Research › Search › Judgment

Kerala High Court · body

2016 DIGILAW 1145 (KER)

State of Kerala v. Ramachandran Nair

2016-12-20

A.M.BABU, P.N.RAVINDRAN

body2016
ORDER : P.N. Ravindran, J. These appeals filed by the State of Kerala arise from the awards passed by the reference court in respect of the lands acquired by the Southern Railway. Learned counsel appearing for the respondents/land owners have raised a preliminary objection to the maintainability of these appeals. They contend that as the acquisition was for the Southern Railway, the State of Kerala cannot be said to be a person aggrieved by the impugned award. It is contended that though Section 54 of the Land Acquisition Act, 1894, does not, in express terms, stipulate that an appeal will lie only at the instance of a person aggrieved, the State of Kerala which acquired the lands for and on behalf of the Southern Railway, cannot be said to be a person aggrieved for the reason that the compensation including all expenses for the acquisition is paid by the Southern Railway. 2. Smt. Asha Elizabeth Mathew, learned counsel appearing for the respondents who led the arguments, submitted that neither the Collector/Land Acquisition Officer nor the requisitioning authority can seek a reference of the dispute regarding the land value to the civil court, that the requisitioning authority is entitled to be made a party to the proceedings before the Land Acquisition Officer/reference court and therefore, as an appeal at the instance of the requisitioning authority which in the instant case is the Southern Railway, is maintainable, there is no reason to hold that the State of Kerala is a person aggrieved. Learned counsel also invited our attention to the decisions of the Apex Court and this court in support of the said contention. Relying on the decision of the High Court of Bombay in In re Jerbai Framji Metha(AIR (37) 1950 Bom.243) which in turn was followed by the Goa Bench in Jose Gonasalo Pereira v. Gonsalo Pereira (AIR 1978 Goa, Daman & Diu 44) it was contended that under the scheme of the Land Acquisition Act, 1894, the only person who is entitled to appear before the reference court is the Collector/Land Acquisition Officer and that the Government do not have the locus standi to canvass the correctness of the award passed by the reference court in appeal. 3. 3. Per contra, Sri Ranjith Thampan, learned Additional Advocate General and Sri C.R. Syam Kumar, learned standing counsel appearing for the Southern Railway submitted with reference to R.9(3) of the Land Acquisition (Kerala) Rules, 1995 and the stipulations in the proforma of the agreement entered into between the State on the one hand and the Southern Railway on the other, that the State of Kerala is bound to transfer the acquired lands which vests in it by virtue of the provisions contained in Section 16 of the Act, to the requisitioning authority which in the instant case is the Southern Railway, only on the Southern Railway depositing the entire amount awarded as compensation by the reference court and that in a given case if the Southern Railway fails to deposit the enhanced compensation awarded by the Land Acquisition Officer, though it had deposited in advance the amount estimated as compensation by the Land Acquisition Officer prior to the passing of the award, the State of Kerala will be liable to pay out of its own funds the enhanced compensation awarded by the reference court and therefore, it cannot be said that it is not aggrieved by the award passed by the reference court. Learned counsel also invited our attention to the decision of this court in Corporation of Cochin v. Michael Luiz ( 1995 (2) KLT 320 ) which was followed by another learned single Judge of this court in O.P.(C)No. 89 of 2013. Learned counsel contended that this court has in the aforesaid decisions held that notwithstanding the fact that the acquisition is made on behalf of a company or a local body, the obligation to pay compensation for the acquired lands is on the State and therefore, the assets of the requisitioning authority cannot be attached by the execution court. Learned counsel contended that as the State of Kerala with whom the acquired lands are vested for the purpose of being transferred to the requisitioning authority is the judgment debtor in all these cases, it cannot be said that an appeal at the instance of the State of Kerala is not maintainable. 4. We have considered the submissions made at the Bar by the learned counsel on either side. 4. We have considered the submissions made at the Bar by the learned counsel on either side. It is now well settled by a series of decisions of the Apex Court that though the requisitioning authority is not entitled to invoke Section 18 of the Act, it is entitled to be heard in the award enquiry and also before the reference court. It is also settled law that an appeal at the instance of the requisitioning authority is maintainable - vide U.P. Awas Evam Vikas Parishad v. Gyan Devi (Dead) by Lrs.& Anr.(( 1995) 2 SCC 326). The Apex Court has in the said decision held as follows: "49. ORDER OF THE COURT (PER MAJORITY) : Leave granted. 1. Section 50(2) of the L.A. Act confers on a local authority for whom land is being acquired a right to appear in the acquisition proceedings before the Collector and the reference court and adduce evidence for the purpose of determining the amount of compensation. 2. The said right carried with it the right to be given adequate notice by the Collector as well as the reference court before whom acquisition proceedings are pending on the date on which the matter of determination of compensation will be taken up. 3. The proviso to Section 50(2) only precludes a local authority from seeking, a reference but it does not deprive the local authority which feels aggrieved by the determination of the amount of compensation by the Collector or by the reference court to invoke the remedy under Article 226 of the Constitution as well as the remedies available under the L.A. Act. 4. In the event of denial of the right conferred by Section 50(2) on account of failure of the Collector to serve notice of the acquisition proceedings the local authority can invoke the jurisdiction of the High Court under Article 226 of the Constitution. 5. Even when notice has been served on the local authority the remedy under Article 226 of the Constitution would be available to the local authority on grounds on which judicial review is permissible under Article 226. 6. 5. Even when notice has been served on the local authority the remedy under Article 226 of the Constitution would be available to the local authority on grounds on which judicial review is permissible under Article 226. 6. The local authority is a proper party in the proceedings before the reference court and is entitled to be impleaded as a party in those proceedings wherein it can defend the determination of the amount of compensation by the Collector and oppose enhancement of the said amount and also adduce evidence in that regard. 7. In the event of enhancement of the amount of compensation by the reference court if the Government does not file an appeal the local authority can file an appeal against the award in the High Court after obtaining leave of the court. 8. In an appeal by the person having an interest in land seeking enhancement of the amount of compensation awarded by the reference court the local authority should be impleaded as a party and is entitled to be served notice of the said appeal. This would apply to an appeal in the High Court as well as in this Court. 9. Since a company for whom land is being acquired has the same right as a local authority under Section 50(2), whatever has been said with regard to a local authority would apply to A company too. 10. The matters which stand finally concluded will, however, not be reopened." 5. It is evident from the aforesaid decision that an appeal at the instance of the Southern Railway is maintainable. The issue that arises before us is whether such being the situation, the State of Kerala can be said to be a person aggrieved for the purpose of filing an appeal. A reading of R.9(3) of the Land Acquisition (Kerala) Rules, 1995 and the stipulations in the proforma of the agreement entered into between the State of Kerala on the one hand and Southern Railway on the other, would disclose that the State is bound to transfer the acquired lands to the Southern Railway only on payment by the Southern Railway of the entire cost of acquisition. It is now well settled by a series of decisions of this court that in execution of the award passed by the reference court, the properties belonging to the requisitioning authority cannot be attached. It is now well settled by a series of decisions of this court that in execution of the award passed by the reference court, the properties belonging to the requisitioning authority cannot be attached. In a given case where the requisitioning authority does not deposit in full, the amount payable under the award passed by the reference court, the State of Kerala will have to defray the expenses necessary to satisfy the award. As the lands acquired are vested in the State, the State will in that event, have to take over and discharge the liability of the requisitioning authority. It is no doubt true that the lands are vested in the State Government and it need not be transferred to the requisitioning authority. But the fact remains that the State which only acted as the acquisitioning authority on behalf of the requisitioning authority pursuant to an agreement entered into by it, will have no alternative but to satisfy the decree. In other words, the State which has the primary liability to satisfy the award passed by the reference court, will in such a situation, be compelled to expend money from its own funds to satisfy the award. In such circumstances, it cannot be said that the State of Kerala is not aggrieved by the awards passed by the reference court awarding higher compensation. As the awards in the instant cases can be executed against the State of Kerala, we are not persuaded to accept the contention of the learned counsel appearing for the claimants that the State is not a person aggrieved by the impugned awards. We accordingly overrule the preliminary objection raised by the land owners and hold that the instant appeals at the instance of the State of Kerala are maintainable. Post the appeals for final hearing as per roster in the week commencing 9.1.2017.