W.P.(C).Nos. 30099 of 2017 and 28967 of 2017, High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 31ST DAY OF JANUARY 2019 / 11TH MAGHA, 1940** ## **WP(C).No. 30099 of 2017** ## **PETITIONERS:** - **1 DAWN JOSE S/O.JOSEPH AGED 33 YEARS, CHAVELIL HOUSE, CHERPUNKAL P.O, PALA.** - **2 ABY ABRAHAM, MOZZHAYIL HOUSE, PALA.** - **3 SUNNY MATHEW, ELAVUMKUNNEL HOUSE, VELLIYEPPALLY, PALA, REPRESENTED BY HIS BROTHER AND POWER OF ATTORNEY HOLDER SRI. PRAKASH MATHEW, S/O. MATHEW,ELAVUMKUNNEL HOUSE, VELLIYEPPALLY, PALA.** - **4 SUJATHA SUNIL, THAZHATHUPANATTU, PALA P.O** - **5 GEORGE C. KAPPEN, KAPPIL HOUSE, PALA.** - **BY ADVS.SRI.G.S.REGHUNATH & SRI.P.C.HARIDAS** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001** - **2 LAND REVENUE COMMISSIONER, THIRUVANANTHAPURAM 695 001.** - **3 DISTRICT COLLECTOR, KOTTAYAM 686 001.** - **4 REVENUE DIVISIONAL OFFICER, PALA 686 575.** - **5 SPECIAL TAHASILDAR (LA) GENEERAL, KOTTAYAM 686 575.** - **6 CHIEF ENGINEER, PUBLIC WORKS DEPARTMENT, THIRUVANANTHAPURAM 695 001.** - **7 EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT(ROADS), KOTTAYAM 686 001.** - **8 ASST. EXECUTIVE ENGINEER, ROADS SUB DIVISION, PUBLIC WORKS DEPARTMENT(ROADS), PALA 686 575.** - **9 THE SECRETARY TO THE DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.** - **[10] THE PALA MUNICIPALITY REPRESENTED BY ITS SECRETARY, PALA, KOTTAYAM-686575** - ***IMPLEADED AS PER ORDER DATED 3-10-2018 IN IA 1/18** **SRI.Y.JAFAR KHAN, GOVT.PLEADER SRI.SUJITH MATHEW JOSE, SC FOR ADDL.R10, PALA MUNICIPALITY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** **31.01.2019, ALONG WITH WP(C).28967/2017, THE COURT ON THE SAME** **DAY DELIVERED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 31ST DAY OF JANUARY 2019 / 11TH MAGHA, 1940** ## **WP(C).No. 28967 of 2017** ## **PETITIONERS:** - **1 DR.PRAKASH MATHEW S/O.MATHEW, AGED 52 YEARS, ELAVUMKUNNEL HOUSE, VELLIYEPPALLY KARA, MEENACHIL VILLAGE AND TALUK, KOTTAYAM DISTRICT.** - **2 SAJITHA CHERIAN, W/O.T.C.CHERIAN, AGED 47 YEARS, THENNADIYIL HOUSE, PATHUVA P.O.,MATTAKKARA, AKALAKKUNNAM VILLAGE, KOTTAYAM TALUK.** - **3 A.T.JOSE, S/O.THOMAS, AGED 73 YEARS, ALAPPATTUKUNEL HOUSE, KIZHATHADIYOOR KARA, LALAM VILLAGE, PALA.** - **4 AJI R.KARTHA, ADVOCATE, SURYA BUILDINGS, PALA.** - **5 JOMON GEORGE, S/O.VARKEY, ARIMATTATHIL HOUSE, POOVARANI VILLAGE, EDAMATTOM KARA.** - **BY ADV. SRI.JOMY GEORGE** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO THE DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 LAND REVENUE COMMISSIONER, THIRUVANANTHAPURAM-695001.** - **3 THE DISTRICT COLLECTOR, KOTTAYAM-686001.** - **4 THE SPECIAL TAHSILDAR LA GENERAL, KOTTAYAM-686001.** - **5 THE EXECUTIVE ENGINEER, PWD ROADS DIVISION, KOTTAYAM-686001.** ## **SRI.Y.JAFAR KHAN,GOVT.PLEADER SRI.SUJITH MATHEW JOSE, SC, PALA MUNICIPALITY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31.1.2019, ALONG WITH WP(C).30099/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## ALEXANDER THOMAS, J. -------------------------------------------------- ## W.P.(C)Nos. 30099 & 28967 of 2017 -------------------------------------------------- Dated this the 31[st] day of January, 2019 ## J U D G M E N T ## WP(C).No.30099 of 2017 The prayers in the above Writ Petition (Civil) are as follows: “ - _i. To declare that the respondents are not entitled to take possession of any land or portions of building outside the road alignment fixed and 0.58 Ares sought to be acquired and that the possession of the premises can be taken only after passing an award determining compensation payable to the petitioners and other persons interested, in accordance with the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, after hearing the petitioners and the amount of compensation so determined are paid to the petitioners and others._ - _ii. To issue a writ of certiorari or any other appropriate writ order or direction to the respondents to call for all records leading up to Ext.P12 and quash Ext.P8 and P12._ - _iii. To issue a writ of mandamus or any other appropriate writ, order or direction to the respondents to pass a final award determining compensation to the petitioners and other persons interested in the land and building in accordance with the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, after affording an opportunity of hearing to the petitioners and other affected persons, within a time limit prescribed by this Hon'ble Court._ - _iv. To issue a writ of mandamus or any other appropriate writ order or direction to the respondents to exclude the portions of land and building which are outside the alignment fixed while determining compensation._ - _v. To issue a writ of mandamus or any other appropriate writ order or direction to the respondents restraining them from taking possession of the property or portions of buildings of the petitioners before passing an award determining compensation in accordance with the provisions of the Right to Fair Compensation and Transparency in Land Acquisition,_ W.P.(C).Nos.30099 & 28967/2017 ..5.. _Rehabilitation and Resettlement Act, 2013._ _vi. To grant such other reliefs which this Hon'ble Court deem just and proper in the facts and circumstances of the case, including the cost of the petitioners. ”_ 2. Heard Sri.G.S.Reghunath, learned counsel appearing for the petitioners, Sri.Y.Jafer Khan, learned Government Pleader appearing for the respondents 1 to 9 and Sri.Sujin Mathew Jose, learned Standing Counsel for Pala Municipality, appearing for additional R-10. 3. The core of the factual aspects to the extent that is relevant for the disposal of the case is as follows: Though proceedings under the Land Acquisition Act, 1894 (Old Act) was commenced during the currency of said old Act in respect of petitioners' property, no award was duly passed by the 5[th] respondent Land Acquisition Officer, viz, Special Tahsildar (LA), General, Kottayam, before the coming into force of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Central Act 30 of 2013, which came into force on 1.1.2014). This Court had held in a catena of decisions more particularly the one rendered by the Division Bench of this Court in the case in _**Sajan P.M. v. LAO & Others**_ W.P.(C).Nos.30099 & 28967/2017 ..6.. _**(2016 (1) KHC 743 = 2016 (1) KLT 671 = 2016 (1) KLJ 632)**_ that in cases where land acquisition proceedings have been initiated during the currency of the old Act and where award is not passed under the said old Act before the coming into force of the new Act, then in view of the mandate of Sec.24 of the new Act, the land acquisition officer is obliged in law to pass a fresh/revised award in the matter under the provisions of the said new Act. In the instant case, it is beyond the pain of any factual controversy that no award was passed in respect of the petitioners' property under the old Act before the coming to force of the new Act. On the other hand, the 5[th] respondent Land Acquisition Officer had passed Ext.P-8 award dated 31.12.2014 in respect of the petitioners' property under the provisions of the old Act but after coming into force of the new Act. Therefore Ext.P-8 award is non-est, ultra vires and unenforceable in view of the mandate given by the Parliament as reflected in Sec.24 of the new Act. 4. Now it is submitted by the learned Government Pleader appearing for the official respondents, more particularly respondent No.5 that an award was passed under the new Act by W.P.(C).Nos.30099 & 28967/2017 ..7.. the 5[th] respondent LAO on 28.3.2016. However the petitioners would assert that the said award dated 28.3.2016 has been rendered without any prior notice to the petitioners and without granting any reasonable opportunity of being heard to the petitioners to participate in the award enquiry process and that therefore it is null and void and not binding on them. This Court as per order dated 14.1.2019 had specifically requested the learned Government Pleader to get specific factual instructions from the 5[th] respondent as to whether or not the said award dated 28.3.2016 was passed after issuing proper award enquiry notice to the petitioners. Today when the matter has been taken up for consideration Sri.Y.Jafer Khan, learned Government Pleader appearing for the official respondents would submit on the basis of instructions of the 5[th] respondent that the petitioners were not given any award enquiry process and that the 5[th] respondent will recall the said award dated 28.3.2016 so as to pass a fresh/revised award under the new Act and after giving award enquiry notices to the petitioners and after granting them reasonable opportunity to participate in the said award determination process. The said W.P.(C).Nos.30099 & 28967/2017 ..8.. submission made on behalf of the 5[th] respondent is indeed fair and is appreciated. Accordingly it is ordered that the so called award dated 28.3.2016 passed by the 5[th] respondent LAO under the new Act, is only to be treated as non-est, ultra vires and unenforceable and will not bind the petitioners in any manner and the same will stand cancelled and rescinded. 5. The 5[th] respondent will immediately issue award enquiry notices to the petitioners in respect of the above land acquisition case and then would consider all the relevant claims and contentions of the petitioners and allow them reasonable opportunity of being heard to participate in the said award enquiry process and then would pass a considered award in accordance with the provisions contained in the new Act. 6. In this connection, Sri.G.S.Reghunath, learned counsel appearing for the petitioners would submit on the basis of instructions that Ext.P-11 series would disclose that only part of the additional property multistoried building is sought to be acquired which is not contained in the Sec.6(1) declaration issued in respect of the above land acquisition proceedings under the old Act and W.P.(C).Nos.30099 & 28967/2017 ..9.. therefore the 5[th] respondent shall not pass any award so as to acquire the said additional property more particularly the building situated therein as the same is not subject matter of Sec.6(1) declaration issued under the old Act. So long as a fresh land acquisition notification is issued under the new Act in respect of the said additional property, the respondents are incompetent to acquire the said additional property more particularly the said building. In that regard the counsel for the petitioners have also adverted to the provisions contained in Sec.94 of the new Act. Those aspects of the matter need not detain the attention of this Court in this proceedings and it is for the petitioners to raise all such contentions and objections before the 5[th] respondent Land Acquisition Officer who may consider the same in accordance with law while passing fresh award as directed herein above. 7. The 5[th] respondent Land Acquisition Officer should ensure that the award enquiry process is duly completed and final award is passed under the new Act without much delay preferably within a period of 2 months from the date of production of a certified copy of this judgment. Needless to say the possession of W.P.(C).Nos.30099 & 28967/2017 ..10.. the property which is the subject matter of the land acquisition proceedings can be taken only after following the due procedure prescribed under the new Act. ## WP(C).No.28967 of 2017 8. The prayers in the above Writ Petition (Civil) are as follows: “ - _i. To call for all records leading up to Ext.P16 and quash the same issued by the 5[th] respondent in respect of the premises under the possession of the petitioners._ - _ii. To declare that the respondents are not entitled to take possession of the rooms or premises under the possession of the petitioners without issuing notice and affording an opportunity of hearing to them and without paying the compensation legitimately due to them._ - _iii. To issue a writ of mandamus or any other appropriate writ order or direction to the respondents restraining them from proceeding any further pursuant to Ext.P16 and similar notices for possession of the rooms or premises under the possession of the petitioners, without issuing notice and opportunity of hearing to them and without paying the compensation legitimately due to them._ - _iv. To grant such other reliefs which this Hon'ble Court deem just and proper in the facts and circumstances of the case, including the cost of the petitioners. ”_ 9. Heard Sri.Jomy George, learned counsel appearing for the petitioners and Sri.Y.Jafer Khan, learned Government Pleader appearing for the respondents. The petitioners herein claim to be tenants of various rooms in a commercial building named Surya Building in Pala Town, which is owned by petitioners in W.P.(C).Nos.30099 & 28967/2017 ..11.. WP(C).No.30099 of 2017 . According to the petitioners herein they are carrying on their business or profession in those tenant rooms for earning livelihood and that they have come to know that a portion of the said building may be subjected to land acquisition proceedings for the purpose of development of road. Now the respondents have taken steps to obtain vacant portions of the building including the rooms occupied by the petitioners and that this is so done without issuing any notice what so ever or affording any opportunity of being heard to the petitioners and without paying compensation legitimately due to them under the new Act. As per P-15 scheme and under Chapter 5 of new Act, 2013, the petitioners are entitled to pay compensation in the case of acquisition. Hence it is urged that impugned action of the respondents are illegal and improper and in the light of these factual averments that the petitioners have filed the instant writ petition with the aforementioned prayers. 10. In view of the specific orders and directions already issued by this Court in the judgment in WP(C).No.30099 of 2017 which is filed by some of the owners concerned of the rooms in the W.P.(C).Nos.30099 & 28967/2017 ..12.. said building. The grievances and the complaints of the petitioners as tenants might have more bearing only if after the passing of fresh revised award. Therefore it is ordered and clarified that being tenants who are interested persons in the subject matter of the property that is sought to be acquired, the land acquisition officer should ensure that award enquiry notices should also be given to the petitioners herein and such other tenants who may be affected by the impugned acquisition process so that their objections and grievances could also be considered in accordance with law by the respondent Land Acquisition Officer while passing fresh/revised award under the new Act as directed in WP(C).No.30099 of 2017. Thereafter if the petitioners have any subsisting legally justiciable grievances which is for them to work out the remedies in accordance with law. With these observations and directions, the above Writ Petitions (Civil) will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG W.P.(C).Nos.30099 & 28967/2017 ..13.. ## **APPENDIX OF WP(C) 30099/2017** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF PROCEEDINGS DATED 11-022011 OF THE 2ND RESPONDENT EXHIBIT P2 TRUE COPY OF S.4(1) NOTIFICATION PUBLISHED IN DEEPIKA DAILY DATED 0504-2011** **EXHIBIT P3 TRUE COPY JUDGMENT DATED 05-06-2012 IN W.P9C) NO 31209/2011** **EXHIBIT P4 TRUE COPY OF THE ORDER DATED 17-072012 OF THE 2ND RESPONDENT** **EXHIBIT P5 TRUE COPY OF THE S.6 DECLARATION DATED 06-09-2012 EXHIBIT P6 TRUE COPY OF THE OBJECTION TO AWARD ENQUIRY FILED BY THE 1ST PETITIONER EXHIBIT P7 TRUE COPY OF THE OBJECTION TO AWARD ENQUIRY FILED BY THE 3RD PETITIONER EXHIBIT P8 TRUE COPIES OF THE NOTICE OF AWARD AND AWARD DATED 31-12-2014 ISSUED TO THE PETITIONERS EXHIBIT P9 TRUE COPY OF THE JUDGMENT IN W.A NO 2109/2015 EXHIBIT P9A TRUE COPY OF THE JUDGMENT DATED 28-062017 IN W.P(C) NO 28509/2012 AND CONNECTED CASES EXHIBIT P9B TRUE COPY OF IA NO.913/2015 EXHIBIT P10 TRUE COPY OF SKETCHES OF THE BUILDING. EXHIBIT P11 TRUE COPIES OF THE VALUATION OF BUILDINGS MADE BY THE PWD** W.P.(C).Nos.30099 & 28967/2017 ..14.. **EXHIBIT P12 TRUE COPY OF THE NOTICE IN FORM 12 ISSUED TO THE PETITIONERS** **EXHIBIT P12A TRUE COPY OF THE OBJECTIONS SUBMITTED BY THE PETITIONERS** **EXHIBIT P14 TRUE COPY OF THE VIGILANCE REPORT DATED 7/8/2017 EXHIBIT P15 TRUE COPY OF THE FAIR VALUE NOTIFICATION** W.P.(C).Nos.30099 & 28967/2017 ..15.. ## **APPENDIX OF WP(C) 28967/2017** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1** **TRUE COPY OF REGISTRATION CERTIFICATE DATED 01.07.1999 ISSUED TO THE 1ST PETITIONER.** - **EXHIBIT P2 TRUE COPY OF CONSENT LETTER DATED 27.03.2007 ISSUED IN FAVOUR OF THE 1ST PETITIONER.** - **EXHIBIT P3 TRUE COPY OF REGISTRATION CERTIFICATE DATED 23.09.2009 ISSUED TO THE 1ST PETITIONER FROM THE LABOUR DEPARTMENT.** - **EXHIBIT P4 TRUE COPY OF THE RECEIPT FOR PAYMENT OF PROFESSIONAL TAX.** **EXHIBIT P5 TRUE COPY OF THE AGREEMENT DATED 08.01.2004 IN FAVOUR OF THE 2ND PETITIONER.** **EXHIBIT P6 TRUE COPY OF THE APPLICATION CUM REGISTRATION.** - **EXHIBIT P7 TRUE COPY OF THE AGREEMENT DATED 01.05.2015 IN FAVOUR OF THE 2ND PETITIONER.** **EXHIBIT P8 TRUE COPY OF THE AGREEMENT DATED 03.06.2006 IN FAVOUR OF THE 3RD PETITIONER.** **EXHIBIT P9 TRUE COPY OF THE AGREEMENT DATED 29.03.2007 IN FAVOUR OF THE 5TH PETITIONER.** **EXHIBIT P10 TRUE COPY OF THE LICENSE ISSUED FROM PALA MUNICIPALITY IN FAVOUR OF THE 5TH PETITIONER.** W.P.(C).Nos.30099 & 28967/2017 ..16.. - **EXHIBIT P11 TRUE COPY OF THE CERTIFICATE OF REGISTRATION UNDER VAT RULES ISSUED IN FAVOUR OF THE 5TH PETITIONER.** - **EXHIBIT P12 TRUE COPY OF THE REPRESENTATION DATED 13.01.2015 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 4TH RESPONDENT.** - **EXHIBIT P12(A) TRUE COPY OF THE REPRESENTATION DATED 02.02.2015 SUBMITTED BY THE 2ND PETITIONER BEFORE THE 4TH RESPONDENT.** - **EXHIBIT P13 TRUE COPY OF THE REPRESENTATION DATED 29.08.2017 SUBMITTED BY THE 3RD PETITIONER BEFORE THE 4TH RESPONDENT.** - **EXHIBIT P13(A) TRUE COPY OF THE REPRESENTATION DATED 29.08.2017 SUBMITTED BY THE 4TH PETITIONER BEFORE THE 4TH RESPONDENT.** - **EXHIBIT P14 TRUE COPY OF THE REPRESENTATION DATED 29.08.2017 SUBMITTED BY THE 5TH PETITIONER BEFORE THE 4TH RESPONDENT.** - **EXHIBIT P15 TRUE COPY OF THE REHABILITATION AND RESETTLEMENT POLICY ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P16 TRUE COPY OF THE NOTICE DATED 16.08.2017 ISSUED BY THE 4TH RESPONDENT UNDER RULE 15(3) OF THE KERALA LAND ACQUISITION RULES.**