Research › Search › Judgment

Kerala High Court · body

2024 DIGILAW 618 (KER)

Kumar S/o Ambros v. State of Kerala

2024-06-06

VIJU ABRAHAM

body2024
JUDGMENT : VIJU ABRAHAM, J. 1. The petitioners have approached this Court challenging Ext.P6 order issued by the 3rd respondent and for a direction to respondents 1 and 2 to deposit the awarded compensation before the 3rd respondent authority for apportionment between petitioners and the 4th respondent. 2. Brief facts necessary for the disposal of the writ petition are as follows: The petitioners are the children of the 4th respondent, born in his first marriage and the 4th respondent is currently living separately from the petitioners, with his second wife. The father of the 4th respondent had obtained 5.29 Acres of land as per Purchase Certificate No. 2484/1977 of Land Tribunal, Coyalmannam and he assigned this property to the 3rd respondent as per Settlement Deed No. 664/1981 of Palakkad SRO. The 4th respondent has also obtained another 1.7542 hectares of land as per Purchase Certificate No. 2238/1975 dated 22.11.1975 issued by Special Tahasildar, Land Tribunal, Coyalmannam. The above two properties were subjected to land acquisition by respondents 1 and 2, for the purpose of development of Bangalore - Cochin Industrial Corridor. The claim of the petitioners is that they belong to Vaniya Christians and they are governed by Hindu Mitakshara Law. Ext.P1 is the certificate issued in this regard by the parish priest. On the basis of the same, it is contended that the petitioners have a right in these properties acquired by respondents 1 and 2, which are joint family properties of the 4th respondent and the petitioners have right in these properties by birth, under Mitakshara Law, and it cannot be singularly dealt by the 4th respondent alone. Yet another contention raised by the petitioners is that the purchase certificate issued in the name of the head of the family, is for the whole family, and not just for the allotted individual. The petitioners being joint family members, and also being cultivating tenants in possession of the property assigned under the Land Reforms Act, are entitled to a share in compensation for their right, when these properties are acquired by respondents 1 and 2. Highlighting all these factual and legal aspects, the 2nd petitioner has filed Ext.P2 representation before the 2nd respondent Collector, to deposit the awarded compensation amount to the notified Authority, under Section 64, for apportionment. Highlighting all these factual and legal aspects, the 2nd petitioner has filed Ext.P2 representation before the 2nd respondent Collector, to deposit the awarded compensation amount to the notified Authority, under Section 64, for apportionment. When steps were not taken by the 2nd respondent, the petitioners preferred Ext.P3 application to the Authority/District Court, under Section 64(1) Second Proviso of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as Act 2013) [mistakenly written in Ext.P3 as filed under Section 72 of the Act 2013], to direct the Collector to deposit the amount before the court and the same is numbered as OP(Land Acquisition) No. 100/2023 of District Court Palakkad. To Ext.P3, the 4th respondent filed Ext.P4 objection and the 2nd respondent also filed a statement as Ext.P5. The 3rd respondent, on a wrongful procedure, without taking any evidence or conducting trial, but on an absolute erroneous appreciation of pleadings alone, dismissed the petitioners' application with cost as per Ext.P6 order and it is aggrieved by the said dismissal that the petitioners have approached this Court. 3. A detailed counter affidavit has been filed by the 4th respondent wherein it is contended that he is the absolute owner and in possession of the properties in question and that the 4th respondent has given 1 Acre of land each to the petitioners through settlement deeds towards their share which was also acquired by the 2nd respondent for Kochi - Bangalore Industrial Corridor and they have also received the compensation amount. The petitioners after receipt of the compensation demanded more money and filed a petition before the 2nd respondent demanding proportionate shares, which has been rejected by the 2nd respondent. It is further contended that there is no dispute in respect of the claim and raised question of jurisdiction under Section 77(2) of the Act 2013 and further contended that the District Court has no jurisdiction to issue direction to the 2nd respondent to deposit the compensation amount. It is also contended that the stand taken by the petitioners that they belong to Vaniya Christian Community cannot be accepted in the light of Ext.R4(i) caste certificate issued by the Village Officer, Puthussery Central Village, Palakkad stating that the petitioners as well as the 4th respondent belongs to Latin Christian Community. It is also contended that the stand taken by the petitioners that they belong to Vaniya Christian Community cannot be accepted in the light of Ext.R4(i) caste certificate issued by the Village Officer, Puthussery Central Village, Palakkad stating that the petitioners as well as the 4th respondent belongs to Latin Christian Community. It is also contended by the 4th respondent that the right of the petitioners to get a share in the acquired property belonging to the 4th respondent is a disputed fact, which can only be adjudicated by a competent Civil Court and they cannot approach this Court under Article 226 of the Constitution of India and further that the District Court, Palakkad, the authority has rejected the request of the petitioners as per Ext.P6 and the same is in accordance with law and no interference is called for by this Court. Yet another contention raised by the learned counsel for the 4th respondent is that an application under Section 64 of the Act, 2013 will be applicable only after the passing of the award and in the present case, the 2nd respondent has not passed an award and therefore, the application under Section 64 of the Act 2013 will not lie. 4. A counter affidavit has been filed by the 2nd respondent. Based on which the learned Government Pleader submitted that the contentions raised by the petitioners are absolutely baseless and the decision as evidenced by Ext.P6 is not liable to be interfered with. 5. I have heard the rival contentions on both sides. 6. The question to be considered is as to whether the authority constituted under Section 51 of the Act 2013 has jurisdiction to direct the 2nd respondent to refer the matter to the Authority for adjudication and also to direct deposit of the amount before the said Authority. Though Ext P3 has been filed as per the provisions of Section 72 (2) of the Act 2013, a perusal of Ext.P3 would show that the request made by the petitioners before the 3rd respondent - the Land Acquisition Rehabilitation and Resettlement Authority (2nd Additional District Judge, Palakkad) is for a direction to the Collector to deposit the compensation amount so that the claims of the petitioners could be adjudicated before the said authority. Section 64 of the Act 2013 deals with 'Reference to Authority', which reads as follows: “64. Section 64 of the Act 2013 deals with 'Reference to Authority', which reads as follows: “64. Reference to Authority: (1) 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 Authority, as the case may be, whether his objection be to the measurement of the land, the amount of the compensation, the person to whom it is payable, the rights of Rehabilitation and Resettlement under Chapters V and VI or the apportionment of the compensation among the persons interested: Provided that the Collector shall, within a period of thirty days from the date of receipt of application, make a reference to the appropriate Authority: Provided further that where the Collector fails to make such reference within the period so specified, the applicant may apply to the Authority, as the case may be, requesting it to direct the Collector to make the reference to it within a period of thirty days.” (Underline supplied) Section 64 of the Act, 2013 empowers any person interested, who has not accepted the award, by written application to the Collector, request that the matter be referred by the Collector for the determination of the Authority, whether his objection is to the measurement of the land, the amount of the compensation, the person to whom it is payable, the rights of Rehabilitation and Resettlement under Chapters V and VI or the apportionment of the compensation among the persons interested and the Collector shall, within a period of thirty days from the date of receipt of the application, make a reference to the appropriate Authority. The second proviso to Section 64(1) of the Act 2013 provides further that when the Collector fails to make such reference within the period so specified, the applicant can apply to the Authority, as the case may be, requesting it to direct the Collector to make the reference to it within a period of thirty days. The second proviso to Section 64(1) of the Act 2013 provides further that when the Collector fails to make such reference within the period so specified, the applicant can apply to the Authority, as the case may be, requesting it to direct the Collector to make the reference to it within a period of thirty days. In view of the same, the competent authority is well within its powers to direct the collector to make a reference to it in case where the Collector fails to make such reference within the period stipulated in Section 64 of the Act 2013 and the contention of the learned counsel appearing for the 4th respondent that the competent authority has no jurisdiction to issue a direction to the Collector to deposit the compensation amount is only to be rejected. 7. Section 64 of the Act 2013 and the proviso therein will come into play only when an award has been passed and the person interested has not accepted the amount. In the light of the specific assertion made by the learned counsel for the 4th respondent that no award has been passed and therefore a petition under the second proviso to Section 64 of the Act 2013 will not lie, I have called for instruction through the learned Government Pleader regarding the present stage of the land acquisition proceedings. The learned Government Pleader has produced along with a memo, a copy of Award No. 25/2023 dated 27.06.2023 passed by the 2nd respondent - Special Tahsildar(Land Acquisition), KINFRA, Palakkad which reveals that an award has been passed in respect of the subject property. Therefore, the contention of the learned counsel for the 4th respondent that the petition under Section 64 will not lie cannot be accepted. A perusal of award No. 25/2023 produced by the learned Government Pleader along with a memo would reveal that even as per the award, a decision has been taken to deposit the award amount before the Authority ie., the 3rd respondent herein, the Authority constituted as per Section 51 of the Act, 2013. A perusal of award No. 25/2023 produced by the learned Government Pleader along with a memo would reveal that even as per the award, a decision has been taken to deposit the award amount before the Authority ie., the 3rd respondent herein, the Authority constituted as per Section 51 of the Act, 2013. In the light of the fact that even going by the award a decision has been taken to deposit the award amount before the Authority concerned and the request of the petitioners made in Ext.P3 is also for a direction to the Collector to deposit the amount before the Authority, I am of the view that Ext.P3 was not at all required to be filed. 8. Now what remains is Ext.P6 order passed by the Authority. A perusal of Ext.P6 would reveal that a direction has been issued to the authorities to pass an award, which was been done even before Ext P6 order was issued, and to release the compensation amount to the lawful claimants forthwith. There is a further finding in Ext.P6 that the 3rd respondent therein, who is the 4th respondent herein is the sole claimant to receive the compensation amount deposited. Since Ext.P3 petition was only for a direction to the Collector to refer the matter for adjudication to the Authority and to deposit the amount before the authority for adjudication of the rival claims of the parties, the 3rd respondent ought to have decided only on the said relief sought by the petitioners and the 3rd respondent went wrong in adjudicating the rival claims of the parties in Ext.P3 petition. Since the matter has already been referred to the Authority as provided under Section 64(1), what remains is that the 3rd respondent has to consider the matter regarding the apportionment of the compensation amount among the persons interested after appreciating the rival contention and on the basis of the evidence adduced by the parties to substantiate their contentions. Learned counsel appearing on both sides submit that their right to adjudicate on the issue of apportionment of the compensation and to adduce evidence to substantiate their claim may be left open. 9. In view of the above facts and circumstances, the above writ petition is disposed of as follows: 1. Ext.P6 is set aside. 2. Learned counsel appearing on both sides submit that their right to adjudicate on the issue of apportionment of the compensation and to adduce evidence to substantiate their claim may be left open. 9. In view of the above facts and circumstances, the above writ petition is disposed of as follows: 1. Ext.P6 is set aside. 2. All contentions of the petitioners as well as the 4th respondent regarding their claim for compensation awarded and for apportionment of the same are left open to be agitated before the 3rd respondent in appropriate proceedings.