Sugathan v. Kerala Water Authority

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** # **TUESDAY, THE 08TH DAY OF DECEMBER 2020 / 17TH AGRAHAYANA, 1942** **WP(C).No.19664 OF 2017(G)** ## **PETITIONER/S:** **SUGATHAN, S/O. KUMARAN, AGED 61,MULLIYIL HOUSE, CHITTATTUMKARA, AVANAVANCHERY VILLAGE AND POST,CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT 695 103** **BY ADVS. DR.V.N.SANKARJEE SRI.V.N.MADHUSUDANAN SRI.S.SIDHARDHAN SMT.M.SUSEELA SMT.R.UDAYA JYOTHI SRI.M.M.VINOD** ## **RESPONDENT/S:** - **1 THE KERALA WATER AUTHORITY REPRESENTED BY THE EXECUTIVE ENGINEER, WATER SUPPLY DIVISION,ATTINGAL, THIRUVANANTHAPURAM 695 101** - **2 THE DISTRICT COLLECTOR THIRUVANANTHAPURAM 695 005** - **3 THE TAHSILDAR CHIRAYINKEEZHU TALUK, ATTINGAL, THIRUVANANTHAPURAM 695 101** - **4 THE TALUK SURVEYOR CHIRAYINKEEZHU TALUK, ATTINGAL, THIRUVANANTHAPURAM 695 101** -2- W.P.(C). No. 19664 of 2017 **5 N. RADHAKRISHNANFATHERS NAME AND AGE NOT KNOWN TO THE PETITIONER HOUSE NO 48,T.C 13/1069(1) RAGAM, KANNAMOOLA, THIRUVANANTHAPURAM (FORMEER ASSISTANT EXECUTIVE ENGINEER,KERALA WATER AUTHORITY,ATTINGAL) 695 101** **6 VASUMATHI G NAIR (FATHER'S NAME AND AGE NOT KNOWN TO THE PETITIONER)'SHIVAM' KTRA 191,KALLINGAL, KULATHOOR P.O,THIRUVANANTHAPURAM (FORMEER CHIARPERSON OF ATTINGAL MUNICIPAL COUNCIL 695 583** **R1 BY SRI.P.BENJAMIN PAUL, SC, KERALA WATER AUTHORITY R1, R3 BY GOVERNMENT PLEADER** ## **OTHER PRESENT:** **GP - SMT. VIDHYA, SC - SRI. SAJI VARGHESE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -3- W.P.(C). No. 19664 of 2017 ## **JUDGMENT** The petitioner, who is the owner in possession and enjoyment of 31 cents of land in Sy.No.495/3 of Avanavanchery Village, covered by Ext.P1 sale deed bearing No.1197/1981 of the Sub Registrar Office, Attingal, has filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P10 proceedings dated 18.04.2017 of the 2[nd] respondent District Collector. The petitioner has also sought for a declaration that Ext.P2 being an invalid document under Section 49 of the Registration Act, 19028 shall not be acted upon for determining the market value of the petitioner's property taken over by the 1[st] respondent; a declaration that the petitioner is entitled to compensation in respect of the property having an extent of 18 cents taken over by the 1[st] respondent, determined in accordance with the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013; a writ of mandamus commanding the respondents to fix the -4- W.P.(C). No. 19664 of 2017 compensation for the petitioner's 18 cents of land covered by Ext.P1, taken over by the 1[st] respondent, in accordance with law, in case the above relief cannot be granted; and also a direction commanding respondents 1 and 2 to pay compensation, all other benefits to the petitioner at the earliest and within a time frame to be fixed by this Court. 2. On 14.06.2017, when this writ petition came up for admission, this Court admitted the matter on file and issued notice to respondents. 3. A counter affidavit has been filed by the 3[rd] respondent opposing the reliefs sought for in this writ petition. The petitioner has filed a reply affidavit. The petitioner has also filed I.A. No.4 of 2018 seeking an order to accept additional document. 4. A statement has been filed on behalf of the 1[st] respondent, by the learned Standing Counsel for the Kerala Water Authority. The petitioner has also filed a reply affidavit, which is followed by a counter affidavit filed by the 1[st] respondent. W.P.(C). No. 19664 of 2017 -5- 5. Heard the learned counsel for the petitioner, the learned Standing Counsel for the Kerala Water Authority representing the 1[st] respondent and also the learned Government Pleader for respondents 2 to 4. 6. The issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P10 order dated 18.04.2017 of the 2[nd] respondent District Collector. 7. The grievance of the petitioner is in relation to inadequacy of the compensation granted for 18 cents of land, which form part of 31 cents of land covered by Ext.P1 sale deed, utilised for constructing a water tank by the 1[st] respondent Kerala Water Authority. The specific stand taken by the 1[st] respondent is that the total extent of land utilised for constructing water tank is only 12.43 cents. 8. The construction of water tank was undertaken on the strength of Ext.P2 consent letter issued by the petitioner and the petitioner has already been disbursed with the amount of compensation, based on the fixation of the land -6- W.P.(C). No. 19664 of 2017 value by the 2[nd] respondent District Collector, at Rs.40,000/per cent for 12.43 cents of land. 9. Dissatisfied with the fixation of land value by the 2[nd] respondent, the petitioner had earlier approached this Court in W.P.(C) No.21961 of 2020, which was disposed of by Ext.P8 judgment dated 20.02.2017. Paragraphs 7, 8 and also the operative portion of that judgment read thus: “7. In such circumstances, I order this writ petition granting liberty to the petitioner to move an appropriate representation before the District Collector with all relevant materials including Ext.P4 report to show that his property is worth more than Rs.40,000/- at the time when he surrendered the same and that he has actually surrendered 18 cents and not merely the extent as recorded by the authorities. The District Collector shall consider all these contentions and advert specifically to Ext.P4 report of the Tahsildar and determine whether the petitioner is entitled to be given a better deal with respect to the property that he was already surrendered. Since this writ petition has been pending before this Court for the last more than six years, I deem it appropriate that the entire exercise be completed within a specified time frame. I, therefore, direct the petitioner, if he is so advised, to approach the District Collector -7- W.P.(C). No. 19664 of 2017 with a representation within 15 days from the date of receipt of a copy of this judgment and on receipt of the same, the District Collector shall consider the same and dispose it of within a further period of one month. 8. Since this case has been pending before this Court, as indicated above, for a long period of time, I deem it appropriate that the District Collector treat these directions as being peremptory and seek no further extension to complete the exercise as directed herein. The writ petition is ordered as above. In the nature of the facts and circumstances of the case, I make no order as to costs and the parties are directed to suffer their respective costs.” 10. Pursuant to the directions contained in Ext.P8 judgment, the 2[nd] respondent District Collector passed Ext.P10 order, which is under challenge in this writ petition. The said order reads thus: " ശ�. സഗതൻ, മള�യ�ൽ ഹ�സ�, ച�റ�റ�ൻകര, അവനവഞ�ര� എന കക� 2003 ൽ വ�ടർ അഞത�റ�റ�ക� പമ� ഹ�സ� സ�പ�കനത�ന` വ�ട� നൽക�യ വസവ�ന` സസന� ഒന�ന` 40,000/രപ (ന�ൽപത�ന�യ�ര, രപ മ�ത,) ന�രക�ൽ ഈ ക�ര0�ലയത�ൽ ന�ന, വ�ല4ഞവഷൻ സർട�ഫ�കറ� നൽക�യ�ടളത�ണ`. എന�ൽ ട� കക� പസത വസവ�ന` വ�ല വർദനവ� ആവശ0സപട� ബഹ. ഹഹഞക�ടത�യ�ൽ WP(C) 21961/10 നമര�യ� ഞകസ� ഫയൽ . ഹഹഞക�ടത� സചയകയ, ആയത�സന അട�സ�നത�ൽ ബഹ പര�മർശ, (1) പക�ര, ട� വ�ഷയത�ൽ പര�ത�കക�യ�യ സഗതസന -8- W.P.(C). No. 19664 of 2017 ജ�ല� കളകർ മമ�സക ഒര ഹർജ� സമർപ�ക�ന, ട� ഹർജ� ലഭ�ച� ഒര മ�സത�നക, അത� ത�ർപ�ക�ന, ജ�ല� കളകർക� ന�ർഞKശ, നൽക� ഉതരവ�യ�ടണ�. ട�യ�ൻ ബഹ. ഹഹഞക�ടത�യ�സല ഉതരവ� സഹ�ത, പര�മർശ, . (2) പക�ര, നടപട� ആവശ0സപട� അഞപക സമർപ�ച�ടമണ� ട� അഞപകയ�ൽ ഞമൽ റ�ഞപ�ർട� ആവശ0സപട� തഹസ�ൽദ�ർക� കത� നല�യത�സന അട�സ�നത�ൽ പര�മർശ, (3) പക�ര, റ�ഞപ�ർട� ലഭ0മ�കകയ, സചയ�ടണ�. 2003 ൽ ഞകരള വ�ടർ അഞത�റ�റ�ക� മള�യ�ൽ കടവ�ൽ പമ� ഹ�സ� സ�പ�കനത�ന` ച�റയ�ൻ ക�ഴ� ത�ലക�ൽ അവനവഞ�ര� വ�ഞലജ�ൽ സർസS നമർ 495/3 ൽ സപട 12.43 സസന� വസ ജ�ല� കളകറസട വ�ല ന�ർണയത�സന അട�സ�നത�ൽ വ�ട� നൽക�, എന� പര�ത� കക�യ�യ സഗതൻ ഞകരള വ�ടർ അഞത�റ�റ�ക� ഞരഖ�മല, മദപതത�ൽ ഉറപ� നൽക�യ�രന. ആയത�സന അട�സ�നത�ൽ ആറ�ങൽ വ�ടർ സഹZ ഡ�വ�ഷൻ എക�ക]ട�വ� എ��ന�യർ 06.11.2008 ൽ ആവശ0സപടതനസര�ച� ച�റയൻ ക�ഴ� തഹസ�ൽദ�ര�ൽ ന�ന, റ�ഞപ�ർട� ലഭ0മ�ക� 24.06.2010 ന` ബ�11-112283/08 നമര�യ� സസന� ഒന�ന` 40,000/- രപ (ന�ൽപത�ന�യ�ര, രപ മ�ത,) ന�രക�ൽ വ�ല ന�ർണയ സർട�ഫ�കറ� നൽക�യ�ടളത�ണ`. ഭവടമ മമ� നൽക�യ സമതപതത�ൽ ജ�ല� കളകർ ന�ശയ�കന . വ�ല അ,ഗ�കര�ക�സമന� വ0വസ സചയ�ടണ� എന�ൽ ഇഞപ�ൾ ട�യ�ൻ നൽക�യ�ടള പര�ത�യ�ൽ ല�ന� അകdസ�ഷൻ ആക� 2013 സസകൻ 30 ` . പക�രമള നഷപര�ഹ�രമ�ണ ആവശ0സപട�ടളത� ## ഉതരവ ച�റയൻക�ഴ� ത�ലക�ൽ അവനവഞ�ര� വ�ഞലജ�ൽ പര�ത�കക�യ�യ ശ�. സഗതൻ, ഞകരള വ�ടർ അഞത�റ�റ�ക� 2003 ൽ വ�ട� നൽക�യ സർസവ നമർ 495/3 ൽസപട 12.43 സസന� ഭമ� സപ�നവ�ല നടപട� അനസര�ച� ഏസറടകനത�ന` സർക�ർ ഉതരവ�യ�ട�ല�ത�രന സ�ഹചര0ത�ൽ ഇഞപ�ൾ 01.01.2014 ക� മ�ത, ന�ലവ�ൽ വന 2013 സല ല�ന� അകd�സ�ഷൻ ആക� പക�ര, നഷപര�ഹ�ര, ആവശ0സപട� . സമർപ�ച�ര�കന ഹർജ� പര�ഗനന�ർഹമല ഇപക�ര, ശ�.സഗതൻ സമർപ�ച ഹർജ� ത�ർപ�ക� ബഹ. ഹഹഞക�ടത�യസട W.P.(C).21961/10 നമർ ഉതരവ� നടപ�ൽ -9- W.P.(C). No. 19664 of 2017 വരത�യ�ര�കന.” 11. In the counter affidavit filed by the 3[rd] respondent Tahsildar, an attempt has been made to justify the land value at the rate of Rs.40,000/- per cent taken in Ext.P10 order by the 2[nd] respondent District Collector. Relying on Exts.P4, P5 and P6, the learned counsel for the petitioner would contend that the petitioner is entitled for re-fixation of land value far in excess of Rs.40,000/- per cent, taken by the 2[nd] respondent in Ext.P10. 12. The learned Government Pleader would point out that, the land value of the property has to be fixed as on the date of Ext.P2, for which the petitioner has to place appropriate documents before the 2[nd] respondent. 13. In **Mohinder Singh Gill v. the Chief Election Commissioner, New Delhi [(1978) 1 SCC 405]** , the Apex Court held that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an -10- W.P.(C). No. 19664 of 2017 order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. Para.8 of the said decision reads thus: “The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji: ( **AIR 1962 SC 16)** “Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.” Orders are not like old wine becoming better as they grow older.” -11- W.P.(C). No. 19664 of 2017 13. The law laid down in **Mohinder Singh Gill** has been reiterated by the Apex Court in **Dharmapal Satyapal Limited v. Deputy Commissioner of Central Excise, Gauhati [(2015) 8 SCC 519]** . 14. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible, that the validity of Ext.P10 order passed by the 2[nd] respondent District Collector has to be judged by the reasons, if any, mentioned in that order, which cannot be supplemented by fresh reasons in the stage of affidavit or otherwise. In the absence of reasoning, Ext.P10 order of the 2[nd] respondent can only be treated as one issued in violation of the principles of natural justice. 15. In the result, this writ petition is disposed of by setting aside Ext.P10 order of the 2[nd] respondent District Collector for the aforesaid reason, and by directing the said respondent to reconsider the request made by the petitioner for re-fixation of land value as on the date of Ext.P2 consent letter, in accordance with law. It is made clear that in terms of -12- W.P.(C). No. 19664 of 2017 the directions contained in Ext.P8 judgment of this Court dated 20.02.2017 in W.P.(C) No.21961 of 2020,, the petitioner is not entitled for compensation, taking note of the provisions under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and that, the only exercise that has to be undertaken by the 2[nd] respondent District Collector is re-fixation of land value of the actual extent of land used for the construction of water tank by the 1[st] respondent Kerala Water Authority, based on the documents placed on record by both sides to prove land value as on the date of Ext.P2 consent letter, after affording the petitioner and the 1[st] respondent a reasonable opportunity of being heard. The 2[nd] respondent shall obtain a report from the 4[th] respondent Taluk Surveyor as to the total extent of land used for the purpose of constructing the water tank and a copy of that report shall be furnished to both sides. The entire exercises in this regard shall be completed, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this judgment and the -13- W.P.(C). No. 19664 of 2017 order passed by the 2[nd] respondent shall be supported by reasons, after adverting to the rival contentions. No order as to costs. **Sd/ANIL K.NARENDRAN JUDGE** das -14- W.P.(C). No. 19664 of 2017 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SALE DEED NO 1197/1981 OF THE S.R.O ATTINGAL** **EXHIBIT P2** - **TRUE COPY OF THE SAMMATHAPATHRAM DATED NIL FROM THE PETITIONER TO THE EXECUTIVE ENGINEER, KERALA WATER AUTHORITY** **EXHIBIT P3 TRUE COPY OF THE SKETCH DATED NIL PREPARED BY THE WATER AUTHORITY EXHIBIT P4 TRUE COPY OF THE LETTER DATED 6-11-** - **TRUE COPY OF THE LETTER DATED 6-112008 ISSUED BY THE EXECUTIVE ENGINEER OF KERALA WATER AUTHORITY TO THE 2ND RESPONDENT** **EXHIBIT P5 TRUE COPY OF THE REPORT DATED 18-32010 OF THE 3RD RESPONDENT** **EXHIBIT P6 TRUE COPY OF SALE DEED NO. 3195/2010 DATED 23-09-2010** - **EXHIBIT P7 TRUE COPY OF THE INTERIM ORDER DATED 9-11-2010 IN W.P(C) NO 21961/2010 OF THIS HONOURABLE COURT** **EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 20-022017 IN W.P(C) NO 21961/2010 OF THIS HONOURABLE COURT** **EXHIBIT P9 TRUE COPY OF THE REPRESENTATION DATED 11--03-2014 WITH RECEIPT DATED 13-32017** **EXHIBIT P10 TRUE COPY OF PROCEEDINGS DATED 18-042017 OF THE 2ND RESPONDENT** -15- W.P.(C). No. 19664 of 2017 **EXHIBIT P11 TRUE COPY OF THE PASS BOOK BEARING NO.OL 1478 EXHIBIT P12 TRUE COPY OF THE PASS BOOK BEARING NO.OL 1479 EXHIBIT P13 TRUE COPY OF THE PASS BOOK BEARING NO.OL 1480 EXHIBIT P14 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE EXHIBIT P15 TRUE COPY OF THE CERTIFICATE DATED 12.9.2006 ISSUED BY ATTINGAL MUNICIPALITY EXHIBIT P16 TRUE COPY OF THE SALE DEED NO.1442/09 DATED 24.6.2009 ON THE FILE OF THE S.R.O.ATTINGAL.** ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R1 NIL EXHIBIT R2 NIL EXHIBIT R3 NIL EXHIBIT R3 (A) TRUE COPY OF THE REPORT NO.B4/19185/2017 DATED 23.3.2017**