State Of Kerala vs Scaria Mathew
2024 Latest Caselaw 31818 Ker

Kerala High Court

State Of Kerala vs Scaria Mathew on 7 November, 2024

                                                        2024:KER:86578
W.A.No.1309 of 2018
                                     1

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

         THE HONOURABLE THE CHIEF JUSTICE MR. NITIN JAMDAR

                                     &

                 THE HONOURABLE MR. JUSTICE S.MANU

THURSDAY, THE 7TH DAY OF NOVEMBER 2024 / 16TH KARTHIKA, 1946

                            WA NO. 1309 OF 2018

          AGAINST THE JUDGMENT DATED 31.07.2017 IN WPC NO.1249

                      OF 2014 OF HIGH COURT OF KERALA

APPELLANTS/RESPONDENTS:

     1       STATE OF KERALA
             REPRESENTED BY ITS SECRETARY TO GOVERNMENT, PUBLIC
             WORKS DEPARTMENT, GOVERNMENT SECRETARIAT,
             THIRUVANANTHAPURAM-695 001.

     2       THE SUPERINTENDING ENGINEER, KERALA STATE
             TRANSPORT PROJECT, THIRUVANANTHAPURAM-695 001.

     3       THE ASSISTANT EXECUTIVE ENGINEER PUBLIC WORKS
             DEPARTMENT, ROADS SUB DIVISION, KOTTAYAM-688 001.

     4       THE SPECIAL TAHSILDAR (LAND ACQUISITION)
             NATIONAL HIGHWAY, CHANGANASSERY,
             KOTTAYAM DISTRICT-686 101.


             BY SR. GOVERNMENT PLEADER SRI.V. TEKCHAND


RESPONDENTS/PETITIONERS:

     1       SCARIA MATHEW
             S/O.MATHEW, MATHICHIPARAMBIL HOUSE, KURISUMMOODU
             P.O., CHANGANASSERY, KOTTAYAM DISTRICT-686 104.
                                                         2024:KER:86578
W.A.No.1309 of 2018
                                     2

     2       FRANCIS JOHN
             S/O.JOHN, CHAZHOO HOUSE, PANTHEERANKAVU P.O.,
             KOZHIKODE DISTRICT, REPRESENTED BY HIS POWER
             ATTORNEY HOLDER,MATHEW GREGARY, MEDAYIL HOUSE,
             LAIKKADU,CHANGANASSERY, KOTTAYAM DISTRICT-686 101.




      THIS     WRIT    APPEAL    HAVING    BEEN   FINALLY   HEARD    ON
07.11.2024,      THE   COURT    ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
                                                         2024:KER:86578
W.A.No.1309 of 2018
                                    3

                                                                 "C.R."
                              JUDGMENT

Dated this the 7th day of November, 2024

Nitin Jamdar, C.J.

Heard Mr. V. Tekchand, learned Senior Government Pleader for the Appellants.

2. The Respondents/Original Petitioners filed W.P.(C)No.1249 of 2014 for a prayer of declaration and consequential order of injunction as regards the lapsing of the subject property as per Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Act of 2013).

3. The subject property is land in Re-Sy. Nos.677/11-3 and 677/20-3 of Nattakom Village of Kottayam Sub Registry. According to the Respondents/Original Petitioners, the notification was issued under Section 4(1) of the Land Acquisition Act, 1894 (Act of 1894) on 9 December 2004. The notification under Section 6 was published on 20 January 2006. Award under Section 11 was declared on 17 November 2007. The Original Petitioners in W.P.(C)No.1249 of 2014 contended that in the light of Section 24(2) of the Act of 2013, since the award under Section 11 of the Act of 1894 was made prior to five years and compensation not paid, the acquisition proceedings are deemed to have lapsed.

4. The learned Single Judge, in the impugned judgment dated 31 July 2024:KER:86578

2017 following the decision of the Hon'ble Supreme Court in the case of Pune Municipal Corporation v. Harakchand Misirimal Solanki [(2014) 3 SCC 183], observed that the deposit of compensation amount in the Government Treasury cannot be accepted as equivalent to the payment provided under Section 24(2) of the Act of 2013. In the light of this decision and observing that the amount in the present case was deposited in the Government Treasury, the learned Single Judge proceeded to allow the petition and declare that the acquisition proceedings of the subject property have lapsed. Challenging this order the State is before us in appeal under Section 5 of the Kerala High Court Act, 1958.

5. The learned Senior Government Pleader submitted that the possession of the land has been taken and the only ground on which the acquisition proceedings have been declared as lapsed is because compensation is deposited in the Government Treasury. He submitted that the decision of the learned Single Judge is based on the law laid down in the case of Pune Municipal Corporation which is no longer good law in the light of the decision of the Constitutional Bench in the case of Indore Development Authority v. Manoharlal and Others [(2020) 8 SCC 129]. Therefore when the appeal came up for hearing on 30 October 2024, the following order was passed:

"Heard Mr.V.Tekchand, learned Senior Government Pleader. None appears for the Respondents.

2. By the impugned judgment and order, the learned Single Judge has declared that the land acquisition proceedings in respect of the subject have lapsed in light of Section 24(2) of 2024:KER:86578

the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The learned Single Judge has relied upon the decision of the Hon'ble Supreme Court in case of Pune Municipal Corporation v. Harakchand Misirimal Solanki (2014) 3 SCC 183 which held that mere deposit of compensation in Government Treasury cannot be considered as equivalent to payment under Section 24(2) of the Act. The learned Government Pleader points out that thereafter, the issue has been considered by the Constitution Bench in Indore Development Authority v. Manoharlal & Others [2020 8 SCC 129] and it laid down that if the amount of compensation is deposited in Government Treasury, there cannot be a declaration that the acquisition proceedings have lapsed.

3. The Appeal is Admitted.

4. There shall be a stay to the execution and implementation of the impugned order.

5. Post the Appeal for hearing at the end of the admission board on 6 November 2024."

6. Today also none appears for the Respondents therefore we are proceeded to examine the matter.

7. Perusal of the impugned order would show that the ground for declaring that the land acquisition proceedings have lapsed is the deposit of compensation in the Government Treasury considering it as not a valid deposit as per the provisions of Section 24(2) of the Act of 2013. The Constitution Bench in Indore Development Authority has declared that this cannot be a ground for the acquisition proceedings to lapse under the Act of 2013. The conclusions of the Constitution Bench in the said decision are as under:

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"365. Resultantly, the decision rendered in Pune Municipal Corporation & Anr. is hereby overruled and all other decisions in which Pune Municipal Corporation has been followed, are also overruled. The decision in Sree Balaji Nagar Residential Association cannot be said to be laying down good law, is overruled and other decisions following the same are also overruled. In Indore Development Authority v. Shailendra, the aspect with respect to the proviso to Section 24(2) and whether 'or' has to be read as 'nor' or as 'and' was not placed for consideration. Therefore, that decision too cannot prevail, in the light of the discussion in the present judgment.

366. In view of the aforesaid discussion, we answer the questions as under:

366.1. Under the provisions of Section 24(1)(a) in case the award is not made as on 1.1.2014 the date of commencement of the 2013 Act, there is no lapse of proceedings. Compensation has to be determined under the provisions of the 2013 Act.

366.2. In case the award has been passed within the window period of five years excluding the period covered by an interim order of the court, then proceedings shall continue as provided under Section 24(1)(b) of the 2013 Act under the 1894 Act as if it has not been repealed.

366.3. The word 'or' used in Section 24(2) between possession and compensation has to be read as 'nor' or as 'and'. The deemed lapse of land acquisition proceedings under Section 24(2) of the 2013 Act takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid. In other words, in case possession has been taken, compensation has not been paid then there is no lapse. Similarly, if compensation has been paid, possession 2024:KER:86578

has not been taken then there is no lapse.

366.4. The expression 'paid' in the main part of Section 24(2) of the 2013 Act does not include a deposit of compensation in court. The consequence of non-deposit is provided in the proviso to Section 24(2) in case it has not been deposited with respect to majority of landholdings then all beneficiaries (landowners) as on the date of notification for land acquisition under Section 4 of the 1894 Act shall be entitled to compensation in accordance with the provisions of the 2013 Act. In case the obligation under Section 31 of the Land Acquisition Act, 1894 has not been fulfilled, interest under Section 34 of the said Act can be granted. Non-deposit of compensation (in court) does not result in the lapse of land acquisition proceedings.

In case of non-deposit with respect to the majority of holdings for five years or more, compensation under the 2013 Act has to be paid to the "landowners" as on the date of notification for land acquisition under Section 4 of the 1894 Act.

366.5. In case a person has been tendered the compensation as provided under Section 31(1) of the 1894 Act, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to non-payment or non- deposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1). The landowners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the 2013 Act.

366.6. The proviso to Section 24(2) of the 2013 Act is to be treated as part of Section 24(2), not part of Section 24(1)(b).

366.7. The mode of taking possession under the 1894 Act and as contemplated under Section 24(2) is by 2024:KER:86578

drawing of inquest report/memorandum. Once award has been passed on taking possession under Section 16 of the 1894 Act, the land vests in State there is no divesting provided under Section 24(2) of the 2013 Act, as once possession has been taken there is no lapse under Section 24(2).

366.8. The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the 2013 Act came into force, in a proceeding for land acquisition pending with the authority concerned as on 1.1.2014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years.

366.9. Section 24(2) of the 2013 Act does not give rise to new cause of action to question the legality of concluded proceedings of land acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the 2013 Act, i.e., 1.1.2014. It does not revive stale and time-barred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition."

8. In the light of the above position of law, the basis on which the impugned judgment is passed is no longer good law.

9. It is an admitted position that the compensation was deposited in the Government Treasury and therefore, irrespective of the factum of possession, if the amount is deposited in the Government Treasury, the declaration that the acquisition proceedings have lapsed cannot be given.

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Even otherwise, it is the contention of the Appellants/State that the possession of the land had already been taken and the direction given by the learned Single Judge to return the property would also demonstrate that the possession was given.

10. Therefore, on both count that the possession has been taken pursuant to the acquisition proceedings and the amount of compensation was deposited in the Government Treasury, the declaration given in the impugned judgment that the acquisition proceedings pursuant to the award under Section 11 of the Act of 1894 have lapsed, cannot be sustained.

11. The appeal is accordingly allowed. The impugned judgment dated 31 July 2017 in W.P.(C)No.1249 of 2014 is set aside. No costs.

Sd/-

Nitin Jamdar Chief Justice

Sd/-

S. Manu Judge vpv