IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 26TH FEBRUARY 2009 / 7TH PHALGUNA 1930 WP(C).No. 34783 of 2007(N) --------------------------------------- PETITIONER(S): ---------------------- 1. BIBU BABU PUNNOORAN S/O.BABU PUNNURAN, AGED 41 YEARS, 'PUNNOORANS' ZACHARIA BAZAR WARD, ALAPPUZHA. 2. SAIBY BABU PUNNOORAN, W/O.BIBU BABU PUNNOORAN, 'PUNNOORANAS' ZACHARIA BAZAR WARD, ALAPPUZHA. 3. BIJU BABU PUNNOORAN, S/O.BABU J.PUNNOORAN, 'PUNNOORANS' ZACHARIA BAZAR WARD, ALAPPUZHA, REP. BY POWER OF ATTORNEY HOLDER, BABU J.PUNNOORAN, 'PUNNOORANS' ZACHARIA BAZAR WARD, ALAPPUZHA. 4. SUJA BIJU PUNNOORAN, W/O.BIJU BABU PUNNOORAN, W/O.BIJU BABU PUNNOORAN, 'PUNNOORANS' ZACHARIA BAZAR WARD, ALAPPUZHA, REP. BY POWER OF ATTORNEY HOLDER, BABU J.PUNNOORAN, 'PUNNOORANS' ZACHARIA BAZAR WARD, ALAPPUZHA. BY MR. P.JACOB VARGHESE, SENIOR ADVOCATE BY ADVS. MR.VARUGHESE M. EASO MR.VIVEK VARGHESE P.J. SMT.NISHA JOHN MR.K.B.ARUN SMT.ELIZEBETH MEERA MR.P.J.VINOD JOSEPH SMT.NITHARA GAYATRI RESPONDENT(S): ---------------------------- 1. REVENUE DIVISIONAL OFFICER, ALAPPUZHA. W.P.(C) NO.34783/2007 2. DIRECTOR, DEPARTMENT OF TOURISM, PARK VIEW, THIRUVANANTHAPURAM. ADDL. R3 IS IMPLEADED. 3. STATE OF KERALA, REP.BY THE PRINCIPAL SECRETARY, REVENUE SECRETARIAT, THIRUVANANTHAPURAM. ADDL. R3 IS IMPLEADED AS PER ORDER IN IA.11808/08 DT. 16.9.08. GOVERNMENT PLEADER MR.T.K.VIPINDAS FOR R1 & R3 BY ADV. MR.P.A.AHAMED, SC FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.34783/2007 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE NOTICE DT. 15.3.07 UNDER SECTION 4(1) OF THE LAND ACQUISITION ACT PUBLISHED BY THE IST RESPONDENT. P2:- COPY OF THE NOTICE DT. 15.3.07 UNDER SECTION 6 NOTIFYING PROCEEDINGS UNDER SECTION 6(2) AND 6 (3) PUBLISHED BY THE IST RESPONDENT. P3:- COPY OF THE NOTICE DT. 15.3.07 IN ENGLISH U/S. 17 OF THE LAND ACQUISITION ACT BY THE IST RESPONDENT. P3(a):- COPY OF THE NOTICE DT. 15.3.07 IN MALAYALAM U/S. 17 OF THE LAND ACQUISITION ACT BY THE IST RESPONDENT. P4:- COPY OF THE MAHZAR DT. 7.9.07. P5:- COPY OF THE LETTER DT. 20.11.07 BY THE PETITIONERS TO THE RESPONDENTS. ANNEXURE R1(a):- COPY OF THE LETTER NO.C.2967/09 DT. 1.9.07. R1(b):- COPY OF THE CONSENT LETTER OF SRI.BABU J. PUNNOORAN DT. 6.9.07. ANNEXURE A:- COPY OF THE NOTICE DT. 31.1.08. ANNEXURE B:- COPY OF THE REPORT OF THE VILLAGE OFFICER. ANNEXURE C :- COPY OF THE PROCEEDINGS OF THE TAHSILDAR, KUTTANADU DT. 1.2.08. ANNEXURE D:- COPY OF THE LETTER OF ADDL. TAHSILDAR , KUTTANADU. TRUE COPY P.S. TO JUDGE TSS HARUN-UL-RASHID,J. --------------------------- W.P.(C).NO.34783 OF 2007 ---------------------------- DATED THIS THE 26TH DAY OF FEBRUARY, 2009 JUDGMENT Petitioners are absolute owners of the property having an extent of 98.2 Ares situated in Kuttanad Taluk with a residential building with all modern amenities. This property was notified under Section 4(1) of the Land Acquisiton Act. Ext.P1 is the said notification issued. Four items of properties in different sub division numbers totalling to 98.2 Ares are sought to be acquired for the purpose of Tourism Department. Ext.P2 is the notice issued under Section 6 of the Act. Section 4(1) notification was issued on 15/3/2007, which is a combined notification under Section 17(4) of the Act. Exts.P3 and P3(a) are copies of notifications issued invoking emergency clause. Subsequent to Ext.P3 notification the additional Tahsildar, Kuttanad, the District Tourism Information Officer, Alappuzha and other Officers concerned took possession of the petitioners' property covered -2- W.P.(C).No.34783/2007 under the notification and the property was handed over to the Tourism Department. Though the property was taken possession on 7/9/2007, 80% compensation payable at the time of taking possession was not paid. The 2nd respondent is in possession and enjoyment of the property. 2. The prayer in this writ petition is to call for the records relating to Exts.P1 to P4 and also for a direction to the respondents to pay the petitioners' compensation payable under the Land Acquisition Act. A counter affidavit was filed by the 2nd respondent. It may be noted that a portion of the property belonging to the petitioners was acquired in the year 2003 and the present proceeding was initiated in 2007 for acquisition of the balance land having an extent of 80 cents and subsequently the said extent was acquired under the Act. In the said counter affidavit it is stated that in addition to the extent acquired earlier, the Tourism Department requires the balance extent of 98.20 Ares for back water resort of international standard. Therefore, -3- W.P.(C).No.34783/2007 the Government by G.O.(Rt).No.5845/05/TSM dated 28/7/05 accorded sanction for acquisition of the petitioners' land for the back water resort project invoking urgency clause under Section 17(4) of the Act. Pursuant thereto a notification was issued under Section 4(1) of the Act on 15/3/2007. In the counter affidavit the 2nd respondent contended that taking over possession of the land in advance without offering 80% of the land value was invalid, that there was no consent from the requisitioning department for taking advance possession of the land, that the Land Acquisition Officer has not made any specific agreement or contract with the land owner before taking advance possession of land and that the procedure under Section 17(3-A) of the Act was not followed. It is not disputed that the property was taken possession from the petitioners and the lst respondent handed over the property to the 2nd respondent (Tourism Department) and that the Tourism Department is in possession and enjoyment of the property since then. -4- W.P.(C).No.34783/2007 3. Ext.P4 is a mahazar which shows that the Officers of the State Government and the Tourism Department were present at the time of taking possession. Section 17(3-A) mandates that before taking possession of any land under sub-section (1) or sub-section (2) the Collector shall tender payment of 80% compensation for such land as estimated by him to the land owners. Nothing prevented the respondents from paying the amount of 80% compensation at the time of handing over possession and the balance amount subsequently. In this connection, Section 17(1) empowers the Government to take possession of any land needed for public purpose, such land shall thereupon vest absolutely in the Government free from all encumbrances. The provision similar to Section 17(1) is Section 16 of the Act. Section 16 postulates the situation on taking over possession of the land after passing an award, the land vest absolutely in the Government free from all encumbrances. By virtue of Sections 16 and 17 (1), the property on taking over -5- W.P.(C).No.34783/2007 possession vest absolutely in the Government free from all encumbrances. Since the property was taken under Section 17(1) of the Act, the Government became the owner of the property. What remains is the payment of compensation due to the land owner. Being the difference of opinion between the Government and the Tourism Department (respondents 1 and 2) in the matter of acquisition, the petitioners are entitled to compensation for the land acquired which belongs to them. There is no justification for withholding the amount of compensation for all these years. 4. This Court by an interim order dated 3/1/2008 directed the respondents to pay the compensation amount or to re-convey the property to the petitioners. But nothing has been done by the respondents. It is seen that there is some procedural delay and some dispute between respondents 1 and 2 regarding the manner in which the property was acquired and therefore they have taken the stand that this property is no longer acquired. The property has already been vested in the Government under -6- W.P.(C).No.34783/2007 Section 17(1) of the Act. It is the duty of the Government to pay the compensation payable to the owner. 5. In the circumstances, this writ petition is allowed directing respondents 1 and 3 to pay compensation to the petitioners for acquisition of their property, within a period of three months from today. The petitioners are entitled to receive the compensation amount and under protest they can seek reference of the matter. HARUN-UL-RASHID, Judge. kcv.