Merly Paul vs State Of Kerala
2021 Latest Caselaw 3679 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

     TUESDAY, THE 02ND DAY OF FEBRUARY 2021 / 13TH MAGHA,1942

                       WP(C).No.2580 OF 2020(V)


PETITIONERS:

      1        MERLY PAUL, AGED 65 YEARS,
               W/O. C.P PAUL, RESIDING AT 30/902 J,
               LAKE VIEW ENCLAVE, VYTTILA, KOCHI-682 019
               REPRESENTED BY POWER OF ATTORNEY HOLDER C.P PAUL
               AGED 72 YEARS, S/O. K.P PAULOSE, RESIDING AT 30/902
               J, LAKE VIEW ENCLAVE, VYTTILA, KOCHI-682 019

      2        DR. MEENU MERRY C. PAUL.,
               D/O. C.P PAUL, RESIDING AT 30/902 J,
               LAKE VIEW ENCLAVE, VYTTILA, KOCHI-682 019
               REPRESENTED BY POWER OF ATTORNEY HOLDER
               C.P PAUL AGED 72 YEARS, S/O. K.P PAULOSE,
               RESIDING AT 30/902 J, LAKE VIEW ENCLAVE,
               VYTTILA, KOCHI-682 019

      3        ANU MERRY C. PAUL,
               D/O. C.P PAUL, RESIDING AT 30/902 J,
               LAKE VIEW ENCLAVE, VYTTILA, KOCHI-682 019
               REPRESENTED BY POWER OF ATTORNEY HOLDER
               C.P PAUL AGED 72 YEARS, S/O. K.P PAULOSE,
               RESIDING AT 30/902 J, LAKE VIEW ENCLAVE,
               VYTTILA, KOCHI-682 019

               BY ADVS.
               SRI.B.N.SHIVSANKAR
               SMT.ARCHANA HARIDAS K.


RESPONDENTS:

      1        STATE OF KERALA,
               REPRESENTED BY SECRETARY REVENUE REPARTMENT,
               THIRUVANANTHAPURAM 695 001

      2        DISTRICT COLLECTOR,
               KAKKANAD, ERNAKULAM 682 030

      3        SPECIAL THAHASILDAR (LA) NO.1,
               KOCHI METRO RAIL PROJECT, CIVIL STATION,
               KAKKAND-682 030
 WP(C).No.2580 OF 2020        2

      4      KOCHI METRO RAIL LTD,
             8TH FLOOR, REVENUE TOWER, KOCHI-682 011 REPRESENTED
             BY ITS MANAGING DIRECTOR.

             R1-3 BY SMT MABLE C KURIAN, GOVERNMENT PLEADER
             R4 BY ADV. SRI.K.JAJU BABU (SR.)
             R4 BY SMT.M.U.VIJAYALAKSHMI, SC, KOCHI METRO RAIL
             LTD.




     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
02.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.2580 OF 2020                  3



                                                                               "CR"

                                   JUDGMENT

This is the fourth in a series of Writ Petitions filed by the petitioners before

this Court seeking enhanced compensation for a small piece of land owned by

them. The said property was acquired for the Kochi metro rail Project for the

purpose of constructing the Ernakulam South Metro Station.

2. The petitioners initially approached this Court challenging the

acquisition proceedings and this Court by judgment dated 10.6.2015 disposed of

the writ petition by a short judgment which reads thus:

"The petitioners are free to accept the amount tendered by the respondents which approximately is 80% of the compensation amount tentatively fixed. The same will however be without prejudice to the right of the petitioners to claim further compensation under the right to fair compensation and transparency in land acquisition, rehabilitation and resettlement Act, 2013. The amount shall be disbursed to the petitioners on their executing the necessary documents as enjoined by law"

3. The petitioners thereafter entered into an agreement for sale on

7/7/2015 wherein among other terms it is also stated thus:-

"Notwithstanding anything contained herein this judgement has been entered into in terms of the judgement of the High Court of Kerala in W.P. ( C ) No. 17339/2015"

4. Later, they approached this Court and filed W.P (C) No.20085 of

2017 seeking a direction to the respondents to pass an award under Act 30 of

2013. This Court took note of the fact that the petitioners by then had received

80% of the compensation determined and the balance 20% was yet to be paid.

This Court, after observing that the petitioners are entitled for determination of

compensation under Act 30 of 2013, directed the respondents to refer the claim

under Section 64 of the Act 30 of 2013 treating the sale deed as an award.

However, this Court had cautioned that the reference is to be made only if the

petitioners execute the sale deed based on the terms and conditions of the

agreement.

5. Later, the petitioners preferred W.P (C) No.7071 of 2017 contending

that they are entitled to compensation on account of the diminution of the value

of the property due to acquisition of a pathway leading to the said property. This

Court by judgment dated 8/8/2019 ordered that the claim for compensation for

diminution of the remaining land as well as the value of the property shall also be

referred to the authority concerned under Section 64 of the Act.

6. The petitioners have now come up with this Writ Petition contending

that the draft of the sale deed which has been forwarded to the petitioners does

not contain any reference to the entitlement of the petitioners to additional

compensation in terms of the provisions of Act 30 of 2013 and therefore is not in

tune with the agreement for sale entered into between the parties. In the said

circumstances, the petitioners themselves have prepared a draft sale deed and

forwarded the same to the respondents. It is in the above backdrop that they

have approached this Court seeking the following reliefs:-

"1. Pass a Writ of mandamus or such other Writ directing the

respondent to prepare the date of conveyance in accordance with the order in Exhibits P1 and P2 expressly showing that the consideration shown in the deed of conveyance is not the final amount of compensation.

2. Further direct the respondents to pass an award and refer the matter under Section 64 after paying the balance 20% of admitted interim compensation, leaving open all the claims permitted under the law to be raised by the petitioner under the Act 30 of 2013 before the forum under Section 64 of Act 30 of 2013 and to fix a time limit for reference."

7. The fourth respondent has filed a counter affidavit contending that

in view of the earlier judgments rendered by this Court between the same parties,

the petitioners herein are not entitled to any of the reliefs sought for. It is

contended that the sale price offered to the petitioners and accepted by them was

extremely lucrative when compared to the market value prevailing in the locality

at the time. However in para 12 of the counter affidavit it is stated that all the

rights of the petitioners under Act 30 of 2013 are protected by the judgments

passed by this Court.

8. Sri B.N. Shiv shanker, the learned counsel appearing for the

petitioners submitted that the respondents have left out certain clauses in the

draft sale deed to disenittle the petitioners from pursuing the reference and obtain

enhanced compensation, if they are so entitled before the authority constituted

under Section 64 of the Act.

9. The submissions of the learned counsel is seriously opposed by Sri.

Jaju Babu, the learned senior counsel appearing for the Kochi Metro Rail Ltd. and

Sri. Jaffer, the learned senior Government pleader.

10. I have considered the submissions advanced.

11. In the case on hand, the property was sought to be acquired for the

construction of a Mass Rapid Transit System (MRTS) for Kochi Metro project from

Aluva to Petta as a joint venture project of the Government of India and the

Government of Kerala. The third respondent initiated the acquisition process by

publishing the preliminary notification under Section 4(1) of the Land Acquisition

Act, 1894 for acquisition of land required for Kochi Metro in various villages of

Kanayannur Taluk. However, immediately after the acquisition proceedings was

started, Act 30 of 2013 came into force. Since the land was urgently required for

commencing the work, the respondents requested the Government for permission

to initiate the negotiation process for direct purchase of land instead of going for

compulsory acquisition. The State Government thereafter issued orders

authorising Kochi Metro Project to identify lands necessary for construction of

metro project and allied works at the rate approved by the State Level

Empowered Committee. Later, a modified order was issued authorising the second

respondent to purchase land for the fourth respondent. The Government also

allowed the Kochi Metro Rail Ltd. to take a suitable decision regarding

resettlement and rehabilitation package as per Act 30 of 2013. The landowners

were invited and a consensus was arrived at. It was at that stage that the

petitioners approached this Court and secured Exhibit P13 judgment on the

strength of which Ext.P12 agreement for sale was executed. I find that in the said

agreement entered into between the parties it has been mentioned that the

agreement has been entered into in terms of the said judgment.

12. In Balakrishnan v. Union of India and others1, the question

was whether in a case wherein the compensation fixed based on negotiated

settlement, the claim for exemption under Section 10 (37) of Income-tax Act,

1961, could be denied to the party. In the said case, the property was acquired by

the Government for the purpose of development of the third phase of the

Technopark. Notification under Section 4(1) of the Land Acquisition Act, 1894 was

issued. It was thereafter that a decision was taken for negotiated purchase. This

Court had held that the transfer of possession by way of sale deed after

notification under Section 4(1) will not amount to compulsory acquisition liable for

tax deduction under Section 194LA of the Income Tax Act. In Paragraph Nos. 8

and 9 of the judgment, the Apex Court had held as follows:-

8. In our view, insofar as acquisition of the land is concerned, the same was compulsorily acquired as the entire procedure prescribed under the LA Act was followed. The settlement took place only qua the amount of the compensation which was to be received by the appellant for the land which had been acquired. It goes without saying that had steps not been taken by the Government under Sections 4 and 6 followed by award under Section 9 of the LA Act, the appellant would not have agreed to divest the land belonging to him to Techno Park. He was compelled to do so because of the compulsory acquisition and to avoid litigation entered into negotiations and settled the final compensation. Merely because the compensation amount is agreed upon would not change the character of acquisition from that of compulsory acquisition to the voluntary sale. It may be mentioned that this is now the procedure which is laid down even under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 as per which the Collector can pass rehabilitation and resettlement award with the consent of the parties/landowners. Nonetheless, the character of acquisition remains compulsory.

9. This Court has doubts about the correctness of the judgment

1 [(2017) 3 SCC 634]

in Infopark Kerala v. CIT [Infopark Kerala v. CIT, (2008) 4 KLT 782 : 2008 SCC OnLine Ker 564] . The Court in the said case took the view that since the title in the property was passed by the landowners on the strength of sale deeds executed by them, it was not a compulsory acquisition. We are not in agreement with the aforesaid view. It is clear that but for Notification under Section 4 and award under Section 9 of the LA Act, the appellant would not have entered into any negotiations for the compensation of the consideration which he was to receive for the said land. As far as the acquisition of the land in question is concerned, there was no consent. The appellant was put in such a condition that he knew that his land had been acquired and he cannot reiterate the same. The appellant, therefore, only wanted to salvage the situation by receiving as much compensation as possible commensurate with the market value thereof and in the process avoid the litigation so that the appellant is able to receive the compensation well in time. If for this purpose the appellant entered into the negotiations, such negotiations would be confined to the quantum of compensation only and cannot change or alter the nature of acquisition which would remain compulsory. We, therefore, overrule the judgment of the Kerala High Court in Infopark Kerala v. CIT [Infopark Kerala v. CIT, (2008) 4 KLT 782 : 2008 SCC OnLine Ker 564].

13. Applying the principles to the instant case, the mere fact that the

property was purchased after negotiated purchase would not change or alter the

nature of the acquisition. The petitioners had challenged the acquisition

proceedings on more than one occasion and they were put in such a condition

that they knew that their land would be acquired come what may. The

Government had also allowed the KMRL to take suitable decisions regarding the

rehabilitation and resettlement package as per Act 30 of 2013. It is thus obvious

that the petitioners wanted to salvage the situation by receiving as much

compensation as possible commensurate with the market value thereof and in the

process avoid the litigation so that they would be able to receive the

compensation well in time. As held by the Apex Court, such negotiations would be

confined to the quantum of compensation only and cannot change or alter the

nature of acquisition which would remain compulsory. If that be the case, the

benefits due to the petitioners under Act 30 of 2013 cannot be denied to the

petitioners even if there is no such reference in the sale deed executed by the

petitioners and the Kochi Metro Rail Limited. This Court in more than one instance

had repeatedly asserted this fact but it appears that the petitioners are still

labouring under some misconception..

In that view of the matter, the sale consideration under the agreement for

sale shall be the deemed award for the petitioners to seek enhancement under

Section 64 of Act 30 of 2013. I direct the petitioners to execute the sale deed

handed over by the respondents without delay and receive the balance amount of

20% pending the enhancement proceedings before the Competent Authority

under Section 64 of the Act. If the petitioners apply, the District Collector shall

refer the matter to the competent authority under Section 64 of the Act. The

principles laid down by the Division Bench of this Court in Kochi Metro Rail

Limited v Shanavas and others (Judgment dated 13.12.2017 in W.A. No 2158

of 2017) shall apply.

This writ petition is disposed of.

Sd/-

RAJA VIJAYARAGHAVAN V

JUDGE ps

APPENDIX PETITIONER'S/S EXHIBITS:

 EXHIBIT P1             TRUE COPY OF THE ORDER IN WPC 20085/17,
                        DATED 29/07/2019

 EXHIBIT P2             TRUE COPY OF THE ORDER IN WPC 7071/17,
                        DATED 08/08/2019

 EXHIBIT P3             TRUE COPY OF THE LETTER DATED 27/08/19
                        SEEKING COMPLIANCE OF ORDER IN WPC NO.
                        20085/17 AND WPC NO.7071/17

 EXHIBIT P4             TRUE COPY OF THE LETTER DATED 25/09/19,
                        SEEKING PREPARATION OF THE SALE DEED AND
                        AWARD THEREON

 EXHIBIT P5             TRUE COPY OF THE LETTER DATED 11/10/19
                        FROM THE 3RD RESPONDENT IGNORING THE
                        ORDER IN WPC NO.20085/17 AND WPC NO.
                        7071/17

 EXHIBIT P6             TRUE COPY OF THE POSTAL RECEIPTS

 EXHIBIT P7             TRUE COPY OF THE REPLY SEND BY THE
                        PETITIONER DATED 17/10/2019, SEEKING THE
                        FINAL DRAFT OF THE DEED OF CONVEYANCE.

 EXHIBIT P8             TRUE COPY OF THE LETTER DATED 31/10/19
                        DEMANDING THAT THE SALE DEED MUST BE IN
                        ACCORDANCE WITH ORDER IN WPC NO.
                        20085/17 AND WPC NO.7071/17

 EXHIBIT P9             TRUE COPY OF THE DRAFT SALE DEED SEND BY
                        THE RESPONDENT.

 EXHIBIT P10            TRUE COPY OF THE DRAFT SALE DEED
                        PREPARED AND SEND BY THE PETITIONER TO
                        THE RESPONDENT.

 EXHIBIT P11            TRUE COPY OF THE COMMUNICATION

 EXHIBIT P12            TRUE COPY OF THE AGREEMENT OF SALE DATED
                        07/07/2015

 EXHIBIT P13            TRUE COPY OF THE JUDGMENT IN THE WRIT
                        PETITION NO.17339/2015


 RESPONDENT'S/S EXHIBITS:

 EXHIBIT R4(A)          TRUE COPY OF THE JUDGMENT DATED
                        10.06.2015 IN W.P.(C) NO.17339/2015 OF
                        THIS HON'BLE COURT.

 EXHIBIT R4(B)          TRUE COPY OF THE JUDGMENT DATED
                        13.12.2017 IN W.A.NO.2158/2017 OF THIS
                        HON'BLE COURT.