Tony Thomas v. District Collector, Civil Station, Kakkanad, Ernakulam and others (W.P.(C) Nos.3202/2012 and 5109/2012)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC** **THURSDAY, THE 19TH DAY OF JULY 2012/28TH ASHADHA 1934** ## **WP(C).No. 3202 of 2012 (A) --------------------------** **PETITIONER(S): ----------------------** **TONY THOMAS, MACHUVEETTIL, CHERANELLUR, KOCHI-34.** **BY ADVS. SRI. AUGUSTINE JOSEPH, SRI.S.DILEEP, SRI.K.S. ROCKEY.** **RESPONDENT(S): -------------------------** **1. THE DISTRICT COLLECTOR, CIVIL STATION, KAKKANAD, ERNAKULAM-682 030.** **2. THE SPECIAL TAHSILDAR (LA)** **ICTT PROJECT, VALLARPADOM, ELOOR, UDYOGAMANDAL, ERNAKULAM-683 501.** **3. STATE OF KERALA REPRESENTED BY THE SECRETARY,** **REVENUE DEPARTMENT, GOVT. SECRETARIAT, TRIVANDRUM-695 001.** **4. THE PROJECT DIRECTOR, NATIONAL HIGHWAY AUTHORITY OF INDIA,** **EDAPPALLY, ERNAKULAM-682 024.** **5. THE CHIEF GENERAL MANAGER (LA), NATIONAL HIGHWAY AUTHORITY OF INDIA, G5 & 6 SECTOR 10, DWARAKA, NEW DELHI- 110 075.** **R1 TO R3 BY SPL GOVT. PLEADER MR.JOE KALLIYATH. R4 & R5 BY ADV. SRI.THOMAS ANTONY, SC, NHAI.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19-07-2012, ALONG WITH W.P.(C)NO. 5109 OF 2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs.** ## **WP(C).No. 3202 of 2012 (A)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** - **EXHIBIT P1. TRUE COPY OF THE CONSENT LETTER DATED 17.08.2007.** - **EXHIBIT P2. TRUE COPY OF THE GOVERNMENT ORDER DATED 06.12.2008.** - **EXHIBIT P3. TRUE COPY OF THE ORDER DATED 18.07.2009.** - **EXHIBIT P4. TRUE COPY OF THE COMMON JUDGMENT DATED 08.09.2010.** - **EXHIBIT P5. TRUE COPY OF THE MINUTES OF THE PROCEEDINGS OF THE SAID MEETING DATED 18.12.2010.** - **EXHIBIT P6. TRUE COPY OF THE LETTER DATED 10.06.2011 FROM THE DISTRICT COLLECTOR ALONG WITH TWO TABLES OF COMPENSATION.** - **EXHIBIT P7. TRUE COPY OF THE LETTER DATED 22.07.2011 FROM THE 1ST RESPONDENT ADDRESSED TO THE 5TH RESPONDENT.** - **EXHIBIT P8. TRUE COPY OF THE AWARD NO.33/2008 DATED 11/03/2008.** - **EXHIBIT P9. COPY OF THE NOTIFICATION PUBLISHED ON 29/11/2005.** ## **RESPONDENT'S EXHIBITS:-** - **EXT.R4A COPY OF THE LETTER OF THE PROJECT DIRECTOR NHAI DATED 10/01/2008 SENT TO THE SPECIAL TAHSILDAR, ICTT, VALLARPADOM.** - **EXT.R4B COPY OF THE AWARD NOTICE IN FORM 10(B) UNDER SEC.12(2) OF THE LA ACT DATED 11/03/2008 RECEIVED BY SRI.THOMAS, THE FATHER OF THE PETITIONER.** **EXT.R4C COPY OF THE LETTER DATED 30/09/2011 FORWARDED TO THE NHAI HEAD QUARTERS.** - **EXT.R4D COPY OF THE LETTER DATED 19/11/2011 BY THE 4TH RESPONDENT.** **//TRUE COPY//** **P.A. TO JUDGE** **rs.** ## **ANTONY DOMINIC,J** ## **----------------------------------** **W.P.(C)Nos.3202 & 5109 of 2012 ------------------------------------Dated this the 19[th] day of July, 2012** ## **JUDGMENT** Issues raised in these writ petitions are connected and therefore, these cases were heard together and are disposed of by this common judgment. 2. For convenience, W.P.(c) No.3202/2012 is treated as the leading case. 3. In this writ petition, petitioner seeks a direction to the respondents to determine the land value of acquired land as per Ext.P3 Government order and Ext.P5, the minutes of the meeting held on 13.12.2010. There is also a prayer to direct respondents 1 and 2 to refer their case to the Civil Court under Section 18 of the Land Acquisition Act. 4. 6.80 Ares of property belonging to the petitioner comprised in Survey No.1/8-10 of Mulavukad Village is the property involved in this writ petition. On 27.09.2005, notification under Section 4(1) of the Land Acquisition Act read with Section 17(4) thereof was issued for the acquisition of the W.P.(C).Nos.3202 & 5109 /2012 : 2 : property for the purpose of the Vallarpadom-Kalamassery Four Lane connectivity road. Possession of the property was taken over on 17.08.2007. 5. It appears that there was a scheme of negotiated purchase of the land and the petitioner submitted Ext.P1 letter dated 17.08.2007 agreeing to such a cause of action. From the counter affidavit, it appears that despite notices, the petitioner did not appear to register the documents in pursuance to Ext.P1 and finally the fourth respondent issued Ext.R4(a) letter dated 10.01.2008 returning the files concerning 14 L.A.C cases to the second respondent for further proceedings under the Land Acquisition Act. This includes the case of the petitioner also. 6. It is also stated in the counter affidavit of the fourth respondent that notice under Section 9(3) of the Act was served on the petitioner and on his behalf his father appeared before the second respondent and filed claim statement for increasing the land value. However, the claim was rejected and finally an award was passed on 11.03.2008 as Award No.33/2008 in L.A.C.No.228/2006. As per this award Rs.12,707/- per Are was W.P.(C).Nos.3202 & 5109 /2012 : 3 : awarded to the land in question. Counter affidavit further shows that notice under Section 12(2) dated 11.03.2008 was served on the petitioner's father, a copy of which is Ext.R4(b) and that in spite of it, petitioner never turned up to receive the award amount and therefore, the amount was kept in Revenue deposit on 05.05.2008. 7. Subsequently, on 06.12.2008, the Government issued Ext.P2 order by which payment of compensation at the rate of Rs.29,500/- per cent was allowed in respect of nine persons including the petitioner. Still later, on 18.07.2009 **,** Government issued Ext.P3 order. In that order, it was stated thus: “ _4_ . _In the circumstances reported by the District_ _Collector, Ernakulam, the Government have reconsidered the matter in detail and decided to cancel the lat para of the GO read as 1[st] paper above. Accordingly, the last para in GO read as 1[st] paper above is hereby cancelled._ _5. Sanction is accorded to the District Collector, Ernakulam for conducting Adalat for settling LAR cases (3 Numbers) mentioned in para 3 ante pending before Sub Court in connection with Land acquisition under LA Act in Mulavukad Village if the parties agree for_ W.P.(C).Nos.3202 & 5109 /2012 : 4 : _adalat._ _6. The land Acquisition Officer will review the claims of the remaining persons(Six LACs mentioned in para 2 ante) in Mulavukad Village if Rule 28A(1) applications are received from them, after settlement of the 3 LAR cases mentioned above.”_ 8. However, it appears from Ext.P4, judgment rendered by the Sub Court, Ernakulam in LAR Nos.73, 74 and 75 of 2008, that the L.A.R. cases mentioned in para 5 of Ext.P3 were closed. Since these cases were not settled in adalath as ordered in Ext.P3, petitioner could not take advantage of para 6 of Ext.P3 by availing of an opportunity to seek redetermination of the compensation as provided under Section 28A of the Act. 9. Still later, on 13.12.2010, a meeting was convened by the Minister, Collector and other Officials, the minutes of which is Ext.P5. In this meeting, although it was promised to examine the possibility of paying enhanced compensation and the Collector made Exts.P6 and P7 request to the fourth respondent, from the counter affidavit, it is seen that by Ext.R4(c) and (d) letters, the fourth respondent made it clear that they were not W.P.(C).Nos.3202 & 5109 /2012 : 5 : agreeable to make further payments, since the awards had already become final. It is in these circumstances, the petitioner has approached this Court by filing this writ petition with the main prayer and the main prayers are those mentioned in the earlier part of this judgment. 10. According to the petitioner, in 2001 when the KSEB acquired neighbouring land, Rs.29,500/- per cent was paid as compensation. It is also contended that in 2007 and 2008 acquisitions were made. According to him, in relation to the Acquisition of 2007 in L.A.A.No.223/2012, this Court fixed the compensation at Rs.3,50,000 **/-** per Are. Further he also argued that in relation to the acquisition of 2008 in L.A.A.No.503/2011, this Court awarded Rs.5,86,895/- per Are. Therefore, according to him, Rs.12,707/- per Are awarded to his land is too low and he is entitled to be paid, equally with other land owners. To buttress this Contention, counsel for the petitioner relied on the Apex Court Judgments in **Bhag Singh and others v. Union Territory of Chandigarh (1985(3) SCC 737), Mahesh Dattatray Thirthkar v. State of Maharashtra (2009 (11)** W.P.(C).Nos.3202 & 5109 /2012 : 6 : **SCC 141),** where the Apex Court held that legitimate claim for compensation that is due to the land owners whose lands have been acquired should not be defeated by urging technical grounds. He also relied on the judgments of this Court in S **rimathi Cheriathoppilakath Kunhibi v. Land Acquisition Officer (AIR 1962 Kerala 266) and Narayanan Nair v. State of Kerala and others(AIR 1980 Kerala 153** ) and the judgment in **Nirmala Bala Sen v. Jatindra Nath Sen(AIR 1977 Calcutta 205)** to contend that the service of 12(2) notice on his father, was illegal. It is on this basis, counsel contended that the petitioner is entitled to the reliefs prayed for. 11. The first prayer in the writ petition is to direct respondents 1 and 2 to determine the land value of the acquired land as per Ext.P3 Government Order and Ext.P5, the minutes of the meeting held on 13.12.2010. Insofar as, Ext.P3 Government Order is concerned, by this order, the Government cancelled Ext.P2, where it was agreed that land owners like the petitioner would be paid Rs.29,500/- per cent. In Ext.P3, all that the Government directed was that three LAR cases mentioned in W.P.(C).Nos.3202 & 5109 /2012 : 7 : paragraph 5 thereof could be settled in an Adalath and in paragraph 6, it was stated that once the cases are settled as above, the remaining property owners could seek redetermination of the compensation under Section 28A of the Act. Insofar as the settlement envisaged in Ext.P3 is concerned, Ext.P4 common judgment rendered by the Sub Court itself show that the settlement did not materialise and the references made at the instance of the concerned claimants were closed by the court. Consequently, the petitioners also lost their opportunity to seek redetermination of the compensation as provided in paragraph 6 of Ext.P3. Insofar as, Ext.P5 is concerned, Ext.P5 does not disclose any agreement either by the Government or by the NHAI to make any additional payment. In pursuance to Ext.P5, the District Collector issued Exts.P6 and P7 which were replied by the NHAI as per Ext.R4(c) and (d) and nothing further turned out of this. Therefore, neither Ext.P3, nor Ext.P5 contains anything entitling the petitioner to seek a direction from this Court requiring respondents 1 and 2 to determine the land value of the acquired land on the basis of these two documents. W.P.(C).Nos.3202 & 5109 /2012 : 8 : Therefore, the first prayer in the writ petition has to be rejected and I do so. 12. The second prayer in the writ petition is to direct respondents 1 and 2 to refer the case for determination of the compensation by the court as contemplated under Section 18 of the Land Acquisition Act. Section 18 of the Land Acquisition Act reads thus: _18. Reference to Court: (1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested._ _2). The application shall state the grounds on which objection to the award is taken:_ _Provided that every such application shall be made:-_ _(a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award;_ W.P.(C).Nos.3202 & 5109 /2012 : 9 : _(b) in other cases, within six weeks of the receipt of the notice from the Collector under section 12, sub section(2) or within six months from the date of the Collector's award, whichever period shall first expire._ 13. Petitioner has no case that he made any written application to the Collector requiring a reference In the absence of such a request as specified in the Section, this Court cannot direct that reference shall be made. However, it was contended that the notice under Section 12(2) was served on his father and in such a case, he should now be permitted to make an application under Section 18. First of all, apart from stating that the notice was served only on the father and therefore is invalid, there is no material whatsoever before this Court to hold that such service was invalid even in spite of Section 45 of the Land Acquisition Act. Further, when award enquiry was held, despite service of notice on the petitioner himself, it was his father who appeared for the enquiry. Therefore, on the mere assertion of the petitioner, this Court cannot reopen the entire issue particularly in a case where the award was passed on 11.03.2008. Therefore, I decline the second prayer of the W.P.(C).Nos.3202 & 5109 /2012 : 10 : petitioner also. 14. Be that as it may, fact remains that the land belonging to the petitioner was acquired and he was paid only Rs.12,707/per Are. Certain other owners of comparable lands sought reference under Section 18 and enhancement was allowed by the reference court and the award was confirmed by this Court. In L.A.R.No.95/2008 concerning a property in category No.3, as in the case of the property of the petitioner, the reference court awarded Rs.36,432.50/- per Are and that the award was confirmed by this Court in L.A.A.No.651/2010 filed by the State, by judgment dated 01.07.2010. Although, the petitioner did not seek a reference under Section 18, since similar lands have been granted such enhancement, it is unfair to deprive the petitioner of the legitimate compensation that is due to him. In that view of the matter, I direct that it will be open to the petitioner to apply to the fourth respondent for payment of compensation on par with the claimant in L.A.R.No.95/2008. If such an application is made, it is directed that the petitioner will be paid the amount as ordered in the said award along with the W.P.(C).Nos.3202 & 5109 /2012 **==> picture [26 x 9] intentionally omitted <==** statutory benefits. However, for determining the statutory benefits including interest, the period between 11.03.2008 when the award was passed and 28.03.2012, when the writ petition was filed will be excluded. W.P.(c) No.5109 of 2012 will also stand disposed of in the light of the judgment in W.P.(c) No.3203 of 2012. ## **ANTONY DOMINIC, JUDGE** ln