IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR MONDAY, THE 25TH FEBRUARY 2008 / 6TH PHALGUNA 1929 WP(C).No. 34818 of 2007(T) -------------------------- PETITIONER: ------------ VALAMBATH NARAYANI AMMA, RAMANTHALI AMSOM DESOM, RAMANTHALI P.O., KANNUR DISTRICT 670 308. BY ADV. SRI.M.SASINDRAN SRI.M.V.BIPIN RESPONDENTS: ------------- 1. THE SPECIAL TAHSILDAR (LAND ACQUISITION) KANNUR. 2. THE DISTRICT COLLECTOR, KANNUR. BY SR.GOVT. PLEADER SRI.BASANT BALAJI & SR.GOVT. PLEADER SRI.BENNY VARGHESE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/02/2008, ALONG WITH WPC No. 35493/2007 AND OTHER CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.PADMANABHAN NAIR, J. ------------------------------- W.P.(C) Nos. 34818, 35493, 36224 of 2007 & W.P.(C) No.266 of 2008 ------------------------------- Dated this the 25th February, 2008. J U D G M E N T The main relief sought for in all these writ petitions is for a direction to the first respondent, Special Tahsildar, to refer the applications filed by the petitioners under Section 28A(3) of the Land Acquisition Act, (for short 'the Act') to the Subordinate Judges' Court for re-determining the compensation. 2. The land owned by the petitioners in all these cases were acquired for the purpose of establishing Naval Academy, at Ezhimala in Kannur District. In some cases, claimants did not file petitions under Section 18 of the Act. But some other persons whose lands were acquired for the very same purpose filed petitions under Section 18(1) of the Act and those cases were referred to the Sub Court. The learned Sub Judge enhanced the compensation fixed by the Land Acquisition Officer. Thereafter, petitioners filed Section 28A applications for re-determining the compensation, on the ground that the court awarded enhancement of compensation fixed by the Land Acquisition Officer. Those applications were dismissed. Subsequent to W.P.(C) No.34818/07 etc. 2 the disposal of Section 28A applications, petitioners had filed applications under Section 28A(3) of the Act, which are marked as Exts.P5 series in W.P.(C) No.34818/2007; Ext.P4 series in W.P.(C) No.35493/2007; Ext.P6 in W.P.(C) No.36224/2007 and W.P.(C) No.266/2008, for referring the matter to Court to consider the claim of the petitioners that they are entitled to re-determine the compensation due to them. In all these writ petitions, it is averred that there is undue delay in referring the matter. 2. In W.P.(C) No.35493/2007, this Court, on 14.12.2007, suo motu impleaded the Chief Secretary, Thiruvananthapuram, and the Land Revenue Commissioner, Thiruvananthapuram, as additional respondents. They were directed to look into the matter personally and file statements/affidavits explaining as to what action they propose to take in the matter. It was also ordered that if they fail to take proper action, this Court will be constrained to take stringent action including restraining the State from proceeding with further land acquisition proceedings, until the amounts due to the persons whose lands were already acquired are paid. W.P.(C) No.34818/07 etc. 3 3. The Additional Land Revenue Commissioner had filed a counter affidavit for and on behalf of the Additional 3rd and 4th respondents, in which it was stated that strict instructions/directions were issued to the office of the District Collector, Kannur, on 27.11.2007, and pursuant to that direction, the District Collector, Kannur, has finalised the action plan for the time bound disposal of applications filed under Section 28A(3) of the Act. It was also averred that District Collector, Kannur, had issued orders on 22.12.2007 authorising the Deputy Collector (LA), Kannur, and Senior Superintendent, Suit Cell, Collectorate, Kannur to review the work done by the Special Tahsildar, Land Acquisition (Naval Academy), Payyannur, every day and to furnish details of progress achieved to the District Collector, Kannur. It is also stated that instructions were issued to the Special Tahsildar, LA, Ezhimala Naval Academy, Payyannur. He had also furnished the details of applications filed under Section 28A(3) applications from the year 1995 till 2007, which were disposed of and pending as on 31.12.2007, which is as follows:- W.P.(C) No.34818/07 etc. 4 Sl. No. Year No. of applications received No. of applications referred to the Court Balance 1 1995 1 1 -- 2 1996 0 0 -- 3 1997 51 51 -- 4 1998 81 81 -- 5 1999 76 76 -- 6 2000 32 32 -- 7 2001 104 57 47 8 2002 8 2 6 9 2003 0 0 -- 10 2004 1 0 1 11 2005 65 0 65 12 2006 105 0 105 13 2007 30 0 30 TOTAL 554 300 254 It is also stated that an area of 955.1391 Hectares of land in Ramanthali village of Taliparamba Taluk was acquired, in addition to 73.2477 Hectares of puramboke land which was transferred for establishing Naval Academy at Ezhimala about 23 years back. It is further stated that soon after the acquisition of land, all the six special LA units functioning were abolished and the files and records were handed over to the Special Tahsildar, LA, W.P.(C) No.34818/07 etc. 5 Thalassery. Those files were handed over to Special Tahsildar (LA) Kannur, in the year 1992. That office was abolished with effect from 30.4.2002 and the files and records were again handed over to the Special Tahsildar, LA, Thalassery. It is averred that a Special Land Acquisition unit at Payyannur was created in the year 2005 for dealing with Sections 28A and 28A(3) applications and the unit is still functioning. It is averred that application filed in W.P.(C) No.35493/2008 was referred to the Sub Court, Payyannur, on 29.12.2007. 4. The District Collector, Kannur, filed a statement showing the probable time which he would require to deal with all pending applications filed under Sections 28A and 28A(3) of the Act. He had reported that a Special Land Acquisition Unit at Payyannur was created with effect from 7.2.2005. He had also given the details of applications received under Sections 28A and 28A(3) of the Act, and also the number of LAR cases and EP cases, which is as follows:- W.P.(C) No.34818/07 etc. 6 Applicatio ns filed u/s 28A Applications filed u/s 28A (3) LAR cases EP Cases Applications Transferred from the O/o Spl. Tahsildar (LA) Thalassery 1364 354 261 94 Applications received after the creation of O/o Spl. Tahsildar (LA) Naval Academy, Payyannur 970 200 152 28 TOTAL 2334 554 413 122 Applications disposed after the creation of O/o Spl. Tahsildar (LA) Naval Academy, Payyannur 559 457 18 16 Applications pending to be disposed off (as on 31/1/2008) 1775 97 395 106 It is further stated that Special Tahsildar had reported that out of 260 numbers of Section 28A (3) applications pending before that office, as on 31.1.2008, 150 numbers of applications were referred to the court and 33 numbers of applications are duplicates. It is further stated that 69 W.P.(C) No.34818/07 etc. 7 numbers of applications could not be referred to the court for want of required documents such as power of attorney, legal heir certificate etc. It is further averred that no orders could be passed in 28 numbers of applications, as the connected LA files could not be traced out. It is also stated that strict instructions were given to the Special Tahsildar to trace out the files and dispose of all those applications immediately. It is further stated that Special Tahsildar (LA), Naval Academy, has reported that 1775 numbers of applications filed under Section 28A are still pending and those applications can be disposed of only within a period of 7 years, with the existing staff and facilities now available. (emphasis supplied) 5. It is also stated that to dispose of Section 28A applications under the Act, the following procedure is to be followed:- “1. Verification of the eligibility of applications by the Section Clerk. 2. Authorise the SRI for conducting enquiry such as verification of the field (ie land mentioned in the LAR and land acquired from the applicant in eligible case) W.P.(C) No.34818/07 etc. 8 3. Submission of report by the SRI after verification and over checking by the Valuation Asst. 4. Verification of the report and field by the LAO. 5. To issue notice of enquiry to the applicant and conduct enquiry by LAO. 6. Preparation of award and submit to the Dist. Collector for approval by the LAO. 7. Verification and approval of award by the Collector and return 8. Making payment after giving notice to the applicant by the LAO. “ Further, it is averred that only 559 numbers of 28A applications were disposed of since the formation of the new unit on 7.2.2005 and hence it is not possible to propose a cut off date for disposing of pending 1775 applications in the near future or within six months with the existing staff strength (emphasis supplied). 6. It is also stated that in addition to the works relating to dispose of Sections 28A and 28A(3) applications, the office of the Special Tahsildar is handling two LA works related to the improvement of roads W.P.(C) No.34818/07 etc. 9 leading to Naval Academy Project, LAR cases and EP cases etc. It was also stated that for speedy disposal of the above applications, in addition to 11 additional staff strength, infrastructural facilities such as computers, printers, photocopier and jeeps are also required. Hence, the Collector had reported that though the Tahsildar has sought for 7 years time to dispose of the pending applications, these applications can be disposed of within two years, provided, the additional staffs and infrastructure facilities as proposed are obtained. (emphasis supplied) 7. Since the facts in other cases are similar, it is not necessary to discuss the facts of other cases. It is true that subsequent to the filing of these writ petitions, cases were referred to the Civil court. So, in a way, it can be said that petitioners have got the relief they sought for. But the fact remains that a large number of writ petitions are filed for directions to the Land Acquisition Officers to discharge their statutory duties cast upon them . It is not confined to the acquisition for Naval Academy. There are other projects like Kallada Irrigation Project and Moovatupuzha Vally Irrigation Project etc. A large of number of land W.P.(C) No.34818/07 etc. 10 owners whose lands were acquired long back are compelled to spend huge amounts by filing writ petitions. When very old applications are pending, applications filed long thereafter are being disposed, after getting orders from this Court. It is seen that unless this Court interferes, the Land Acquisition Officers will not pass orders. Though there are specific provisions in the Act and Rules, those provisions are never followed. So, I am of the considered opinion that it is high time that some specific directions are to be issued in the matter of disposal of the applications. 8. In view of the provisions contained in the Land Acquisition Act, a person whose land is acquired for a public purpose, is entitled to get 12% interest per annum on the market value for the period commencing on and from the date of publication of notification under Section 4(1) of the Act, till the date on which award is passed or taking possession of land, whichever is earlier. He is also entitled to get 30% solatium. In addition to those amounts, the claimant is entitled to get interest under Section 34 of the Act. For the first year, it is 9%. If the compensation is not paid within a period of one year from the date of taking W.P.(C) No.34818/07 etc. 11 possession, the claimant is entitled to get interest at the rate of 15% per annum, and the same is payable from the date of expiry of the said period of one year on the amount of compensation or part thereof which has not been paid or deposited before the date of such expiry. So, if the amounts due are not paid within the statutory period, the liability is cast upon the State to pay interest, at the rate of 15% per annum, from the second year onwards. In all these cases, land was acquired prior to 1983. Award notice was issued on 5.3.1984. So, necessarily, in all these cases, huge amounts are to be paid to the claimants as interest. I do not think the State have ever considered the amount which is being paid by way of interest every year in Land Acquisition Cases. It is an undisputed fact that amounts awarded by the Subordinate Judges' Courts and the enhancement allowed are never deposited in time. I have absolutely no doubt in mind, if the actual amount paid as interest in every year is calculated, it will run into crores of rupees. In O.P.No.31502/2000, the compensation due to the petitioners was re-determined and fixed at Rs.25, 94,363/=, and the State paid an amount of Rs.83,88,074/= to the claimants, after deducting the Income Tax. The Revenue Divisional Officer had filed statement admitting W.P.(C) No.34818/07 etc. 12 that interest due to the petitioners in that case alone come to Rs.63,43,324/=. If a person whose land is acquired got the reasonable compensation without delay, he can invest that money. If the amount is paid after 20 years, as done in O.P.No.31502/2000, both sides are not benefited. The money value will go down. The person whose property is acquired will not be in a position to invest the money profitably. The State will have to spend huge amount by way of interest. Such money could have been utilised for some developmental projects. Huge loss is caused to the State on account of negligence and inaction on the part of the Land Acquisition Officers. Unfortunately, District Collectors and the Land Revenue Commissioner are not taking any steps to tackle this problem. In the counter affidavit filed in W.P.(C) No.35493/2007, it is stated that immediately after the acquisition, the office of the Land Acquisition will be abolished. In this case, it was averred that six Special Land Acquisition units were created for the purpose of acquisition. Immediately after the acquisition process was over, all those units were abolished. The files were dumped in the office of Special Tahsildar (LA) Thalassery, who in turn transferred the same to Special Tahsildar (LA) Kannur. On 30.4.2002, those W.P.(C) No.34818/07 etc. 13 files were handed over to Special Tahsildar (LA), Thalassery. In the year 2005, a Land Acquisition unit at Payyannur was created. A reading of the counter affidavit shows that when the Land Acquisition Office dealing with land acquisition is closed, the files will be dumped in some other office. There is nothing on record to show that there is a practice of any proper handing over or taking charge of those files. As and when petitions under Sections 18, 28A or 28A(3) are filed, the officer of the Land Acquisition Office in which the files are dumped is called upon to decide the matter. No additional staffs are provided and that office has to consider and dispose of the applications along with the ordinary work of that office. I do not think it is proper to issue a direction to the Government to retain all the Land Acquisition Offices until all applications filed under Sections 18, 28A and 28A(3) are disposed of. But I am of the considered opinion that the Land Acquisition Offices must be allowed to continue to function for a reasonable time, so as to enable the claimants to file applications under Section 18. If the offices are abolished all of a sudden, affected parties may not be in a position to find out the new officer before whom they have to file W.P.(C) No.34818/07 etc. 14 applications under Section 18 of the Act. So, there will be a direction to the Government not to abolish the Land Acquisition offices, at least for a period of six months, after passing of the award. 9. The District Collector has stated that 28 numbers of applications could not be disposed of, as the connected LA files are missing. According to me, the Land Acquisition Officer cannot be allowed to raise such an objection at all, in view of the provisions contained in the Rules. 10. Rule 16A of the Rules deals with the filing of the applications. It provides that every application under Section 18 and Section 28A(3) of the Act shall be made in Form No.22A, in triplicate, and shall be filed within the time limit prescribed for that purpose. As soon as the applications are received, the Land Acquisition Officer shall make necessary entries in the Register in Form Nos.21 and 23. One copy of the application shall be returned to the applicant duly acknowledging its receipt with the office seal and dated signature of the Land Acquisition Officer, immediately on receipt. The other copies shall be used for reference to W.P.(C) No.34818/07 etc. 15 Court and for office records. So, a statutory duty is cast upon the Land Acquisition Officer to comply with the Rules. If the application filed is not in accordance with Rule 16A of the Rules, the application shall be returned to the applicant for curing the defect and for filing the same within a time limit fixed by the Land Acquisition Officer. If the application is re-presented within the time granted, it shall be treated as an application filed on the date of original filing. 11. Rule 18 of the Rules deals with Maintenance of Registers. Rule 18(d) provides that the Land Acquisition Officer shall maintain a Register containing the claims made by the interested parties in Form No.22. Rule 18(f) deals with the register of applications for re- determination of compensation under Section 28A filed by persons interested in Form No.10(aa). Model forms, as well as the model of Registers are given in the Rules itself. Form No.19 provides a Special Register for Land Acquisition cases. Form No.20 deals with the Award Register. Form No.21 deals with the registration of land acquisition suits. Form No.22 deals with the register for claims made by parties. Form W.P.(C) No.34818/07 etc. 16 No.22A deals register for applications of reference. Form No.23 also deals with Register of reference applications. In view of the statutory provisions, the Land Acquisition Officer has no choice, but to maintain all these registers in proper form. 12. Rule 12A of the Rules deals with the re-determination of the amount of compensation on the basis of the award of the Court. Rule 12 A of the Rules reads as follows:- “12A. Re-determination of the amount of compensation on the basis of the award of the Court – (i) On receipt of an application under Section 28A from the persons interested within the stipulated period, the Collector shall conduct an enquiry after due notice all the persons interested and after giving them a reasonable opportunity of being heard, make an award re-determining the compensation payable to each applicant. The value of each sub-division shall be decided upon by the Collector. The applicability of the award of the Court and the rate of compensation to be awarded on re-determination have to be adjudicate, upon by the Collector taking into consideration all relevant acts and circumstances. Every award under Section 28A shall be supported by a note to award giving justification in passing such award. W.P.(C) No.34818/07 etc. 17 (ii) The re-determined compensation shall not be less than the compensation originally awarded or shall not be more than the amount awarded by the Court. It shall not be more than the compensation originally claimed by the landowner. (iii) Every award under Section 28A shall be in Form No.10(C) (iv) Every award under Section 28A shall be got approved by the competent Authority subject to the monetary limit prescribed under clauses (a) to © of sub-rule (1) of Rule 12. (v) No application under Section 28A shall be entertained when a land acquisition cappeal case is pending before a Court. (vi) xxxxxx (vii) A register in Form No.10(aa) showing the details of applications under Section 28A shall be maintained by the Collector.” A reading of Rule 12A of the Rules makes it clear that applications filed under Sections 18, 28A and 28A(3) shall be in the prescribed form and it shall be in triplicate. On receipt of the same, the Land Acquisition Officer shall make necessary entries in the register which is kept in Form Nos. 21 and 22. When the Collector passes an award under Section 28A, it shall W.P.(C) No.34818/07 etc. 18 be in Form No.10(c). It further says that a Register in form No.10(aa) showing the details of applications of 28A shall be maintained by the Collector. 13. Rule 11 of the Rules provides that notice shall be issued to persons interested in the land. In U.P.Awas Evam Vikas Parishad v. Gyan Devi (AIR 1995 SC 724), the Apex Court had held that Department/Company/local authority for whose need the land is acquired is also a person interested in the land. The Apex Court has also laid down the following directions in the matter. “1. Section 50(2) of the L.A. Act confers on a local authority for whom land is being acquired a right to appear in the acquisition proceedings before the Collector and the reference Court and adduce evidence for the purpose of determining the amount of compensation. 2. The said right carries with it the right to be given adequate notice by the Collector as well as the reference Court before whom acquisition proceedings are pending of the date on which the matter of determination of compensation will be taken up. W.P.(C) No.34818/07 etc. 19 3. The proviso to S.50(2) only precludes a local authority from seeking a reference but it does not deprive the local authority which feels aggrieved by the determination of the amount of compensation by the Collector or by the reference Court to invoke the remedy under Art.226 of the Constitution as well as the remedies available under the L.A. Act. 4. In the event of denial of the right conferred by S. 50(2) on account of failure of the Collector to serve notice of the acquisition proceedings the local authority can invoke the jurisdiction of the High Court under Art.226 of the Constitution. 5. Even when notice has been served on the local authority the remedy under Art.226 of the Constitution would be available to the local authority on grounds on which judicial review is permissible under Art.226. 6. The local authority is a proper party in the proceedings before the reference Court and is entitled to be impleaded as a party in those proceedings wherein it can defend the determination of the amount of compensation by the Collector and oppose enhancement of the said amount and also adduce evidence in that regard. W.P.(C) No.34818/07 etc. 20 7. In the event of enhancement of the amount of compensation by the reference Court if the Government does not file an appeal the local authority can file an appeal against the award in the High Court after obtaining leave of the Court. 8. In an appeal by the person having an interest in land seeking enhancement of the amount of compensation awarded by the reference Court, the local authority should be impleaded as a party and is entitled to be served notice of the said appeal. This would apply to an appeal in the High Court as well as in this Court. 9. Since a company for whom land is being acquired has the same right as a local authority under S.50(2), whatever has been said with regard to a local authority would apply to a company too. 10. The matters which stand finally concluded will, however, not be reopened. “ 14. In fact, even if the acquisition is for a Government Department, the amount necessary for payment of compensation is to be provided by that Department. At present, there is no provision in the Statute or Rules which enjoin that notice shall be given to the Department/Corporation/Company, which is the requisitioning authority. If W.P.(C) No.34818/07 etc. 21 the matter is referred to the Court under Section 18 of the Act, it may take some time for a decision. On the strength of that decision,