IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE WEDNESDAY, THE 29TH OCTOBER 2008 / 7TH KARTHIKA 1930 WP(C).No. 6348 of 2008(E) ------------------------- PETITIONER(S): --------------- V. BHASKARAN PILLAI, ADVOCATE, KURUMPELIL, PERUMPUZHA P.O., KOLLAM. BY ADV. SRI.B.VINOD RESPONDENT(S): --------------- THE DISTRICT COLLECTOR, KOLLAM. GOVERNMENT PLEADER SRI.BASANT BALAJI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS EXT.P1 TRUE COPY OF THE JUDGMENT OF THIS COURT IN O.P.NO.18949/06 DATED 14-6-07 EXT.P2 TRUE COPY OF THE COMMUNICATION DATED 10-10-2007 IN LA 5/52072/05 EXT.P3 TRUE COPY OF THE LETTER NO. LA 5/52072/05 DATED 28-1-2008 EXT.P4 TRUE COPY OF THE SALE DEED NO. 2791/1983 DATED 31-10-83 KUNDARA SUB REGISTRY EXT.P5 TRUE COPY OF THE SALE DEED NO. 3221/1983 DATED 28-10-1983 KUNDARA SUB REGISTRY. /True Copy/ PA to Judge. PIUS.C.KURIAKOSE, J. - - - - - - - - - - - - - - - - - - - - - W.P.(c).No.6348 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of October , 2008 JUDGMENT The petitioner is a lawyer by profession. He submits that 19.70 Ares of land which formed substantial part of his holding extending to 21 Ares and 45 Sq. metres in survey No.302 of Kottamkara Village (presently in R.S. No. 12/37 of Elampalloor Village) was acquired for the construction of Mulavana Distributory from the left bank canal of the Kallada Irrigation Project. According to him, it was only a paltry compensation which was given to him by the Land Acquisition Officer and it his instance a reference is presently pending before the Sub Court, Kollam under section 18 of the Land Acquisition Act for determination of the correct compensation. The petitioner points out that he was dispossessed of his properties prior to the passage of the award by invoking the emergency provisions of the Land Acquisition Act, and award was passed only pursuant to a direction issued by this court on 13-9-1996 to the L.A. Officer to finalise the acquisition proceedings. The petitioner points out that the total length of the WPC.No.6348/08 2 proposed Mulavana Distributory is more than 15 kilometres and the petitioner's property lies at the starting point of the distributory- chainage 0-300. The completion of the distributory will necessitate expenditure of crores of rupees with acquisition of 300 hectares of land including the petitioner's property. Only an extent of 37 Ares of land was acquired and thereafter absolutely nothing was done. The project has been abandoned. Petitioner asserts that the project has been dropped once and for all. The notification which had been promulgated regarding the proposal to acquire the other lands which were necessary for Mulavana Distributory has lapsed and no notification is in force. Pointing out that not even a small portion of the land acquired from him or from the other land owners pursuant to the notification for the avowed purpose of construction of Mulavana Distributory has been utilised for the said purpose, the petitioner contends that the acquisition of his property is a colourable exercise of power since the land was not required at all for the purpose mentioned in the notification. Under the above circumstance the petitioner submitted a representation before the Government requesting that the WPC.No.6348/08 3 lands which were acquired from him be re-conveyed to him on condition that he deposits the entire compensation which was paid to him with the Government. On considering the petitioner's application the respondent District Collector was directed by the Government to take steps to dispose of the land in accordance with the conditions envisaged in G.O.(MS) No. 387/200 RD dated 22-12-2000. It is submitted that the Chief Engineer, Kallada Irrigation Project had written to the Government that the petitioner's land is not necessary for the purpose for which it was acquired. 2. Being aggrieved by the direction that disposal of the land should be in accordance with the conditions envisaged in the Government Order dated 22-12-2000 under which it is obligatory that the land should be given to other Government Departments or Local Bodies or Government Companies the petitioner approached this Court by filing WP(C). No. 18949 of 2006. The petitioner submits that this Court observed in that judgment that the Supreme Court decision reported in 1997(2) KLT 217 (State of Kerala v. Bhaskara Pillai) relates to an entirely different set of facts. Petitioner submits that after WPC.No.6348/08 4 considering all the relevant circumstances of the case this court held that it may not be proper to reject the petitioner's claim on the ground that the land can be used for any public purpose or sold through public auction and directed that the Government should consider the petition filed by the petitioner for re-conveyance or assignment. Ext.P1 is copy of this Court's judgment. 3. The petitioner points out that the respondent District Collector by letter LA 5/52072/05 dated 10-10-2007 requested the Government to grant sanction for preferring appeal against Ext.P1. The petitioner however submitted a further representation along with certified copy of Ext.P1 judgment seeking reconveyance of his properties. On behalf of the respondent , the Additional District Magistrate heard the petitioner as directed by this court under Ext.P1. No orders were issued. But the respondent would send Ext.P2 letter to the Government seeking clarification and requesting for sanction to challenge Ext.P1. Pursuant to Ext.P2, the matter was referred to the Law Department for legal opinion. Opinion of the law department according to the petitioner was that appeal need not be preferred WPC.No.6348/08 5 against Ext.P1 and that the respondent should dispose of the petitioner's representation. Petitioner was again heard by the respondent on 5-02-2008 and now Ext.P3 communication has been received by the petitioner informing that the property will be put to public auction in case no request is received from any Government departments before that date. The petitioner challenges the decision to turn down his request and to put the property to public auction. On various grounds, the petitioner prays for the following reliefs: 1) A writ of certiorari quashing Ext.P3. 2) A writ of mandamus directing the respondents to reconvey the property which was taken over from him. 3) A writ of mandamus directing the first respondent to consider and pass fresh orders on the petitioner's representation in the light of Ext.P1. 4. On behalf of the respondent District Collector, a detailed counter affidavit has been filed. The counter affidavit refers to GO(Ms)387/2000/RD dated 22-12-2000 and submits that pursuant to directions by the Government, the District Collector decided to take WPC.No.6348/08 6 action as per the above government order and that the petitioner was informed of the same. It is pointed out that the above government order stipulates that any land acquired for a public purpose not required for that purpose or any other purpose of the department for which the land was acquired, the concerned department should bring this fact to the notice of the District Collector concerned and hand over possession of the land to the revenue department immediately. Until such handing over of possession, it shall be the responsibility of the acquired department to keep the land free from any encroachment. It is stated that if the land could not be disposed of in the above manner, it should be disposed of in public auction following the procedure prescribed in the Kerala Revenue Recovery Act for the auction of attached immovable properties except the procedure prescribed under Section 50 of the said Act for bidding on behalf of the Government. Auction is to be conducted only after fixing the upset price. It should not be below the market value of the land prevailing at the time of auction or the amount spent by the Government for the acquisition of the land whichever is higher. The Tahsildar concerned will conduct the auction WPC.No.6348/08 7 subject to confirmation of sale by the District Collector. It is therefore contended that there is no provision in the Land Acquisition Act for reconveyance of land back to the claimants even if the land is not utilised for the public purpose. It is pointed out that the land which has been acquired for a public purpose vests with the Government and the same can be disposed of only by putting the same to public auction. It is also pointed out that the petitioner having accepted the award is not entitled to seek reconveyance directly to him. 5. After hearing counsel for some time, I passed the following interim order on 23-5-2008 “Heard both sides for some time. Having regard to the submissions, there will be an interim order in the following terms: The respondent will conduct the public auction as proposed in Ext.P3 at the earliest and at any rate within six weeks from today. The auction shall be with notice to the petitioner. It is open to the petitioner to participate in the auction. Post after two months.” 6. In the wake of that interim order the writ petitioner filed WPC.No.6348/08 8 I.A.No. 7781/08 seeking a direction to the respondent to fix the upset price at Rs. One lakh per cent in the auction to be conducted pursuant to the order dated 23-05-2008 and a further direction to the respondent not to confirm the auction till the disposal of the writ petition. Along with the I.A., the petitioner has produced Exts.P4 and P5, copies of sale documents in the locality. According to the petitioner, those documents will justify the reference court to fix the market value of the land as on the date of Section 4(1) notification at Rs. 35,000/- and on that basis, if the LAR proceedings are continued, the Government will have to shell out nearly 1,02,500/- per cent. It is accordingly contended that reconveying the property to the petitioner will be much more advantageous from the Government's point of view than fighting out the LAR cases before the reference court. 7. On considering the above I.A, I directed the Government Pleader to seek instructions immediately from the District Collector regarding the first prayer that upset price be fixed at Rs. one lakh per cent. Instructions sought for by the Government Pleader were not imparted. Hence I passed the following order on 30-06-2008. WPC.No.6348/08 9 “ Heard both sides. I am of the view that it will not be proper to direct the District Collector to fix rupees one lakh per cent as the upset price. It is for the District Collector to conduct auction fixing a proper amount as upset price. The District Collector will conduct auction as already ordered by this court on 23-05-2008 permitting the petitioner also to participate in the auction. The District Collector, however, will not confirm the auction without getting orders in that regard from this court. The auction will be conducted by the District Collector within one month from today. Post after a month.” 8. The District Collector filed I.A.No.10275/08 seeking extension of time by six months from 31-07-2008 to conduct the auction, on the reason that the District Collector is yet to put in possession of the properties by the Irrigation Department to whom the properties had been handed over after the acquisition. Thereafter the case stood posted on 30-07-2008, 6-08-2008 and 11-08-2008. 9. On 11-08-2008, the counsel were heard at some length and I directed incorporation of the records in W.P.(C)No.18949/06 in WPC.No.6348/08 10 which Ext.P1 judgment was issued by this court. On 14/08/2008, I directed the Government Pleader to get instructions as to what is the price fixed for land in the village where the subject property is situated as per the recent fair value order issued by the Government. Since there was no response to that order, I passed the following order on 26-08- 2008. “ The Government Pleader will get the following information from the District Collector, Kollam: 1) What is the price of land in this particular village as per the recent fair value order issued by the Government. 2) What, according to the District Collector , is the market value of the property to be fixed as upset price in the event of an auction being ordered. Post on 29-09-2008.” 10. The case thereafter stood posted on 29-08-2008, 16-09-2008, 23-09-2008 and on 7-10-2008. On none of these dates, the information called for could be given by the learned Government Pleader obviously for want of instructions from the District Collector. WPC.No.6348/08 11 Finally on 7-10-2008, I passed the following order : “ The Government Pleader is directed to remind the concerned respondent regarding the orders passed by this court including the order dated 23-9-08. Post on 20-10-2008.” 11. On 20-10-2008 also the information called for could not be supplied by the learned Government Pleader and the case was posted peremptorily for final hearing on 24-10-2008. On that day, both the counsel for the petitioner and the learned Government Pleader were heard in full. 12. Learned counsel for the petitioner would reiterate that the petitioner's case was an unusual case where the very notification under Section 4(1) can be seen to be a colourable exercise of power since it has now turned out that there was no public purpose at all for the acquisition. The proposed Mulavana Distributory was abandoned by the Government and not even an inch of land acquired under the notification has been utilised for the purpose of the acquisition. It is now clear that the land is not required by the Irrigation Department for whom the acquisition was made. It is also clear that no other WPC.No.6348/08 12 department of the Government requires the land. Learned counsel submitted that it was in view of these special circumstances attending on the petitioner's case that this court observed under Ext.P1 judgment that the decision of the Supreme Court in Bhaskaran Pillai's case may not be applicable in this case. Learned counsel argued that the Government will be called upon by the reference court to pay a huge amount as enhanced compensation to the petitioner inclusive of statutory benefits such as solatium and interest for years at the rate of 15% per annum from the date of dispossession. Learned counsel submitted that in the nature of the acquired property which lies as a land locked plot, nobody other than the petitioner will be interested in purchasing the property and this is why the District Collector has not been able to supply the information called for by this court. During the course of his submissions, the learned counsel referred to various documents placed on record in this case as well as in W.P.(C)No.18949/06 in which Ext.P1 judgment was passed by this court. He submitted that it is not correct to say that award was passed at the instance of the petitioner. According to him, petitioner's prayer WPC.No.6348/08 13 in O.P.No.13221/96 was either to drop the proceedings or in the alternative to finalise the proceedings. 13. Learned Government Pleader Sri.Basant Balaji would resist the submissions of the learned counsel for the petitioner Sri.B.Vinod quite forcefully. Referring to section 16 of the Land Acquisition Act, learned Government Pleader submitted that the petitioner can no longer refer to the acquired properties as his properties since the said property stands vested absolutely in the Government and the Government is fully empowered to deal with the said property as any other property belonging to the Government. Judgment of the Supreme Court in State of Punjab and others v. Sadhu Ram ( 1997(9)Supreme Court Cases 544) was relied on in this context by him. He argued that any direction to reconvey land which was acquired under the Land Acquisition Act to the original owner on the ground that the same was not utilised by the Government for the avowed purpose of acquisition will be illegal and contrary to judgments of the Supreme Court. In this context the learned Government Pleader relied on the judgment of the Supreme Court in State of Kerala v. Bhaskara Pillai (1997 (2) KLT WPC.No.6348/08 14 217), Govt. of A.P. and another v. Syed Akbar ( 2005(1) Supreme Court Cases 558), Northern Indian Glass Industries v. Jaswant Singh and others ( 2003(1) Supreme Court Cases 335), Chandragauda Ramgonda Patil and another v. State of Maharashtra and others ( 1996(6) Supreme Court Cases 405), Savithri Devi v. State of Haryana and others ( 1996(7) Supreme Court Cases 729. Sri.Basant Balaji submitted that the petitioner cannot have any legitimate grievance about the proposed public auction since it is open to him also to participate in the auction. If what he submits is correct nobody will be interested in competing with him in the auction. Only a public auction can realise the best price, it was submitted. 14. I have anxiously considered the rival submissions addressed at the Bar in the light of the pleadings raised by the parties and the documents placed on record. I have kept in mind the various judicial precedents which were cited before me by the learned Government Pleader. 15. Ext.P1 judgment of this court has attained finality. It is not disputed that the recommendation of the respondent -District Collector WPC.No.6348/08 15 to prefer appeal against Ext.P1 was not accepted by the Government. On going through Ext.P1, it is seen that this court after noticing the judgment of the Supreme Court in State of Kerala v. Bhaskara Pillai ( 1997(2) KLT 270) drew a distinction between that case and the present case in that while in that case the purpose of the acquisition was achieved and a portion of the land acquired was left unutilised, in the present case the purpose of the acquisition was abandoned and no portion of the land notified was used for the avowed purpose of the acquisition. The ratio which emerges from the various decisions of the Supreme Court cited by the learned Government Pleader is certainly that once acquisition is completed and possession of the land is taken over, the Government becomes the absolute owner of the property free from all encumbrances and no one can claim any title and much less equitable title on the reason that the property once belonged to him or that the property is kept unutilised by the Government. It is also held consistently by the Supreme Court that such unutilised land can be used by the Government for any other public purpose and that the Government is free to regulate the mode of disposal of the property in WPC.No.6348/08 16 case the Government or any of its agencies do not require the land for any purpose whatsoever. The Government order GO(Ms) 387/2000/RD dated 22-12-2000 relied on by the respondent is thus quite valid and is in consonance with the statutory provisions and the law as laid down by the Supreme court. However, on going through the facts of the cases covered by decisions of the Supreme Court, it is seen that in all those cases the avowed purpose of acquisition had been achieved to a certain extent and the subject matter of the disputes was certain portions of the acquired property which remained unutilised. The facts of the present case are quite unusual in the sense that not even a small portion of the land included in the notification under Section 4(1) and the declaration under Section 6 pursuant to which the petitioner's property was acquired, was utitlised for the avowed purpose of acquisition. The project as conceded by the Executive Engineer of the requisitioning authority was completely abandoned. 16. The argument of the learned counsel for the petitioner was that the very proceedings for acquisition were a fraudulent exercise of statutory powers since the need mentioned in the notification was WPC.No.6348/08 17 unreal. I am not inclined to accept the above argument since it is quite possible that due to reasons which could not be foreseen earlier the government becomes compelled to abandon the project after the acquisition of land for the project is completed. However, the argument of the petitioner that it has now turned out that the acquisition was an absolutely unnecessary exercise merits acceptance. The circumstance that Ext.P1 judgment containing the observations aforementioned has been accepted by the government is of consequence and I hold that there is justification for treating the petitioner's case as a special one which merits consideration of his claim for reconveyance subject to certain conditions which may be sufficient for protecting the interest of the government as the absolute owner of the property. The condition which the petitioner offers to the government is that the total amount which was paid as compensation will be refunded to the government and that upon reconveyance, the petitioner will withdraw from the ongoing proceedings before the Land Acquisition reference court under Section 18. Though the petitioner's version as to the amount which may be awarded to him by the reference WPC.No.6348/08 18 court may be exaggerated, I have no difficulty in thinking that reference court in all probability may become inclined to enhance the compensation awarded by the land acquisition officer relying on the two sale documents produced by the petitioner along with I.A.No. 7781/08 and any other evidence which the petitioner may adduce before that court. Necessarily the enhanced amount will carry statutory benefits including interest at the rate of 9% for the first year and 15% till date of payment, from the very date of dispossession. This amount will be a sizable which will have to be paid by the government to the petitioner if the government is keen on retaining ownership over the acquired property which once belonged to the petitioner. Admittedly the property extending to a total extent of 37 Ares of land including 19.70 Ares which belonged originally to the petitioner acquired pursuant to the notification is not required by any department of the government or any other governmental agency or company. The petitioner's version that in view of the nature and location of the property which is the subject matter of the present writ petition he alone will be interested in the property appears to be somewhat correct, WPC.No.6348/08 19 though I feel that perhaps the owner or owners of the adjoining property of 17.30 Ares which was also acquired along with the above property may also be interested. The circumstance that the District Collector has not been able to fix a proper upset price for the property and that he has not been able to inform this court as to what is the value fixed for this property as per the fair value order recently issued by the government is also taken note of. The owners of the adjoining land extending to 17.30 Ares which was also acquired along with the petitioner's land have not made any request for reconveyance of that land to them. Necessarily that land is also remaining unutilised and the District Collector will become bound to dispose of that land in terms of GO(Ms)387/2000/RD dated 22-12-2000 and therefore I am of the view that the interest of the government can be safeguarded in this case by ensuring that the petitioner is made liable to pay the difference if the price realised by the government by auctioning that land publicly is more than the amount which the petitioner is being directed to pay to the government under this judgment as consideration for the reconveyance sought for by him. WPC.No.6348/08 20 17. The result of the writ petition therefore is as follows: 1) The petitioner is directed to repay the District Collector within one month of receiving copy of this judgment the total amount of Rs. 1,72,813/- which was paid to him under the award passed by the land acquisition officer with interest @ 15% per annum on the entire amount from date of payment till date of repayment. 2) Once repayment is made, respondent will reconvey the property to the petitioner by executing a deed of sale and facilitating its registration within one month thereafter on condition that