IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID TUESDAY, THE 20TH DAY OF DECEMBER 2011/29TH AGRAHAYANA 1933 WPC.No. 32972 of 2009 (N) -------------------------------- PETITIONER: --------------- P.D.ANTONY, S/O.DEVASSY, PULIKKAL HOUSE RAMALLUR KARA KOTHAMANGALAM.P.O. BY ADV.MR.K.JAYAKUMAR (SR.) MR.P.B.KRISHNAN MR.R.SURAJ KUMAR MS.GEETHA P.MENON MR.P.M.NEELAKANDAN RESPONDENTS: ----------------- 1 THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM. 2 THE DISTRICT COLLECTOR, ERNAKULAM. 3 THE LAND ACQUISITION OFFICER(TAHSILDAR), KOTHAMANGALAM. 4 GEORGE ANTONY, S/O.LATE POTHANIKKATTU ANTONY ANGADIKKARA KOTHAMANGALAM.P.O KOTHAMANGALAM VILLAGE KOTHAMANGALAM TALUK. BY ADV. GOVERNMENT PLEADER MR.BIJU MEENATTOOR FOR R1- R3 MR.K.G.PAVITHRAN FOR R4 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20-12-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.No. 32972 of 2009 (N) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: SALE DEED NO.1869 OF SRO, KOTHAMANGALAM EXECUTED BY R4 TO THE PETITIONER DTD. 30.3.2000. EXT.P2: TAX RECEIPT FOR THE YEAR 2009-10 DTD. 15.6.2009. EXT.P3: ENCUMBRANCE CERTIFICATE DTD. 15.6.2009. EXT.P4: NOTICE BEARING LAC.NO.3/2008 SSUED BY R3. EXT.P5: NOTICE BEARING LAC.NO.3/2008 ISSUED BY R3. EXT.P6: NOTICE BEARING NO.LAC.3/2008 ISSUED BY R3. EXT.P7: REPRESENTATION MADE BY R4 BEFORE R3 DTD. 15.7.2009. EXT.P8: NOTIFICATION DTD.23.2.2006 UNDER SECTION 4(1) OF THE LAND ACQUISITION ACT, PUBLISHED IN THE DESABHIMANI NEWS PAPER DTD. 12.2.2006 EXT.P9: LITHO MAP RELATING TO SY.NOS.1030 TO 1033 AND 1231 OF KOTHAMANGALAM VILLAGE SHOWING THE ALIGNMENT SKETCH OF THE THANKALAMKOZHIPPILLY NEW BYE-PASS ROAD. EXT.P9(a): FORWARDING LETTER ACCOMPANYING EXT.P9 DTD. 4.11.2010. RESPONDENTS' EXHIBITS: NIL .... // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.32972 Of 2009 ---------------------- Dated this the 20th day of December, 2011. J U D G M E N T Writ petition is filed seeking to quash Exts.P4 to P6 and for a direction commanding the 3rd respondent to pass an award in L.A.C.No.03/08 on his file and to pay the compensation to the petitioner and for other incidental reliefs. 2. The case of the petitioner is that an extent of 1.47 ares of land in survey No.1032/1 and 7 ares of land in survey No.1032/1 and 2 of Kothamangalam Village owned by him was acquired for the purpose of construction of Thankalam-Kozhippilly New Bye-Pass Road crossing N.H.49. The 4th respondent is the prior owner. The property including the above mentioned items were purchased by the petitioner from the 4th respondent as per Ext.P1 sale deed dated 30.3.2000. The petitioner submits that in the land acquisition proceedings statutory notices were issued to the 4th respondent as if he is the land owner without noticing the transfer in his favour. It is pointed out that though he purchased the land under acquisition as per Ext.P1 sale deed the authorities ::2:: W.P.(C).No.32972 Of 2009 failed to issue statutory notices under the Land Acquisition Act and Rules, therefore, he had no occasion to approach the Land Acquisition authorities nor he was given opportunity to present his case. The petitioner got information that the 3rd respondent has issued notices to the 4th respondent intimating that the emergency provisions under Section 17(1) of the Act has been invoked in the case of 7 ares of land in survey No.1032/1 and 2 (wrongly stated to be blocked in 1032/3-6) and that upon determination of the compensation, the same will be deposited before the appropriate court under Section 30/31 (2) of the Act. Ext.P4 is the said notice dated 26.5.2009. The petitioner submits that along with Ext.P4 notice, Ext.P5 notice dated 26.5.2009 was also issued to the 4th respondent intimating that 80% of the compensation payable in respect of 1.47 ares of land in R.S.No.1032/1-4 (actually in R.S.No.1032/1) has been sanctioned. According to the petitioner the R.S.No.1032/3-6 mentioned in Ext.P4 notice is wrong and the 7 ares of land is in R.S.No.1032/1 & 2. Similarly, the petitioner submits that survey number of 1.47 ares of land is R.S.No.1032/1 and is wrongly stated as R.S.No.1032/1-4 in Ext.P5 notice. Along with Exts.P4 & ::3:: W.P.(C).No.32972 Of 2009 P5 notices, Ext.P6 notice dated 26.5.2009 under Rule 15(3) of the Land Acquisition (Kerala ) Rules was issued to the 4th respondent proposing to take possession of both items. On coming to know about the issuance of Exts.P4 to P6 notices in the name of the 4th respondent, the petitioner submitted Ext.P7 representation dated 15.7.2009 intimating the 3rd respondent that the petitioner is the present owner of the properties, that the compensation with regard to the acquired land has to be paid to the petitioner. 3. The petitioner contends that he had already intimated the 3rd respondent by Ext.P7 representation that he is the owner, that therefore he should be issued with all notices under the Act and Rules, that the petitioner cannot be dispossessed of his land based on Exts.P4 to P6 notices and therefore, sought for a direction commanding respondents 1 to 3 to forbear from dispossessing the petitioner and further sought for a direction commanding the respondents 1 to 3 to pass an award in L.A.C.No.3/08 after hearing the petitioner. 4. Along with the reply affidavit, the petitioner also produced copies of the publication under Section 4(1) of the Land ::4:: W.P.(C).No.32972 Of 2009 Acquisition Act. Copy of the litho map relating to survey Nos.1030 to 1033 and 1231 of Kothamangalam Village and copy of the letter dated 4.11.2010 are marked as Exts.P9 & P9(a). 5. In the counter affidavit filed by the 4th respondent it is inter alia stated that the 4th respondent executed Ext.P1 sale deed in favour of the petitioner on 30.3.2000, that the extent sold by the sale deed is 2 acres, that the service of notice on the 4th respondent cannot be treated as proper notice as he is not in possession of the land and that he has no right, interest or title over the property sold to the petitioner as per Ext.P1 sale deed. The stand taken by the 3rd respondent is that neither the petitioner nor the 4th respondent has title in respect of the land comprised in S.No.1032/3. According to the 3rd respondent, 7 ares of land is comprised in survey No.1032/3 and therefore, proposed to deposit the compensation in respect of 7 ares of land with the civil court under Section 30 (2) of the Land Acquisition Act. 6. In the counter affidavit filed by the 3rd respondent it is inter alia stated that the acquisition of properties include 1.47 ares of land comprised in survey No.1032/1 and 7 ares of land in ::5:: W.P.(C).No.32972 Of 2009 survey No.1032/3 of Kothamangalam Village, that the said properties are possessed by the 4th respondent, that statutory notices were issued to the possessor of the land and published in accordance with the Rules, that only the 4th respondent appeared in response to the notice under Section 9(3) of the Land Acquisition Act, that the 4th respondent produced copies of the documents regarding the land under acquisition, that on going through the documents thus produced, it was found that the 4th respondent has no title, thandaper right or tax receipt of the land comprised in survey No.1032/1 and that the 4th respondent failed to produce the encumbrance certificate in respect of the property for the year 2009-10. Therefore, advance compensation for the land acquired was not paid to him, on 10.6.2009, the 4th respondent surrendered the land which was in his possession and enjoyment to the Village Officer, Kothamangalam in pursuance of the notice dated 26.5.2009. It is further stated that the acquired properties were handed over to the Assistant Engineer, PWD, Kothamangalam and that the land is in the possession of the Government. Ext.R1 is the copy of the mahazar report. It is further stated that the 4th respondent has agreed to pay the ::6:: W.P.(C).No.32972 Of 2009 compensation of the land to the Union Bank of India, Kothamangalam Branch, submitted a consent letter, which is marked as Ext.R2 and accordingly a draft award was ratified by the District Collector directing to deposit the compensation in respect of 1.47 ares of land with the said bank. It is also stated that in respect of 7 ares of land comprised in survey No.1032/3, since the 4th respondent has not title, the amount payable as compensation was ordered to be deposited in civil court. It is further stated that when advance payment was refused to the 4th respondent in respect of the 7 ares of land in survey No.1032/3, he submitted Ext.P7 representation stating that he had transferred 2 acres of land including 1.47 ares of land in survey No.1032/1 to the petitioner. The 4th respondent also requested to pay the compensation in respect of the land comprised in survey No.1032/1 to the petitioner since he is the present owner of the land and further requested to rectify the survey number in respect of 7 ares of land and stated that he has no land in survey No.1032/3. 7. The stand of the 3rd respondent is that 1.47 ares of land is comprised in survey No.1032/1 and 7 ares of land in ::7:: W.P.(C).No.32972 Of 2009 survey No.1032/3. The 3rd respondent denied the claim of the petitioner that the acquired land is included in the land covered by the sale deed in his favour. It is further pointed out that the mutation of the property covered by the sale deed was effected only in the year 2009 in the village records. In the counter affidavit it is stated that even though the sale deed was executed by the 4th respondent in favour of the petitioner, the land continued to be in the possession of the 4th respondent, that the 4th respondent himself admitted that the land is possessed by him and accordingly filed a claim statement at the time of hearing and that the entire property covered in Section 4(1) notification are taken possession in advance by invoking Section 17(1) of the Land Acquisition Act. It is also stated that as the title of the land is not proved, the compensation has to be deposited in court under Section 30/31 (2) of the Act. 8. In these circumstances, it is for the petitioner to establish his title in respect of 7 ares of land acquired. In the counter affidavit of the 3rd respondent it is stated that the 4th respondent had admitted that the 4th respondent has title in respect of 01.47 ares of land in survey No.1032/1. It is further ::8:: W.P.(C).No.32972 Of 2009 stated in the counter affidavit that the amount in respect of the said piece of land was not paid due to the non-production of encumbrance certificate and tax receipt for the year 2009-10. The 4th respondent has no objection in paying the compensation to the petitioner. 9. Accordingly, a direction is issued to the 3rd respondent to consider the grievance of the petitioner and pass appropriate orders in relation to the payment of compensation for 01.47 ares of land comprised in survey No.1032/1 on production of requisite documents, within a period of two months from the date of receipt of a copy of this judgment, after affording an opportunity of being heard to the petitioner and 4th respondent. The writ petition is disposed of as above. HARUN-UL-RASHID, Judge. bkn/-