Wayanad District Co-operative Bank Ltd. v. A.S. Mathew and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR** **THURSDAY, THE 7TH FEBRUARY 2008 / 18TH MAGHA 1929** ## **OP.No. 19732 of 1998(Y)** ## **-----------------------------------** ## **PETITIONER:** ## **-----------------** **THE WAYANAD DISTRICT CO-OPERATIVE BANK LIMITED, REPRESENTED BY ITS GENERAL MANAGER, T. BALAKRISHNAN NAIR, KALPETTA NORTH P.O., WAYANAD DISTRICT.** **BY ADV. SRI.K.P.DANDAPANI (SR.)** **RESPONDENTS:** **---------------------** **1. A.S. MATHEW, S/O. SEBASTIAN, AYKARA THAZHATH THARIODE AMSOM, VYTHIRI TALUK, WAYANA DISTRICT.** **2. THE STATE OF KERALA, REPRESENTED BY THE DEPUTY COLLECTOR (LA), KALPETTA.** **3. THE DISTRICT COLLECTOR, WAYANAD.** **4. THE SUBORDINATE JUDGE, SULTANBATHERY.** **BY ADVOCATE SHRI PHILIP MATHEW R1 BY GOVERNMENT PLEADER SHRI BASANT BALAJI R2 TO 4** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 07/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **APPENDIX** ## **---------------** ## **PETITIONER'S EXHIBITS:** ## **----------------------------------** **EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 11.4.1997 IN L.A.R. NO.168 OF 1991 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE, SULTHANBATHERY.** **EXHIBIT P2 TRUE COPY OF THE DECREE DATED 11.4.1997 IN LAR NO.168 OF 1991, OF DO. DO.** **EXHIBIT P3 TRUE COPY OF THE LETTER DATED 29.7.1998 ISSUED BY THE DISTRICT COLLECTOR TO THE MANAGING DIRECTOR OF THE PETITIONER BANK.** **EXHIBIT P4 TRUE COPY OF THE CALCULATION STATEMENT IN LAR NO.168 OF 1991 (E.P. NO.168 OF 1997) ISSUED BY THE DEPUTY COLLECTOR (LA).** **RESPONDENTS' EXHIBITS: NIL** **-------------------------------------** ## **K. PADMANABHAN NAIR, J.** = = = = = = = = = = = = = = = = = = = ## **O.P. NO.19732 OF 1998 = = = = = = = = = = = = = = = = = = = Dated this the 7[th] day of February, 2008** ## **J U D G M E N T --------------------** **This Writ Petition is filed by the Wayanad District Cooperative Bank Ltd., challenging the decree and judgment passed by the Sub Court, Sulthan Bathery in L.A.R. No.168 of 1991, who is the requisitioning authority for whom the land was acquired.** **2. Based on a requisition made by the petitioner, an extent of 0.0280 hectares (7 cents) of land comprised in Sy.No.NS 481/15 of Kalpetta Village situated on the side of Mysore-Kozhikode road was acquired on 10.1.1991. An award was passed awarding a sum of Rs.1,46,681/-. That amount was paid on 10.11.1990 and 19.12.1990. After receipt of the compensation, the owner of the land filed a petition under Section 18 of the Land Acquisition Act for referring the matter to the Sub Court, for considering the claim for enhancement. No notice was issued to the petitioner. The matter was referred to the Sub Court, Sulthan Bathery. The case was** ## **O.P. NO.19732 OF 1998** ## **-: 2 :-** **numbered as L.A.R. No.168 of 1991. The learned Sub Judge enhanced the compensation. An amount of Rs.75,709/- with other statutory benefits was awarded to the owner of the land.** **3. Learned counsel appearing for the owner of the land contended that there is absolutely no need to implead the requisitioning authority. It is also argued that there is no provision either in the Act or Rules regarding the same.** **4. A Constitutional Bench of the Supreme Court reported in U.P. Awas Evam Vikas Parishad v. Gyan Devi (dead) By Lrs. and Others (1995) 2 SCC 326), after considering the right of the local authority or a company at the cost of whom the land was acquired, held as follows:** ## **“To sum up, our conclusions are:** **1. Section 50(2) of the L.A. Act confers on a local authority for whom land is being acquired a right to appear in the acquisition proceedings before the Collector and the reference court and adduce evidence for the purpose of determining the amount of compensation.** **2. The said right carries with it the right to be given adequate notice by the** ## **O.P. NO.19732 OF 1998** ## **-: 3 :-** **Collector as well as the reference court before whom acquisition proceedings are pending on the date on which the matter of determination of compensation will be taken up.** **3. The proviso to Section 50(2) only precludes a local authority from seeking a reference but it does not deprive the local authority which feels aggrieved by the determination of the amount of compensation by the Collector or by the reference court to invoke the remedy under Article 226 of the Constitution as well as the remedies available under the L.A. Act.** **4. In the event of denial of the right conferred by Section 50(2) on account of failure of the Collector to serve notice of the acquisition proceedings, the local authority can invoke the jurisdiction of the High Court under Article 226 of the Constitution.** **5. Even when notice has been served on the local authority the remedy under Article 226 of the Constitution would be available to the local authority on grounds on which judicial review is permissible under Article 226.** **6. The local authority is a proper party in the proceedings before the reference court and is entitled to be impleaded as a party in those proceedings wherein it can defend the determination of the amount of compensation by the Collector and oppose enhancement of the** ## **O.P. NO.19732 OF 1998** ## **-: 4 :-** **said amount and also adduce evidence in that regard.** **7. In the event of enhancement of the amount of compensation by the reference court if the Government does not file an appeal, the local authority can file an appeal against the award in the High Court after obtaining leave of the court.** **8. In an appeal by the person having an interest in land seeking enhancement of the amount of compensation awarded by the reference court, the local authority should lbe impleaded as a party and it is entitled to be served notice of the said appeal. This would apply to an appeal in the High Court as well as in this Court.** **9. Since a company for whom land is being acquired has the same right as a local authority under Section 50(2), whatever has been said with regard to a local authority would apply to a company too.** **10. The matters which stand finally concluded will,, however, not be reopened”.** **So the right of the petitioner, who is the requisitioning authority, that it has a right to be heard cannot be disputed at all. But the petitioner was not made a party and no notice** ## **O.P. NO.19732 OF 1998** ## **-: 5 :-** **was issued to it. So I am of the view that it is only just and proper that the judgment and decree rendered by the court below in L.A.R. No.168 of 1991 dated 11.4.1997 are set aside in exercise of the powers conferred under Articles 226 and 227 of the Constitution of India with a direction to the learned Sub Judge to take back the LAR to file, try and dispose of the same afresh in accordance with law with due notice to the petitioner, owner of the land and the Government.** **5. In the result, the Writ Petition is disposed of in the following manner: The judgment and decree passed by the learned Sub Judge, Sulthan Bathery in L.A.R. No.168 of 1991 dated 11.4.1997 are hereby set aside. The learned Sub Judge is directed to take L.A.R. No.168 of 1991 back to file and dispose of the same afresh in accordance with law after giving opportunity to the petitioner, who is the requisitioning authority, to get itself impleaded in the proceedings. The learned Sub Judge shall also give opportunity to the petitioner and land owner to adduce evidence, if so advised. If the petitioner files an application to get itself impleaded in the proceedings the same shall stand allowed.** ## **O.P. NO.19732 OF 1998** ## **-: 6 :-** ## **6. Parties shall appear before the Sub Court, Sulthan Bathery on 12.3.2008.** **Civil Miscellaneous Petition No.34732 of 1998 shall stand** ## **dismissed.** **K. PADMANABHAN NAIR, JUDGE.** **vsv** **K. PADMANABHAN NAIR, J. ===================== O.P. NO.19732 OF 1998 ===================== J U D G M E N T ------------------------------------------7TH FEBRUARY, 2008**