K.M.Sivan vs Union Of India
2021 Latest Caselaw 10493 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

          THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

     MONDAY, THE 29TH DAY OF MARCH 2021 / 8TH CHAITHRA, 1943

                       WP(C).No.20088 OF 2014(I)


PETITIONER :

                K.M.SIVAN,
                AGED 55 YEARS,
                S/O.MACKOTHA, VINAYAKA HOUSE, AQUEDUCT ROAD,
                KANGARAPADY, VADACODE.P.O, ERNAKULAM-682021(FROM
                KOORICKANAMALAYIL HOUSE, KUZHIKKAD, AMBALAMEDU.P.O,
                PIN - 682 030).

                BY ADVS.
                ADV.KEERTHI B.CHANDRAN FOR DR.V.N.SANKARJEE
                SRI.PRATHAP. S.R.K.

RESPONDENTS :

      1         UNION OF INDIA,
                REPRESENTED BY THE SECRETARY TO GOVERNMENT,
                MINISTRY OF PETROLEUM AND NATURAL GAS,
                NEW DELHI - 110 001.

      2         BPCL-KOCHI REFINERY LIMITED,
                REPRESENTED BY ITS MANAGING DIRECTOR,
                AMBALAMUGHAL, ERNAKULAM DISTRICT - 682 302.

      3         BHARAT PETROLEUM CORPORATION LIMITED,
                REPRESENTED BY ITS CHAIRMAN, REGISTERED OFFICE,
                BHARAT BHAVAN, 4 & 6, CURRIMBHOY ROAD,
                BALLARD ESTATE, P.B.NO.688,
                MUMBAI - 682 302.

      4         THE STATE OF KERALA,
                REPRESENTED BUY THE CHIEF SECRETARY,
                GOVERNMENT SECRETARIAT,
                THIRUVANANTHAPURAM - 695 001.

      5         THE DEPARTMENT OF REVENUE,
                REPRESENTED BY THE REVENUE SECRETARY,
                GOVERNMENT SECRETARIAT,
                THIRUVANANTHAPURAM - 695 001.
 WP(C).No.20088 OF 2014(I)

                              2



      6     THE DISTRICT COLLECTOR,
            ERNAKULAM - 682 030.

      7     THE SPECIAL TAHSILDAR (LA),
            KOCHI REFINERY LIMITED, VYTTILA AT NORTH FORT,
            TRIPUNITHURA - 682 301.

      8     THE HIGH LEVEL COMMITTEE,
            REGISTERED BY THE CHIEF SECRETARY,
            GOVERNMENT OF KERALA,
            THIRUVANANTHAPURAM - 695 001.

      9     THE DISTRICT LEVEL PURCHASE COMMITTEE,
            REPRESENTED BY THE DISTRICT COLLECTOR,
            ERNAKULAM - 682 030.

            R1 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA
            R1-2 BY ADV. SRI.P.BENNY THOMAS
            R1 BY ADV. SRI.K.JOHN MATHAI
            R1 BY ADV. SRI.JOSON MANAVALAN
            R1 BY ADV. SRI.KURYAN THOMAS

            R2 TO R3 BY ADV.ANN MARIA FRANCIS FOR ADV.M.
            GOPIKRISHNAN NAMBIAR

            R4 TO R9 BY SR.GOVT.PLEADER SRI.MATHEW GEORGE
            VADAKKEL



     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
29.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.20088 OF 2014(I)

                                      3




                                JUDGMENT

Dated this the 29th day of March 2021

This writ petition seeks for various reliefs in the nature of

declaration that Clause 3(13) of Ext.P7, Clause 3 of Ext.P11 and the

categorisation done in Ext.P6 are unconstitutional. A mandamus is also

sought for re-fixing the value of property acquired from the petitioner and

also for providing enhanced land value with all statutory benefits.

2. Petitioner is a Superintendent at the Assistant Educational

Office receiving an annual income of more than Rs.75,000/-. Properties in

and around Kochi Refineries were sought to be acquired in connection with

the proposed developments for the Petro Chemical Units of BPCL - Kochi

Refineries Ltd. and proceedings were initiated for the same. The

Government also initiated a comprehensive rehabilitation and resettlement

policy package for land acquisition. One of the terms of the package was

to provide 3 cents of land as rehabilitation for those who were rendered

homeless and landless due to the acquisition, whose annual income was

less than Rs.75,000/-. Further, the package provided that in employment -

generating projects, one member of the oustee family is to be considered

for providing employment.

3. Admittedly, petitioner does not fall in the above mentioned WP(C).No.20088 OF 2014(I)

category. Though petitioner's property of 0.45 hectares was acquired, he

is employed with a salary of more than Rs.3,50,000/- per annum. He was

given a compensation of Rs.41,79,669/- as per Ext.P6 award for the land

acquired and the same has been received by him without any objection

that too after entering into Ext.P11 agreement in 2013. Consequent to

receiving the compensation package offered by the Government, petitioner

has turned around and challenged various clauses in the rehabilitation and

re-settlement package offered by the Government of Kerala as being

unconstitutional.

4. Counter affidavits have been filed by respondents 2 and 3

as well as the 7th respondent controverting the contentions raised in the

writ petition. It is pointed out by the 7 th respondent that the petitioner had

even filed an affidavit expressing his willingness to handover the property

along with all structures and improvements @Rs.8,69,792 per Are, which

amount was arrived at on the basis of negotiation. Respondents together

contended that petitioner cannot be permitted to turn around and object to

the rehabilitation offered, after the same was accepted without any dispute

or objection.

5. I have heard Adv.Dr.V.N.Sankarjee and Adv.Keerthi

B.Chandran for the writ petitioner, Adv.Mathew George Vadakkel, the

learned Senior Government Pleader for respondents 4 to 9 as well as

Adv.Ann Maria Francis on behalf of Adv.M.Gopikrishnan Nambiar for WP(C).No.20088 OF 2014(I)

respondents 2 and 3.

6. The learned counsel for the petitioner vehemently

contended that the package offered to the petitioner is violative of Article

300A of the Constitution of India, apart from being arbitrary and

unreasonable under Article 14 of the Constitution of India. Referring to the

package offered by the Government for the acquisition of land for

Vallarpadam Container Terminal, produced as Exts.P12 and P13, the

learned counsel submitted that atleast the nature of package offered to the

petitioner ought to have been similar to that failure of which, renders the

entire acquisition proceedings and the re-settlement package as vitiated.

7. I have considered the rival contentions. An extent of more

than 16 hectares were acquired for the purpose of Integrated Refinery

Expansion Project and an extent of 0.0405 hectares in Survey No.257/35 in

Block No.39 of Puthencruz village belonging to the petitioner was acquired

as per award dated 28.05.2013 in LAC.No.24/2013. For the purpose of

arriving at a negotiated purchase price, meetings were held by the District

Collector on 04.09.2012 and on 14.01.2013. Petitioner had attended the

meeting on 14.01.2013 where the criteria for fixing the land value was

discussed and petitioner, after accepting the land value fixed by the DLPC,

entered into Ext..P11 agreement under Rule 12(5) of the Land Acquisition

Rules. Petitioner had accepted the compensation found to be eligible to

him and all other benefits under the package that was arrived at by WP(C).No.20088 OF 2014(I)

negotiated settlement. It is thereafter that this writ petition is filed

questioning the terms of settlement.

8. The petitioner cannot approbate and reprobate. After

accepting the entire re-settlement package offered, petitioner cannot,

thereafter turn around and question the rehabilitation package and the

policy on the ground of it being violative of his constitutional and statutory

rights. Even though there cannot be any waiver of fundamental rights, I

find no violation of Article 14 also in the instant case.

9. Ext.P7 was initiated by the Government for the purpose of

introducing a fast track mechanism for land acquisition and to ensure

better compensation to the evictees. The package, in fact, aims to provide

a just and reasonable compensation apart from providing a better succour

for those who are thrown out of their homes and land when their annual

income does not reach a minimum level sufficient enough for their

sustenance. Though petitioner has challenged Clauses 3(13) of Ext.P7,

petitioner could not justify the basis of such a challenge. For the purpose

of reference, Clause 3(13) of Ext.P7 is extracted as below :-

"a family rendered landless and homeless with no salaried income whose annual income is below Rs.75,000/- shall be provided up to 3 cents of land".

Even though in the acquisition, the house and the appurtenant land of 10

cents belonging to the petitioner was acquired, petitioner does not fall into WP(C).No.20088 OF 2014(I)

the category specified in Clause 3(13).

10. Intention of Clause 3(13) is salutary. It is intended to

provide a relief to a person, who has no salaried income and whose annual

income falls below Rs.75,000/-. Such a person loses his house and his

land. The Government, as a measure of policy, decided to provide 3 cents

of land apart from other compensation. Such a welfare measure cannot be

held to be unreasonable or arbitrary. Petitioner being a salaried employee

of the Government, whose income is much above Rs.75,000/- cannot

claims himself to be treated at par with those who fall in the category of

Clause 3(13) of Ext.P7. There is an intelligible differentia between those

that are included and those left out of the category of persons, who fall in

Clause 3(13) and the said differentia has a rational nexus with the objects

sought to be achieved by the said clause. Thus, there is no

unreasonableness or arbitrariness in the said clause.

11. There is also no basis for the challenge against Clause 3 of

Ext.P11. Clause 3 of Ext.P11 provides for a restrictive covenant restraining

the parties to the agreement from claiming any amount more than the

agreed compensation. This covenant is based n consent, treating the

amount of compensation arrived at during negotiation as final and binding.

The learned counsel could not satisfactorily point out anything

unconstitutional in the said clause.

12. Further, categorisation was provided for, based upon the WP(C).No.20088 OF 2014(I)

nature of land acquired and the area where the acquired land is situated.

What was provided as a package for land acquired for the Vallarpadam

Container Terminal cannot be regarded as similarly placed, in respect of

the acquisition for the Kochi Refinery.

In such a view of the matter, this Court is of the view that the

writ petition is only an afterthought and has no merit. Accordingly, the

petitioner is not entitled for any of the reliefs claimed in this writ petition

and the same is dismissed.

Sd/-

BECHU KURIAN THOMAS, JUDGE

RKM WP(C).No.20088 OF 2014(I)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1           EXT.P1 COPY OF THE CASTE CERTIFICATE DATED
                     18.10.2004 ISSUED BY THE
                     TAHSILDAR,KANAYANNUR TO THE PETITIONER

EXHIBIT P2           EXT.P2 COPY OF THE SETTEMENT DEED
                     NO.4612/85 DATED 28.12.1985

EXHIBIT P3           EXT.P3 COPY OF THE TAX RECEIPT NO.4580491
                     DATED 04.05.

EXHIBIT P4           EXT.P4 COPY OF GO.(RT)NO.2932/2012/RD
                     DATED 23-05-2012

EXHIBIT P5           EXT.P5 COPY OF THE G.O.(RT)1219/13/RD
                     DATED 5.3.2013 PUBLISHED IN MATHRUBHUMI
                     DAILY DATED 20.3.2013

EXHIBIT P6           EXT.P6 COPY OF THE AWARD NO.8/13 DATED
                     28.5.2013

EXHIBIT P7           EXT.P7 COPY OF THE G.O.
                     (MS)419/2011/RD,DATED 15.11.2011

EXHIBIT P8           EXT.P8 COPY OF TYHE G.O(MS) NO.182/2012/RD
                     DATED 3.5.2012

EXHIBIT P9           EXT.P9 COPY OF THE MINUTES OF MEETING
                     DATED 4.9.2012 HELD BY THE 9TH RESPONDENT

EXHIBIT P10          EXT.P10 COPY OF THE MINUTES DATED
                     14.1.2013 OF THE 9TH RESPONDENT

EXHIBIT P11          EXT.P11 COPY OF THE AGREEMENT MADE BETWEEN
                     THE PETITIONER AND 9TH RESPONDENT

EXHIBIT P12          EXT.P12 COPY OF THE G.O.MS 163/2008/RD
                     DATED 26.5.2008

EXHIBIT P13          EXT.P13 COPY OF G.O.MS 163/2008/RD DATED
                     19-10-2007.