Shanavas; K.M. Sheerijan; Bhasheer v State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 12TH DAY OF JULY 2017/21ST ASHADHA, 1939** ## **WP(C).No. 19611 of 2015 (B)** ## **----------------------------** **PETITIONER(S): --------------------------** **1. SHANAVAS, AGED 31 YEARS, S/O. BHASHEER, SHANAVAS MANSIL, 43/51A, AYYAPPAN KAVU, KOCHI -682 018** **2. K.M. SHEERIJAN, AGED 56 YEARS, W/O.BHASHEER, SHANAVAS MANSIL 43/51A, AYYAPPAN KAVU, KOCHI -682 018** **3. BHASHEER, AGED 60 YEARS, S/O. MUHAMMED YUSEF, SHANAVAS MANSIL, 43/51A, AYYAPPAN KAVU, KOCHI -682 018** ## **BY ADVS.SRI.T.R.S.KUMAR SRI.SOBIN SOMAN SRI.U.B.SIRAS** **RESPONDENT(S): ---------------------------** **1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY,** **THIRUVANANTHAPURAM -695 001** **2. THE LAND REVENUE COMMISSIONER, THIRUVANANTHAPURAM -695 001** **3. DISTRICT COLLECTOR, ERNAKULAM COLLECTORATE, KAKKANAD -682 022** **4. STATE OF KERALA, REPRESENTED BY THE SPECIAL TAHSILDAR(L.A), METRO NO.1, KAKKANAD- 682 022** **5. KOCHIN METRO RAIL LTD, REPRESENTED BY ITS MANAGING DIRECTOR, 8TH FLOOR, REVENUE TOWERS, PARK AVENUE, KOCHI-682 011** **2/-** **-2-** **WP(C).No. 19611 of 2015 (B)** ## ***ADDL.R6 IMPLEADED** ***ADDL.R6: THE MANAGING DIRECTOR,** **KITCO LIMITED. P.B.NO.1820, RAVIPURAM, M.G.ROAD, ERNAKULAM, COCHIN-682 016.** ***ADDL.R6 IS IMPLEADED AS PER ORDER DATED 30/10/15 IN IA.NO.15863/2015.** **R1 TO R4 BY GOVERNMENT PLEADER SRI.Y.JAFAR KHAN R5 BY SRI.K.JAJU BABU,SENIOR ADVOCATE ADV. SMT.M.U.VIJAYALAKSHMI, SC,** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-06-2017, ALONG WITH WP(C).NO.24586 OF 2015 AND CONNECTED CASES, THE COURT ON 12-07-2017 DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 19611 of 2015 (B)** ## **-----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **--------------------------------------** - **EXHIBIT P1: TRUE COPY OF THE LATEST ORDINANCE ISSUED BY THE HON'BLE PRESIDENT OF INDIA DATED 31.12.2014** - **EXHIBIT P2: THE TRUE COPY OF THE 4(1) NOTIFICATION DATED 8.9.2013** - **EXHIBIT P3: TRUE COPY OF THE SALE DEED NO.4360/1996 DATED 17.10.1996** - **EXHIBIT P4: TRUE COPY OF THE SALE DEED NO.148/2014 DATED 10.1.2014** - **EXHIBIT P5: TRUE COPY OF THE DRAFT AGREEMENT DATED NIL.** - **EXHIBIT P6: TRUE COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT DATED 18/09/2015.** - **EXHIBIT P7: TRUE COPY OF THE PHOTOGRAPHS TAKEN BY THE PETITION ER DATED 28/09/2015 DURING THE TIME OF DISPOSSESSION** - **EXHIBIT P8: TRUE COPY OF THE CRIMINAL COMPLAINT FILED BY THE PETITIONER BEFORE THE CENTRAL POLICE STATION, DATED 28/09/2015** - **EXHIBIT P9: TRUE COPY OF THE NOTICE SENT BY THE PETITIONER, DATED 24/07/2015** **RESPONDENT(S)' EXHIBITS: NIL** **------------------------------------------** **/TRUE COPY/** **P.A.TO JUDGE** **sts** ## **CR** ## **SHAJI P. CHALY, J.** ----------------------------------------------- ## **W.P.(C). Nos. 19611 & 24586 of 2015, and** **33708, 8015, 15369, 23978, 23979, 24829, 24867, 27158, 27191, 28420,29693, 29694, 29695, 30321, 32436, 34505 & 38826 of 2016 and** **2521, 2519, 2520, 2524, 3219, 5598, 7158, 7637, 9373, 10349 & 11210 of 2017 ----------------------------------------------Dated this the 12[th] day of July, 2017** ## **JUDGMENT** The captioned writ petitions arose in the premise of Section 4(1) notification issued under the Land Acquisition Act, 1894, vis-a-vis introduction of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, (hereinafter called “Act, 2013”), and consequential agreements entered into by and between the petitioner land owners and respondent State Government in some cases, and securing consent letters from the petitioners in some cases, paying part consideration, and refuse to W.P.(C). Nos.33708 & con.cases 2 pay compensation under the Act, 2013, in view of the agreements executed to sell off the lands in accordance with the negotiated purchase value. The fact circumstances and the documents put forth in W.P.(C) 33708/2016 and the counter affidavit filed by the State Government in the said writ petition are referred to, in order to dispose of the writ petitions. 2. An extent of 0.09 Ares situate in Sy.No.575/7 Pt of Ernakulam Village and the building owned by the petitioner is under acquisition for the Kochi Metro Rail Project. Act 30 of 2013 has come into force w.e.f. 1.1.2014. However, unreasonable delay was caused by the State Government in framing rules under the said Act. As no rules were framed, the Land Acquisition Authorities did not proceed under the provisions of the new Act and instead, forced the petitioners and others to deliver the property in advance. Taking into account W.P.(C). Nos.33708 & con.cases 3 the larger public interest, petitioner decided to cooperate with the acquisition subject to the right to get due compensation and other benefits under the law governing land acquisition. Basically petitioner is claiming the benefits under the Act, 2013, which has come into force w.e.f. 1.1.2014, evident from Ext.P1 notification. According to the petitioner, as projected in the very preamble itself, the Act is introduced to ensure a humane, participative, informed and transparent process for land acquisition with the least disturbance to the owners of the land and other affected families and provide just and fair compensation and make adequate provisions for such affected persons for their rehabilitation and resettlement, and for ensuring that the cumulative outcome of compulsory acquisition should be, affected persons become partners in development leading to an improvement in their post W.P.(C). Nos.33708 & con.cases 4 acquisition social and economic status and for matters connected therewith and incidental thereto. It is submitted Section 11 of Act, 2013 mandates publication of a preliminary notification to the effect that land in the area is required or likely to be required in connection with any public purpose, along with details of the land to be acquired in the official gazette, in two daily newspapers circulating the locality of which one shall be in the regional language and in the local language in the Panchayat, Municipality or Municipal Corporation as the case may be, in the offices of the District Collector, the Sub Divisional Magistrate and the Tahsil and uploaded in the website of the appropriate Government, in the affected area etc. etc. The first proviso to Section 12 provides that even the survey of the land cannot be conducted in the absence of any person authorized in writing by the owner. Section 15 W.P.(C). Nos.33708 & con.cases 5 deals with 'Hearing of objections' and sections 16 to 18 deal with rehabilitation scheme. Section 19 makes strict provisions for publication of declaration and summary of rehabilitation and resettlement. Section 21 of the Act provides for 'notice to persons interested' and the enquiry and land acquisition award by the Collector is contemplated under section 23 of the Act. Therefore, the Act deals with determination of compensation, award of solatium, rehabilitation and resettlement award etc. etc. 3. Therefore, according to the petitioner, even though the petitioner is not against the acquisition of the property, if it is inevitable for a public purpose, that does not mean that, petitioner can be deprived of his property in gross disregard of the law of land. Therefore, petitioner is entitled for due compensation and other legal benefits as provided under Act, 2013. It W.P.(C). Nos.33708 & con.cases 6 is also contended that, the authorities are legally obliged to issue notice, invite objections, provide ample opportunities to the petitioner, pass award, disburse compensation, solatium, interest etc. etc. Even though Act, 2013 came into force w.e.f. 1.1.2014, the rules not being framed have caused many difficulties, and the land acquisition authorities did not take prompt steps as provided under the new Act. In the case of the petitioners, advance possession of the property was taken, land acquisition authorities approached the petitioner and informed that, he will be paid 80% of the compensation calculated at around Rs.52,00,000/-per cent along with building situated therein, if the petitioner signs certain papers without prejudice to the right of the petitioner to claim compensation and other benefits under Act, 2013. To impress upon the petitioner, the respondents also cited a Government W.P.(C). Nos.33708 & con.cases 7 Order viz., Ext.P2 dated 5.7.2014, which provides for payment of further compensation after framing of rules under Act, 2013. Thereupon, it is submitted in view of Ext.P2 G.O. and the assurance of the respondents to pay further compensation after framing rules under the new Act, petitioner issued Ext.P3 consent letter dated 23.9.2014. In Ext.P3 consent letter itself petitioner has specifically noted that land value is not decided in it, which thus means, it is issued without prejudice to the claim of the petitioner for enhanced land value and for further compensation under the new Act. The respondents have taken advance possession of the land and building immediately. According to the petitioner, in spite of taking advance possession, respondents did not pay any amount to the petitioner. As per the provisions of Act, 2013 respondents are bound to pay 80% compensation before taking advance possession. W.P.(C). Nos.33708 & con.cases 8 Here the petitioner was paid 80% compensation calculated at the rate of Rs.52,00,000/- per cent for land and building only much later. Petitioner was persuaded to sign certain papers in standard forms as a formality. However, the oral understanding was that acceptance of money on the basis of agreement is only a formality and without prejudice to the right of the petitioner to receive more compensation under Act, 2013. But according to the petitioner, no registered agreement or deed was executed. 4. Apart from the aforesaid contention, it is submitted that, as per Exts.P4 and P5 judgments, the issue was considered by this court and held that, petitioner therein are free to accept money on executing necessary agreement and the amount received by the petitioner will be without prejudice to their right to claim further compensation. Thus W.P.(C). Nos.33708 & con.cases 9 according to the petitioner, the remedy of the petitioner under Act, 2013 is not in any way impaired. So also in Ext.P6 statement dated 17.9.2015 filed by the Special Tahsildar (LA) in W.P.(C) No.25700/2015 stating that petitioners will not lose their right in order to put up their claims under the provisions of Act, 2013. It is made clear in Ext.P6 that, the compensation under the DLPC rate will be paid subject to the right to claim enhanced compensation under Act, 2013. The said statement was recorded by this court in Ext.P7 judgment rendered in the aforesaid writ petition. That apart in Ext.P9 judgment rendered by this court, it is also clarified that receipt of 80% compensation at the time of taking advance possession and balance 20% on executing agreements shall be subject to the right of the petitioners to claim compensation under Act, 2013. According to the petitioners, the agreements were W.P.(C). Nos.33708 & con.cases 10 executed as a formality to pay the 80% at DLPC rate and so orally assured re-determination in terms of the new Act as and when the rules comes into force, evident from Ext.P2 G.O. dated 5.7.2014. According to the petitioner, now the State Government has framed rules and therefore, there is no reason in delaying the passage of the award under the new Act and disbursing full compensation to the petitioner. In spite of this, respondents are compelling the petitioner to sign agreements again. Petitioner is also being pressurized to register the sale deed. The apprehension of the petitioner is that, if any sale deed is executed, transfer of ownership will take place and he will no longer be able to claim additional compensation and other benefits under Act, 2013. Even though petitioner has addressed various letters and representations to provide the benefits of Act, 2013, no positive response W.P.(C). Nos.33708 & con.cases 11 is emerging from the side of the respondents, which constrained the petitioner to approach this court by filing this writ petition. 5. First respondent has filed a counter affidavit basically denying the claims and demands raised by the petitioner. That apart it is contended that, the respondents had taken steps to acquire properties from the owner for the construction of South Station corridor for Kochi Metro Rail Project. The properties which are required for the project were identified and notified under the provisions of Land Acquisition Act, 1894. Thereafter, the Right to Fair Compensation & Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 was enacted for the purpose of acquiring lands. The Government permitted the District Collector and Revenue Authorities to negotiate with the owners of land for speedy acquisition/taking over the W.P.(C). Nos.33708 & con.cases 12 lands required for the Kochi Metro Rail Project, evident from Ext.R1(a) order dated 22.5.2014. On the basis of relevant records, respondents prepared a basic valuation report (BVR) valuing the property of the petitioner. On the basis of BVR submitted by the Special Tahsildar (LA) No.1, the District Collector classified the lands into different categories and fixed land value of the property, evident from Ext.R1(b) dated 30.10.2014. Accordingly value of the property was fixed at Rs.23,95,450/- per cent. 6. It is submitted that, in the light of the relevant G.O. the District Level Purchase Committee (DLPC) and State Level Empowered Committee (SLEC) were constituted. The District Collector is the Chairman of District Level Purchase Committee and the above committee after considering the BVR submitted by the Tahsildar started negotiations with the land owners and W.P.(C). Nos.33708 & con.cases 13 notices were issued. A true copy of the minutes dated 1.8.2014 is marked as Ext.R1(c) in the counter affidavit. Accordingly the land owner entered into bargaining and thereafter a settlement was arrived at and finally fixed value of the property to be taken possession. It is also stated that, it is clear from the records that, the DLPC offered highest amount to the land owners for settling the disputes. It is on the basis of the settlement between the petitioner and the DLPC officials, petitioner agreed to provide his property for the Kochi Metro Rail Project. Petitioner agreed to hand over the property to the District Collector for a sum of Rs.52,00,000/- per cent. It is evident from the above fact, petitioner received huge amount as compensation through the negotiated purchase. Therefore, no loss or harm is caused to the petitioner by entering into negotiation with the respondents. It was thereafter W.P.(C). Nos.33708 & con.cases 14 petitioner voluntarily executed an agreement with the District Collector agreeing to sell his property lying in Sy.No.575/7 in Ernakulam Village, evident from Ext.R1(d) dated 29.9.2015. It was on the basis of the agreement executed by the petitioner, the Special Tahsildar paid 80% of the total compensation amount to the petitioner, evident from Ext.R1(e). Therefore, it is contended, the respondents are bound to pay only 20% of the total compensation after the approval of the State Level Empowered Committee, which is pending consideration. 7. It is also contended that, petitioner is not entitled to get any compensation over and above the amount agreed before the DLPC. Petitioner has voluntarily executed an agreement accepting the amount of compensation. The DLPC tentatively decided the amount and the same was suggested to the W.P.(C). Nos.33708 & con.cases 15 petitioner and after negotiation petitioner accepted the agreement and executed it. Therefore, at a later point of time, petitioner is not entitled to turn around and ask for compensation under the Act, 2013. That apart it is submitted that, the land was taken possession on 23.9.2014 on the basis of the consent letter given by the petitioner, evident from Ext.R1(f) and utilized the land for construction of the Kochi Metro Rail Project. The averments made by the petitioner with respect to the assurance made by the respondents that their rights under the Act, 2013 will be protected etc. are all denied. It is also contended, the property of the petitioner was taken after paying sufficient compensation and there is no violation of Article 300A of the Constitution of India. There is no procedural violation also in taking the property of the petitioner as is alleged by the petitioner, is the contention advanced W.P.(C). Nos.33708 & con.cases 16 by the 1[st] respondent. 8. A counter affidavit is filed by the 5[th] respondent denying the allegations and claims and demands raised by the petitioner. Apart from other contentions, it is stated therein that the respondent is a company constituted by the Government of Kerala, and the Government of India as a Special Purpose Vehicle (SPV) for the implementation of the project. The Government of Kerala has directed the 5[th] respondent to identify the lands required for the implementation of the Project. The major portion of the viaduct passes through main roads but in some places private land is required. Land is also required for metro stations, electrical sub stations, maintenance yard and for widening the narrow roads through which the viaduct is passing. Private land when required is acquired under the provisions of law in force at the time of acquisition or by negotiated W.P.(C). Nos.33708 & con.cases 17 purchase as permitted by the Government. It is submitted, since preparatory work is essential to the Metro Project, the Government accorded administrative sanction for taking up a number of major works such as re-building of rail over bridge near North Railway Station, Edappally Fly Over, Fly over near KSRTC Stand, widening of M.G.Road, Banerji road etc. Among these works Government accorded sanction for the widening of Vyttila - Petta PWD Road, which has at present a width of 12 -15 meters. That apart it is submitted, the 4[th] respondent after getting administrative sanction for acquisition from the 1[st] respondent published a preliminary notification on 1.10.2013 under the Land Acquisition Act, 1894 for acquisition of lands. The 4[th] respondent, after scientific survey of the land and disposing of the objection petitions, a declaration for acquisition was published for W.P.(C). Nos.33708 & con.cases 18 these lands on 24.9.2014. A portion of the land of the petitioner is included in the declaration. It is stated that, initially lands required for the Metro Rail Project and for the preparatory works were acquired under the Act, 1894. On 1.1.2014, Act 2013 came into force, but the rules for the implementation of the new act was published by the Government only on 23.9.2015. In the intervening period, considering the urgency of completing the work, Government authorized the District Collector, Ernakulam to acquire lands for Metro Rail Project on the basis of negotiated purchase and as a prelude DLPC was constituted to determine the sale price by negotiation. That apart it is stated, if the party agreed with the value offered by the DLPC, 80% of the amount is to be paid immediately on surrendering the land on executing agreement with the District Collector to sell the property. The balance 20% is paid when the W.P.(C). Nos.33708 & con.cases 19 sale deed is finally executed after getting approval of the DLPC rate by the State Level Expert Committee. Accordingly, petitioner has executed an agreement and 80% of the sale price was paid on the same day. 9. That apart it is stated that, as per clauses 2 and 3 of the agreement, it has been made clear that, petitioner is eligible for relief and rehabilitation package in accordance with the provisions of Act, 2013 and it has been laid down in clause 4 that no consideration other than what is specifically mentioned in the agreement is payable by the District Collector to the land owner. Therefore, according to the 5[th] respondent, the prayer of the petitioner for a direction to re-determine the compensation under the new Act is not maintainable. It was with the sole objective of dodging the cumbersome procedures and concomitant delay, the land was decided to purchase through W.P.(C). Nos.33708 & con.cases 20 negotiation. 10. Petitioner has filed a reply affidavit to the counter filed by the 1[st] respondent reiterating the stand adopted in the writ petition and also denying the contentions raised in the counter affidavit. According to the petitioner, the stand adopted by the respondents in the counter affidavit is surprising due to the fact that, sufficient promise was made to the petitioner and other similarly situated persons that they will be given the compensation as is provided under Act, 2013 and it is also submitted that, respondents have totally overlooked the judgment rendered by this court specified above, wherein under similar circumstances, it is held that, the right of the petitioners to claim compensation under Act, 2013 will remain in tact. Other legal contentions are also raised with respect to the power of the authority to negotiate and non-suit the W.P.(C). Nos.33708 & con.cases 21 petitioner and others from claiming rights under Act, 2013. It is also contended that, there is no power vested under the Act in order to make rules for the purpose of executing agreement and sale deeds. Therefore, the exercise undertaken by the respondents can only be for the purpose of securing vacant possession of land for carrying out the construction work of the Kochi Metro Rail Project, to which petitioner and others co-operated in view of public interest. Therefore, according to the petitioner, petitioner is entitled to get adequate compensation in accordance with Act, 2013. 11. Suffice to say, in all the other writ petitions, similar contentions are raised with respect to the circumstances under which the agreements were executed. 80% of the compensation were received providing vacant possession of the land especially on W.P.(C). Nos.33708 & con.cases 22 the promise made by the respondents that when the rules are framed, claim of the petitioners will be considered under the provisions of Act, 2013. In some of the agreements executed by the respondents with the land owners, the clause with respect to consideration of the claim under Act, 2013 is not included. Therefore, in those cases respondents have a different contention that in view of the absence of the clause for resorting to the provisions of the Act, 2013, the petitioners are not entitled to get any reliefs and they have no right even to make a claim in that regard. In one of the cases viz., W.P.(C) No.30321/2016, pursuant to the agreement entered into by and between the petitioner therein and the respondents, a sale deed was executed by the petitioner. The contention advanced by the Government in that case is that, Section 62 of the Contract Act will come into play and therefore, the petitioner therein is W.P.(C). Nos.33708 & con.cases 23 not entitled to get any amount other than the amount already paid at the time of execution of the agreement and consequential execution of the sale deed. These are the facts available before this court to consider the issues raised by the petitioners, especially the legal contention, that there is no provision under the Land Acquisition Act either to make any rules for negotiated purchase of the property, or enter into negotiation, execute, agreement and sale deed accordingly. 12. Heard learned counsel for the petitioners, learned Senior Government Pleader, the learned Senior Counsel appearing for Kochi Metro Rail Ltd. The respective counsel addressed in accordance with the pleadings put forth by them. 13. On a reading of the provisions of the Right to Fair Compensation Act, what I could gather is that, the Act was brought into force to provide fair compensation W.P.(C). Nos.33708 & con.cases 24 to the owners of the land, to provide transparency in land acquisition, rehabilitation and resettlement. Section 2 of the Act deals with application of Act which reads that provisions of the Act relating to land acquisition, compensation, rehabilitation and resettlement shall apply when the appropriate Government acquires land for its own use, hold and control, including for Public Sector Undertakings and for public purpose, and shall include other purposes like strategic purposes relating to naval, military air force, and armed forces of the Union, including central paramilitary forces or any work vital to national security or defence of India or State Police, safety of the people or for infrastructure projects, which includes all activities illustrated in the notification of the Government of India in the Department of Economic Affairs excluding private hospitals, private educational W.P.(C). Nos.33708 & con.cases 25 institutions and private hotels and projects including agro-processing, supply of inputs to agriculture etc. etc. and for other developmental activities provided under Section 2(i) of the Act. Appropriate Government is defined under Section 3(e) to (i) to mean in relation to acquisition of land situated within the territory of the State, the State Government. The proviso thereto designates, in respect of a public purpose in a District for an area not exceeding such as may be notified by the appropriate Government, the Collector of such district as the appropriate Government. Other parameters are provided with respect to the powers conferred on various authorities for acquiring lands. Section 5 of the Act deals with public hearing for social impact assessment which states that, whenever a Social Impact Assessment is required to be prepared under section 4, the appropriate Government shall ensure that W.P.(C). Nos.33708 & con.cases 26 a public hearing is held at the affected area, after giving adequate publicity about the date, time and venue for the public hearing, to ascertain the views of the affected families to be recorded and included in the Social Impact Assessment Report, which is to be published as per Section 6 of the Act at the designated places. Social impact report is liable to be appraised by an expert group as provided under Section 7. As per Section 8, the State Government shall ensure that, there is a legitimate and bonafide public purpose for the proposed acquisition which necessitates the acquisition of the land identified. Clause (b) of Section 8(1) states that, the potential benefits and the public purpose referred to in clause (a) shall outweigh the social costs and adverse social impact as determined by the Social Impact Assessment that has been carried out. It is also provided therein to ensure only the minimum area of W.P.(C). Nos.33708 & con.cases 27 land required for the project is proposed to be acquired. Other parameters are also provided with respect to the utilization of the lands, which remained unutilized in a previous land acquisition etc. etc. Section 9 enables the appropriate Government to get itself exempted from social impact assessment where land is proposed to be acquired invoking the urgency provisions of Section 40. Section 11 of the Act is paramount and sub-section(1) reads that; whenever the land in an area is required or likely to be required for any public purpose, a notification (hereinafter referred to a preliminary notification) to that effect along with the details of the land to be acquired in rural and urban areas shall be published in the manner recited therein, which are as follows: (a) in the Official Gazette b) in two daily newspapers circulating in the locality of such area of which one shall be in W.P.(C). Nos.33708 & con.cases 28 the regional language,. (c) in the local language in the Panchayat, Municipality or Municipal Corporation as the case may be and in the offices of the District Collector, the Sub-divisional Magistrate and the Tehsil. - (d) uploaded on the website of the appropriate Government; - (e) in the affected areas, in such manner as may be prescribed. 14. Other parameters are provided after issuance of the notification under sub-section (1), especially in clause (4), wherein an interdiction is made from making any modifications or causing any transaction of land specified in the preliminary notification or creating any encumbrances on such land from the date of publication of such notification till such time as the proceedings under the Chapter IV of Act, 2013 are completed. W.P.(C). Nos.33708 & con.cases 29 However, the proviso thereto enables the District Collector, on the application made by the owner of the land so notified, except in special circumstances from the operation of sub-section (4). Thereafter preliminary survey of land is to be carried out as per section 12, payment of damages as per Section 13 and hearing of objection as per section 15 are to take place. Section 16 deals with preparation of rehabilitation and resettlement scheme by the Administrator, which is to be made public as per Section 18, and the publication of declaration and of rehabilitation and summary resettlement is to be carried out as per section 19. Section 21 deals with notice to persons interested, which mandates the Collector to publish the public notice on his website and cause public notice to be given at convenient places on or near the land to be taken, stating that the Government intends to take W.P.(C). Nos.33708 & con.cases 30 possession of land, and claims to compensation and rehabilitation and resettlement for all interests in such land may be made to him. Other parameters are provided therein to publish the details with respect to the particulars of the land needed and also to appear before the Collector to proceed with the matter either personally or through Advocates. Enquiry is contemplated thereto as per Section 22. Section 23 enables the Collector to conduct enquiry and pass an award. Section 23 read thus: “23. **Enquiry and land acquisition award by Collector:** On the day so fixed, or on any other day to which the enquiry has been adjourned, Enquiry and the Collector shall proceed to enquire into the objections (if any) which any person interested has stated pursuant to a notice given under Section 21, to the measurements made under Section W.P.(C). Nos.33708 & con.cases 31 20, and into the value of the land at the date of the publication of the notification, and into the respective interests of the persons claiming the compensation and rehabilitation and resettlement shall make an award under his hand of- (a) the true area of the land; (b) the compensation as determined under Section 27 along with Rehabilitation and Resettlement Award as determined under Section 31 and which in his opinion should be allowed for the land; and (c) The apportionment of the said compensation among all the persons known or believed to be interested in the land or whom, or of whose claims, he has information whether or not they have respectively appeared before him.” ## 15. Therefore, appreciation of the provisions W.P.(C). Nos.33708 & con.cases 32 referred to above would make it clear that there is transparent, convincing and definite specifications made with respect to the acquisition of land by the appropriate Government. In my considered opinion, the terms employed in those provisions makes it imperative on the appropriate Government to follow the procedures contemplated thereunder scrupulously, which thus means every owner of the land is entitled to get a similar treatment under the provisions of Act, 2013 if the Government intends to acquire any land from the land owners. Any how analyzing the situation that have been taken place in the cases on hand, notifications were issued by the State Government under the provisions of Act, 1894. During the course of the proceedings thereunder including declaration under Section 6, Act 2013 came into force w.e.f. 1.1.2014. Therefore, in accordance with Section 24 of Act, 2013, W.P.(C). Nos.33708 & con.cases 33 notwithstanding anything contained in Act, 2013 in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894, where no award under Section 11 of the said Land Acquisition has been made, then all provisions of Act, 2013 relating to the determination of compensation shall apply or where an award under Section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act as if the said Act has not been repealed. Sub-section (2) thereunder provides that notwithstanding anything contained in sub-section (1) in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 where an award under Section 11 has been made 5 years or more prior to the commencement of Act, 2013, but the physical possession of the land has not been taken or the compensation has not been paid, the said provisions W.P.(C). Nos.33708 & con.cases 34 shall be deemed to have raised and the appropriate Government, if it so chooses, shall initiate the proceedings of such Land Acquisition afresh. Therefore, in accordance with the provisions of Act, 2013, the proviso thereto states that where an award has been made and compensation in respect of land and land holdings has not been deposited in the account of the beneficiaries, then all beneficiaries specified in the notification for acquisition under Section 4 of the said Land Acquisition Act, shall be entitled for compensation in accordance with the provisions of Act, 2013. Therefore, it goes without saying, the petitioners who were proceeded under the provisions of Land Acquisition Act, 1894 and no awards are passed, the provisions of Act, 2013 will apply. In these writ petitions, even though proceedings were initiated under the provisions of Act, 1894, no awards were passed in W.P.(C). Nos.33708 & con.cases 35 any of the cases and therefore by virtue of section 24 of Act, 2013, the provisions of Act 2013 became applicable. 16. On an evaluation of the circumstances involved in the writ petitions and as discussed above, the question remains to be considered is whether ignoring or irrespective of provision of Act, 2013 the appropriate Government is vested with powers to negotiate and purchase lands by executing agreements and consequential sale deeds. In order to make a comparison, a survey of Section 11(2) of Act, 1894 would be relevant. Thereunder a provision is made empowering negotiated purchase notwithstanding the stipulations contained under sub-section(1) thereto, which thus means specific and distinct power was conferred and vested with the appropriate Government to legitimately negotiate with the land owners for the W.P.(C). Nos.33708 & con.cases 36 purchase of land by paying the sale price and pass awards accordingly. 17. The predominant contention in that regard advanced by learned counsel for petitioners is that section 109(1) of Act, 2013 empowers the appropriate Government to make rules by issuing notification for carrying out the provisions of the Act, 2013. Subsection (2) of Section 109, in particular and without prejudice to the generality of the provisions, enables the appropriate Government to make rules for the matters recited to thereunder from sub-clauses (a) to (u). In my considered opinion, none of the enabling powers provided thereunder empowers the appropriate Government to make a rule to legitimately proceed with a negotiated settlement, execution of agreement, consequential sale deed and passage of award thereto. However, clause (u) enables the Government to make W.P.(C). Nos.33708 & con.cases 37 rules in any other matter which is required to be or may be specified under Act, 2013. In that regard learned counsel for petitioners invited my attention to Ext.P2 in W.P.(C) No.33708/2017, a notification issued by the State Government dated 5.7.2014 whereby it is declared that Land Acquisition Act, 1894 has been repealed and the Act, 2013 has come into force w.e.f. 1.1.2014. It is very pertinent to note therein that, such a notification was issued, since the Government faced with a precarious situation of the land acquisition proceedings coming to a halt due to the non-framing of rules by the State Government, and the consequential effect, of the projects come to a grinding halt. Further para (2) thereunder stipulates that, land value is to be fixed as per the extant procedures i.e, land value is to be decided through negotiation with the land owners by the District Level Purchase Committee and after W.P.(C). Nos.33708 & con.cases 38 approval of the proposed land value by the State Level Empowered Committee, an agreement be entered into with the land owner that further compensation, if any eligible to them would be paid only after framing rules under the Act, 2013. As per para (3) thereunder all District Collectors/Land Acquisition Officers are requested to abide by the above directions and to complete the pending acquisitions urgently. 18. So also as per Ext.P5 dated 17.11.2014, a notice under Section 17 of Act, 2013 was issued wherein one P.J. Eapen was directed to hand over land within 48 hours failing which,the District Collector, Ernakulam was empowered to take possession of the land invoking the urgency provisions of Section 40 of Act, 2013. It is stated therein land owners are entitled to get the payment of 80% of the compensation as decided by the DLPC, and after approval of the W.P.(C). Nos.33708 & con.cases 39 proposed land value by the State Level Empowered Committee and further compensation if any eligible to them would be paid under the Act, 2013. 19. Therefore, in my considered opinion, by virtue of the power conferred under Section 109(2)(u), the Government has issued a notification whereby negotiated purchase is permitted in order to tide over the debacling situation occurred in land acquisition matters consequent to non-framing of rules by the State Government . In such circumstances to summarize the issue, it can be seen that, the appropriate Government decided to negotiate with the petitioners on account of power so conferred by the Government, and that too by protecting the interest of the land owners to secure more benefits if they are entitled, under the provisions of Act, 2013. Moreover, on a reading of the provisions of Act, 2013, it is evident and clear that, it is brought W.P.(C). Nos.33708 & con.cases 40 forth with the intention of ensuring that the land owner is absolutely satisfied in lieu of his displacement and consequential damages suffered. When the provisions of the Act, 2013 are compared with the provisions of Act, 1894, it is clear that, the Act, 2013 intends to provide adequate compensation to the land owners and satisfy and protect their interests in all respects. This is evident from the nature and manner of the parameters, to be adopted by the Collector in that regard, under Sections 27 and 28 of Act, 2013. The clauses firstly to seventhly of section 28 makes it abundantly clear that, in every sense and every manner, the interest of land owner is protected, which thus also means that, the Government is translating its intension in clear terms that, no land owner shall be deprived of his property in a dissatisfied manner. 20. So also when considering the circumstances W.P.(C). Nos.33708 & con.cases 41 from the human rights perspective, if a land owner is negotiated with and the property is purchased accordingly by the appropriate Government, and immediate neighbouring property is acquired resorting to the provisions of Act, 2013 securing much more amount than the negotiated purchase, in my considered opinion the same is clear human rights violation. Moreover, even though the right to property was omitted from the fundamental rights guaranteed under Part III of the Constitution of India, a constitutional right is provided under Article 300A of the Constitution, whereby it is specified that no person shall be deprived of any property save by authority of law, which thus means properties of the citizens are protected from being overreached in any manner by the Government or any other authorities. 21. It is in the said background, Act, 2013 is W.P.(C). Nos.33708 & con.cases 42 promulgated by the Parliament to meet the requirements of land acquisition. So also some of the petitioners consequent to the acquisition may be displaced from their lands and they may have to vanish from the area especially due to the fact that such persons may not be in a position to purchase any land in the nearby area consequent to the commercial potential and ramifications thereto. It is explicit from the facts, the acquisition in question are made in the heart of the city for Metro Rail. Yet another aspect that comes to my mind is, pursuant to the acquisition these persons may have to leave their place of birth to some other strange destinations creating a traumatic impasse in themselves, are all reasons persuaded the Government to bring in a new legislation, with more vibrant social security measures, and economical and financial advantageous upholding the democratic and fair W.P.(C). Nos.33708 & con.cases 43 principles and thus translating the objectives enunciated in the Preamble of the Constitution of India. 22. However, learned Government Pleader has advanced an argument that merely because Act, 2013 is brought into force, the power of the Government to enforce its eminent domain in accordance with the provisions of the Transfer of Property Act is not taken away. In my considered opinion, at the first flush it may appear to one that, merely because Act, 2013 has brought into force, the Government will not lose its eminent domain to purchase land through negotiation. However, as I have pointed out earlier, since an Act is brought into force for the purpose of acquisition of land by the appropriate Government, wherein the terminology, phrases and terms employed are distinct and clear, makes it imperative for the Government to proceed under the said statute. This is what is exactly W.P.(C). Nos.33708 & con.cases 44 mandated under Article 300A of the Constitution of India also. That apart bearing in mind such an object only, an enabling provision was made under Act, 1894 for agreed purchase and consequential award. The absence of such a provision under the new Act and absence of power for the appropriate Government to make rules in that regard makes it clear that, there is no enabling power for the State Government to resort to eminent domain and go ahead with negotiated purchase disadvantageous to the land owner. Which thus also means, the Parliament was deliberate and conscious enough not to provide any such power to the appropriate Government so as to forbear negotiated purchase disadvantageous to the land owners. Moreover, as per section 64 of Act, 2013, any land owner dissatisfied with the compensation is entitled to seek reference, a provision marching ahead of W.P.(C). Nos.33708 & con.cases 45 negotiated purchase. 23. The principles of law enunciated from the maxim “generalia specialibus non derogant” assume importance, which is adopted as a cardinal principle of interpretation and characterized, a well recognized principle in law. Thus the general provisions contained under the Transfer of Property Act, 1882 is controlled by the special provisions of Act, 2013. If at all there is any conflict by and between the aforesaid legislations, the provisions of latter legislation will prevail especially due to the imposition made thereunder with adept and deliberate phraseologic technology. This is more so, when Section 24 of the Act opens with a non obstante clause. (see the judgment of the Apex Court in **State of Gujarat v. Patil Ramjibhai** [AIR 1979 SC 1098], **Patna Improvement Trust v. Shrimati Lakshmi Devi** [AIR 1963 SC 1077] and the judgment of the Privy W.P.(C). Nos.33708 & con.cases 46 Council in **Secretary of State v. Hindusthan Cooperative Society** [AIR 1931 PC 149]. 24. To think aloud, the land owner is conceding his individual rights and interests for a public cause. It is also manifest from the provisions of the Act that, the stipulations and obligations bind the respective “appropriate Government” also. If the Parliament intended to empower the Government to purchase de horse the provisions of the Act, it would have clearly endorsed so, by inclusion of requisite provisions under the Act. 25. Therefore, I am of the considered opinion that, the State Government have no other option than to resort to the provisions of Act, 2013 for completing the process of acquisition even if it has entered into agreements, sale deeds etc. etc. with the land owners, paid any advance purchase price and taken advance W.P.(C). Nos.33708 & con.cases 47 possession. 26. Taking into account the totality of the circumstances discussed above and reckoning the law, all the petitioners are entitled to get their claims settled by resorting to the provisions of Act, 2013. However, it is made clear that, surrender of properties secured by executing agreements, and sale deeds will not in any manner interfere with possession of the land taken by the appropriate Government for the development of the Kochi Metro Rail Project, and such acquisitions made will not in any manner become inoperative or stale consequent to the findings rendered above. It is also clear from the arguments advanced across the Bar that, already installations are put up by the KMRL in the lands in question, which is a fully State owned company. But in view of the finding rendered above, the appropriate authorities under Act, 2013 shall pass W.P.(C). Nos.33708 & con.cases 48 awards in accordance with the provisions of Act, 2013 and in accordance with law, by providing sufficient opportunity of hearing to the petitioners in the adjudication process as is contemplated under the Act and Rules untrammeled by any observations made, at the earliest and at any rate within two months from the date of receipt of a copy of this judgment. 27. Learned Senior Government Pleader has a contention in W.P.(C) No.30321/2016 that, pursuant to the execution of the sale deed in a sweeping and unqualified manner, ignoring the safety provisions to protect the interest of the petitioner therein, under provisions of Act, 2013, the principles of novatio provided under Section 62 of the Indian Contract Act will come into play. However, in view of the findings rendered by me that, there is no power for the appropriate Government to make any negotiated W.P.(C). Nos.33708 & con.cases 49 purchase frustrating the provisions of the Act, the said petitioner is also entitled to get the benefit of this judgment, enabling protection under the provisions of Act, 2013. 28. Sequel to the above discussion is, all the writ petitions are allowed but subject to the safety precautions made above with respect to the surrender of land by the petitioners, and also making it clear that, petitioners will not have any claim for the said lands already surrendered. Sd/- smv/23.6.2017