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2007 DIGILAW 181 (KER)

Duleep Tharian Verghese v. Special Tahsildar

2007-03-07

K.T.SANKARAN

body2007
1. The prayer in the Writ Petition is to declare that the acquisition proceedings initiated pursuant to Exts. P1 and P1(a) have lapsed under S.11A of the Land Acquisition Act, 1894. There is also a prayer for the issue of a writ of certiorari to quash Exts. P1, P1(a), P9, P10, P12, P13, P15 to P17, P19, P21 and P22. 2. Government of Kerala accorded sanction for setting up of an Industrial Growth Centre in Pathanamthitta District as per order dated 24/09/1992. The General Manager, District Industries Centre, Kozhencherry had furnished requisition for the acquisition of necessary land through the District Collector, Pathanamthitta. Notification under S.4(1) of the Land Acquisition Act was published in the Kerala Gazette extra ordinary on 18/06/1994. The notification was published in local dailies on 14/06/1994 and 18/06/1994. Notice in Form 4(a) of the Act was published in the locality on 15/06/1995. An enquiry as contemplated under S.5A was conducted. The Board of Revenue, Thiruvananthapuram accorded sanction for acquisition of the land. The land was surveyed by the Superintendent of Survey and Land Records, Pathanamthitta. Draft declaration was approved by the Board of Revenue, Thiruvananthapuram on 29/03/1996 and it was published in the Kerala Gazette extra ordinary on 15/05/1996 and two dailies dated 09/06/1996 and 14/06/1996. It was also published in the locality on 03/06/1996 under S.6(2) of the Land Acquisition Act. The total area for which draft declaration was approved was 38.8946 hectares of land. The fifth respondent, Kerala Industrial Infrastructure Development Corporation (KINFRA), requested for an area of 14.83 hectares for setting up an industrial park. It is stated by the fifth respondent in the counter that as per order dated 16/10/2003, Government transferred possession of 14.48 hectares of land in Sy.No.208 of Kunnamthanam Village (plot No. 15), out of the acquired land of 38.8946 hectares and that the fifth respondent became the absolute owner in possession of 14.48 hectares. It is also stated by the fifth respondent that it had remitted the entire amount payable by it, namely, Rs.87,30,734/- to the Government. 3. The petitioner is engaged in the business of planting and he owns an estate called 'Pamala Estate' in Thiruvalla. 14.83 hectares comprised in 'Pamala Estate' was also sought to be acquired as per the proceedings mentioned above for the purpose of the fifth respondent. Exts. P1 and P1(a) are the notification under S.4(1) and the declaration under S.6 respectively. 3. The petitioner is engaged in the business of planting and he owns an estate called 'Pamala Estate' in Thiruvalla. 14.83 hectares comprised in 'Pamala Estate' was also sought to be acquired as per the proceedings mentioned above for the purpose of the fifth respondent. Exts. P1 and P1(a) are the notification under S.4(1) and the declaration under S.6 respectively. Petitioner challenged the declaration in OP No. 11910 of 1997 on the ground that the declaration was issued after the expiry of one year from the date of publication of the notification under S.4(1) of the Act and therefore, violative of the proviso to S.6(1) of the Act. OP No. 11910 of 1997 was dismissed as per Ext. P7 judgment dated 12/06/2003. It was held that the notification under S.4(1) of the Act was published in the locality on 03/06/1995 and the declaration under S.6 having been made on 20/05/1996, there was no violation of the proviso to S.6(1) of the Act. Challenging Ext. P7 judgment, petitioner filed Writ Appeal, which was dismissed by Ext. P8 judgment dated 20/06/2005. The petitioner filed SLP (Civil) No. 17614 of 2005 before the Honourable Supreme Court, which was dismissed on 02/09/2005. Review Petition No. 1884 of 2005 filed by the petitioner before the Honourable Supreme Court was also dismissed on 06/12/2005. 4. The case of the petitioner is that after excluding the period covered by the said orders issued by this Court in the Writ Petition filed by the petitioner, the last date for filing the award was 19/06/1998. The petitioner received Ext. P19 communication dated 09/12/2005 enclosing the award dated 28/03/1998, and the proceedings of the Board of Revenue dated 03/06/1998, approving the award. The petitioner contends that the award forwarded along with the communication dated 09/12/2005 (Ext. P19) is only a draft award and after the approval by the Board of Revenue, no final award was passed. It is contended that since no final award was passed within the time provided under S.11A of the Act, the petitioner is entitled to a declaration as prayed for. 5. In the counter affidavit filed by the first respondent, it is stated in paragraph 5 thus: "5. It is contended that since no final award was passed within the time provided under S.11A of the Act, the petitioner is entitled to a declaration as prayed for. 5. In the counter affidavit filed by the first respondent, it is stated in paragraph 5 thus: "5. The District Collector, Pathanamthitta as per letter No. C2-10102/04 dated 24/04/1998 submitted a draft award to the Secretary, Board of Revenue, Thiruvananthapuram for previous approval for an extent of 14.48 Hectares of land in Sy.No.208 of Kunnamthanam Village as per the provision under S.11 of LA Act and 12(1)(b) of LA Act Kerala Rules since, the award amount exceeds 50 lakhs. The Board of Revenue accorded sanction to pass final award vide proceeding No. R.dis./12161/98LRC(3) dated 03/06/1998. The order received in the office of the Special Tahsildar on 04/06/1998 and final award was declared on 04/06/1998 accepting the date of award as 03/06/1998." In paragraph 9 of the said counter affidavit, it is stated that after declaring the award on 04/06/1998, notices in Form 12 and 10(b) of the Land Acquisition (Kerala) Rules were issued to the petitioner and that he had not raised any contention that no award was passed. It is also stated that the date mentioned in the copy of the award was mistakenly shown. 6. In the counter affidavit filed by the second respondent, similar contentions as raised by the first respondent have been raised. The fifth respondent in its counter statement contended that the Writ Petition is barred by res judicata since in the earlier proceedings the petitioner failed to raise the contentions raised in the present Writ Petition. Ext. P10 notice under S.12(2) of the Act was issued to the petitioner on 19/06/1998 and the petitioner had submitted an application for reference under S.18 of the Act. The petitioner having applied for reference under S.18, he is not entitled to file the Writ Petition. It is stated that possession of the property was transferred in favour of the fifth respondent as per Ext. R5(g) Government Order dated 16/10/2003. The fifth respondent had already spent more than Rs.50 lakhs for development work in the property. There was obstruction on the part of the petitioner in undertaking the developmental activities. The fifth respondent had produced draft award as Ext. R5(d), which is dated 28/03/1998. The draft award was made on 28/03/1998 and the final award was passed on 03/06/1998. The fifth respondent had already spent more than Rs.50 lakhs for development work in the property. There was obstruction on the part of the petitioner in undertaking the developmental activities. The fifth respondent had produced draft award as Ext. R5(d), which is dated 28/03/1998. The draft award was made on 28/03/1998 and the final award was passed on 03/06/1998. It is stated that the entire amount of compensation is determined up to 02/06/1998 and the award was made on 03/06/1998. It is pointed out that the award produced as Ext. P19 would show that the increase on market value under S.23(1A) was calculated and entered for the period from 15/06/1995 to 02/06/1998. It is contended that the provisions of the Land Acquisition Act have been strictly complied with and the petitioner is not entitled to the reliefs prayed for in the Writ Petition. 7. The learned counsel for the petitioner contended that the mandatory requirements of the Land Acquisition Act have not been complied with and no award was passed within the time prescribed under S.11A of the Act. Ext. P19 is a draft award and the date shown therein is 28/03/1998, though the benefit under S.23(1A) is calculated up to 02/06/1998. After sanction was accorded by the Board of Revenue as per the proceedings dated 03/06/1998, the Collector should have passed an award afresh and the draft award is not a substitute for an award. The learned counsel appearing for the fifth respondent as well as the learned Government Pleader relied on the decision of the Supreme Court in Smt. Bailamma v. Poornaprajna House Building Cooperative Society, 2006 KHC 107 : 2006 (2) SCC 416 : 2006 (2) KLT SN 1 : JT 2006 (2) SC 108 : AIR 2006 SC 1132 to counter the submission made by the counsel for the petitioner. They submitted that a similar contention raised before the Supreme Court was not accepted in Bailamma's case. The contention raised in Bailamma's case was that there was nothing on record to indicate that after the approval was granted by the Government, the Collector signed the award and that no award was made in accordance with S.11 of the Act. They submitted that a similar contention raised before the Supreme Court was not accepted in Bailamma's case. The contention raised in Bailamma's case was that there was nothing on record to indicate that after the approval was granted by the Government, the Collector signed the award and that no award was made in accordance with S.11 of the Act. It was also contended before the Supreme Court that the award sent to the Government for approval could at best be a draft award and after approval, the Collector should have signed the award and thereafter communicated the award to the parties. 8. In Bailamma's case, the Honourable Supreme Court held that after the award is approved, if there is no alteration in the award, the Collector is required to notify the parties concerned about the award. It was further held thus: "......There is nothing in S.11 which expressly requires the Collector to announce his award in the presence of the persons interested, though there is nothing which prevents him from declaring the award on a date fixed by him for the purpose. However, having regard to the provisions of S.12(2) of the Act, he must give immediate notice to such of the persons interested as are not present personally or by their representative when the award is made ..." As regards the contention as to whether the Collector should sign the award after the approval by the Government, the Supreme Court held in Bailamma's case thus: "...... The award which has already been signed by the Collector becomes an award as soon as it is approved by the Government without any alteration. At best the appellants can contend that it becomes an award when notice is given to the parties interested. Viewed from any angle, having regard to the fact that there is no dispute that the Government granted its approval on 16/11/1992 and notices were issued under S.12(2) of the Act on November 20,1992, it must be held that the award was made within the period prescribed by S.11A of the Act. There was really no necessity for the Collector to sign the award again, nor does S.11 require that for the purpose of pronouncing the award notice should be given by the Collector to the persons interested". 9. In the case on hand, the award forwarded along with Ext. There was really no necessity for the Collector to sign the award again, nor does S.11 require that for the purpose of pronouncing the award notice should be given by the Collector to the persons interested". 9. In the case on hand, the award forwarded along with Ext. P19 communication shows that interest on market value under S.23(1A) was computed for the period from 15/09/1995 to 02/06/1998. Draft award was approved on 03/06/1998. The contention that the award was declared on 04/06/1998 accepting the date of award as 03/06/1998 is liable to be accepted. Ext. R5(d) draft award would also indicate that this contention is true since the benefit under S.23(1A) was calculated originally for a period up to 28/03/1998 and it is seen scored off and written as 02/06/1998. The date noted as 28/03/1998 in the draft award must certainly be a mistake as contended by the respondents. 10. There is no dispute that the petitioner received notice under S.12(2) of the Act and that he made an application under S.18 of the Act for reference. S.12(2) provides that the Collector shall give immediate notice of his award to such of the persons interested as are not present personally or by their representatives when the award is made. S.18 provides that any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. Having received notice under S.12(2) of the Act issued in Form 10(b) and having filed the application for reference under S.18, the petitioner is estopped from contending that there were no award in the eye of law. If there is no award, he could not have applied for reference. Notice under S.12(2) was issued on 19/06/1998. If no award is passed, a notice under Section 12(2) could not have been issued. If the notice under S.12(2) is not legal and proper, an application under S.18 could not have been maintainable. If there is no award, he could not have applied for reference. Notice under S.12(2) was issued on 19/06/1998. If no award is passed, a notice under Section 12(2) could not have been issued. If the notice under S.12(2) is not legal and proper, an application under S.18 could not have been maintainable. The facts and circumstances as disclosed in the Writ Petition, counter affidavit and documents produced along with the same would conclusively establish that the contention raised by the petitioner that no award was made within the period provided under Section 11A of the Act is unsustainable.