IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE FRIDAY, THE 26TH SEPTEMBER 2008 / 4TH ASWINA 1930 WP(C).No. 8589 of 2008(V) ------------------------- PETITIONER --------------- CHANDY ABRAHAM, S/O.LATE CHERIAN ABRAHAM, AGED 57 YEARS, RESIDING AT G-180, PANAMPILLY NAGAR, COCHIN - 36. BY ADV. SRI.R.PADMARAJ SRI.N.P.SETHU RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. SPECIAL TAHSILDAR (LA) KOCHI REFINERIES LTD., VYTTILA, TRIPPOONITHURA. 3. THE DISTRICT COLLECTOR, ERNAKULAM. 4. THE MANAGING DIRECTOR, KINFRA, KINFRA HOUSE ANNEXE, ELANKON GARDENS, VELLAYAMBALAM, THIRUVANANTHAPURAM - 695 010. ADDITIONAL RESPONDENT 5. INFOPARK, THAPASYA, KUSUMAGIRI P.O., KAKKANAD, KOCHI, REP. BY ITS CHIEF EXECUTIVE OFFICER Additional respondent impleaded vide order dated 24-09-2008 in I.A.No.12072/08 ADV. SRI.P.A.AHAMED SC FOR KINFRA SRI.G.S.REGHUNATH FOR ADDL.R5 GOVERNMENT PLEADER SRI.D.ANIL KUMAR FOR R1-3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS EXT.P1 TRUE COPY OF THE NOTICE DATED 15-11-2003 BY THE SECOND RESPONDENT TO THE PETITIONER. EXT.P2 TRUE PHOTOSTAT COPY OF NOTICE NO.205/2003 DATED 8-12-2003 BY THE SECOND RESPONDENT TO THE PETITIONER. EXT.P3 TRUE PHOTOSTAT COPY OF NOTICE DATED 10-9-06 BY THE SECOND RESPONDENT TO THE PETITIONER IN LAC.NO.130/2005 EXT.P4 TRUE PHOTOSTAT COPY OF OBJECTION DATED 6-10-06 ISSUED BY THE PETITIONER TO THE SECOND RESPONDENT. EXT.P5 A TRUE PHOTOSTAT COPY OF THE JUDGMENT DATED 27-6-07 IN W.P.C.NO.5284/07. EXT.P6 TRUE COPY OF THE AWARD NOTICE UNDER SECTION 12(2) OF THE ACT DATED 5-7-07 EXT.P7 TRUE COPY OF THE REHABILITATION PACKAGE NOTICE DATED 6-9-07 EXT.P8 TRUE COPY OF THE LETTER DATED 11-9-07 ISSUED BY THE PETITIONER TO THE RESPONDENTS. EXT.P9 A COPY OF THE LETTER DATED 5-11-07 ISSUED BY THE PETITIONER TO THE RESPONDENT THROUGH HIS COUNSEL. EXT.P10 TRUE PHOTOCOPY OF REPLY DATED 6-12-2007 BY THE SECOND RESPONDENT TO THE PETITIONER. EXT.P11 A TRUE COPY OF THE VALUATION REPORT DATED 31-7-07 EXT.P12 TRUE PHOTOCOPY OF LETTER DATED 7-12-2007 BY THE PETITIONER TO THE THIRD RESPONDENT. EXT.P13 A TRUE PHOTOSTAT COPY OF REPLY DATED 16-2-2008 BY THE THIRD RESPONDENT TO THE PETITIONER. EXT.P14 A LETTER DATED 28-1-2008 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER INFORMING THE DEPOSIT OF AWARD AMOUNT IN COURT. EXT.P15 PHOTOGRAPHS TAKEN ON 16-7-08 OF THE BUILDING IN THE ACQUIRED PROPERTY. EXT.P16 TRUE PHOTOCOPY OF GO(MS)NO.12/07/ITD DATED 29-6-07. /True Copy/ PIUS.C.KURIAKOSE, J. - - - - - - - - - - - - - - - - - - - - - W.P.(c).No. 8589 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of September, 2008 JUDGMENT 31.5 cents of land together with a very substantial residential building belonging to the petitioner was acquired under the provisions of the Land Acquisition Act for the purposes of the 4th respondent- KINFRA. Pursuant to Ext.P5 judgment of this court, Ext.P7 rehabilitation package notice was issued to the petitioner. The grievance of the petitioner is that while similarly circumstanced other persons were offered land for rehabilitation, he was offered only land value for the acquired properties at the DLPC rates. He therefore sought for extension of the rehabilitation benefits in full as had been extended to persons whose residential buildings had been acquired for the same purpose. In the meanwhile, on receiving award notice under section 12(2), the petitioner sought for a reference under Section 18 to the land acquisition court of the question of determination of the correct compensation for the properties which had been acquired. The petitioner's explanation for seeking such a reference despite his WPC.No.8589/08 2 insistence for extension of rehabilitation package is that in the event of rehabilitation package being declined, the petitioner wanted to pursue reference under section 18 and he became obliged to seek reference lest the reference itself should be barred by limitation. The situation which obtains now is that at the instance of the petitioner a reference under section 18 as well as a reference under section 31(2) are before the land acquisition court, Ernakulam and registered respectively as L.A.R.No.130/08 and 25/08. 2. The following are the prayers made by the petitioner in the writ petition: “ 1. Issue a writ in the nature of mandamus directing the respondents to a) revalue the building acquired from the petitioner as per LAC 130/05 with notice to the petitioner. b) Offer a proper rehabilitation package offering all the benefits at par with the rehabilitation package offered to other residential building owners in the same acquisition. c) If for any reason it is found that the rehabilitation cannot be offered to the petitioner, the WPC.No.8589/08 3 respondents may be directed to send the reference to the court under section 18 of the Land Acquisition Act after taking proper valuation of the building. 2) Issue such other orders as are prayed hereafter and also which this Honourable Court deem fit and proper in the interest of Justice and in equiry.” 3. Detailed counter affidavit has been filed by the third respondent-District Collector. According to that counter affidavit, the petitioner is a person settled down at Hyderabad and was admittedly not staying in the house which existed on the acquired property. Land towards rehabilitation package is given only to those persons who were actually residing in the building which existed on the properties acquired from them. It is pointed out that though the rehabilitation package declared by the Government was given wide publicity in the medias, the petitioner never approached the authority seeking extension of that package, but he opted to pursue the procedure under Land Acquisition Act. 4. Heard Sri.R.Padmaraj, the learned counsel for the petitioner, Sri.D.Anil Kumar, learned senior Government Pleader as WPC.No.8589/08 4 well as Sri.G.S.Raghunath, learned counsel for the requisitioning authority. Drawing my attention to Ext.P16 Government order, Sri.R.Padmaraj would submit that it is clear from that order itself that the earlier order extending the benefit of rehabilitation to all the 42 evictees has been cancelled and the present order extending that benefit only to 41 persons excluding the petitioner has been issued. No reasons whatsoever has been stated in Ext.P16 for excluding the petitioner from getting that benefit. 5. The writ petition was subsequently got amended so as to seek the following additional relief also: “ Quash Exhibit 16 Government Order and direct the 1st respondent to issue fresh Government Order extending all the benefits given to the other 41 evictees resident in the acquired land, to the petitioner also.” 6. Pursuant to the amendment, the third respondent filed another counter affidavit. At paragraph 5 of the counter affidavit, it is contended as follows: “ The prayer of the petitioner to quash Ext.P16 Government Order is unsustainable in law. On the basis WPC.No.8589/08 5 of the said Government Order benefits have been granted to several people. In order to make a prayer to quash the said GO petitioner has to implead all those persons who are benefited by the said GO. Since the petitioner has not opted for the rehabilitation package and the relevant facts, the petitioner is not entitled for the same.” 7. Elsewhere in paragraph 3 of the counter affidavit, the third respondent has reiterated that the petitioner having already sought for a reference and the reference having already been initiated at his instance, he is not entitled the DLPC package. The Government Pleader would submit that DLPC package and reference under Section 18 cannot go together. The petitioner having specifically sought for a reference under Section 18 and having entered appearance before the reference court pursuant to notice received from that court is not entitled to pursue his claim for DLPC package. 8. Sri.R.Padmaraj would submit that if DLPC package in full is extended to the petitioner, the petitioner shall withdraw unconditionally from the reference under Section 18. It was to be on WPC.No.8589/08 6 the safer side that the petitioner sought for a reference under Section 18. 9. I feel that on the circumstances which attend on this case, the petitioner cannot be blamed for having sought for a reference under Section 18 despite his claims for extension of DLPC package in full. As rightly submitted by the learned counsel for the petitioner, the petitioner stood the risk of forfeiting his right to have a reference under Section 18 by delaying the request for reference in the event of Government ultimately deciding that the petitioner will not be granted the benefit of DLPC package at all. The reasons stated by the Government for declining this benefit to the petitioner is that the petitioner was not actually residing in the building which existed on the acquired property. According to the petitioner, he had not let out that building to anybody. He had kept it vacant so that when he comes over to Kerala, he could occupy the building. According to his counsel, the petitioner belongs to Kerala and his roots are here and he is being deprived of the only building which he had any where in Kerala and used to be occupied by him whenever he came to Kerala . WPC.No.8589/08 7 10. Having regard to submissions addressed at the Bar, I feel that the petitioner's request for land towards rehabilitation as was extended to the 41 persons covered by Ext.P16 order has to be considered by the Government again notwithstanding the registration of reference under section 18 regarding the petitioner's claim for enhanced land value. Under the above circumstances, I dispose of the writ petition issuing the following directions; 1) The Third Additional Sub Court, Ernakulam dealing with land acquisition reference cases is directed not to pass final awards in L.A.R.Nos. 130/08 & 25/08 till 31/03/2009. 2) The first respondent Government is directed to reconsider the petitioner's claim for extension of the rehabilitation package in full to him after hearing the petitioner in the light of the various grounds raised in the writ petition and any other ground which may be urged by him during hearing and take a decision within two months of receiving copy of this judgment. WPC.No.8589/08 8 3) Once the Government takes decision as above, the same will be communicated to the petitioner and once the petitioner receives the decision on communication from the Government, he will produce the same before the land acquisition reference court. That court will, if the decision of the government is against the petitioner, post the land acquisition reference cases for trial and will favourably consider the petitioner's request for revised valuation of the building either by deputing a Commissioner on the petitioner's application or by issuing appropriate directions to the authorities of the first respondent State. 4) If the decision of the Government pursuant to direction No.1 comes to be in favour of the petitioner, the learned Subordinate Judge will strike off both the land acquisition reference cases from the files. 5) If the decision of the Government comes to be against the petitioner, then the reference court shall pass WPC.No.8589/08 9 award in both the cases within three months of petitioner producing the decision of the Government. It is needless to mention that the enquiry by the reference court will be confined to the terms of the reference sent to the court by the land acquisition officer. 6) The requisitioning authority is directed not to demolish the building which exists on the petitioner's property till expiry of a period of one month after the Government takes decision pursuant to this judgment. PIUS.C.KURIAKOSE JUDGE sv. WPC.No.8589/08 10