Kerala High Court
Raghavan Nair vs State Of Kerala on 17 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
WEDNESDAY, THE 17TH DAY OF MARCH 2021 / 26TH PHALGUNA, 1942
WP(C).No.33851 OF 2016(J)
PETITIONER/S:
1 RAGHAVAN NAIR, AGED:59 YEARS,
S/O (LATE) KUMARAN NAIR,
"GOKULAM", VIJAYALAKSHMI MANDIRAM,
KANNAMKULAM TEMPLE ROAD, CHALAKKUDY EAST,
CHALAKKUDY PO, THRISSUR DISTRICT-680307.
2 SAROJINI AMMA, AGED:84 YEARS,
W/O (LATE) KUMARAN NAIR,
VIJAYALAKSHMI MANDIRAM, CHALAKKUDY EAST,
CHALAKKUDY PO, THRISSUR DISTRICT-680307.
BY ADVS.
SRI.P.B.KRISHNAN
SRI.K.A.MANZOOR ALI
RESPONDENT/S:
1 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO
THE DEPARTMENT OF REVENUE,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 THE DISTRICT COLLECTOR,
ERNAKULAM, CIVIL STATION, KAKKANADU,
ERNAKULAM-682030.
3 THE SPECIAL TAHSILDAR LA NO.I, KOCHI METRO RAIL
PROJECT, ERNAKULAM, KAKKANADU,
ERNAKULAM-682030.
4 M/S. KOCHI METRO RAIL LIMITED
REPRESENTED BY ITS MANAGING DIRECTOR,
8TH FLOOR, REVENUE TOWER, PARK AVENUE,
ERNAKULAM-682011.
WP(C).No.33851 OF 2016(J) 2
R1 TO R3 BY GOVERNMENT PLEADER SRI Y.JAFAR KHAN
BY ADV. SRI.K.JAJU BABU SR.
BY SMT.M.U.VIJAYALAKSHMI, SC,
KOCHI METRO RAIL LTD.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
17.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.33851 OF 2016(J) 3
JUDGMENT
This writ petition is filed seeking a declaration that the property owned by
the petitioners and acquired for the purpose of construction of the Edappally
Flyover can be acquired only by recourse to section 24 of the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (Act 30 of 2013) and for a direction to the respondents to
honour their obligations under Exts.P3 and P6 agreements by drawing up an
award under Section 24 of the Act 30 of 2013.
2. It is the case of the petitioners that they were the absolute owners
of property having an extent of 2.09 Ares in Sy. No. 12/2, 4, 6 and 0.22 Ares in Sy.
No.12/15 in Block No. 5 of Thrikkakkara North Village and it was the subject
matter of a notification under Section 4(1) of the Land Acquisition Act, 1894. The
property was intended to be acquired by the respondents 3 and 4 for the
construction of 'Edappally Flyover'.
3. While proceedings for acquisitions were pending, Act 30 of 2013 was
enacted and the same came into force. The Government permitted the District
Collector and Revenue authorities to negotiate with the owners of the land for
speedy acquisition as the land was required for the Metro Rail Project. Based on
the basic valuation report submitted by the Revenue authorities, the value of the
property was fixed. The District Level Purchase Committee (DLPC) negotiated
with the land owners including the petitioner and thereafter a settlement was
arrived at. The petitioners are stated to have agreed to hand over the property to
the District Collector for a value fixed at Rs.31,60,000/- per cent. Thereafter,
separate agreements were rendered on 16.6.2014 and as agreed upon, 80% of
the total compensation amount was paid to the petitioners. In the agreements so
executed, between the petitioners and the District Collector, among other clauses,
it is specifically mentioned that the Relief and Rehabilitation Package, if applicable
and as declared by the Government of Kerala under Act 30 of 2013 with regard to
the purchase of the land described to the schedule would be implemented. As per
the terms of the agreement, the parties agreed to execute the sale deed on the
District Collector paying the balance 20% of the sale consideration to the land
owners and after implementing the Relief and Rehabilitation Package to be
declared by the Government of Kerala, if and as applicable as per Act 30 of 2013.
It is contended that the matter was indefinitely prolonged and the request of the
petitioners to execute the sale deed was not acceded to. Later, by Exts.P13 and
P14 notices, the petitioners were informed that the agreements were executed
under the Direct Purchase Scheme and therefore, they cannot insist on the
applicability of the provisions of Act 30 of 2013 while executing the sale deed. It
is the case of the petitioners that the intention of the respondents is to deny the
lawful enhancement of compensation that the petitioners are entitled to under Act
30 of 2013.
4. A counter affidavit has been filed by the 3rd respondent. After
narrating the sequence of events, it is stated that the respondents are bound to
pay only 20% of the total compensation after approval of the SLEC. It is further
contended that the petitioners are not entitled to any compensation over and
above the amount determined by the DLPC. The provisions of Act 30 of 2013 has
no application as the purchase was under the Direct Purchase Scheme.
5. The 4th respondent has filed a memo requesting to adopt the
counter affidavit filed by them in W.P.(C) No. 27191 of 2016 as the issue involved
in both the cases are one and the same. It is stated that as per clause (2) and (3)
of the agreement, the petitioners are eligible for Relief and Rehabilitation Package
as per Act 30 of 2013 and according to them, no consideration other than what is
specifically mentioned in the agreement is payable by the District collector to the
land owners. It is contended that as the sale consideration offered to the
petitioners was arrived at after taking into account the market value of the
property by Direct Purchase method, the provisions of Act 30 of 2013 cannot be
made applicable.
6. I have heard Sri. P.B. Krishnan, the learned counsel appearing for the
petitioners, Sri.Jaju Babu, the learned senior counsel appearing for the 4th
respondent and the learned Government Pleader.
7. It is the case of the petitioners that the possession of the land was
taken over from their possession on 16.6.2014, the date of execution of the
agreement. In Exhibit P6, among other clauses it has been stated thus
" And Whereas KMRL has agreed to implement the relief and
rehabilitation package if applicable and as declared by the
Government of Kerala under the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 ( hereinafter referred to as the 'Act')
with regard to the purchase of the land/lands, described in the
Schedule to this agreement.
xxxxxxxxxxxxxx
An amount being 80% of the sale consideration of
........... and only balance 20% remains to be paid by the District
Collector to the land owner. The parties hereby undertake and
agree to execute the Sale Deed/Deeds immediately on District
Collector paying the balance 20% of the sale consideration to
the land owner and on implementation of the relief and
rehabilitation package if and as applicable as per the Right to
Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 as declared by the
Government of Kerala in respect of lands. "
8. When the petitioners contend that the matter is liable to be referred
by the District Collector to the competent authority under section 64 of Act 30 of
2013 to enable them to get enhanced compensation, the respondents assert that
the purchase was made by direct purchase method and recourse to Section 64 of
the Act is not warranted. Faced with the similar situation, a Division Bench of this
Court in Kochi-Metro Rail Ltd. v. Shanavaz (judgment dated 13.12.2017 in
W.A.No.2158 of 2017), had occasion to hold as follows:
19. Sections 26 to 30 of the new Act deal with the
procedure for determining the compensation. Here, after
negotiations, the parties have consensually fixed the sale
consideration and entered into a transaction of sale. The
sale is yet to be completed, though. On the strength of
agreement, the Company paid substantial consideration and
possessed the lands. The project has been completed, too.
20. Under these circumstances, it serves the interest of both
the parties if we reckon the sale consideration under the
agreements of sale as the amount awarded in the first
instance by the primary authority or the Land Acquisition
Authority. Therefore, the sale consideration must be the
deemed award for the landowners to seek enhancement
under section 64 of the new Act.
21. That accepted, it is open for the landowners to apply to
the District Collector, who, in turn, will act on the
landowners' representations: He will refer the matters to the
Competent Authority under section 64 of the new Act within
six weeks from today.
22. As to the interest to be awarded, we clarify that in the
absence of any notification, there could be no reckoning
point. So, it may be reckoned from the date the land-owners
parted with the possession. We also clarify that the
Competent Authority, while calculating interest on the
enhanced compensation, if any, will exclude the amounts
already paid to the landowners: 80% of the sale
consideration.
23. Needless to observe that the landowners may as well
execute registered sale deeds and receive the remaining
20% sale consideration, pending the enhancement
proceedings before the Competent Authority under section
64 of the new Act.
24. Now, it is brought to our notice that in about 12
agreements of sale, the above extracted-clause concerning
the enhanced compensation in terms of the new Act is
absent. First, we must not forget that it is the State or its
instrumentality that has entered into the contract. Second,
inadvertent absence of the clause in certain agreements of
similarly placed landowners should not act to their prejudice.
Lest it should reek discrimination and inequity. In other
words, those landowners, too, should be treated on a par
with others with the protective clause in their agreements of
sale.
9. However, the above judgment has been challenged by the Kochi
Metro before the Apex Court and the matter is pending as Civil Appeal 7182 -
7190 of 2019. By an interim order dated 5.9.2019, the land owners were
permitted to execute the conveyance deeds upon payment of the balance 20%
amount to be paid by the Kochi Metro Rail. It was further ordered that the
payment of the said amount will be subject to the final outcome of the appeals.
10. Sri.P.B.Krishnan submits that a learned Single Judge of this Court in
W.P.(C) No.25373 of 2016 has issued certain directions and it is prayed that this
writ petition be disposed of by issuing identical directions. He submits that the
petitioners have no objection in executing the sale deed after receiving the
balance sale consideration and they shall abide by the directions to be passed by
the Apex Court in the Civil Appeal.
11. In that view of the matter, the instant writ petition will stand
disposed of with the following directions.
a) The petitioners shall execute the sale deed within a period of one
month from today and on its execution, the balance amount due to them as
per the agreement shall be duly paid.
b) The question as to whether the directions issued by the Division
Bench in Shanavaz (supra) should be followed in this case will depend on
the decision to be taken by the Apex Court in Civil Appeal Nos. 7182 - 7190
of 2019.
SD/-
RAJA VIJAYARAGHAVAN V
JUDGE
ps
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE INTIMATION DATED
12/12/2013 REGARDING THE LAND
ACQUISITION NOTIFICATION RECEIVED BY THE
PETITIONERS FROM RESPONDENT NO.3.
EXHIBIT P2 A TRUE COPY OF THE NOTICE REFERENCE
NO.CI-47588/2013 DATED 3/2/2014 ISSUED
BY RESPONDENT NO.2.
EXHIBIT P3 A TRUE COPY OF THE MEDIATION SETTLEMENT
AGREEMENT DATED 7/2/2014 BETWEEN
PETITIONERS AND RESPONDENT NO.2.
EXHIBIT P4 A TRUE COPY OF THE NOTICE DATED
24/4/2014 ISSUED BY THE PETITIONERS TO
THE RESPONDENTS.
EXHIBIT P5 A TRUE COPY OF THE NOTICE DATED
02.06.2014 ISSUED BY THE RESPONDENT NO.3
TO PETITIONER NO.1.
EXHIBIT P5(a) A TRUE COPY OF THE NOTICE DATED 2/6/14
ISSUED BY THE RESPONDENT NO.3 TO
PETITIONER NO.2.
EXHIBIT P6 A TRUE COPY OF THE AGREEMENT FOR SALE
DATED 16/6/2014 BETWEEN PETITIONERS AND
RESPONDENT NO.2.
EXHIBIT P7 A TRUE COPY OF THE LETTER DATED
20/6/2014 RECEIVED FROM THE BANK
ENCLOSING THE OBJECTION BY THE TREASURY
OFFICER FOR CLEARING THE CHEQUE FOR
COMPENSATION ISSUED BY RESPONDENTS.
EXHIBIT P8 A TRUE COPY OF THE LETTER DATED NIL FROM
THE PETITIONER TO RESPONDENT NO.2.
EXHIBIT P9 A TRUE COPY OF THE LETTER DATED 2/7/2014
FROM THE PETITIONER TO RESPONDENT NO.4.
EXHIBIT P10 A TRUE COPY OF THE LETTER DATED
13/6/2015 FROM THE PETITIONER NO.1 TO
RESPONDENT NO.3.
EXHIBIT P11 A TRUE COPY OF THE REQUEST OF THE
PETITIONERS DATED 20/6/2015 ADDRESSED TO
RESPONDENT NO.3.
EXHIBIT P12 A TRUE COPY OF THE NOTICE OF THE
PETITIONERS DATED 6/6/2015 ADDRESSED TO
RESPONDENT NOS.2 TO 4.
EXHIBIT P13 A TRUE COPY OF THE NOTICE DATED 3/8/2016
ISSUED BY THE RESPONDENT NO.3 TO
PETITIONER NO.1
EXHIBIT P14 A TRUE COPY OF THE NOTICE DATED 3/8/2016
ISSUED BY THE RESPONDENT NO.3 TO
PETITIONER NO.2.
EXHIBIT P15 TRUE COPY OF THE CHALLAN 16.06.2014
RECEIVED BY THE PETITIONERS IN THE
REVERSE OF FORM D.
EXHIBIT P15 (a) TRUE COPY OF THE CHALLAN 16.06.2014
RECEIVED BY THE PETITIONERS IN THE
REVERSE OF FORM D.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R3 (a) A TRUE COPY OF THE GOVERNMENT ORDER
DATED 22.05.2014.
EXHIBIT R3 (b) A TRUE COPY OF THE PROCEEDINGS OF
DISTRICT COLLECTOR, ERNAKULAM DATED
20.06.2014.
EXHIBIT R3 (c) A TRUE COPY OF THE MINUTES DATED
05.04.2014 OF DLPC.
EXHIBIT R3 (d) A TRUE COPY OF THE AGREEMENT DATED
16.06.2014.
EXHIBIT R3 (e) A TRUE COPY OF THE AGREEMENT DATED
16.06.2014.
EXHIBIT R3 (f) A TRUE COPY OF THE COUNTER FOIL OF THE
D-FORM CHEQUE DATED 16.06.2014.
EXHIBIT R3 (g) A TRUE COPY OF THE CONSENT LETTERS.
//TRUE COPY// P.A.TO JUDGE
