Prof.Shailaja vs State Of Kerala
2021 Latest Caselaw 22557 Ker

                                                               CR
                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
               THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
     FRIDAY, THE 19TH DAY OF NOVEMBER 2021 / 28TH KARTHIKA, 1943
                          WP(C) NO. 24372 OF 2021
PETITIONER:

              PROF.SHAILAJA, AGED 64 YEARS, D/O. MALATHI AMMA,
              CHENNATT HOUSE, KODAKULANGARA, EROOR, TRIPUNITHURA.

              BY ADVS.
              T.R.S.KUMAR
              DEENA JOSEPH
              MITHUN C THOMAS
              AKSHAY JOSEPH ADHIKARAM
              SWARNA THOMAS


RESPONDENTS:

     1        STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY,
              SECRETARIAT, THIRUVANANTHAPURAM-695 001.
     2        THE LAND REVENUE COMMISSIONER
              SECRETARIAT, THIRUVANANTHAPURAM-695 001.
     3        THE DISTRICT COLLECTOR
              CIVIL STATION, KAKKANAD-682 030.
     4        THE SPECIAL TAHSILDAR (LA), KOCHI METRO NO.II,
              CIVIL STATION, KAKKANAD-682 030.
     5        KOCHI METRO RAIL LIMITED, REPRESENTED BY ITS MANAGING
              DIRECTOR, JLN METRO STATION, 4TH FLOOR, KALOOR, KOCHI,
              ERNAKULAM-682 017.

              BY ADVS.
              JAFFER KHAN - GP
              K.JAJU BABU (SR.)
              SMT.M.U.VIJAYALAKSHMI, SC, KOCHI METRO RAIL LTD.


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
19.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WPC 24372/21
                                         2


                                                                CR
                             JUDGMENT

Every acquisition of land invariably fosters apprehension in

the minds of its owners that they would be left high and dry,

without being offered the eligible statutory compensation.

2. The petitioner in this case also fears so and thus calls

into question before me the action of the competent Authority

under the Right to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter

referred to as 'the Fair Compensation Act' for brevity); thus

pleading that this Court affirmatively declare the operational

purlieus of Section 26 thereof.

3. The petitioner has approached this Court impugning

Exts.P11 notice issued to her, calling for her claims to

compensation, under the provisions of Section 21 of the 'Fair

Compensation Act', relating to a property which has been WPC 24372/21

acquired from her, for the purpose of Kochi Metro Rail Ltd (KMRL

for short).

4. Sri.T.R.S.Kumar - learned counsel for the petitioner,

asserts that description of his client's property in Ext.P11, as 'Wet

Land', is egregiously improper and incorrect because, even though

it may have been so in the distant past - which has caused it to

be so shown in the Revenue Records - for the last several

decades, it has been remaining as 'Dry Land', on which several

constructions and developments have taken place. He submits

that, therefore, the Authority competent to fix compensation and

to issue the Award under the 'Fair Compensation Act', cannot rely

on the categorisation and classification of the property in the

Revenue Records, but is obligated to act as per Section 26 of the

said Act; which mandates determination of the present and

prevailing market value of the property, notwithstanding its tenure

recorded therein.

5. The afore submissions of the learned counsel for the WPC 24372/21

petitioner were answered by Sri.Jafer Khan - learned Government

Pleader, relying upon a statement filed by the 4th respondent,

wherein, Annexure-R4(a) proceedings of the District Collector has

been appended to. He argued that, as is limpid from Annexure-

R4(a), dated 06.11.2021, the property of the petitioner - as also

the other properties involved in acquisition - has not been

subjected to an assessment of its market value based solely on the

Revenue Records or even on the Fair Value Notification; but that

documents of comparable properties were taken into account,

leading to the categorisation of the various lands acquired into

different classes, based on its essential physical and infrastructural

attributes and its values fixed accordingly. He submitted that,

therefore, the apprehension of the petitioner, that her property

will be assessed only as a 'Wet Land' merely because its tenure

has been so shown in the Revenue Records, is without any basis.

He thus prayed that this Writ Petition be dismissed.

6. Sri.Jaju Babu - learned Senior Counsel, instructed by WPC 24372/21

Smt.M.U.Vijayalakshmi, learned Standing Counsel for the KMRL,

submitted that though his client has no role to play in the

controversy projected in this Writ Petition, they are concerned

because, on account of the pendency of this case and the interim

order issued, the work with respect to the construction of the

Metro line has been held up in the stretch in question. He thus

submitted that, therefore, this Court may evaluate the contentions

of the petitioner, as is necessary in law; but may permit the

KMRL to take advance possession of her property, so that the

work may not be impeded.

7. In reply, Sri.T.R.S.Kumar responded saying that though

his client is willing to handover possession of her property to the

KMRL, the adjudication of its value by the competent Authority -

based on the mandatory requirements under Section 26 of the

'Fair Compensation Act', may be directed to be completed without

any avoidable delay, so that she can then obtain further recourse.

8. I have evaluated and considered the afore submissions WPC 24372/21

from the touchstone of the various materials available on record,

as also the provisions of the 'Fair Compensation Act'.

9. There can be little doubt that, going by the statutory

scheme under the 'Fair Compensation Act', the District Collector

is obligated, under Section 11(5) thereof, to update the Revenue

Records even before the issuance of notice under Section 11(1).

The specific contention of the petitioner, as argued by her learned

counsel, is that this has not been done and it is, therefore, that

the controversy in this case has arisen.

10. I must say that I find some force in the afore

submissions of Sri.T.R.S.Kumar, but it may not be necessary for

this Court to dwell upon it any further because, as seen above,

Sri.Jafer Khan - learned Government Pleader, submits that

Annexure-R4(a) order has already been issued by the District

Collector, which fixes the land value of the various properties -

including that of the petitioner - without reference to the Revenue

Records, but taking into account its actual market value, edificed WPC 24372/21

on the stipulations under Section 26(1)(b) of the 'Fair

Compensation Act'.

11. However, before I tread forward, a glance through

Section 26 of the 'Fair Compensation Act' becomes necessary. As

per this Section, the District Collector is mandated to adopt the

criteria specified therein for determining the market value of the

acquired land. As per the enumerated criteria, the District

Collector can either fix the value of the acquired property based

on the market value specified under the Indian Stamp Act, 1989;

or by examining and evaluating the average sale price of similar

types of lands situated in the nearest vicinity; or can take into

account the conceded amount of compensation, if the parties so

agree.

12. In the case at hand, it is admitted that there is no

notification issued under the Indian Stamp Act with respect to the

value of the property, though, under the Kerala Stamp Act, a Fair

Value Notification certainly appears to be in force. However, as I WPC 24372/21

have already indited above, Annexure-R4(a) disregards such

valuation and has proceeded to categorize the acquired properties

based on certain specified qualifications, fixing the rates eligible

to each of them in such manner.

13. Therefore, the only question is whether the District

Collector can be seen to have proceeded as per Section 26 of the

'Fair Compensation Act'. As is perspicuous, Section 26 of the said

Act allows the District Collector to fix the market value under the

three methods mentioned above and the Statement filed by him

on record makes it indubitable that he has chosen the second

among them, namely by examining the average sale price for

similar types of lands situated in the nearest vicinity. In fact,

Sri.Jaffer Khan - learned Government Pleader, submitted that

more than ten documents had been taken into account for this

purpose and that the categorization of the lands and its values

shown in Annexure-R4(a) was thus finalised.

14. Even when I hear the learned Government Pleader as WPC 24372/21

afore, since Section 26 of the 'Fair Compensation Act' mandates

that the District Collector shall adopt the criteria mentioned

therein for determining the market value, I am certain that the

petitioner has to be heard, so that she can produce her own

documents and other materials before the said Authority, as to

establish the average sale price of similar types of lands in the

nearest vicinity. Such an opportunity to the petitioner is

unexpendable because, as seen above, among the three

alternatives available in Section 26 of the 'Fair Compensation

Act', the statement of the District Collector shows that he has

chosen the second one, which certainly enjoins him to consider

every document that may be presented before him by the owners

of the acquired lands, with respect to the properties situated in

the vicinity.

15. In the afore perspective, even though I cannot find

fault with the District Collector in having issued Annexure-R4(a)

and in making certain categorisation of the properties therein, it WPC 24372/21

cannot be the sole input, based on which, the Award with respect

to the petitioner's property can be passed. The catergorisation

therein can certainly be used as a broad and general guideline,

but the District Collector must surely hear the petitioner and

assess the documents to be produced by her, thus to verify the

average sale price of similarly situated lands in the vicinity, which

must then be adopted as the market value of her acquired land,

de hors its description in the Revenue Records. I am certain that

if this is done, the apprehension of the petitioner will be allayed,

particularly because the Statement of the District Collector

unequivocally avers that the tenure of the property, recorded in

Ext.P11, is of no relevance to the Award proceedings.

Resultantly and for the reasons above, I order this Writ

Petition in the following manner:

a) The 5th respondent - KMRL is permitted to take

advance possession of the property of the petitioner, after

following due procedure, based on her consent and in terms of WPC 24372/21

the averments in the affidavit filed in support of I.A.1/2021 before

this Court.

b) The District Collector will proceed to determine the

market price of the petitioner's property as per my afore

observations and after affording her an opportunity of being heard

and of producing all documents in substantiation of her claim,

strictly in terms of Section 26(1)(b) of the 'Fair Compensation

Act'; and then conclude the Award proceedings as expeditiously as

is possible, but not later than three months from the date of

receipt of a copy of this judgment. For this purpose, I permit the

petitioner to produce all documents and materials, which she

intends to rely upon, before the District Collector within a period

of two weeks from the date on which she receives this judgment.

c) The petitioner will mark appearance before the District

Collector at 11 a.m. on 20.12.2021; in which event, the said

Authority shall either hear her or fix another convenient date for

hearing and assess her version, as also the documents produced WPC 24372/21

by her, thus completing the afore ordered exercise.

d) It is also needless to say that while completing the

afore exercise, the District Collector shall not go by the tenure of

the property reflected in Ext.P11, but will determine its market

value based on the stipulations in Section 26(1)(b) of the 'Fair

Compensation Act'.

Sd/-

RR                                    DEVAN RAMACHANDRAN
                                               JUDGE
 WPC 24372/21


                 APPENDIX OF WP(C) 24372/2021

PETITIONER EXHIBITS:
Exhibit P1         TRUE COPY OF TAX RECEIPT DATED 22.2.2021
                   ISSUED BY THE VILLAGE OFFICER, NADAMA.
Exhibit P2         TRUE COPY OF SALE DEED NO.2701979 DATED
                   24.1.1979.
Exhibit P3         TRUE COPY OF CORRECTION DEED
                   NO.2817/1980 DATED 19.6.1980.
Exhibit P4         TRUE COPY OF PHOTOGRAPH OF THE PROPERTY
                   UNDER ACQUISITION.
Exhibit P5         TRUE COPY OF PHOTOGRAPH OF THE PROPERTY
                   UNDER ACQUISITION.
Exhibit P6         TRUE COPY OF PHOTOGRAPH OF THE PROPERTY
                   UNDER ACQUISITION.
Exhibit P7         TRUE COPY OF PHOTOGRAPH OF THE PROPERTY
                   UNDER ACQUISITION.
Exhibit P8         TRUE COPY OF THE 11(1) NOTIFICATION
                   PUBLISHED IN KERALA GAZETTE

NO.G.O(P)NO.79/2021/RD DATED 28.06.2021 Exhibit P9 TRUE COPY OF DEMAND NOTICE DATED 27.10.2021 ISSUED BY TRIPUNITHURA MUNICIPALITY.

Exhibit P10 TRUE COPY OF BUILDING TAX RECEIPT DATED 28.10.2021.

Exhibit P11 TRUE COPY OF NOTICE DATED 16.10.2021 IN LAC NO.214/21 UNDER SECTION 21 OF THE LARR ACT, 2013 ISSUED BY OFFICE OF THE SPECIAL TAHSILDAR (LA) NO.1.

Exhibit P12 TRUE COPY OF CONSENT FORM ISSUED BY 5TH RESPONDENT RESPONDENTS EXTS:

THE TRUE COPY OF THE PROCEEDINGS OF THE ANNEXURE R4(A) DISTRICT COLLECTOR NO.C12-43/2020 DATED 06.11.2021.

ANNEXURE R4(B) THE TRUE COPY OF THE NOTICE OF THE SPECIAL TAHSILDAR (LA)NO.I, KOCHI METRO RAIL PROJECT DATED 29.07.2021