W.P.(C) No. 17528 of 2021

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** # **`THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR`** ``` & ``` ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN FRIDAY, THE 17[TH] DAY OF FEBRUARY 2023 / 28TH MAGHA, 1944 WP(C) NO. 17528 OF 2021 ``` ## **`PETITIONER/S:`** ``` 1THE ADDITIONAL CHIEF SECRETARY LOCAL SELF GOVERNMENT (LA) DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695001. 2THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM DISTRICT, CIVIL STATION, KODUAPPANAKUNNU P.O., THIRUVANANTHAPURAM-695043. BY ADVS. SHR. K.P.JAYACHANDRAN, ADDL. ADVOCATE GENERAL SRI. K. P. HARISH, SR. GP ``` ## **`RESPONDENT/S:`** - **`1 B.PARAMESWARAN NAIR S/O.LATE P.BALAKRISHNA PILLAI, TC 7/1597, BHAGEERATHY BHAVAN KOCHULLOR, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM DISTRICT, PIN-695011.`** - **`2 THE SECRETARY THIRUVANANTHAPURAM DEVELOPMENT AUTHORITY (TRIDA), VAZHUTHACAUD, THIRUVANANTHAPURAM, PIN-695014.`** - **`3 KERALA LOK AYUKTA REPRESENTED BY ITS REGISTRAR, LEGISLATURE COMPLEX, VIKAS BHAVAN, THIRUVANANTHAPURAM-695033. BY ADVS. C.R.SIVAKUMAR SHRI.M.RAJAGOPALAN NAIR, SC, TRIDA G.BIJU MINI.M.NAIR`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W. P. (C) No. 17528 of 2021 -2- ## **J U D G M E N T** S. Manikumar, C. J. Being aggrieved by the directions issued by the Kerala Lok Ayukta in complaint No. 985 of 2018 dated 23.02.2021, the District Collector, Thiruvananthapuram, and the Additional Chief Secretary, Local Self Government (I.A.) Department, Thiruvananthapuram, respondents 1 and 4 therein, have preferred the instant writ petition. 2. Short facts leading to the filing of the writ petition are as under: 2.1. Petitioners have submitted that the order of the Lok Ayukta dated 23.02.2021 is without jurisdiction, and the Lok Ayukta ought to have considered the fact that the reliefs sought for in complaint No. 985 of 2018 have been granted, since Section 28A application has been considered and an award is passed in terms of the same. The amount awarded had already been paid, and Mr. B. Parameswaran Nair, the complainant / the 1[st] respondent, had undertaken not to claim interest, after the date on which the award is passed. Despite the undertaking, the 1[st] respondent claimed interest and the Lok Ayukta granted the W. P. (C) No. 17528 of 2021 -3- same, which is illegal and unsustainable. 2.2. Petitioners have further submitted that moreover, the proper remedy for the 1[st] respondent was to apply to the District Collector for reference to a competent Civil Court for re-determination of compensation under Section 28A(3) of the Land Acquisition Act, 1894, and get the issue adjudicated in a Land Acquisition Reference. Instead, the 1[st] respondent has chosen the Lok Ayukta for the said remedy. 3. Order of the Lok Ayukta in complaint No. 985 of 2018 dated 23.02.2021, impugned in the instant writ petition, is reproduced:- “9. We find and declare that the complainant is entitled to get interest at the rate of 15% on the enhanced amount of Rs.55,76,360/- for the period from 01.04.2019 (ie., excluding 30 days from the date of the award) to 20.08.2020. Respondents 1 to 4 are liable to quantify and pay to the complainant the amount of such interest within a period of one month from the date of receipt of a copy of this Report. 10. Hence, under Section 12(1) of the Kerala Lok Ayukta Act, 1999 we recommend to the Competent Authority, Chief Secretary to Government, Government of Kerala, to remedy the injustice and redress the hardship caused to the complainant by W. P. (C) No. 17528 of 2021 -4- ensuring payment of interest to the complainant at the rate of 15% on the enhanced amount of compensation for the period from 01.04.2019 to 20.08.2020, within one month from the date of receipt of a copy of this Report. 11. The Registry is directed to forward this Report to the Chief Secretary to Government, Government of Kerala. Copy of the Report also be furnished to the complainant and respondent Nos.1 and 4. The Competent Authority shall file an Action Taken Report under Section 12(2) of the Kerala Lok Ayukta Act within two months from the date of receipt of this Report.” ## 4. Mr. B. Parameswaran Nair, the 1[st] respondent, has filed a counter affidavit in the writ petition, which reads thus:- “3. The allegations and averments contained in Paragraph 1 and 2 of the writ petition are not fully correct hence, denied by this respondent except those which are admitted herein under. It is true that the 1[st] respondent filed complaint No.985/2018 before the Kerala Lok Ayukta since the 2[nd] petitioner herein has caused inordinate delay in considering an application submitted by the 1[st] respondent for redetermination of compensation under section 28A of Land Acquisition Act 1894 without any genuine reason. 4. The allegations and averments contained in Paragraph 3 of the writ petition are not fully correct hence, denied by this respondent except those which are admitted herein under. It is W. P. (C) No. 17528 of 2021 -5- submitted that 1.59 Ares of land, shop rooms and residential building situated therein in the land owned by the 1[st] respondent was acquired by the petitioners herein pursuant to the notification dated 21/12/2005 issued under section 4(1) of the Land Acquisition Act 1894. Award under section 12(2) of the Act for an amount of Rs. 8,68,931/ was passed on 25/7/2007 and the said amount was paid to the 1[st] respondent on 08/08/2007. Possession of the land was taken by the petitioners herein on 4/8/2007. Later, on 5/4/2016 the 1[st] respondent filed an application under section 28A of the Land Acquisition Act 1894 for redetermination of compensation in view of an award passed by the sub court, Thiruvananthapuramin in LAR No. 81/2012 dated 16/1/2016 in respect of another land acquired under the same notification. The 2[nd] petitioner herein did not consider the said application and not passed any order in the said application for more than two and a half years. Aggrieved by the inaction willful negligence and inordinate delay in passing orders in the above said application, the 1[st] respondent approached the Kerala Lokayukta with Exhibit Pl complaint dated 30/10/2018. It is submitted that only after filing of Exhibit Pl complaint and issuance of Exhibit P2 interim order by the Lokayukta directing the 2[nd] petitioner herein to pass orders on the said application within a period of 3 weeks from the date of hearing ie, 12/2/2019, the 2[nd] petitioner herein passed award under section 28A of the Act on 28/2/2019. As per the said award, the amount of compensation was enhanced by Rs. 55,76,316. Interest at the rate of 9% on the said amount was awarded for the period from 26/7/2007 to 25/7/2008 which amounted to 5,01,868/. Interest W. P. (C) No. 17528 of 2021 -6- was also awarded at the rate of 15% for the period from 26/7/2008 to 28/2/2019 which amounted to Rs.88,68,635/. Thus the total amount awarded as additional compensation including interest was Rs. 1,49,46,820/. The said amount was paid to the 1[st] respondent only on 21/8/2020. 5. The allegation and averment contained in Paragraph 4 is not fully correct hence, denied by this respondent except those which are admitted herein under. It is submitted that even though the enhanced compensation was awarded on 28/2/2019, the amount was paid only on 21/8/2020. Rule 14 of the Land Acquisition (Kerala) Rules 1990 envisages that the payment relating to an award shall be made or the amount credited to the court or revenue deposit within one month from the date of award. There is a delay of 539 days in paying the enhanced amount. It is submitted that on 12/2/2019 at the time of hearing on the application under section 28A of the Act, A senior clerk of the 2[nd] petitioner compelled the 1[st ] respondent and obtained the signature of the complainant on Exhibit P4 printed form as precondition for passing the award. The 1[st] respondent was enticed to affix the signature in Exhibit P4 on the assurance that the enhanced compensation will be deposited in the 1[st] respondents account within 1 month from the date of the award ie 28/2/2019. 6. It is submitted that the contents of Exhibit P4 that interest on the awarded amount need be paid only up to the date of award is against the specific statutory provisions contained in section 34 of the Land Acquisition Act 1894 and therefore, W. P. (C) No. 17528 of 2021 -7- putting signature in Exhibit P4 cannot be a valid ground for denial of interest which is entitled to the 1[st] respondent under the statutory provisions. It is submitted that section 34 of the Land Acquisition Act 1894 stipulates that when the amount of compensation is not paid or deposited on or before taking possession of the land, the collector shall pay the amount awarded with interest thereon at the rate of 9% per annum from the time of taking possession until it shall have been so paid or deposited. Provided further that if such compensation or any part thereof is not paid or deposited within a period of one year from the date on which possession is taken, interest at the rate of 15% per annum shall be payable from the date of expiry of the said period of one year on the amount of compensation or part thereof which has not been paid or deposited before the date of such expiry. Rule 14 of the Land Acquisition (Kerala) Rules 1990 envisages that the payment relating to an award shall be made or the amount credited to the court or revenue deposit within one month from the date of award and in the case of an award made in the month of March it shall be paid or deposited before the end of the financial year. It is submitted that in the light of section 34 of the Land Acquisition Act 1894 read with Rule 14(2) of the Land Acquisition (Kerala) Rules 1990, the 1[st] respondent is entitled to get interest till the date of payment. Since interest was awarded only up to the date of award ie 28/2/2019, the 1[st] respondent is legally entitled to get the statutory eligible interest at the rate of 15% for the period from 1/3/2019 to 20/8/2020. It is further submitted that this Hon'ble Court in Sarojini Amma v State of Kerala (2008 (2) KLT 491) held that directions and W. P. (C) No. 17528 of 2021 -8- guidelines cannot be issued by the executive government or its officers against the statutory provisions contained in the act and rules. 7. It is also submitted that as per section 7(1) & (2) of the Kerala Lok ayukta Act, Lok Ayukta can investigate any action which is taken by or with the general or specific approval of any public servant in any case where a complaint involving a grievance or an allegation is made in respect of such action or such action can be or could have been in the opinion of Lok Ayukta, the subject of a grievance. Grievance is defined as per section 2(h) of the Kerala Lok Ayukta Act. As per this definition grievance means a claim by a person that he sustained injustice or undue hardship in consequence of mal administration. Mal administration is defined under section 2(k). As per section 2(k) (ii) mal administration means action taken or purporting to have been taken in the exercise of administrative function in any case where there has been willful negligence or undue delay in taking such action or the administrative procedure or practice adopted in such action involves undue delay. The specific case of the 1[st] respondent herein is that there has been willful negligence and undue delay in considering the application submitted by the 1[st] respondent herein under section 28(A) of Land Acquisition Act 1894 and the practice adopted by the petitioner herein is unreasonable, unjust and oppressive. 8. The allegation and averment contained in grounds A to F are totally against facts and law and hence, denied by this respondent. As per section 24 (2) of the Kerala Lok Ayukta Act W. P. (C) No. 17528 of 2021 -9- the provisions of the Lok ayukta Act shall be in addition to the provisions of any other enactment or any rule of law under which any remedy by way of appeal, revision, review or in any other manner is available to a person making a complaint under this act, in respect of any action and nothing in this act shall limit or affect the right of such person to avail such remedy. 9. It is submitted that as per section 12 (1) of Kerala Lokayukta Act ‘If after investigation of any action in respect of which a complaint involving grievance has been made, the Lokayukta or an Upa Lokayukta is satisfied that such action has resulted in injustice or undue hardship to the complainant or to any other person, the Lokayukta or an Upa Lokayukta shall, by report in writing, recommend to the competent authority concerned that such injustice or hardship shall be remedied or redressed in such manner and within such time as may be specified in the report and also intimate the complainant about its having made the report.” Going by sections 7, 12 (1) & 24 (2) of The Kerala Lokayukta Act, the Exhibit P5 Report is perfectly well within the jurisdiction of the Lokayukta. It is also submitted that the Lokayukta is well within its authority and Jurisdiction while passing Exhibit P5 Report and is in consonance with the statute and hence averments to the contrary in the writ petition is against facts and law. 10. It is submitted that the inaction and mal administration committed by the petitioners herein in considering the application under section 28A have been substantiated before the Lokayukta and during the course of investigation the Hon'ble W. P. (C) No. 17528 of 2021 -10- Lok Ayukta perused the records and properly considered the facts of the case in the light of the records produced by the petitioners and the 1[st] respondent herein and came to the conclusion that the 1[st] respondent is entitled to get statutory interest for the enhanced compensation till date of payment.” 5. Today, when the matter came up for hearing, Mr. K. P. Harish, learned Senior Government Pleader, submitted that having agreed to receive interest only up to the date of award, and having given up his claim, if any, for the interest for the period after the date of the award till the date of payment, the complainant is not justified in raising the claim for interest. Learned Senior Government Pleader further submitted that the amount could not be disbursed to the complainant, as the Government officials were be pre-occupied with the works related to prevention of Covid-19. 6. Mr. C. R. Sivakumar, learned counsel for the complainant / 1[st] respondent herein, submitted that though the enhanced compensation was awarded on 28.02.2019, but the amount was paid only on 21.08.2020. In the light of Section 34 of the Act read with Rule 14(2) of the Land Acquisition (Kerala) Rules, 1990, the complainant is entitled to get interest at the rate of 15% for the period from W. P. (C) No. 17528 of 2021 -11- 01.04.2019 to 20.08.2020. 7. Though the learned Senior Government Pleader advanced arguments relying on the consent given by the 1[st] respondent/ complainant for giving up the interest for the period after the date of the report/award, we are of the considered opinion that directions and guidelines cannot be issued by the Executive Government or its officers, contrary to the statutory provisions contained in the Act and rules. Statutory right of the complainant cannot be whittled down. 8. Section 34 of the Land Acquisition Act, 1894, reads as under: “34. Payment of interest - When the amount of such compensation is not paid or deposited on or before taking possession of the land, the Collector shall pay the amount awarded with interest thereon at the rate of [nine per centum] per annum from the time of so taking possession until it shall have been so paid or deposited: Provided that if such compensation or any part thereof is not paid or deposited within a period of one year from the date on which possession is taken, interest at the rate of fifteen per centum per annum shall be payable from the date of expiry of the said period of one year on the amount of compensation or part thereof which has not been paid or deposited before the date of such expiry.” W. P. (C) No. 17528 of 2021 -12- 9. Rule 14(2) of the Land Acquisition (Kerala) Rules, 1990, reads as under: “(2) The payment relating to an award shall be made or the amount credited to Court or Revenue deposit within one month from the date of the award and in the case of an award made in the month of March it shall be paid or deposited before the end of the financial year.” ## 10. In **Sarojini Amma** v. **State of Kerala** [2008 (2) KLT 491], a learned Single Judge of this Court, held as under: “2. Petitioner is challenging the directions contained in the letter. When there are specific provisions in the statute and further the Government had framed Rules under the Sections, the Executive cannot issue circulars or orders which run counter to the provisions in the statute or Rules. Executive directions issued are unsustainable and liable to be quashed. The directions contained in clause 2, 3 and 4 in Ext.P4 are against the statutory provisions. Hence, those directions are illegal, ultravires and liable to be quashed.” 11. Any re-determination of compensation under Section 28A of the Land Acquisition Act, 1894, attracts interest under Section 34 of the Act. Though the complainant was promised to pay the enhanced amount of compensation, within one month from the date of the report, W. P. (C) No. 17528 of 2021 -13- he actually received the amount only after 539 days from the date of the report. 12. In the light of the above discussion, we are of the considered opinion that the first respondent/complainant is entitled to get 15% interest on the enhanced amount of compensation, as per the statute, for the delayed period. In such circumstances, we are not inclined to interfere with the report of the Lok Ayukta in Complaint No.985/2018 dated 23.02.2021. Petitioners are directed to comply with the directions contained in impugned report, within a period of three months. Accordingly, the writ petition is dismissed. **Sd/S. MANIKUMAR CHIEF JUSTICE** **Sd/-** **MURALI PURUSHOTHAMAN JUDGE** Eb ///TRUE COPY/// P. A. TO JUDGE W. P. (C) No. 17528 of 2021 -14- ## **`APPENDIX OF WP(C) 17528/2021`** ``` PETITIONER EXHIBITS Exhibit P1TRUE COPY OF THE COMPLAINT NO.985/2018 FILED BY THE FIRST RESPONDENT. Exhibit P2TRUE COPY OF THE INTERIM ORDER DATED 30.01.2019. Exhibit P3TRUE COPY OF THE REPORT DATED 02.04.2019 FILED IN COMPLAINT NO.985/2018. Exhibit P4TRUE COPY OF THE UNDERTAKING SUBMITTED BY THE 1ST RESPONDENT BEFORE THE LAND ACQUISITION OFFICER DATED 12.02.2019. Exhibit P5TRUE COPY OF THE REPORT DATED 23.02.2021 IN COMPLAINT NO.985/2018. ```