IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR THURSDAY, THE 2ND DAY OF JUNE 2011/12TH JYAISHTA 1933 WP(C).No. 3874 of 2011 (H) -------------------------------------- PETITIONER: ------------------- T.N.SASIDHARAN, S/O.LATE NARAYANAN, THUNDIPARAMBIL HOUSE,NOW RESIDING AT S.N.JUNCTION, THAIKKATTUKARA, ALUVA. BY ADVS.SRI.SIBY MATHEW, SRI.PHILIP J.VETTICKATTU, SRI.B.PREMNATH (E). RESPONDENTS: ------------------------ 1. THE DISTRICT COLLECTOR, ERNAKULAM, PIN - 682 030. 2. THE SPECIAL TAHSILDAR (LAND ACQUISITION, I.C.T.T.), VALLARPADAM, ELOOR. R1 & R2 BY GOVERNMENT PLEADER SRI. A.J. VARGHESE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02-06-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.3874/2011-H: APPENDIX PETITIONER'S EXHIBITS: EXT.P.1: COPY OF THE KUDIKIDAPPU CERTIFICATE DTD. 05/10/1971 ISSUED TO THE PETITIONER'S FATHER. EXT.P.2: COPY OF THE PARTITION DEED NO.1136/1987 EXECUTED BETWEEN PTITIONER'S FAMILY. EXT.P.3: COPY OF THE LAND TAX RECEIPT DTD. 31/08/05 ISSUED TO THE PETITIONER FROM THE VILLAGE OFFICE. EXT.P.4: COPY OF THE G.O(MS)416/08/RD, DTD. 06/12/08. EXT.P.5: COPY OF THE AWARD NOTICE DT. 27/10/2007 ISSED BY THE R.2. EXT.P.6: COPY OF THE NOTICE DIRECTING THE PETITIONER TO VACATE THE LAND. EXT.P.7: COPY OF THE COMPROMISE PETITION FILED BY THE PETITIONER'S SISTER. EXT.P.8: COPY OF THE ORDER DT. 24/09/2008 PASSED BY THE SUB COURT, ERNAKULAM. EXT.P.9: COPY OF THE REPRESENTATION DT. 20/01/2011 SUBMITTED BY THE PETITIONER BEFORE THE R.2. EXT.P.10: COPY OF THE ORDER NO.LAC.NO.316/06 DTD. 24/02/2011 ISSUED BY THE R.2. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. C.T.RAVIKUMAR, J. --------------------------------------- W.P(C)No.3874 of 2011 ---------------------------------------- Dated 2nd June, 2011 JUDGMENT The petitioner is the owner in possession and enjoyment of five cents of land comprised in Survey No.72/13-28 of Cheranelloor Village. Out of the said land an extent of 2.5 cents was acquired for the purpose of Vallarpadam International Container Transhipment Terminal Project. Later, an award was passed under section 11(2) of the Land Acquisition Act (for short `the Act'). In the meanwhile, there arose a dispute over the title of the property. Sister as also mother of the petitioner claimed apportionment of the award amount contending that they are also its joint owners. Subsequently, they instituted O.S.No.644 of 2007 before the Sub Court, Ernakulam claiming shares in the amount awarded. Later, the same was compromised and a compromise decree was passed, as is obvious from Exts.P7 and P8. In the meanwhile, the amount awarded was deposited before the court in terms of section 31(2) of the Act. After the compromise decree the petitioner approached the respondents through Ext.P9 representation. It carries the claim for extension of the benefits of the package offered to evictees. Ext.P4 is the package for the evictees. It is alleging inordinate delay in the matter WP(C).No.3874/2011 2 of disposal of Ext.P9 representation submitted by the petitioner that this writ petition has been filed. 2. After the institution of this writ petition Ext.P9 was taken up for consideration and the same was rejected as per Ext.P10 order dated 24.2.2011. Ext.P10 would reveal that it was so rejected assigning a reason relying on G.O.(Rt.)No.3849/08/RD dated 1.12.2008. The relevant paragraph in the said order reads thus:- “The benefits mentioned in pre-para will not be available to those parties in whose case award has been passed under the Land Acquisition Act and the amount has been paid and possession has been taken.” It is relying on the said paragraph in the aforesaid Government order dated 1.12.2008 that Ext.P10 order was passed rejecting the claim of the petitioner for restriction of Ext.P4 package. A counter affidavit has been filed in this writ petition, virtually, reiterating the aforesaid stand. 3. I have heard the learned counsel appearing for the petitioner and also the learned Government Pleader. 4. The short question to be decided in this writ petition is whether the action on the part of the respondents in rejecting the request of the petitioner for the benefit of Ext.P4 package for the reason that the amount was deposited under section 31(2) of the Act on account of the dispute on the title over the property is sustainable. As already noticed WP(C).No.3874/2011 3 hereinbefore, going by the paragraph in G.O.(Rt)No.3849/08/RD dated 1.12.2008, extracted earlier, the evictees are not entitled to the benefit of Ext.P4 package if an award has been passed on his/her instance under the Land Acquisition Act and the amount has been paid and possession has been taken. Essentially, the reference thereunder must relate to a reference either under section 18 or section 28A of the Act at the instance of the concerned party. There is no case for the respondents that the petitioner has sought for a reference under section 18 of the Act on being dissatisfied with the award passed under section 11(2) of the Act. That apart, it is to be seen that at no point of time the petitioner challenged the award. In fact, claiming status of the joint owners of the property in question and seeking only apportionment of the amount awarded, the mother and sister of the petitioner approached the Sub- court, Ernakulam by instituting O.S.No.644 of 2007. At any rate, that action cannot be described as a challenge against the award under section 11(2) of the Act by the petitioner. On fact, the petitioner's sister and mother also did not challenge the said award and they only sought for their share over the awarded amount. In fact, the said suit was also compromised as is obvious from Exts.P7 and P8. True that, in the meanwhile, taking note of the said dispute, the amount awarded was deposited under section 31(2) of the Act. It is thus obvious from the WP(C).No.3874/2011 4 facts expatiated earlier that it would not constitute or entail any disability on the petitioner for seeking the benefit of Ext.P4 package. That is because no award under the Act was passed at the instance of the petitioner as has been mentioned in the relevant paragraph which was extracted above. In short, the reasoning in Ext.P10 order which was reiterated in the counter affidavit filed by the second respondent is absolutely unsustainable and the petitioner is not to be visited with any disability on account of the institution of O.S.No.644 of 2007. In other words, the petitioner is entitled to get the benefit of the package offered to the evictees. Consequently, Ext.P10 order is set aside. There will be a declaration that the petitioner is entitled to the benefit of Ext.P4 package and payment of land value at the DLPC price and also all other benefits extended to similarly situated evictees. The respondents shall work out the benefits payable to the petitioner in terms of Ext.P4 package and grant all such benefits. This shall be done expeditiously. Sd/- C.T.RAVIKUMAR Judge TKS