IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 6144 of 2007(F) 1. SEBASTIAN CHOKKATTU, Petitioner 2. PHILOMINA CHOKKATTU, Vs 1. THE DISTRICT COLLECTOR, Respondent 2. THE SPECIAL TAHSILDAR, For Petitioner :SRI.M.P.ASHOK KUMAR For Respondent :GOVERNMENT PLEADER The Hon'ble MR. Justice [ENTITY] Dated :19/09/2008 O R D E R [ENTITY], J. [CASE NUMBER] Dated this the 19th day of September, 2008 J U D G M E N T
[CASE NUMBER] is filed by Sri.[ENTITY] and his wife Smt.[ENTITY]. The first petitioner claims to be the owner of 89.43 Ares of land in [CASE NUMBER] of Kakkanad Village, 63.12 Ares of land in [CASE NUMBER] Ares of land in [CASE NUMBER] of the same village. The second petitioner claims to be the owner of [SECTION].57 Ares of land in [CASE NUMBER] of Kakkanad Village and they claim to be the joint owners of 75.23 Ares of land in [CASE NUMBER] of Kakkanad Village and Exts. P1 and P2 tax receipts pertain to remittance of basic tax by them in respect of their properties. First respondent is the [ENTITY], second respondent is the [ENTITY] (LA) (General) and additional respondents 3 and 4 are respectively the [ENTITY] (Revenue Recovery) and the [CASE NUMBER] Kerala State Industrial Development Corporation. Ext.P3 is copy of the notification under [SECTION] of the [ACT] published on 22-9-03 by the Government through the second respondent for acquisition of the petitioners' properties along with other properties for the expansion of Kinfra Park at Kakkanad. Petitioners' complaint is that though they are the title holders of the property, they were not issued any notice in Form No.4B. They refer to [SECTION] of the [ACT] and contend that it is obligatory that notice of acquisition is given to all the land owners. On coming to know about the proposal to acquire their property, the petitioners sent letter to the second respondent under copy to all the authorities intimating their present address for communication. Exts.P4 and P5 are copies of those letters. The petitioners contend that since the notification under [SECTION] was issued on 28-9-03, the entire land acquisition proceedings pursuant to Ext.P2 [CASE NUMBER] has lapsed consequent to the operation of [SECTION] On enquiry the petitioner was orally informed by the second respondent that no notice will be issued to them as their property was attached by the [ENTITY], Kanayannoor as per the requisition of [ENTITY]. Disputing the demand made by [ENTITY] the petitioners filed O.P. No. 18[SECTION]3/01 before this court. The same is pending. Since the [ENTITY] was a party to the said O.P. the first respondent is aware of the pendency of the O.P. and the nature of the dispute raised by the petitioners therein. The petitioners contend that even if a particular property is involved in revenue recovery proceedings, the Recovery Officer is bound to issue notice to the owner of the property. The [ENTITY] is not entitled to take a decision not to send judicial or administrative notice with regard to the attachment of the property to the landowner. Till this date no notice was issued to the petitioner by the revenue [CASE NUMBER] authorities. The property continues to be under the possession of the petitioners. On these facts the petitioners have raised grounds (A) to (E) and filed the writ petition seeking the following reliefs:
a) Declare that the land acquisition proceedings initiated against the petitioner pursuant to Ext.P3 notification has lapsed under [SECTION] of the [ACT].
b) Issue a writ of prohibition restraining the revenue officials from acquiring the property owned by the petitioners as the notification was lapsed.
c) Declare that the petitioner is entitled and eligible to current market rate for their land as compensation amount in case the Govt. acquires their landed property situated in R.Sy. Nos.712/3, 705/4, 712/6, 750/4, 712/4, 712/5 in Block No.9 of Kakkanad Village, Kanayannur Taluk.
d) Declare that the petitioners' properpty cannot be acquired without issuing notice under [ACT] to them.
2. The second respondent [ENTITY] (LA) has filed counter affidavit refuting the grounds and denying the [CASE NUMBER] allegations Ext.R2(a) is copy of the proceedings which will show that the notification under [SECTION] was published in the locality on 18-11-2003. R2(b) is copy of the proceeding showing that the declaration under [SECTION] was published in the locality on 25-[SECTION]-2004. Thus 25-[SECTION]-04 is the last date of publication of the declaration under section
6. In respect of the property belonging to the petitioners 1 and 2 [CASE NUMBER] was registered and in respect of the property owned by second petitioner alone [CASE NUMBER] was registered. Award was passed in respect of [CASE NUMBER] on 11-[SECTION]-06 and award was passed in respect of [CASE NUMBER] on 23-[SECTION]-06. It is contended that both the awards were passed within two years from the last date of publication of declaration under [SECTION] and [SECTION] copies of the respective awards in [CASE NUMBER] are relied on. Denying the contention that notices were not issued to the petitioner, R2(e) and R2(f) true copy of the [CASE NUMBER] endorsement received from the postal department showing that notices were issued to them are produced. It is alleged that the petitioners did not participate in the award enquiry. It is then contended that since there was an attachment already from [ENTITY] in respect of the property included in the L.A. proceedings notices were issued to the [ENTITY] (RR). In [CASE NUMBER] [ENTITY] (RR) appeared. In [CASE NUMBER] [ENTITY] (RR) did not appear, but he filed claim statement. In [CASE NUMBER] an amount of Rs.[SECTION],67,913/- and in [CASE NUMBER] an amount of Rs.2,67,[SECTION],811/- have been awarded. Since there was already an attachment by the [ENTITY] (RR) in respect of dues to the [ENTITY], the amount awarded under the land acquisition proceedings was given to [ENTITY] (RR) after deducting income tax. The properties in question have been taken possession and handed over to the requisitioning authority.
[CASE NUMBER]
3. On the basis of the counter affidavit the writ petition was amended and as per the amended writ petition the following additional prayers were included.
f) Call for the records/files from the office of the 2nd respondent with regard to the passing of the award in [CASE NUMBER].
g) Issue a writ of certiorari or other appropriate writ or order quashing Exts.P8 and P9 awards in [CASE NUMBER]
h) Declare that Exts.P8 and P9 awards passed by the land acquisition authorities in [CASE NUMBER] and in [CASE NUMBER] are not awards under the [ACT], as no enquiry was conducted before passing award and no notice was issued to the petitioners and as such the entire land acquisition proceedings has lapsed.
i) Declare that the entire acquisition proceedings initiated by the Govt. as per Ext.P1 notification is lapsed as the purpose of the acquisition was not for the benefit of general public.
j) Declare that the utilization of the land acquired under the [ACT] cannot be used for private, commercial purposes.
k) Declare that the utilization of land acquired under the [ACT] cannot be treated as public [CASE NUMBER] purpose under the [ACT].
Subsequently pursuant to order in I.A. 1[SECTION]3/08 yet another prayer was included as prayer (l) which reads as follows:
(l) Declare that the amount of compensation awarded under the [ACT] can be paid only to the owner of the land acquired and the award amount cannot be transferred to any other authority or agency under any circumstances.
4. Reiterating the same contentions, on behalf of the second respondent, yet another counter affidavit was filed on 6-11-2007 also. To these counter affidavits the first petitioner filed reply affidavit. It is contended therein that the notice to be issued to the land owner is to be issued in the manner provided under [SECTION] of the [ACT]. Such a notice is yet to be served on the petitioners. It is pointed out that though the correct address of the petitioners was intimated to the second respondent on [SECTION]-3-2004 the second respondent has not chosen to issue the notice to the petitioners in that correct [CASE NUMBER] address. Serious objections are taken to the various documents produced by the respondents to prove that notice was sent to the petitioners. It is also pointed out that going by the award, it is ridiculously low rates which have been offered as market value for the acquired property. It is lastly contended that for non-compliance of statutory procedure the land acquisition proceedings initiated against the petitioners are invalid and liable to be quashed. Additional reply affidavit also was filed by the first petitioner. It is pointed out therein that contrary to what is recorded in Exts.P8 and P9 awards no amount was deposited before the Sub Court in [CASE NUMBER]. Ext.P13 issued to the first petitioner by the Assistant Public Information Officer, Sub Court, Ernakulam is relied on in this context. Ext.P14 copy of the letter sent by the [ENTITY] (R.R), Kanayannur to the petitioner is another document produced along with the additional reply [CASE NUMBER] affidavit which is relied on to show that a sum of Rs.27,76,594/- and a further sum of Rs.1,[SECTION],[SECTION]6/- from out of the amount covered by the awards in the two LACs. has been appropriated towards income-tax, collection charges etc. Ext.P15 letter of the Manager, State Bank of India, Broadway Branch and Ext.P[SECTION] letter of the [ENTITY] (LA) are also relied on in the reply affidavit.
5. The [ENTITY], the 4th respondent has also filed a detailed counter affidavit. It is pointed out therein that it is evident from Exts.P4 and P5 that the petitioners were fully aware of the land acquisition proceedings. It is also evident that the petitioners were not available at their usual address. The [ENTITY] had issued notices to the petitioners demanding repayment of the loans and informed them that on failure R.R. Proceedings will be initiated by them. The said notices were returned since the petitioners were not available at their respective addresses furnished. The [CASE NUMBER] [ENTITY] has made necessary requisition under the [ACT] by letter dated 17-11-2000 to the [ENTITY], Trivandrum for recovery proceedings against both the petitioners as guarantors and their companies. A true copy of the requisition is produced as Ext. R1(f) in O.P. No. 18[SECTION]3 of 2001 filed by the second petitioner. The averment that the petitioners filed O.P. No.18[SECTION]3 of 2001 and therefore the petitioners were not able to challenge the L.A. proceedings is false and misleading. The said O.P. is filed by the 2nd petitioner challenging the attachment and recovery proceedings of their lands in Payyavoor Village on the ground that the said properties were not mortgaged as collateral security for the loans and that the 2nd petitioner has no objection to attachment and sale of her mortgaged properties in Thengode Village which are the subject matter of the present writ petition. It is contended that the [ENTITY] is a [CASE NUMBER] person interested as a mortgagee and requisitionist under the [ACT] and therefore entitled to claim compensation awarded by the L.A. Officer for the lands under mortgage. Notice and intimation was duly given to the [ENTITY] by the revenue authorities who had attached the land as well as the compensation. The [ENTITY] had submitted its claim before the [ENTITY] on 7-5-04 for the lands mortgaged in their favour. It is then pointed out that in order to defraud the [ENTITY] and defeat the recovery of the loan amount due to them the petitioners had executed sham and fictitious documents of alleged settlements in favour of their minor daughters purporting to transfer their properties in their favour. The said settlements are sham transactions by way of gift without any consideration. The settlements are liable to be ignored as non est and void. Lastly it is highlighted that the second petitioner had filed [CASE NUMBER] challenging the attachment of [CASE NUMBER] properties of [ENTITY] and herself under the [ACT] for recovery of the loan amount due to the [ENTITY]. It was alleged in the said O.P. that 48.0[SECTION] cents of land in [CASE NUMBER] and [SECTION].93 cents in [CASE NUMBER] in Kakkanad Village belong to their minor daughters to whom properties were settled. The attachment of the properties by Revenue Recovery [ENTITY] was challenged and sought to be set aside in the said writ petition. The said writ petition was disposed of by this court at the admission stage directing the second petitioner to raise objections before the [ENTITY], the second respondent therein. Ext.R4(a) is copy of the said judgment. Pursuant to Ext.R4(a) the [ENTITY] after hearing the petitioner's representative rejected the representation.
6. The [ENTITY] (LA) was directed to explain as to why contrary to what was stated in the award the amount was not deposited before the Sub Court but was [CASE NUMBER] paid directly to [ENTITY]. Accordingly she has filed a statement on 9-4-2008 and she has stated that the opinion of the District Government Pleader was sought and the District Government Pleader opined that in view of the order of the [ENTITY] pursuant to the judgment of this Court Ext.R4(a), the amount be made over to the [ENTITY] (RR). Since the amount was made over to [ENTITY] (RR), the then [ENTITY] (LA) by proceedings dated 6-11-2006 and 17-11-2006 recorded the factum of deposit and it was stated in the proceedings that the proceedings may be treated as part of the award. True copies of the proceedings dated 6-11-2006 and 17-11-2006 are produced as Annexures 1 and 2.
7. The petitioner has produced yet another document to prove their case that they not actually served with notice either under [SECTION], [SECTION] or [SECTION] of the [ACT]. The document is photocopy of the relevant pages of the [CASE NUMBER] despatch-cum-stamp register dated 12-9-2006, 13-9-06, 15-9-06 and 19-9-06. It is stated that every tapal received in an office and despatched from the office is to be registered in the despatch cum stamp account register.
8. WP(C). 5128 of 2008 is filed by the children of the petitioners in [CASE NUMBER] viz., [ENTITY], [ENTITY] and [ENTITY]. The third petitioner is a minor and is represented by her father [ENTITY]. The respondents are [ENTITY] (LA), the [ENTITY], The [ENTITY], the [ENTITY] (RR), the Development Commissioner, Cochin Special Economic Zone, the State of Kerala and the Registrar of Companies. It is stated in the writ petition that the permanent address of the petitioners is the address of their parents at Summer Castle Apartment, Desom P.O., Alwaye. But all the petitioners are now outside India and Exts.P1 and P2 are copies of powers of attorney executed by [CASE NUMBER] petitioners 1 and 2 in favour of Sri.[ENTITY].S., their agent. Ext.P3 is copy of settlement deed No. 599/2000 under which the first petitioner claims to have obtained title over 48.0[SECTION] cents of property in [CASE NUMBER] in block No.9 of Kakkanad Village. Exts.P4 and P5 are copies of two other settlement deeds under which petitioners 2 and 3 claim to have ownership over 62 cents and [SECTION].9[SECTION] cents of property respectively in [CASE NUMBER] in Block No.9 of Kakkanad Village in Kanayannur Taluk. It is submitted that [ENTITY], the father of the petitioners had started Trend Setters Group of Companies which were doing various industrial activities in the Cochin Export Zone. In connection with the business of the said company, the company availed credit facilities from the third respondent. By way of security for repayment of the said facilities immovable property of the company were mortgaged with the third respondent and since third [CASE NUMBER] respondent wanted to additional security the mother of the petitioners executed a power of attorney Ext.P6 in favour of her husband, the father of the petitioners so as to enable him to create mortgage in favour of the company. It is stated that the power of attorney Ext.P6 was executed for the limited purpose of creating mortgage of 4.04 acres of joint property belonging to Sri.[ENTITY] and [ENTITY]. The mortgage created in favour of third respondent is a mortgage by deposit of title deed. Only documents in relation to 4.04 acres of property have been deposited with the third respondent with intention to create equitable mortgage. Petitioners' mother is not at all a share holder or a director of any of the group of companies floated by the father of the petitioners. She is not a promoter as well of the company. Exts.P7 and P8 are copies of inspection reports issued by the Company Secretary in Practice showing that the mother of the petitioners had [CASE NUMBER] never been a director of the group of companies. Ext.P9 is true copy of the notification under [SECTION] of the [ACT] published in Mathrubhumi daily regarding the acquisition of properties in Kakkanad Village for the development of Kinfra Industrial Park. Ext.P[SECTION] letter is produced to show that the petitioners' parents had requested the respondents that all notices to be sent to them in respect of the L.A. proceedings shall be addressed to them in their address shown in the said letter as "Flat No.1A, Summer Castle Apartment, Desom P.O. Alwaye - 683 [SECTION]3" . The petitioners' parents have addressed Ext.P[SECTION] through their power of attorney holder who is the present power of attorney holder of petitioners 1 and 2. But neither the parents of the petitioner nor their power of attorney holder received any notice regarding the L.A. proceedings. In the meanwhile the company floated by the father of the petitioners ran into rough weathers. The 5th respondent Development [CASE NUMBER] Commissioner took proceedings and removed the entire records, assets both finished and semi finished including the plant and machinery and kept them in the open air subject to all vagaries of nature. The company was evicted from the premises by resorting to the provisions of the [ACT]. The company was ruined completely. The entire savings and hard earned money which they have earned by working abroad were also lost to them. In the meanwhile, the L.A. proceedings were started and proceeded with. The parents of the petitioners and the petitioners were under the bona fide belief that they will get notice in view of Ext.P[SECTION]. But they never get any notice. Ext.P11 is true copy of the counter affidavit filed by the second respondent in [CASE NUMBER]. Ext.P12 is true copy of the award and the claims and objections attached thereto produced by the first respondent along with the counter affidavit in relation to [CASE NUMBER] [CASE NUMBER] in the name of the petitioners' mother. Ext.P13 is copy of the award in relation to [CASE NUMBER] relating to the joint property of the petitioners' parents. The O.P. refers to other proceedings initiated by their parents against the [ENTITY] etc. and points out that the stand taken by the third respondent in O.P. No. 18[SECTION]3/01 that the petitioners' mother is the Director/Promoter of Trend Setters Group of Companies is wrong. Ext.P14 is copy of the judgment of this Court in [CASE NUMBER] and Ext.P14(a) is copy of the original petition in that O.P. According to the petitioners they are minors and their interest is not seen protected by anybody. Nobody has challenged the proceedings taken by the 4th respondent for attachment and sale of the property settled in their favour. It is in the midst of the above that it is now understood that the entire proceedings for acquisition of the properties were over without notice to the petitioners and without notice to the [CASE NUMBER] parents of the petitioners.
9. In paragraph 21 of the writ petition the petitioners contend that it is a ridiculously low amounts which have been awarded as compensation. Ext.P15 produced is copy of the statement filed by the 4th respondent in [CASE NUMBER]. The petitioners have raised various grounds and following are the prayers in the writ petition.
1) Call for all records in the case and peruse the same.
2) issue a writ in the nature of certiorari or such other appropriate writ order or directions quashing Ext.P12 and P13 and all proceedings which lead to the passing of Ext.P12 and P13 including Ext.P1 notification after calling for the same.
3) To declare by the issuance of an appropriate writ, order or direction that the 3rd respondent has no power or authority to get executed any loan agreement or guarantee agreement on the basis of Ext.P6 power of attorney.
4) To declare by the issuance of an appropriate writ, order or direction that the entire proceedings taken by the 1st respondent for acquisition of the petitioners' property from Ext.P1 notification is illegal and unsustainable for noncompliance of the [CASE NUMBER] mandatory statutory provisions contained in the [ACT].
5) To declare by the issuance of an appropriate writ, order or direction that the payment of the compensation amount as per Ext.P12 and P13 either to the 4th respondent and or to the 3rd respondent is illegal.
6) To declare by the issuance of an appropriate writ, order or direction that the entire acquisition proceedings on the basis of Ext.P1 notification is lapsed prior to Ext.P12 and P13 in view of the provision contained in [SECTION] of the [ACT].
7) To declare by the issuance of an appropriate writ, order or direction, that the property belonging to the petitioners and covered by Ext.P3 to P5 settlement deeds are not liable to be attached for the alleged dues towards 3rd respondent either by initiating Revenue Recovery Proceedings or by recourse to any other proceedings.
8) To declare by the issuance of appropriate writ, order of direction that the deduction of Rs.2781594/- as TDS and deduction of Rs.[SECTION]71225/- as collection charges are illegal and bad in law.
[SECTION]. A detailed counter affidavit has been filed by the first respondent [ENTITY]. It is contended that the parents [CASE NUMBER] of the petitioners are challenging L.A. proceedings in [CASE NUMBER] and that they had no contention therein that they have executed settlement deeds in favour of their children. It is submitted that the contention of the petitioners that they are the owners of 158.91 cents of land in various survey numbers is not correct as per the revenue records. No mutation has been effected so far in the village records on the basis of the settlement deeds claimed by them. According to the revenue records the land continues to be owned by the parents of the petitioners. The 4th respondent [ENTITY] has also filed counter affidavit. It is contended therein that no R.R. Proceedings have been initiated against the petitioners or their assets. On the contrary proceedings were initiated against the defaulter Sri.[ENTITY] and the guarantor Smt.[ENTITY], the parents of the petitioners for realisation of arrears of a sum of Rs.9,98,44,000/- due to the [ENTITY] as [CASE NUMBER] per the revenue recovery certificate No.B11-7624/01 dated 8-2-2001 issued by the [ENTITY]. On receipt of the revenue recovery certificate and requisition from the competent authority the Deputy [ENTITY] R.R. has issued demand notice under [SECTION] and [SECTION] of the [ACT] through the Village Officer, Kakkanad for realisation of the amount. By notification No.MS 065/83 RD dated 22-11-1983 published in the official Gazette dated 22-11-83 the Government notified that the provisions of the [ACT] shall be applicable to the amounts due from any person or class of persons to the Kerala State Industrial Development Corporation Ltd. Sri.[ENTITY] and Smt.[ENTITY] are the promoters and guarantors of the Company Trend Setters Instyle India Limited and four other companies. The companies availed financial assistance from the [ENTITY]. The lands belonging to them [CASE NUMBER] have been mortgaged by them as security. Sri.[ENTITY] who is the Managing Director of the Company has given collateral security for the loan amounts. The borrower company failed to comply with the terms and conditions of the loan and committed default in payment of loan amount and interest It is under the above circumstances that R.R. Proceedings were initiated against them. Both of them are jointly and severally liable to repay the loan amount. On enquiry it was revealed that an extent of 3.7595 Hectares of land in [CASE NUMBER] of Kakkanad Village was owned and possessed by Sri.[ENTITY] and [ENTITY]. The land was proposed to be sold in public auction by the [ENTITY] R.R. Aggrieved by this Smt.[ENTITY], filed a petition before the [ENTITY] stating that she was not a personal guarantor. She filed [CASE NUMBER] before this Court and this Court directed the [ENTITY] to conduct enquiry and [CASE NUMBER] take decision. Pursuant to this Court's judgment, the [ENTITY] conducted enquiry and rejected Smt.[ENTITY]'s application and hence R.R. Proceedings were started by attachment of property of the defaulter. At that juncture it was understood that the auctioned land comes under the acquisition proceedings for KINFRA. Therefore the land acquisition officer was requested to forward the award amount to [ENTITY] (RR) towards the arrears due from the defaulter and the owners of the property as there was a valid attachment pending against the properties. As such the L.A. [ENTITY] forwarded an amount of Rs.2,39,54,217/- and Rs.9,56,807/- vide D- form cheques. The amount was forwarded to the [ENTITY] after deducting collection charges. This office has not been taken any revenue recovery steps against the petitioners and their assets. The alleged settlement deeds are executed after the amounts have become due from the [CASE NUMBER] defaulter. The said transactions were done in order to defeat the interest of the creditor.
11. This court appointed Advocate [ENTITY] as commissioner and he has filed a report. As directed by me, the [ENTITY] (LA) placed before me for perusal the original files of proceedins inLAC Nos. 99/05 and 139/05 through the Government Pleader. These papers reveal that the stand taken by the land acquisition officer regarding the dates of publication of [SECTION] notification, declaration under [SECTION], award and regarding payment of the compensation are correct.
12. Very extensive submissions were addressed before me by Sri.[ENTITY] and Sri.[ENTITY], learned counsel for the petitioners in the two writ petitions and by Sri.[ENTITY], learned senior Government Pleader for the Government and the official respondents. Mr.[ENTITY] and the learned Senior Government [CASE NUMBER] Pleader Mr.[ENTITY] would place reliance on a catena of decisions. Mr.[ENTITY] referred to the various statutory provisions such as [SECTION], [SECTION], [SECTION] and [SECTION] of the [ACT] and [SECTION], [SECTION] and [SECTION] of the [ACT]. He drew my attention to the provisions of the [ACT] and also to [SECTION] of the [ACT]. Attention was drawn also to [SECTION] of the [ACT]. In support of his argument that it is mandatory that notice is served on the parties interested in the Compensation and in the land under acquisition, Mr. [ENTITY] placed reliance on the judgment of this Court in Harikumar v. [ENTITY] (LA) (2007 (1) KLT 277). The learned counsel relied on the judgment of this court in [PRECEDENT] in support of his argument that it was not within the power of the land acquisition officer to adjudicate on the dispute regarding the assessee's liability to pay income tax. [CASE NUMBER] The dispute should have been adjudicated by the income tax authorities. 2007(2) ILR Kerala 57, Najeeb Rawther v. [ENTITY] and another, was also relied on by Mr.[ENTITY] to argue that notice under [SECTION] is mandatory. To support the learned counsel's argument that levy of collection charges under the [ACT] is not at all justifiable when amount has been directly paid by the land acquisition authorities to the requisitioning authority, he relied on the judgment of this Court in [PRECEDENT]. Right to property is a human right which is not to be taken away without recourse to the statutory procedure and for this proposition Mr.[ENTITY] relied on the judgment of the Supreme Court in Lachman Dass v. Jagat Ram and others, (2007) [SECTION] SCC 448. He also relied on the judgment of this court in [PRECEDENT] and that of the Supreme Court in [ENTITY] [CASE NUMBER] Prasad and others v. Union of India and another, (2005) 7 SCC 625, in support of his argument based on [SECTION] of the [ACT].
12. Sri.[ENTITY], senior Govt. Pleader also did not lag behind in citing precedents. Judgment of Justice [ENTITY], as a Judge of this Court in [PRECEDENT] was relied on by the learned Govt. Pleader in support of his argument, that just because notice under [SECTION] has not been served on the owner or occupier of the land, the proceedings will not become void. Almost for the same proposition, the learned Govt. Pleader relied on the judgment of the Calcutta High Court in [PRECEDENT]. Referring to [SECTION] of the [ACT] the learned Govt. Pleader submitted that the law declared by the Supreme Court shall be binding on all courts within the territory of India and it is [CASE NUMBER] not open to this Court to ignore a judgment of the Supreme Court on the reason that it is without considering the legal position that the Supreme Court has delivered the judgment. Learned Govt. Pleader relied on the judgment of the Supreme Court in [PRECEDENT]. The learned senior Govt. Pleader also relied on the judgment of the [ACT] Bench of the Supreme Court in [PRECEDENT]. Very strong reliance was placed bay the learned senior Govt. Pleader on the judgment of the Supreme Court in [PRECEDENT] [PRECEDENT].
13. Sri.[ENTITY], learned senior counsel for the [ENTITY] also would strongly defend the writ petition on the basis of the various contentions raised. The judgment of the Supreme Court in [PRECEDENT] was relied on [CASE NUMBER] by the learned senior counsel to argue that the acquisition cannot be challenged on the reason that notice has not been personally served. He referred to [SECTION], [SECTION] and [SECTION] of the [ACT] and argued that there was justification for payment of the compensation to [ENTITY] in view of the subsistence of the attachment order in revenue recovery proceedings.
14. I have very anxiously considered the rival submissions addressed at the Bar in the light of the pleadings raised by the parties and the documents and the records. I have kept in mind the relevant statutory provisions and have gone through the ratio emerging from the various decisions cited by counsel. The records will reveal that there is no substance in the contention raised by the petitioners that the land acquisition proceedings have lapsed due to non-passage of award within the statutory period of two years. I am convinced that award has been [CASE NUMBER] passed within the time limit and the proceedings have not become lapsed. I am also convinced that possession of the property has been taken over. Once award is passed and possession is taken over, the land acquisition proceedings attain finality. This Court under [SECTION] of the [ACT] is not expected to set at naught the L.A. proceedings which have become final unless there are compelling reasons to do so. The public nature of the purpose of the acquisition - establishment of an Industrial Park for KINFRA is not seriously in dispute. Acquisition is challenged by the petitioners in [CASE NUMBER] who are parents of the petitioners in the other writ petition on the ground that there is no direct personal service of the relevant notices to them. Though it would appear on a perusal of the records that the above grievance of the petitioners in [CASE NUMBER] is correct I do not think that this Court will be justified in setting at naught the L.A. [CASE NUMBER] proceedings which have attained finality since the records reveal that notice was attempted to be served.
15. I do not find any substance at all in the contentions raised by the petitioners in [CASE NUMBER]. In fact there is much force in the contention of the [ENTITY] that the settlement deeds on the basis of which those petitioners claim title to the properties under acquisition were executed inter alia with the object of defeating the creditor [ENTITY]. Whatever that be, the petitioners in both the case belong to one and the same family and the entire properties were under enjoyment by all these petitioners as one common holding. The legality of the R.R. Proceedings was subject matter of an earlier writ petition which was disposed of by this court in directing the [ENTITY] to take a decision. The [ENTITY] did take a decision which was unfavourable to the petitioner in the writ petition (the second petitioner in [CASE NUMBER] it is [CASE NUMBER] thereafter that the L.A. proceedings continued and attained finality.
[SECTION]. According to me, the only relief which the writ petitioners can be granted in respect of the challenges they have made against the acquisition proceedings is to permit them to have the question of determination of the correct compensation for the acquired properties in a proceeding under [SECTION] of the [ACT]. I also notice some merit in the contention of the petitioners in [CASE NUMBER] that there was no justification for recovering collection charges from out of the total compensation awarded by the L.A. Officer, since this was a case where the compensation amount was directly paid by the L.A. Officer to [ENTITY]. The ground raised by the petitioners in challenge of recovery of collection charges is supported by judgment of this court in [PRECEDENT]. There is also merit in the submission of the counsel for the [CASE NUMBER] petitioners that their liability or otherwise of payment of income-tax on the compensation determined by the L.A. Officer has not been properly adjudicated. Accordingly, both the writ petitions are disposed of issuing the following directions:
1) The petitioners in [CASE NUMBER] are directed to make applications for a reference under [SECTION] of the question of determination of the correct compensation payable for the properties under acquisition to the L.A. Officer within two weeks of receiving copy of this judgment. If applications are so submitted by them, the L.A. Officer will entertain the applications as though they are filed on time and make a reference under [SECTION] to the competent court of the question of determination of the correct compensation payable for the acquired properties.
2) The petitioners in that writ petition are also permitted to submit a representation before the Land [CASE NUMBER] Revenue Commissioner voicing their grievance regarding levy of collection charges by the revenue authority from out of the compensation awarded to them by the L.A. Officer. If such a representation is received by the Land Revenue Commissioner, the same will be disposed of by the Land Revenue Commissioner after affording hearing opportunity to the petitioner in accordance with law, at the earliest and at any rate within one month of receiving copy of this judgment. The Registrar will communicate a copy of this judgment to the Land Revenue Commissioner who will be bound by the terms of this judgment.
3) The petitioners in [CASE NUMBER] are also directed to pursue the statutory remedies available to them under the [ACT] and Rules so as to seek redressal of the grievance voiced by them regarding deduction of income-tax from out of the compensation amount. The time during which this writ petition was pending before this Court [CASE NUMBER] after the deductions were made and a further period of one month of receiving copy of this judgment by the petitioners will be excluded from the reckoning of limitation by the appropriate authority under the [ACT] and Rules.
([ENTITY], JUDGE) ksv/