Jainulavudheen vs The District Collector

Kerala High Court

Jainulavudheen vs The District Collector on 21 May, 2024

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
           THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
   TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
                    WP(C) NO. 553 OF 2024
PETITIONERS:

    1     JAINULAVUDHEEN
          AGED 55 YEARS
          S/O NOORMUHAMMED, AENICKAL HOUSE, ANAPPURAM,
          KINASSERY POST, PALAKKAD-, PIN - 678701
    2     ASHARAF ALI.A
          AGED 52 YEARS
          S/O ABOOBACKER, 7/511, KULACHI HOUSE,
          KIZHAKKETHALA, KODUVAYUR POST, ALAKKAD,
          PIN - 678501
    3     NOUFAL
          AGED 40 YEARS
          S/O HASSAN, THEKKEKUDY, VALLAM, RAYONPURAM POST,
          PERUMBAVOOR, ERNAKULAM, PIN - 683543
    4     ABDUL SAMAD
          AGED 55 YEARS
          S/O ABOOBACKER, CHIRAYILAN, KUPPASSERY,
          KANDANTHARA, ALLAPRA P.O, ERNAKULAM, PIN - 683556
    5     ANSARMON
          AGED 43 YEARS
          S/O KHALID, THELAMPURAM HOUSE, KANDATHARA, ALLAPRA
          P.O, ERNAKULAM, PIN - 683556
    6     SARAMMA PAULOSE
          AGED 74 YEARS
          W/O PAULOSE, KANIYADAN, 9/324, PRALAYAKKAD,
          KUNNATHUNADU, ERNAKULAM, PIN - 683545
    7     JIJI SHEJI
          AGED 46 YEARS
          W/O LATE SHEJI PAUL, KANIYADAN, 9/324,
          PRALAYAKKAD, KUNNATHUNADU, ERNAKULAM, PIN - 683545
    8     ALONA SARA SHEJI
          AGED 20 YEARS
          D/O LATE SHEJI PAUL, KANIYADAN, 9/324,
          PRALAYAKKAD, KUNNATHUNADU, ERNAKULAM, PIN - 683545
 W.P.(C). No.553 of 2024                 :2:



      9        IRIN SOSA SHEJI
               AGED 16 YEARS
               D/O LATE SHEJI FAUL, REPRESENTED BY HER MOTHER JIJI
               SHEJI, W/O LATE SHEJI PAUL, KANIYADAN, 9/324,
               PRALAYAKKAD, KUNNATHUNADU, ERNAKULAM, PIN - 683545
     10        AAN MARY SHEJI
               AGED 15 YEARS
               D/O LATE SHEJI PAUL, REPRESENTED BY HER MOTHER JIJI
               SHEJI, W/O LATE SHEJI PAUL,KANIYADAN, 9/324,
               PRALAYAKKAD, KUNNATHUNADU, ERNAKULAM-, PIN - 683545
     11        MOHAMMED IMTYAZ
               AGED 42 YEARS
               S/O N.K.HASHIM, NASEEM ARCADE, 3/243, PIPELINE
               ROAD, THRIKKAKARA P.O, ERNAKULAM, PIN - 682021
               BY ADVS.
               SABU GEORGE
               P.B.KRISHNAN
               P.B.SUBRAMANYAN
               MANU VYASAN PETER


RESPONDENTS:

      1       THE DISTRICT COLLECTOR
              PALAKKAD, COLLECTORATE, KENATHUPARAMBU,
              KUNATHURMEDU, PALAKKAD, PIN - 678013
      2       THE SPECIAL TAHASILDAR, (LA)
              KOCHI -BENGALURU INDUSTRIAL CORRIDOR, KANJIKODE,
              PALAKKAD, PIN - 678621
      3       P.M.ABDUL SHAHEED
              S/O MOHAMMED, MILL HOUSE, PERUMBAVOOR, ERNAKULAM,
              PIN - 683542
              BY ADVS.
              ADVOCATE GENERAL OFFICE KERALA
              SHRI.K.P.JAYACHANDRAN, ADDL. ADVOCATE GENERAL()


OTHER PRESENT:

               SPL.GP - S.RENJITH


       THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   21.05.2024,          THE   COURT    ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 W.P.(C). No.553 of 2024              :3:



                           VIJU ABRAHAM, J.
          --    -- -- -- -- -- -- -- -- -- -- -- --
                        W.P.(C) No.553 of 2024
          --    -- -- -- -- -- -- -- -- -- -- -- --
                   Dated this the 21st day of May, 2024

                                  JUDGMENT

The above writ petition is filed challenging Ext.P5 order and for a declaration that the reference of the matter to the Land Acquisition and Rehabilitation and Resettlement Authority, Palakkad as per Ext.P2 award is ultra vires the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

2. It is contended that the petitioners 1 to 5, 11, respondent No.3 and one Mr.Sheji Paul, whose legal representatives are petitioners 6 to 10 were the owners of a total extent of 10.5860 hectares of land in re-survey Nos.410/2, 409/4, 410/3, 410/8, 410/9, 424/2, 422/1, 2, 3, 4, 7, 8, 423/1, 2, 425/1, 2, 3 in Block No.31 of Pudussery Central village, Palakkad Taluk, obtained as per Ext.P1 sale deed. It is further contended that though the total extent is mentioned as 10.5860 hectares in Ext.P1, the actual extent of land available as per the measurement is 10.6275 hectares. The said property was sought to be acquired for setting up the Kochi- Bengaluru Industrial Corridor 2nd phase and Ext.P2 revised award W.P.(C). No.553 of 2024 :4: was passed. The petitioners would contend that regarding Sl. No.

(a) in Ext.P2, there is no dispute with regard to the title of the property and right of the petitioners to obtain the compensation. Though the petitioners requested the 2 nd respondent to disburse the amount covered by Sl. No.(a), the 2 nd respondent referred the entire matter to the Land Acquisition and Rehabilitation and Resettlement Authority, Palakkad (herein after referred to as 'the Authority') under Section 76 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013(herein after referred to as 'the Act, 2013') stating that there exists dispute with regard to the other items in Sl. Nos. (b) and (c). The petitioners would contend that a reference of a matter of apportionment is liable to made only if there are rival claims made to the Land Acquisition Officer and the present reference is without jurisdiction and authority of law. Thereafter, before the Authority, in LAR 175 of 2023, the petitioners submitted Ext.P3 petition as I. A. No.5 of 2023, wherein a request was made before the Authority to disburse the amount awarded as per Sl. No.(a), since there is no dispute with regard to the said property. The 2 nd respondent filed Ext.P4 objection. The Authority by Ext.P5 order dismissed Ext.P3 application holding that the Authority cannot by itself separate the compensation amount which has been deposited W.P.(C). No.553 of 2024 :5: as a whole with respect to one single award and that it can only answer the reference in its entirety and not in piece-meal manner. It is under the said circumstances that this writ petition has been filed challenging Ext.P5 order and seeking other consequential reliefs.

3. A counter affidavit has been filed by the 2 nd respondent where in paragraph 5 it is stated that as per Section 82(d) of the Kerala Land Reforms Act 1967 maximum land that can be held by a person/persons are limited to 10 standard Acres (4.048 hectares). But in this case it exceeds the ceiling limit and a decision was taken to defer the payment of compensation for 8.5300 hectare of land in Re.Survey Nos. 409/4, 410/3, 410/8, 410/9, 424/2, 422/1, 422/2, 422/3, 422/4, 422/7, 422/8, 423/1,423/2, 425/1, 425/2, 423/3. It is also stated in the counter affidavit that as regards the said property is concerned, though no claim other than that of the claimants were received in the office of Special Tahasildar, it is because of the said dispute that the amount was deposited before the court. As regards the other extent of property covered by the award it is also stated that the petitioners did not produce the sale and purchase deeds to prove the ownership and title and further that in respect of some extent of land, there are disputes pending.

4. Heard the rival contentions of both sides. W.P.(C). No.553 of 2024 :6:

5. It is admitted that the land acquisition proceedings are initiated and Ext.P2 award was also passed. The 2 nd respondent had a specific case that the petitioners have held property over and above the ceiling limit and if so they ought to have initiated proceedings under the Kerala Land Reforms Act, but the learned Special Government Pleader, Revenue submitted that till date, no such proceedings have been initiated. A perusal of Ext.P5 order will reveal that the issue was considered by the Reference Court and entered into a finding that the issue regarding the aspect of ceiling cannot be brought into a reference under the Act, 2013, but the disputes cannot be overlooked at this point of time without going into the merits. It can also be seen in Ext.P5 that there is a finding to the effect that there is no dispute regarding item Nos. 1 and 2 properties, but the Reference Court did not consider Ext.P3 application taking a stand that the reference cannot be answered in a piece-meal manner. Going by the counter affidavit filed by the 2 nd respondent it is without any doubt stated that no claim has been raised in respect of Sl. No.(a) property in Ext.P2, other than the claimants. Therefore, the only objection in respect of the property in Sl. No.(a) in Ext.P2 is the objection raised as per Section 82(d) of the Kerala Land Reforms Act. But it is seen that no proceedings under the Land Reforms Act has been initiated till date. W.P.(C). No.553 of 2024 :7:

6. In view of the above facts and circumstances of the case, I am of the view that the petitioners need not wait for the reference to be answered in the entirety in respect of raising a claim for compensation for Sl. No.(a) property. If there is no dispute with respect to Sl. No.(a) property the Reference Court has the power to decide on the said aspect and therefore, the petitioners need not be denied the amount awarded as per Ext.P2 till the reference is answered in full by the Reference Court. Therefore, Ext.P5 is set aside with a consequential direction to the Reference Court to reconsider Ext.P3 application afresh and consider the request of the petitioners for release of the amount in respect of the property mentioned as Sl. No.(a) in Ext.P2 award, after considering the objection raised by the Government and after hearing all the necessary parties and pass fresh orders within an outer limit of one month from the date of receipt of a copy of this judgment.

With the above said directions, the writ petition is disposed of.

Sd/-

VIJU ABRAHAM JUDGE sm/ W.P.(C). No.553 of 2024 :8: APPENDIX OF WP(C) 553/2024 PETITIONER EXHIBITS Exhibit-P1 A TRUE COPY OF THE SALE DEED DATED 25-09- 2007 REGISTERED AS DOC.NO.7641 OF 2007 IN PALAKKAD SRO Exhibit-P2 A TRUE COPY OF THE REVISED AWARD DATED 19-04-2023 PASSED BY RESPONDENT NO.2 Exhibit-P3 A TRUE COPY OF I.A NO.5 OF 2023 IN LAR 175 OF 2023 ON THE FILE OF THE LAND ACQUISITION AND REHABILITATION AND RESETTLEMENT AUTHORITY PALAKKAD, DATED 03-08-2023 Exhibit-P4 A TRUE COPY OF THE OBJECTION STATEMENT FILED BY RESPONDENT NO.2 IN I.A NO.5 OF 2023 IN LAR 175 OF 2023 ON THE FILE OF THE LAND ACQUISITION AND REHABILITATION AND RESETTLEMENT AUTHORITY PALAKKAD, DATED 25-09-2023 Exhibit-P5 A TRUE COPY OF ORDER DATED 02-12-2023 IN I.A NO.5 OF 2023 IN LAR 175 OF 2023 ON THE FILE OF THE LAND ACQUISITION AND REHABILITATION AND RESETTLEMENT AUTHORITY PALAKKAD