Thiruvananthapuram Development Authority (TRIDA) v State of Kerala, George Fernandez, Mathew Fernandez

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 15TH DAY OF JANUARY 2013/25TH POUSHA 1934** ## **OP(C).NO. 89 OF 2013 (O)** ## **--------------------------------E.P. NO.389 OF 2011 IN L.R.A. NO.6 OF 2008 FIRST ADDITIONAL SUB COURT, THIRUVANANTHAPURAM** ## **PETITIONER(S):** **---------------------** **THIRUVANANTHAPURAM DEVELOPMENT AUTHORITY (TRIDA) JAYA MANSION VAZHUTHACAUD SASTHAMANGALAM P.O THIRUVANANTHAPURAM 695 010 REPRESENTED BY ITS SECRETARY** **BY ADV. SRI.K.A.JALEEL, SC., TRIDA** ## **RESPONDENT(S):** **------------------------** ## **1. STATE OF KERALA** **REPRESENTED BY THE DISTRICT COLLECTOR THIRUVANANTHAPURAM 695001** ## **2. GEORGE FERNANDEZ** **TC 26/568 EDEN HOUSE OOTTUKUZHY VANCHIYOOR VILLAGE THIRUVANANTHAPURAM 695 035** **3. MATHEW FERNANDEZ S/O.EFRAIN FERNANDEZ TC 26/568 EDEN HOUSE OOTTUKUZHY VANCHIYOOR VILLAGE THIRUVANANTHAPURAM 695 035** **BY GOVERNMENT PLEADER SMT.,LILLY LESLIE R1 BY ADVOCATE SHRI D.SAJEEV R2 & 3** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 15-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **O.P(C) NO.89 OF 2013** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **EXT.P1 TRUE COPY OF THE ORDER G.O(MS) NO 48/2003/PWD DATED 2208-2003 ISSUED BY THE ADDITIONAL FIRST CHIEF SECRETARY TO GOVERNMENT.** **EXT.P2 TRUE COPY OF THE JUDGMENT INL.AR NO 6/2008 DATED 22-122009 ON THE FILE OF THE HON'BLE FIRST ADDITIONAL SUB COURT THIRUVANANTHAPURAM** . **EXT.P3 TRUE COPY OF THE SCHEDULE OF PROERTY ATTACHED BY THE HON'BLE SUB COURT AND THE REPORT ON ATTACHMENT BY THE AMIN.** **EXT.P4 TRUE COPIES OF THE FORMNO 17 PROHIBITING THE PETITIONER'S ALL TRANSACTION WITH THE DISTRIT TREASURY SUB TREASURY THIRUVANANTHAPURAM AND STATE BANK OF TRAVANCORE** **RESPONDENT(S)' EXHIBITS:** **NIL** ## **TRUE COPY** ## **THOMAS P.JOSEPH, J.** **==================================== O.P(C) No.89 of 2013 ==================================== Dated this the 15[th] day of January, 2013** ## **J U D G M E N T** The 1[st] respondent appears through the learned Government Pleader. Respondents 2 and 3 appear through counsel. 2. Exhibits P3 and P4, orders passed by the learned First Additional Sub Judge, Thiruvananthapuram in E.P. No.389 of 2011 in LAR No.6 of 2008 attaching property of the petitioner and prohibiting transactions in its account are under challenge in this Original Petition. 3. On the request made by the petitioner, 0.75 Ares in Sy.No.2872 of Vanchiyoor Village belonging to respondents 2 and 3 was acquired by the State Government-1[st] respondent. The Land Acquisition Officer passed award on 30.10.2006 fixing land value at the rate of Rs.2,43,243/- per Are. The property was taken possession on 20.01.2006. On the request of respondents 2 and 3, dispute regarding land value was referred to the First Additional Sub Court where the reference was taken on file as L.A.R. No.6 of 2008. The reference court enhanced ## **O.P(C) No.89 of 2013** ## -: 2 :- the land value to Rs.3,82,540/- per Are. Respondents 2 and 3 challenged that award in this Court in L.A.A. No.321 of 2011. Land value was enhanced to Rs.17,00,000/- per Are as per judgment dated 16.06.2011. That was followed by respondents 2 and 3 filing execution petition. That has culminated in Exts.P3 and P4, orders. 4. Contention of the learned counsel for the petitioner is that the petitioner is not having the primary liability to pay the amount since petitioner is only the requisitioning authority and that the acquisition authority is the 1[st] respondent. The learned counsel has placed reliance on the decision in **Corporation of Cochin v. Michael Luiz** (1995 KHC 305). 5. The learned counsel for respondents 2 and 3 submitted that the said decision has no application to the facts of this case. In the reported case the requisitioning authority was not a party to the reference case while in this case the petitioner is a party and there is a decree binding the petitioner as well. It is also contended by the learned counsel that as per the decision of the Supreme Court, the ## **O.P(C) No.89 of 2013** ## -: 3 :- requisitioning authority is a necessary party to the proceeding and that it is the obligation of the requisitioning authority to provide necessary funds to the acquisition authority. The learned counsel submits that respondents 2 and 3 have been running from pillar to pillar for recovery of the amount due under the award but without result. In the circumstances it is submitted that there is no necessity to interfere with Exts.P3 and P4, orders. 6. I have heard the learned Government Pleader as well. 7. Under Section 31 of the Land Acquisition Act (for short, “the Act”) on making an award under Sec.11 of the Act, the District Collector has to tender payment of compensation awarded by him to the person interested and entitled to. 8. True that as per the decision of the Supreme Court the requisitioning authority is also to be made a party to the reference case. But going by the scheme of the Act and the decision cited supra, that is to facilitate the requisitioning authority take part in the proceeding and adduce evidence regarding the land value. 9. In **Corporation of Cochin v. Michaeal Luiz** ## **O.P(C) No.89 of 2013** ## -: 4 :- (supra) it is held in paragraph 4 that it is clear from the decision of the Supreme Court that the local authority on whose requisition the acquisition is made has the locus standi to appear in the reference court and file appeal against the decree of the reference court if it was a party to the reference. But Sec.50(2) of the Act though it enables the local authority to appear and adduce evidence for the purpose of determining the amount of compensation, denies it the right to seek a reference under Sec.18 of the Act. The position therefore is that though in appropriate cases the local authority could file an appeal against the award, there is nothing in the Act which insists that the local authority must be included in the array of parties so as to make it liable for the costs of acquisition, in case the acquisition is made on its requisition. In paragraph 5, reference is made to Sec.31 of the Act as imposing obligation on the Collector to tender payment of the compensation awarded by him to the persons interested or to deposit the same in court for being disbursed among the claimants. In other words the obligation to pay compensation for the land acquired under the Act is that of the Government notwithstanding that the acquisition is made on behalf of a **O.P(C) No.89 of 2013** ## -: 5 :- company or of a local authority. The decree passed by the court on a reference for enhancement also casts the obligation to pay the additional compensation on the State. On the scheme of the Act the obligation to pay compensation is that of the State and not that of the requisitioning authority. The claimant can only look to the State for recovery of compensation awarded to him by the Collector or by the Court. There is nothing in the Act or the Rules which makes the local authority, the requisitioning authority, primarily responsible to the owner of the land who is awarded the compensation. 10. No doubt, in the decision cited supra, the Corporation of Cochin which was the requisitioning authority, was not a party to the reference. A reading of the decision would show that it is not for the reason of the requisitioning authority not being a party to the reference case that this Court held that the obligation to pay the amount awarded by the Collector or enhanced compensation awarded by the court is on the Collector. It is based on the scheme of the Act and in particular, Sec.31 of the Act. Therefore, that the petitionerrequisitioning authority was also a party to the reference case does not make the position different. It follows that the primary **O.P(C) No.89 of 2013** ## -: 6 :- liability was on the 1[st] respondent-acquisition authority to pay the compensation awarded by the Collector and enhanced by the court from time to time. 11. It is pointed out by the learned counsel for respondents 2 and 3 that the requisitioning authority is obliged to make available funds to the State Government. That however is a matter between the State Government and the requisitioning authority. Assuming that the requisitioning authority has such an obligation, that does not mean that the primary liability to pay the compensation awarded by the District Collector and enhanced by the court is on the requisitioning authority. Viewed in that line Exts.P12 and P13 are liable to be set aside. 12. At the same time, grievance of respondents 2 and 3 has to be redressed. It is seen that the notification was published on 21.05.2005 and possession of the property was taken on 20.01.2006. Reference was in the year, 2008. This Court, as per judgment dated 16.06.2011 enhanced compensation to Rs.17,00,000/- per Are. The decree remains not satisfied even now. Respondent 2 and 3 should get the compensation awarded to them. As aforesaid, be it under the ## **O.P(C) No.89 of 2013** -: 7 :- scheme of the Act or under the decree passed by the court, the 1[st] respondent has the primary obligation to pay the amount to respondents 2 and 3. 13. Having heard the learned counsel and learned Government Pleader, I am inclined to think that there must be a direction to the 1[st] respondent-State to pay amount due to respondents 2 and 3 at the earliest and at any rate on or before 31.03.2013 failing which it is open to respondents 2 and 3 to take coercive steps against the 1[st] respondent. Resultantly, the Original Petition is allowed as under: (i) Exhibits P12 and P13, orders are set aside. (ii) The 1[st] respondent-State is directed to deposit in the executing court the amount due to respondents 2 and 3 on or before 31.03.2013. (iii) It is directed that in case the 1[st] respondent fails to do so, it is open to respondents 2 and 3 to take coercive steps against the 1[st] respondent for realization of the amount due. ## **O.P(C) No.89 of 2013** -: 8 :- (iv) The First Additional Sub Court, Thiruvananthapuram is directed to adjourn E.P. No.389 of 2011 to a day after 31.03.2013. ## **THOMAS P. JOSEPH, JUDGE.** vsv