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2023 DIGILAW 1002 (KER)

K. M. Najma, W/o. T. Muneer v. State Of Kerala

2023-12-06

A.J.DESAI, V.G.ARUN

body2023
JUDGMENT : A.J. Desai, J. By way of the present appeal filed under Section 5 of the Kerala High Court Act, 1958, the original petitioners/applicants have challenged the order dated 27.11.2023 in I. A. No. 2 of 2023 in W.P. (C) No.36937 of 2023 passed by the learned Single Judge by which the request made by the applicants to direct the State authority to exercise powers under Section 36 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, with regard to Ext. P20 order which is also challenged in the writ petition, came to be dismissed. 2. Short facts that arise from the record are as under:- The property belonging to the present appellants/original petitioners was sought to be acquired for public purpose and accordingly, a notification was issued on 06.10.2022. It is the case of the appellants that though the Land Acquisition Officer has decided the value of the land at Rs.1,63,288/-per Are, the District Collector, by Ext. P20 order dated 23.01.2023, reduced the land value to Rs. 97,522.99/-per Are for the land with PWD road access, Rs. 81,269.16/-per Are for the land with Panchayat road access and Rs. 73,142.24 per Are for the land with private road access. Being aggrieved, petitioners have filed the captioned writ petition seeking the following reliefs:- “a) Issue a writ of certiorari calling for records leading to Ext.P20 and quash the original of the same; b) Issue a writ of certiorari calling for records leading to Ext. P17 and Ext. P19 and quash the original of the same; c) Issue a writ of Mandamus directing the 2nd respondent to consider Ext. P29 representation before the finalization of Detailed Valuation Statement by the 2nd respondent; d) Issue a writ of Mandamus directing the 2nd respondent to consider Exts. P21 to P23 and Ext. P25 to Ext. P27 sale deeds for evaluating the real market value of the property U/Sec.26 of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 before finalization of the Detailed Valuation Statement of the petitioners’ properties; e) Issue a writ of mandamus directing the 2nd respondent to fix the market value of the land U/Sec.26 of the 2013 Act at Rs.1,84,308.44/-per Are for the petitioners lands; f) Issue a writ of mandamus directing the 2nd respondent to apply multiplication factor of 1.6 as per Ext. P24 and disburse the said amount while preparing the detailed valuation statement; g) Issue a writ of mandamus directing the respondents to give weightage to PWD road access to the petitioners’ properties at 50% of the market value; h) Issue a writ of mandamus directing the respondents to compensate the petitioners U/Sec.27 and 28 of the 2013 Act.” 3. The interim reliefs sought by the petitioners in the writ petition are as follows:- “a) Stay the operation, implementation and all further proceedings in Ext. P20 in so far as the petitioners is concerned including passing of the award; b) direct the 2nd respondent to consider Ext. P29 representation before the finalization of Detailed Valuation Statement by the 2nd respondent, pending final disposal of the writ petition.” 4. It appears that, during the pendency of the writ petition, the appellants made Exts. P31 and P32 representations dated 21.11.2023 requesting the Principal Secretary, Land Revenue & Disaster Management Department, Government of Kerala, to exercise powers under Section 36 of the Act 2013. Thereafter, the petitioners filed I. A. No. 2 of 2023 in the writ petition seeking a direction to the State authority to pass orders on the aforesaid representations. The said Interlocutory Application was opposed by the State with regard to the revisional powers under Section 36 of the Act 2013. 5. After having heard the learned counsel for the parties, the learned Single Judge, while dismissing the Interlocutory Application, admitted the writ petition and directed the learned Government Pleader to file a statement/counter affidavit. Hence this appeal. 6. Learned Advocate appearing for the appellants would submit that the learned Single Judge ought not to have rejected the application by which a request was made for appropriate direction to the State authority, who is empowered to pass appropriate orders after calling for the records. He would submit that the learned Single Judge has committed an error in holding that the Government can only examine or call for the record suo motu and cannot examine the same when any representation is made. He would submit that no final award is passed and therefore, the Government can examine the representation made by the appellants. He would further submit that Section 30 of the Act 2013 empowers the District Collector to impose a solatium. Therefore, the State authority can exercise such powers under Section 36 of the Act. He would submit that no final award is passed and therefore, the Government can examine the representation made by the appellants. He would further submit that Section 30 of the Act 2013 empowers the District Collector to impose a solatium. Therefore, the State authority can exercise such powers under Section 36 of the Act. He would submit that under Section 26 of the Act, the Collector is empowered to determine the market value of the land and that the final award is to be passed under Section 23 and therefore, the learned single Judge ought to have directed the State authority to consider the representations made by the appellants. 7. On the other hand, the learned Senior Government Pleader appearing for the respondents opposed the appeal. He would submit that the challenge in the writ petition is against Ext. P20 order which is sought to be reviewed by the appellants themselves under Exts. P31 and P32 representations. He would submit that the grievance of the appellants is with regard to fixation of the market value of the property and therefore, the findings of such order cannot be reviewed under Section 36 of the Act. He would submit that reviewing a decision with regard to the market value of the property would lead to re-appreciating the evidence resulting in another market value that would not come within the purview of the Act. He would also submit that the appellants are trying to challenge Ext. P20 order before this Court as well as before the State Government. If a person is not satisfied with the award passed by the District Collector, determining the market value, he can claim compensation under the Act 2013. He therefore would submit that the learned Single Judge has rightly dismissed the application. 8. We have heard learned Advocates appearing for the respective parties. 9. As stated hereinabove, the prayer in the writ petition is challenging Ext. P20 order passed by the District Collector by which the market value of the land was decided. The writ petition is pending consideration and in the meanwhile, the appellants filed Exts. P31 and P32 representations before the Principal Secretary of the concerned Department seeking to exercise powers under Section 36 of the Act. 10. Section 36 of the Act reads as follows:- “36. Power to call for records, etc. The writ petition is pending consideration and in the meanwhile, the appellants filed Exts. P31 and P32 representations before the Principal Secretary of the concerned Department seeking to exercise powers under Section 36 of the Act. 10. Section 36 of the Act reads as follows:- “36. Power to call for records, etc. The appropriate Government may at any time before the award is made by the Collector under section 30 call for any record of any proceedings (whether by way of inquiry or otherwise) for the purpose of satisfying itself as to the legality or propriety of any findings or order passed or as to the regularity of such proceedings and may pass such order or issue such direction in relation thereto as it may think fit: PROVIDED that the appropriate Government shall not pass or issue any order or direction prejudicial to any person without affording such person a reasonable opportunity of being heard.” 11. As per Section 36, the appropriate Government may at any time before the award is made by the Collector under Section 30 call for any record of any proceedings (whether by way of inquiry or otherwise) for the purpose of satisfying itself as to the legality or propriety of any findings or order passed. 12. Section 30 of the Act reads as follows:- “30. Award of solatium. (1) The Collector having determined the total compensation to be paid, shall, to arrive at the final award, impose a “Solatium” amount equivalent to one hundred per cent. of the compensation amount. Explanation: For the removal of doubts it is hereby declared that solatium amount shall be in addition to the compensation payable to any person whose land has been acquired. (2) The Collector shall issue individual awards detailing the particulars of compensation payable and the details of payment of the compensation as specified in the First Schedule. (3) In addition to the market value of the land provided under section 26, the Collector shall, in every case, award an amount calculated at the rate of twelve per cent. (2) The Collector shall issue individual awards detailing the particulars of compensation payable and the details of payment of the compensation as specified in the First Schedule. (3) In addition to the market value of the land provided under section 26, the Collector shall, in every case, award an amount calculated at the rate of twelve per cent. per annum on such market value for the period commencing on and from the date of the publication of the notification of the Social Impact Assessment study under sub-section (2) of section 4, in respect of such land, till the date of the award of the Collector or the date of taking possession of the land, whichever is earlier.” 13. By making Exts. P31 and P32 representations, appellants indirectly seek re-examination of the entire records and re-evaluation of the market value of the property. Considering these aspects, it cannot be examined under Section 36 of the Act. Apart from this, Ext. P20 order is also under challenge in the captioned writ petition which is pending final hearing. Hence, we do not find any substance in this appeal. The learned Single Judge is requested to decide the writ petition on its own merits without being influenced by the observations made in this judgment. The writ appeal is accordingly dismissed. Pending Interlocutory Applications, if any, shall stand closed.