land acquired under the Land Acquisition Act cannot be used for private, commercial purposes. - k) Declare that the utilization of land acquired under the land acquisition act cannot be treated as public WP(C)N0.6144/07 -8- purpose under the Land Acquisition Act. Subsequently pursuant to order in I.A. 1103/08 yet another prayer was included as prayer (l) which reads as follows: - (l) Declare that the amount of compensation awarded under the L.A. Act can be paid only to the owner of the land acquired and the award amount cannot be transferred to any other authority or agency under any circumstances. 4. Reiterating the same contentions, on behalf of the second respondent, yet another counter affidavit was filed on 6-11-2007 also. To these counter affidavits the first petitioner filed reply affidavit. It is contended therein that the notice to be issued to the land owner is to be issued in the manner provided under subsection (3) of section 9 of the L.A. Act. Such a notice is yet to be served on the petitioners. It is pointed out that though the correct address of the petitioners was intimated to the second respondent on 16-3-2004 the second respondent has not chosen to issue the notice to the petitioners in that correct WP(C)N0.6144/07 -9- address. Serious objections are taken to the various documents produced by the respondents to prove that notice was sent to the petitioners. It is also pointed out that going by the award, it is ridiculously low rates which have been offered as market value for the acquired property. It is lastly contended that for non-compliance of statutory procedure the land acquisition proceedings initiated against the petitioners are invalid and liable to be quashed. Additional reply affidavit also was filed by the first petitioner. It is pointed out therein that contrary to what is recorded in Exts.P8 and P9 awards no amount was deposited before the Sub Court in LAC. 99/05 and LAC. 139/05. Ext.P13 issued to the first petitioner by the Assistant Public Information Officer, Sub Court, Ernakulam is relied on in this context. Ext.P14 copy of the letter sent by the Tahsildar (R.R), Kanayannur to the petitioner is another document produced along with the additional reply WP(C)N0.6144/07 -10- affidavit which is relied on to show that a sum of Rs.27,76,594/- and a further sum of Rs.1,10,106/- from out of the amount covered by the awards in the two LACs. has been appropriated towards income-tax, collection charges etc. Ext.P15 letter of the Manager, State Bank of India, Broadway Branch and Ext.P16 letter of the Special Tahsildar (LA) are also relied on in the reply affidavit. 5. The KSIDC, the 4[th] respondent has also filed a detailed counter affidavit. It is pointed out therein that it is evident from Exts.P4 and P5 that the petitioners were fully aware of the land acquisition proceedings. It is also evident that the petitioners were not available at their usual address. The KSIDC had issued notices to the petitioners demanding repayment of the loans and informed them that on failure R.R. Proceedings will be initiated by them. The said notices were returned since the petitioners were not available at their respective addresses furnished. The WP(C)N0.6144/07 -11- KSIDC has made necessary requisition under the Kerala Revenue Recovery Act by letter dated 17-11-2000 to the District Collector, Trivandrum for recovery proceedings against both the petitioners as guarantors and their companies. A true copy of the requisition is produced as Ext. R1(f) in O.P. No. 18343 of 2001 filed by the second petitioner. The averment that the petitioners filed O.P. No.18343 of 2001 and therefore the petitioners were not able to challenge the L.A. proceedings is false and misleading. The said O.P. is filed by the 2[nd] petitioner challenging the attachment and recovery proceedings of their lands in Payyavoor Village on the ground that the said properties were not mortgaged as collateral security for the loans and that the 2[nd] petitioner has no objection to attachment and sale of her mortgaged properties in Thengode Village which are the subject matter of the present writ petition. It is contended that the KSIDC is a WP(C)N0.6144/07 -12- person interested as a mortgagee and requisitionist under the Revenue Recovery Act and therefore entitled to claim compensation awarded by the L.A. Officer for the lands under mortgage. Notice and intimation was duly given to the KSIDC by the revenue authorities who had attached the land as well as the compensation. The KSIDC had submitted its claim before the Special Tahsildar on 7-5-04 for the lands mortgaged in their favour. It is then pointed out that in order to defraud the KSIDC and defeat the recovery of the loan amount due to them the petitioners had executed sham and fictitious documents of alleged settlements in favour of their minor daughters purporting to transfer their properties in their favour. The said settlements are sham transactions by way of gift without any consideration. The settlements are liable to be ignored as non est and void. Lastly it is highlighted that the second petitioner had filed O.P. No. 26466 of 2002 challenging the attachment of WP(C)N0.6144/07 -13- properties of Sebastian Chokkattu and herself under the Revenue Recovery Act for recovery of the loan amount due to the KSIDC. It was alleged in the said O.P. that 48.035 cents of land in R.S. No. 705/04 and 45.93 cents in R.S. No. 712/3 and 712/4 in Kakkanad Village belong to their minor daughters to whom properties were settled. The attachment of the properties by Revenue Recovery Tahsildar was challenged and sought to be set aside in the said writ petition. The said writ petition was disposed of by this court at the admission stage directing the second petitioner to raise objections before the District Collector, the second respondent therein. Ext.R4(a) is copy of the said judgment. Pursuant to Ext.R4(a) the District Collector after hearing the petitioner's representative rejected the representation. 6. The Special Tahsildar (LA) was directed to explain as to why contrary to what was stated in the award the amount was not deposited before the Sub Court but was WP(C)N0.6144/07 -14- paid directly to KSIDC. Accordingly she has filed a statement on 9-4-2008 and she has stated that the opinion of the District Government Pleader was sought and the District Government Pleader opined that in view of the order of the District Collector pursuant to the judgment of this Court Ext.R4(a), the amount be made over to the Special Tahsildar (RR). Since the amount was made over to Tahsildar (RR), the then Tahsildar (LA) by proceedings dated 6-11-2006 and 17-11-2006 recorded the factum of deposit and it was stated in the proceedings that the proceedings may be treated as part of the award. True copies of the proceedings dated 6-11-2006 and 17-11-2006 are produced as Annexures 1 and 2. 7. The petitioner has produced yet another document to prove their case that they not actually served with notice either under sections 9(3), 10 or 12(2) of the L.A. Act. The document is photocopy of the relevant pages of the WP(C)N0.6144/07 -15- despatch-cum-stamp register dated 12-9-2006, 13-9-06, 15-9-06 and 19-9-06. It is stated that every tapal received in an office and despatched from the office is to be registered in the despatch cum stamp account register. 8. WP(C). 5128 of 2008 is filed by the children of the petitioners in WP(C) No. 6144 of 2007 viz., Olivia Chokkattu, Silvia Chokkattu and Evelyne Chokkattu. The third petitioner is a minor and is represented by her father Sebastian Chokkattu. The respondents are Special Tahsildar (LA), the District Collector, Ernakulam, The KSIDC, the Tahsildar (RR), the Development Commissioner, Cochin Special Economic Zone, the State of Kerala and the Registrar of Companies. It is stated in the writ petition that the permanent address of the petitioners is the address of their parents at Summer Castle Apartment, Desom P.O., Alwaye. But all the petitioners are now outside India and Exts.P1 and P2 are copies of powers of attorney executed by WP(C)N0.6144/07 -16- petitioners 1 and 2 in favour of Sri.Sunil Kumar.S., their agent. Ext.P3 is copy of settlement deed No. 599/2000 under which the first petitioner claims to have obtained title over 48.035 cents of property in R.S. No.705/4 in block No.9 of Kakkanad Village. Exts.P4 and P5 are copies of two other settlement deeds under which petitioners 2 and 3 claim to have ownership over 62 cents and 45.936 cents of property respectively in R.S. No.705/7A and 712/3 in Block No.9 of Kakkanad Village in Kanayannur Taluk. It is submitted that Sebastian Chokkattu, the father of the petitioners had started Trend Setters Group of Companies which were doing various industrial activities in the Cochin Export Zone. In connection with the business of the said company, the company availed credit facilities from the third respondent. By way of security for repayment of the said facilities immovable property of the company were mortgaged with the third respondent and since third WP(C)N0.6144/07 -17- respondent wanted to additional security the mother of the petitioners executed a power of attorney Ext.P6 in favour of her husband, the father of the petitioners so as to enable him to create mortgage in favour of the company. It is stated that the power of attorney Ext.P6 was executed for the limited purpose of creating mortgage of 4.04 acres of joint property belonging to Sri.Sebastian Chokkattu and Philomina Chokkattu. The mortgage created in favour of third respondent is a mortgage by deposit of title deed. Only documents in relation to 4.04 acres of property have been deposited with the third respondent with intention to create equitable mortgage. Petitioners' mother is not at all a share holder or a director of any of the group of companies floated by the father of the petitioners. She is not a promoter as well of the company. Exts.P7 and P8 are copies of inspection reports issued by the Company Secretary in Practice showing that the mother of the petitioners had WP(C)N0.6144/07 -18- never been a director of the group of companies. Ext.P9 is true copy of the notification under section 4(1) of the L.A. Act published in Mathrubhumi daily regarding the acquisition of properties in Kakkanad Village for the development of Kinfra Industrial Park. Ext.P10 letter is produced to show that the petitioners' parents had requested the respondents that all notices to be sent to them in respect of the L.A. proceedings shall be addressed to them in their address shown in the said letter as “Flat No.1A, Summer Castle Apartment, Desom P.O. Alwaye – 683 103” . The petitioners' parents have addressed Ext.P10 through their power of attorney holder who is the present power of attorney holder of petitioners 1 and 2. But neither the parents of the petitioner nor their power of attorney holder received any notice regarding the L.A. proceedings. In the meanwhile the company floated by the father of the petitioners ran into rough weathers. The 5[th] respondent Development WP(C)N0.6144/07 -19- Commissioner took proceedings and removed the entire records, assets both finished and semi finished including the plant and machinery and kept them in the open air subject to all vagaries of nature. The company was evicted from the premises by resorting to the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act. The company was ruined completely. The entire savings and hard earned money which they have earned by working abroad were also lost to them. In the meanwhile, the L.A. proceedings were started and proceeded with. The parents of the petitioners and the petitioners were under the bona fide belief that they will get notice in view of Ext.P10. But they never get any notice. Ext.P11 is true copy of the counter affidavit filed by the second respondent in WP(C) No. 6144/07. Ext.P12 is true copy of the award and the claims and objections attached thereto produced by the first respondent along with the counter affidavit in relation to WP(C)N0.6144/07 -20- LAC. No. 139/05 in the name of the petitioners' mother. Ext.P13 is copy of the award in relation to LAC. No. 99/05 relating to the joint property of the petitioners' parents. The O.P. refers to other proceedings initiated by their parents against the KSIDC etc. and points out that the stand taken by the third respondent in O.P. No. 18343/01 that the petitioners' mother is the Director/Promoter of Trend Setters Group of Companies is wrong. Ext.P14 is copy of the judgment of this Court in O.P. No.26466/02 and Ext.P14(a) is copy of the original petition in that O.P. According to the petitioners they are minors and their interest is not seen protected by anybody. Nobody has challenged the proceedings taken by the 4[th] respondent for attachment and sale of the property settled in their favour. It is in the midst of the above that it is now understood that the entire proceedings for acquisition of the properties were over without notice to the petitioners and without notice to the WP(C)N0.6144/07 -21- parents of the petitioners. 9. In paragraph 21 of the writ petition the petitioners contend that it is a ridiculously low amounts which have been awarded as compensation. Ext.P15 produced is copy of the statement filed by the 4[th] respondent in WP(C) No. 6144/07. The petitioners have raised various grounds and following are the prayers in the writ petition. - 1) Call for all records in the case and peruse the same. - 2) issue a writ in the nature of certiorari or such other appropriate writ order or directions quashing Ext.P12 and P13 and all proceedings which lead to the passing of Ext.P12 and P13 including Ext.P1 notification after calling for the same. - 3) To declare by the issuance of an appropriate writ, order or direction that the 3[rd] respondent has no power or authority to get executed any loan agreement or guarantee agreement on the basis of Ext.P6 power of attorney. - 4) To declare by the issuance of an appropriate writ, order or direction that the entire proceedings taken by the 1[st] respondent for acquisition of the petitioners' property from Ext.P1 notification is illegal and unsustainable for noncompliance of the WP(C)N0.6144/07 -22- mandatory statutory provisions contained in the Land Acquisition Act. - 5) To declare by the issuance of an appropriate writ, order or direction that the payment of the compensation amount as per Ext.P12 and P13 either to the 4[th] respondent and or to the 3[rd] respondent is illegal. - 6) To declare by the issuance of an appropriate writ, order or direction that the entire acquisition proceedings on the basis of Ext.P1 notification is lapsed prior to Ext.P12 and P13 in view of the provision contained in Section 11A of the Land Acquisition Act. - 7) To declare by the issuance of an appropriate writ, order or direction, that the property belonging to the petitioners and covered by Ext.P3 to P5 settlement deeds are not liable to be attached for the alleged dues towards 3[rd] respondent either by initiating Revenue Recovery Proceedings or by recourse to any other proceedings. - 8) To declare by the issuance of appropriate writ, order of direction that the deduction of Rs.2781594/- as TDS and deduction of Rs.1671225/- as collection charges are illegal and bad in law. 10. A detailed counter affidavit has been filed by the first respondent Tahsildar. It is contended that the parents WP(C)N0.6144/07 -23- of the petitioners are challenging L.A. proceedings in WP(C) No. 6144/07 and that they had no contention therein that they have executed settlement deeds in favour of their children. It is submitted that the contention of the petitioners that they are the owners of 158.91 cents of land in various survey numbers is not correct as per the revenue records. No mutation has been effected so far in the village records on the basis of the settlement deeds claimed by them. According to the revenue records the land continues to be owned by the parents of the petitioners. The 4[th] respondent R.R.Tahsildar has also filed counter affidavit. It is contended therein that no R.R. Proceedings have been initiated against the petitioners or their assets. On the contrary proceedings were initiated against the defaulter Sri.Sebastian Chokkattu and the guarantor Smt.Philomina Chokkattu, the parents of the petitioners for realisation of arrears of a sum of Rs.9,98,44,000/- due to the KSIDC as WP(C)N0.6144/07 -24- per the revenue recovery certificate No.B11-7624/01 dated 8-2-2001 issued by the District Collector, Ernakulam. On receipt of the revenue recovery certificate and requisition from the competent authority the Deputy Tahsildar R.R. has issued demand notice under sections 7 and 34 of the Kerala Revenue Recovery Act through the Village Officer, Kakkanad for realisation of the amount. By notification No.MS 065/83 RD dated 22-11-1983 published in the official Gazette dated 22-11-83 the Government notified that the provisions of the Kerala Revenue Recovery Act, 1968 shall be applicable to the amounts due from any person or class of persons to the Kerala State Industrial Development Corporation Ltd. Sri.Sebastian Chokkattu and Smt.Philomina Chokkattu are the promoters and guarantors of the Company Trend Setters Instyle India Limited and four other companies. The companies availed financial assistance from the KSIDC. The lands belonging to them WP(C)N0.6144/07 -25- have been mortgaged by them as security. Sri.Sebastian Chokkattu who is the Managing Director of the Company has given collateral security for the loan amounts. The borrower company failed to comply with the terms and conditions of the loan and committed default in payment of loan amount and interest It is under the above circumstances that R.R. Proceedings were initiated against them. Both of them are jointly and severally liable to repay the loan amount. On enquiry it was revealed that an extent of 3.7595 Hectares of land in Sy. No.705/4 and 712/7 of Kakkanad Village was owned and possessed by Sri.Sebastian Chokkattu and Philomina Chokkattu. The land was proposed to be sold in public auction by the Tahsildar R.R. Aggrieved by this Smt.Philomina Chokkattu, filed a petition before the District Collector stating that she was not a personal guarantor. She filed O.P. No.26466 of 2002 before this Court and this Court directed the District Collector to conduct enquiry and WP(C)N0.6144/07 -26- take decision. Pursuant to this Court's judgment, the District Collector conducted enquiry and rejected Smt.Philomina Chokkattu's application and hence R.R. Proceedings were started by attachment of property of the defaulter. At that juncture it was understood that the auctioned land comes under the acquisition proceedings for KINFRA. Therefore the land acquisition officer was requested to forward the award amount to Tahsildar (RR) towards the arrears due from the defaulter and the owners of the property as there was a valid attachment pending against the properties. As such the L.A. Tahsildar forwarded an amount of Rs.2,39,54,217/- and Rs.9,56,807/- vide D- form cheques. The amount was forwarded to the KSIDC after deducting collection charges. This office has not been taken any revenue recovery steps against the petitioners and their assets. The alleged settlement deeds are executed after the amounts have become due from the WP(C)N0.6144/07 -27- defaulter. The said transactions were done in order to defeat the interest of the creditor. 11. This court appointed Advocate V.R.Rakesh as commissioner and he has filed a report. As directed by me, the Special Tahsildar (LA) placed before me for perusal the original files of proceedins inLAC Nos. 99/05 and 139/05 through the Government Pleader. These papers reveal that the stand taken by the land acquisition officer regarding the dates of publication of section 4(1) notification, declaration under section 6, award and regarding payment of the compensation are correct. 12. Very extensive submissions were addressed before me by Sri.M.P.Ashok Kumar and Sri.K.K.Chandran Pillai, learned counsel for the petitioners in the two writ petitions and by Sri.D.Anil Kumar, learned senior Government Pleader for the Government and the official respondents. Mr.Ashok Kumar and the learned Senior Government WP(C)N0.6144/07 -28- Pleader Mr.Anil Kumar would place reliance on a catena of decisions. Mr.Ashok Kumar referred to the various statutory provisions such as sections 9(3), 10, 12(2) and 45 of the Land Acquisition Act and Rules 11(2), 11(c) 13 and 16 of the Land Acquisition Rules. He drew my attention to the provisions of the Income tax Act and also to Rule 5 of the Revenue Recovery Rules. Attention was drawn also to Article 300A of the Constitution. In support of his argument that it is mandatory that notice is served on the parties interested in the Compensation and in the land under acquisition, Mr. Ashok Kumar placed reliance on the judgment of this Court in Harikumar v. Special Tahsildar (LA) (2007 (1) KLT 277). The learned counsel relied on the judgment of this court in Nalini v.Deputy Collector (2006(4) KLT 87) in support of his argument that it was not within the power of the land acquisition officer to adjudicate on the dispute regarding the assessee's liability to pay income tax. WP(C)N0.6144/07 -29- The dispute should have been adjudicated by the income tax authorities. 2007(2) ILR Kerala 57, Najeeb Rawther v. District Collector and another, was also relied on by Mr.Ashok Kumar to argue that notice under section 12(2) is mandatory. To support the learned counsel's argument that levy of collection charges under the Revenue Recovery Rules is not at all justifiable when amount has been directly paid by the land acquisition authorities to the requisitioning authority, he relied on the judgment of this Court in Bhaskaran v. Sub Registrar, (2005(3) KLT 150). Right to property is a human right which is not to be taken away without recourse to the statutory procedure and for this proposition Mr.Ashok Kumar relied on the judgment of the Supreme Court in Lachman Dass v. Jagat Ram and others, (2007) 10 SCC 448. He also relied on the judgment of this court in Sukapuram Sabhayogam v. State of Kerala, (1989 (2) KLT 511) and that of the Supreme Court in Rameswar WP(C)N0.6144/07 -30- Prasad and others v. Union of India and another, (2005) 7 SCC 625, in support of his argument based on Article 300A of the Constitution. 12. Sri.D.Anil Kumar, senior Govt. Pleader also did not lag behind in citing precedents. Judgment of Justice K.K.Mathew, as a Judge of this Court in Skaria Francis v. State of Kerala and others, (AIR 1967 Kerala 128) was relied on by the learned Govt. Pleader in support of his argument, that just because notice under section 9(3) has not been served on the owner or occupier of the land, the proceedings will not become void. Almost for the same proposition, the learned Govt. Pleader relied on the judgment of the Calcutta High Court in P.K.Shaikh v. State of West Bengal (AIR 1976 Calcutta 149). Referring to Article 141 of the Constitution the learned Govt. Pleader submitted that the law declared by the Supreme Court shall be binding on all courts within the territory of India and it is WP(C)N0.6144/07 -31- not open to this Court to ignore a judgment of the Supreme Court on the reason that it is without considering the legal position that the Supreme Court has delivered the judgment. Learned Govt. Pleader relied on the judgment of the Supreme Court in Suganthi v. Jagadeeshan, (2002 (1) KLT 581 (SC). The learned senior Govt. Pleader also relied on the judgment of the Constitution Bench of the Supreme Court in Somawanti v. State of Punjab, (AIR 1963 SC 151). Very strong reliance was placed bay the learned senior Govt. Pleader on the judgment of the Supreme Court in M/s. Girias Investment Pvt. Ltd. v. State of Karnataka (JT 2008 (4) SC 242). 13. Sri.M.Pathrose Mathai, learned senior counsel for the KSIDC also would strongly defend the writ petition on the basis of the various contentions raised. The judgment of the Supreme Court in Nasik Municipal Corporation v. Harbanslal Laikwant Rajpa, (1997) 4 SCC 199) was relied on WP(C)N0.6144/07 -32- by the learned senior counsel to argue that the acquisition cannot be challenged on the reason that notice has not been personally served. He referred to sections 34, 35 and 36 of the Revenue Recovery Act and argued that there was justification for payment of the compensation to KSIDC in view of the subsistence of the attachment order in revenue recovery proceedings. 14. I have very anxiously considered the rival submissions addressed at the Bar in the light of the pleadings raised by the parties and the documents and the records. I have kept in mind the relevant statutory provisions and have gone through the ratio emerging from the various decisions cited by counsel. The records will reveal that there is no substance in the contention raised by the petitioners that the land acquisition proceedings have lapsed due to non-passage of award within the statutory period of two years. I am convinced that award has been WP(C)N0.6144/07 -33- passed within the time limit and the proceedings have not become lapsed. I am also convinced that possession of the property has been taken over. Once award is passed and possession is taken over, the land acquisition proceedings attain finality. This Court under Article 226 of the Constitution is not expected to set at naught the L.A. proceedings which have become final unless there are compelling reasons to do so. The public nature of the purpose of the acquisition - establishment of an Industrial Park for KINFRA is not seriously in dispute. Acquisition is challenged by the petitioners in WP(C). 6144 of 2007 who are parents of the petitioners in the other writ petition on the ground that there is no direct personal service of the relevant notices to them. Though it would appear on a perusal of the records that the above grievance of the petitioners in WP(C). No. 6144/07 is correct I do not think that this Court will be justified in setting at naught the L.A. WP(C)N0.6144/07 -34- proceedings which have attained finality since the records reveal that notice was attempted to be served. 15. I do not find any substance at all in the contentions raised by the petitioners in WP(C). No. 5128 of 2008. In fact there is much force in the contention of the KSIDC that the settlement deeds on the basis of which those petitioners claim title to the properties under acquisition were executed inter alia with the object of defeating the creditor KSIDC. Whatever that be, the petitioners in both the case belong to one and the same family and the entire properties were under enjoyment by all these petitioners as one common holding. The legality of the R.R. Proceedings was subject matter of an earlier writ petition which was disposed of by this court in directing the District Collector to take a decision. The District Collector did take a decision which was unfavourable to the petitioner in the writ petition (the second petitioner in WP(C). No. 6144 of 2007)and it is WP(C)N0.6144/07 -35- thereafter that the L.A. proceedings continued and attained finality. 16. According to me, the only relief which the writ petitioners can be granted in respect of the challenges they have made against the acquisition proceedings is to permit them to have the question of determination of the correct compensation for the acquired properties in a proceeding under section 18 of the L.A. Act. I also notice some merit in the contention of the petitioners in WP(C). 6144 of 2007 that there was no justification for recovering collection charges from out of the total compensation awarded by the L.A. Officer, since this was a case where the compensation amount was directly paid by the L.A. Officer to KSIDC. The ground raised by the petitioners in challenge of recovery of collection charges is supported by judgment of this court in Bhaskaran v. Sub Registrar, (2005(3) KLT 150). There is also merit in the submission of the counsel for the WP(C)N0.6144/07 -36- petitioners that their liability or otherwise of payment of income-tax on the compensation determined by the L.A. Officer has not been properly adjudicated. Accordingly, both the writ petitions are disposed of issuing the following directions: 1) The petitioners in WP(C). No. 6144 of 2007 are directed to make applications for a reference under section 18 of the question of determination of the correct compensation payable for the properties under acquisition to the L.A. Officer within two weeks of receiving copy of this judgment. If applications are so submitted by them, the L.A. Officer will entertain the applications as though they are filed on time and make a reference under section 18 to the competent court of the question of determination of the correct compensation payable for the acquired properties. - 2) The petitioners in that writ petition are also - permitted to submit a representation before the Land WP(C)N0.6144/07 -37- Revenue Commissioner voicing their grievance regarding levy of collection charges by the revenue authority from out of the compensation awarded to them by the L.A. Officer. If such a representation is received by the Land Revenue Commissioner, the same will be disposed of by the Land Revenue Commissioner after affording hearing opportunity to the petitioner in accordance with law, at the earliest and at any rate within one month of receiving copy of this judgment. The Registrar will communicate a copy of this judgment to the Land Revenue Commissioner who will be bound by the terms of this judgment. 3) The petitioners in WP(C) No. 6144 of 2007 are also directed to pursue the statutory remedies available to them under the Income-tax Act and Rules so as to seek redressal of the grievance voiced by them regarding deduction of income-tax from out of the compensation amount. The time during which this writ petition was pending before this Court WP(C)N0.6144/07 -38- after the deductions were made and a further period of one month of receiving copy of this judgment by the petitioners will be excluded from the reckoning of limitation by the appropriate authority under the Income-tax Act and Rules. **(PIUS C.KURIAKOSE, JUDGE)** ksv/