IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THURSDAY, THE 12TH FEBRUARY 2009 / 23RD MAGHA 1930 WP(C).No. 17157 of 2005(P) -------------------------- PETITIONER(S): --------------- K.K. BHASKARAN NAIR, KOOTTUMMEL HOUSE, KUZHIKKATTU KARA,AMBALAMUGAL P.O NOW RESIDING AT KOMATHATTU HOUSE, MANNOOR, KEEZHILLAM P.O., PERUMBAVOOR, ERNAKULAM DISTRICT. BY ADV. SRI.S.K.BALACHANDRAN SMT.M.S.SUNITHADEVI SRI.K.V.SADANANDA PRABHU RESPONDENT(S): --------------- 1. SPECIAL TAHSILDAR (L.A), COCHIN REFINERIES LIMITED, VYTTILA, NORTH GATE, THRIPPUNITHURA. 2. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVT.SECRETARIATE, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, ERNAKULAM, CIVIL STATION, THRIKKAKKARA. 4. P.V.THAMPY, CHERUVALLIL HOUSE, NEAR VATTAKKUZHI BRIDGE, KAVUMTHAZHAM, PUTHENCRUZ, ERNAKULAM DISTRICT, FORMER VILLAGE OFFICER, PUTHENCRUZ, PRESENTLY WORKING AS SPL.TAHSILDAR (R.R), K.S.F.E.,ERNAKULAM 5. RAMAN NAIR, NEPHEW OF VELAUDHAN NAIR,PADINJARE MUNDAKKAL HOUSE KUZHIKKATTU KARA, AMBALAMUGAL. 6. THE MANAGING DIRECTOR, COCHIN REFINERIES LIMITED, AMBALAMUGAL. Adv. SRI.A.M.SHAFFIQUE, SENIOR ADVOCATE FOR R6 SRI.E.K.NANDAKUMAR FOR R6 SRI.A.K.JAYASANKAR NAMBIAR FOR R6 SMT.PRIYA MAHESH FOR R6 SRI.T.S.RADHAKRISHNA PILLAI FOR R5 SRI.T.R.RAJEEV FOR R5 SRI.M.RAJASEKHARAN NAYAR FOR R4 SRI.ANIL S.RAJ FOR R4 SMT.K.N.RAJANI FOR R4 SMT.MANJUSHA MOHANDAS FOR R4 GOVERNMENT PLEADER FOR R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/11/2008, THE COURT ON 12/02/2009 DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE, J. ----------------------------------------------- W.P.(C)No. 17157 OF 2005 ----------------------------------------------- Dated this the day of November, 2008 J U D G M E N T The grievance voiced by the petitioner in this writ petition under Article 226 of the Constitution is that though a total extent of 13.60 Ares of land in Block No.39, RS. No.231/6 of Puthencruz Village belonging to him was acquired for the expansion of the Cochin Refineries Ltd. he was given compensation for an extent of 9.45 Ares only. The first respondent in this writ petition is the Special Tahsildar (L.A), Cochin Refineries. Second respondent is the State of Kerala. The third respondent is Ernakulam District Collector. Respondents 4 and 4 are two private parties and the 6th respondent is the Managing Director of Cochin Refineries Ltd. 2. The claim of the petitioner is that he was was having title over 13.60 Ares of land by virtue of document No. 2954/70 of Kunnathunadu Sub Registry and Ext.P1 produced by him is basic tax receipt against remittance of tax for the property for the period 2000- 2001. Petitioner complains that though the entire property was acquired for the purpose of the 6th respondent company the compensation for 4.05 ares was denied to him. On enquiry he came to know that compensation for that portion of the land was given to the WP(C)N0. 17157/05 -2- 5th respondent as per proceedings in LAC. No.15/2002. Petitioner submitted a complaint before the first respondent to which the petitioner was given Ext.P2 reply dated 2-1-2003. From Ext.P2 the petitioner came to understand that the 5th respondent had colluded with the 4th respondent who was then working as Village Officer, Puthencruz and together they committed fraud by manipulating the village records by creating mutation of 4.05 Ares of land belonging to the petitioner to the name of the 5th respondent. On the strength of this mutation the 5th respondent misrepresented before the first respondent that the properties owned by him and thus managed to receive the compensation amount which had been determined for the said property. Being aggrieved, the petitioner represented on 22-6- 2003 to the Village Officer, Puthencruz who did not take any action. Thereupon the petitioner submitted Ext.P3 representation dated 13-8- 2003 before the third respondent. The third respondent conducted enquiries through the Revenue Divisional Officer, Muvattupuzha and as per proceedings No.191/2003/A2(1) dated 31-3-04 the illegal mutation effected by the Village Officer, Puthencruz was cancelled. Ext.P4 is copy of the proceeding cancelling the mutation. But surprisingly no action was taken against the a4th respondent and no WP(C)N0. 17157/05 -3- action is taken for recovering the compensation wrongly paid to the 5th respondent and to refund the amount to the petitioner. The petitioner made Ext.P5 representation dated 2-11-2004 to the first respondent requesting him to recover the compensation illegally given to the 5th respondent and to pay the same to the petitioner. The first respondent informed the petitioner that compensation for 4.05 Ares was given to the 5th respondent as per the then available records and that since L.A. proceedings were completed before the cancellation of the mutation it is not possible to take any action on Ext.P5. Ext.P6 is copy of the letter dated 19-11-2004 issued by the first respondent. In this writ petition petitioner challenges Ext.P6 and seeks certain reliefs in respect of L.A.R. No. 148/03 pending before the Sub Court, Parur regarding the correct compensation payable for the properties acquired in LAC. No. 15/02. The following are the prayers sought for in this writ petition. 1. Call for the records leading to Ext.P6 and issue a writ of certiorari or any other writ or order quashing the same. 2. Issue a writ of mandamus or any other writ or order directing respondents 1 and 3 to effect recovery of compensation illegally given to 5th respondent with interest and to return the said amount to the petitioner. 3. Declare that the petitioner is entitled to proceed with the Land Acquisition Reference No.148/03 pending before the Sub WP(C)N0. 17157/05 -4- Court, Parur for enhancement of compensation for the acquisition of 0.405 hectares of land instead of the 5th respondent. 4. Pass such other writ or order which this court deems fit and appropriate in the circumstances of the case. 3. The first respondent has filed a counter affidavit wherein he states that as per the revenue records pertaining to survey No.231/6 of Puthencruz Village the petitioner has ownership over only 0.955 hectares of land and the balance extent of 4.05 Ares stood in the name of the 5th respondent and mutation was also effected in their respective names much before the L.A. proceedings were initiated by the respondents. This was why L.A.C. No.15/02 was initiated in the name of the 5th respondent to whom notice under section 9(3) was issued. Pursuant to that notice the 5th respondent appeared for award enquiry. The 5th respondent produced the original title document No.137/68 and related documents like Encumbrance Certificate, Basic Tax Receipt etc. He filed a claim statement. Ext.R1(a) is photocopy of the original title document produced by the 5th respondent and R1(b) and R1(c) are photocopies of the Basic Tax Receipt and Encumbrance Certificate respectively. Simultaneously L.A.C. No.6/02 was initiated in the name of the petitioner with regard to 0.0945 hectare of land WP(C)N0. 17157/05 -5- and upon getting notice under section 9(3) petitioner entered appearance and would submit his title document, viz ., partition deed No.2954/70 of Aikkaranad Sub Registry. In the title document produced by both the parties the survey number mentioned was the same, i.e., 883/2/1 of Chemmanad Village. Significantly, in his claim statement thepetitioner claimed compensation for only 0.0955 hectare of land and did not raise claim over 0.0405 hectare of adjacent land covered by the LAC initiated in the name of the 5th respondent. The properties were taken possession and handed over to the requisitioning authority, the 6th respondent on 10-12-2002 by invoking the emergency provisions of the L.A. Act and since there was no dispute regarding title it was so done after paying 80% of the compensation amount in advance. The petitioner never raised any claim over the property covered by LAC. 15/02. He had raised any such claim either at the time of award enquiry or at the time of taking over of possession. The first respondent would have taken steps to deposit the amount before the court under section 31(2) of the L.A. Act. Having not raised the claim at the appropriate time, the petitioner is not entitled to raise the present contentions. 4. Counter affidavit goes on point out that the L.A. proceedings WP(C)N0. 17157/05 -6- which were initiated on the basis of the then existing village records have attained finality. The 5th respondent in whose favour the award was passed received the amount under protest and on his application under section 18 a reference was made to the Parur Sub Court which was pending at the time of filing of the counter affidavit as LAR. No. 148/03. It is then conceded in the counter affidavit that the RDO, Muvattupuzha cancelled the mutation effected as per T.R. No.273/99 dt. 6-9-1999 with regard to the subject property in favour of the 5threspondent vide Ext.P4 proceedings dated 31-2-2004. But Ext.P4 proceedings were issued only after the reference under section 18 had been made and LAR.148/03 had been registered by the Sub Court, Parur. Since the L.A. proceedings were completed, the first respondent could not take any action in the matter on the basis of Ext.P4. The first respondent is justified in proceeding on the basis of Exts. R1(a), (b) and © and at that time there was no title dispute regarding the property covered by LAR. No.15/02. Ext.R1(d), the claim statement filed by the petitioner in respect of the property in LAC. 6/02 is also produced along with the counter affidavit. The counter affidavit concludes that the fist respondent should not be blamed for having acted in accordance with the Rules and on the basis WP(C)N0. 17157/05 -7- of the documents produced by the parties and situation emerging from the village records as they then existed. WP(C)N0. 17157/05 -8- 5. The 4th respondent has filed a counter affidavit in which he claims that he effected change of mutation in favour of the 5th respondent while working as Village Officer, Puthencruz only after conducting due enquiries on the basis of the application submitted by the 5th respondent. According to him, enquiries were conducted through the Village Assistant. Apart from claiming so, he goes on to contend that the petitioner also did not raise any claim over the property covered by LAC. No.15/02 at the relevant time. As regards Ext.P4 proceedings, he points out that the 4th respondent was never examined by the RDO and that Ext.P4 was issued without notice to the 5th respondent. He claims that the transfer of proceedings under the Pokkuvaravu Rules is a quasi-judicial function and he discharged that function while effecting mutation in favour of the 5th respondent after exercising due discretion. He did not have any special interest in the 5th respondent. He disputes the allegations of malafides attributed to him. He points out that at the time when the property was taken possession under the land acquisition proceedings he was not the Village Officer, Puthencruz and that even at the time when the land acquisition notification was issued he was not the Village Officer. 6. The 5th respondent has filed a detailed counter affidavit WP(C)N0. 17157/05 -9- through which he challenges Ext.P4. According to him the cancellation of Pokkuvaravu which had been effected in his favour was without notice to him and hence not binding on him. Through this counter affidavit the 5th respondent endorses the contentions raised by the 4th respondent regarding the apparent title which the 5th respondent was having over the disputed property at the relevant time. The 5th respondent lastly contends that in this case which involves facts which are seriously in dispute, the jurisdiction under Article 226 of the Constitution cannot be invoked for resolving those disputes. 6. I have heard the submissions of Mr.K.V.Sadananda Prabhu and Sri.S.K.Balachandran, learned counsel for the petitioner, Sri.T.S.Radhakrishna Pillai, learned counsel for the contesting 5th respondent and Smt.Latha T.Thankappan, learned Senior Government Pleader for the State and the first respondent. 7. It was very extensive arguments which were addressed before me by Sri.Sandananda Prabhu. He referred to section 15(4) of the Land Acquisition Act and also sections 12, 18, 19, 23, 24, 25 and 26 of the same Act. He would fortify his submissions by the authority of various decisions including the judgment of the Supreme Court in P.A.Narayanan v. Union of India, AIR 1998 SC 1659, State of Himachal WP(C)N0. 17157/05 -10- Pradesh v. Raja Mahendra Pal, AIR 1999 SC 1786, Ramachandra Keshav Adke v. Govind Joti Chavare, AIR 1975 SC 915 and also the judment of this court in Mary Philip v. Kerala State and others, ILR 2006 (4) Kerala 301. He would argue that the award passed by the Parur Sub Court in favour of the 5th respondent granting enhanced compensation in respect of the disputed property is a nullity. Ext.P4 has attained finality and Ext.P4 will show that the award passed by the L.A. Officer as well as the award passed by the Parur Sub Court in favour of the 5th respondent regarding the compensation payable for the disputed property are perse illegal. The learned Senior Govt. Pleader Smt.Latha T.Thankappan however, would submit that the first respondent cannot be blamed for having passed award in favour of the 5th respondent in respect of the disputed property since at the time of award enquiry the petitioner had not raised any claim. The petitioner cannot pretend ignorance regarding the proceedings which have been initiated simultaneously in favour of the 5th respondent. Hence she submitted that the remedy of the petitioner will be to go in for a suit. Sri.T.S.Radhakrishna Pillai would argue that Ext.P4 is a nullity since that order visiting the 5th respondent with civil consequence was passed by the RDO in violation of all principles of natural justice. WP(C)N0. 17157/05 -11- 8. I have anxiously considered the submissions addressed at the Bar in the light of the various precedents cited before me by Mr.Sadananda Prabhu. It is certainly be noticed that in the present situation where Ext.P4 has apparently attained finality the submission of Mr.Prabhu that the 5th respondent has made unjust enrichment at the cost of the petitioner cannot be said to be without any force. But it is difficult to accept the argument of the petitioner that he was totally ignorant regarding the proceedings which were initiated in respect of the disputed property in the name of the 5th respondent. What he LAC. No. 15/02 and 6/02 were initiated almost simultaneously and the award enquiries in both these cases also took place almost contemporaneously. Significantly, the petitioner did not raise any protest at the time when the disputed property was taken over and it is difficult to believe that it was without notice to him that the disputed property was taken over (if his claim that he was in possession of the disputed property at the relevant time is correct). There is another reason which dissuades me from invoking the extraordinary constitutional jurisdiction under Article 226 to redress the petitioner's grievance which certainly has an element of genuineness. The parties were before the Parur Sub Court in a proceeding under section 18 and WP(C)N0. 17157/05 -12- the Parur Sub Court gave verdict in favour of the 5th respondent. Under the above circumstance I decline jurisdiction under Article 226 and relegate the petitioner to his remedies before a competent civil court. The writ petition is dismissed. The time during which this writ petition was pending before this court and a further time of one month from the day the petitioner obtains a copy of this judgment will be excluded from the reckoning for determining the question of limitation under section 14 of the Indian Limitation Act. It is needless to mention that the civil court will not be influenced by any observations made in this judgment regarding the merits of the rival claims in relation to the disputed property and the compensation payable for the same. (PIUS C.KURIAKOSE, JUDGE) ksv/