IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE FRIDAY, THE 19TH SEPTEMBER 2008 / 28TH BHADRA 1930 WP(C).No. 6144 of 2007(F) ------------------------------ PETITIONERS: ---------------- 1. SEBASTIAN CHOKKATTU, SUMMER CASTLE APARTMENTS, DESOM P.O., ALUVA, ERNAKULAM. 2. PHILOMINA CHOKKATTU, SUMMER CASTLE APARTMENTS, DESOM P.O., ALUVA, ERNAKULAM, REP. BY ITS POWER OF ATTORNEY HOLDER, MR.SUNIL KUMAR, SOUBHAGYA, PIPE LINE ROAD, CHANGAMPUZHA NAGAR P.O., COCHIN - 33. BY MR.M.P.ASHOK KUMAR, ADVOCATE. MS.PRIYA RAMESH, ADVOCATE. MS.SANGIMOL A.MENACHERY, ADVOCATE. RESPONDENTS: ------------------ 1. THE DISTRICT COLLECTOR, CIVIL STATION, KAKKANAD, ERNAKULAM. 2. THE SPECIAL TAHSILDAR, LAND ACQUISITION (GENERAL), COCHIN REFINERIES LTD. VYTTILA AT THRIPPUNITHURA. ADDL.R3. THE TAHSILDAR, REVENUE RECOVERY, KANAYANNOOR TALUK, ERNAKULAM DISTRICT. ADDL.R4. THE KERALA STATE INDUSTRIAL DEVELOPMENT CORPORATION, SECOND FLOOR, CHOICE TOWERS, MANORAMA JUNCTION, COCHIN-16, REP. BY ITS MANAGING DIRECTOR. WP(C).No. 6144/2007 ...2... (ADDL.R3 AND R4 IMPLEADED AS PER ORDER DTD.8/2/08 IN I.A.1471/08). MR.M.PATHROSE MATTHAI, SENIOR ADVOCATE FOR ADDL.R4. MR. D. ANILKUMAR, SR. GOVERNMENT PLEADER MR.K.K.CHANDRAN PILLAI, ADVOCATE, FOR ADDL.R3. MR.A.S.SAJUSH PAUL, ADVOCATE, FOR ADDL.R3. MR.SAJI VARGHESE, ADVOCATE, FOR ADDL.R4. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/09/2008, ALONG WITH W.P.(C) No.5128 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 6144/2007 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF THE TAX RECEIPTS DTD. 12.10.1999. EXT. P2 : COPY OF THE TAX RECEIPTS DTD.16.10.1999. EXT. P3 : COPY OF THE NOTIFICATION PUBLISHED IN MATHRUBHUMI DAILY DTD. 16.05.04. EXT. P4 : COPY OF THE REPRESENTATIONS DTD. 15.3.2004. EXT. P5 : COPY OF THE REPRESENTATIONS DTD. 12.01.2006. EXT. P6 : COPY OF THE ACKNOWLEDGEMENT CARD SHOWING THE RECEIPT OF LETTER DTD. 15.03.2004. EXT. P7 : COPY OF THE ACKNOWLEDGEMENT CARD SHOWING THE RECEIPT OF LETTER DTD. 12.01.2006. EXT. P8 : COPY OF THE AWARD IN LAC 99/05. EXT. P9 : COPY OF THE AWARD IN LAC 139/05. EXT. P10 : COPY OF THE APPLICATION DTD. 12.01.2006. EXT. P11 : COPY OF the LETTER No.C10/2984/06 DTD. 13.02.2006. EXT. P12 : COPY OF THE LETTER No.C10/2985/06 DTD. 13.02.2006. EXT. P13 : COPY OF THE REPLY DTD. 26.11.2007 ISSUED BY THE ASSISTANT PUBLIC INFORMATION OFFICER, SUB COURT, ERNAKULAM. EXT. P14 : COPY OF THE LETTER DTD. 30.11.2007 ISSUED BY THE TAHSILDAR REVENUE RECOVERY, KANAYANNOOR TALUK. EXT. P15 : COPY OF the LETTER DTD. 13.12.2007 ISSUED BY CHIEF MANAGER, STATE BANK OF INDIA, COCHIN. EXT. P16 : COPY OF THE LETTER DTD. 04.12.2007 ISSUED BY THE PUBLIC INFORMATION OFFICER, SPECIAL TAHSILDAR (LA). I.A.No.9151/2008 EXT. P13 : COPY OF THE RELEVANT PAGES OF the DISPATCH CUM STAMP REGISTER DTD. 12.09.2006, 13.09.2006, 15.09.2006 AND 19.09.2006. WP(C).No. 6144/2007 2ND RESPONDENT'S EXHIBITS: EXT. R2(a) : COPY OF THE PROCEEDINGS SHOWING THAT IT WAS PUBLISHED IN LOCALITY ON 18.11.2003. EXT. R2(b) : COPY OF THE PROCEEDINGS SHOWING THAT IT WAS PUBLISHED ON 25.10.2004. EXT. R2(c) : COPY OF THE AWARD IN LAC No.99/2005. EXT. R2(d) : COPY OF THE AWARD IN LAC No.139/2005. EXT. R2(e) : COPY OF THE ENDORSEMENT RECEIVED FROM THE POSTAL DEPARTMENT. EXT. R2(f) : COPY OF THE ENDORSEMENT RECEIVED FROM THE POSTAL DEPARTMENT. ADDL.4TH RESPONDENT'S EXHIBITS: EXT. R4(a) : COPY OF THE JUDGMENT DTD. 17TH SEPTEMBER 2002 IN O.P.No.26466 OF 2002 OF THIS HON'BLE COURT. // True Copy // P.S. to Judge. smp PIUS C. KURIAKOSE, J. ----------------------------------------------- W.P.(C)Nos. 6144 of 2007 & 5128 of 2008 ----------------------------------------------- Dated this the 19th day of September, 2008 J U D G M E N T WP(C). 6144 of 2007 is filed by Sri.Sebastian Chokkattu and his wife Smt.Philomina Chokkattu. The first petitioner claims to be the owner of 89.43 Ares of land in R.S. No. 712/3, 705/4 and 712/6 of Kakkanad Village, 63.12 Ares of land in R.S. No.750/4 and 712/4 and 31.77 Ares of land in R.S. No.712/3 of the same village. The second petitioner claims to be the owner of 36.57 Ares of land in R.S. No.711/1, 712/4, 712/5 of Kakkanad Village and they claim to be the joint owners of 75.23 Ares of land in Sy. No. 705/4 of Kakkanad Village and Exts. P1 and P2 tax receipts pertain to remittance of basic tax by them in respect of their properties. First respondent is the District Collector, Ernakulam, second respondent is the Special Tahsildar (LA) (General) and additional respondents 3 and 4 are respectively the Tahsildar (Revenue Recovery) and the WP(C)N0.6144/07 -2- Kerala State Industrial Development Corporation. Ext.P3 is copy of the notification under section 4(1) of the L.A. Act published on 22-9-03 by the Government through the second respondent for acquisition of the petitioners' properties along with other properties for the expansion of Kinfra Park at Kakkanad. Petitioners' complaint is that though they are the title holders of the property, they were not issued any notice in Form No.4B. They refer to rule 7(2) of the Land Acquisition Rules and contend that it is obligatory that notice of acquisition is given to all the land owners. On coming to know about the proposal to acquire their property, the petitioners sent letter to the second respondent under copy to all the authorities intimating their present address for communication. Exts.P4 and P5 are copies of those letters. The petitioners contend that since the notification under section 4(1) was issued on 28-9-03, the entire land acquisition proceedings pursuant to Ext.P2 WP(C)N0.6144/07 -3- has lapsed consequent to the operation of section 11A. On enquiry the petitioner was orally informed by the second respondent that no notice will be issued to them as their property was attached by the Tahsildar, Kanayannoor as per the requisition of KSIDC. Disputing the demand made by KSIDC the petitioners filed O.P. No. 18343/01 before this court. The same is pending. Since the District Collector, Ernakulam was a party to the said O.P. the first respondent is aware of the pendency of the O.P. and the nature of the dispute raised by the petitioners therein. The petitioners contend that even if a particular property is involved in revenue recovery proceedings, the Recovery Officer is bound to issue notice to the owner of the property. The Tahsildar is not entitled to take a decision not to send judicial or administrative notice with regard to the attachment of the property to the landowner. Till this date no notice was issued to the petitioner by the revenue WP(C)N0.6144/07 -4- authorities. The property continues to be under the possession of the petitioners. On these facts the petitioners have raised grounds (A) to (E) and filed the writ petition seeking the following reliefs: a) Declare that the land acquisition proceedings initiated against the petitioner pursuant to Ext.P3 notification has lapsed under section 11A of the Land Acquisition Act. b) Issue a writ of prohibition restraining the revenue officials from acquiring the property owned by the petitioners as the notification was lapsed. c) Declare that the petitioner is entitled and eligible to current market rate for their land as compensation amount in case the Govt. acquires their landed property situated in R.Sy. Nos.712/3, 705/4, 712/6, 750/4, 712/4, 712/5 in Block No.9 of Kakkanad Village, Kanayannur Taluk. d) Declare that the petitioners' properpty cannot be acquired without issuing notice under Land Acquisition Act to them. 2. The second respondent Special Tahsildar (LA) has filed counter affidavit refuting the grounds and denying the WP(C)N0.6144/07 -5- allegations Ext.R2(a) is copy of the proceedings which will show that the notification under section 4(1) was published in the locality on 18-11-2003. R2(b) is copy of the proceeding showing that the declaration under section 6 was published in the locality on 25-10-2004. Thus 25-10-04 is the last date of publication of the declaration under section 6. In respect of the property belonging to the petitioners 1 and 2 LAC. 99/05 was registered and in respect of the property owned by second petitioner alone LAC. 139/05 was registered. Award was passed in respect of LAC. No.139/05 on 11-10-06 and award was passed in respect of LAC No.99/05 on 23-10-06. It is contended that both the awards were passed within two years from the last date of publication of declaration under section 6. R2(c) and R2(d) copies of the respective awards in LAC. 99/05 and 139/05 are relied on. Denying the contention that notices were not issued to the petitioner, R2(e) and R2(f) true copy of the WP(C)N0.6144/07 -6- endorsement received from the postal department showing that notices were issued to them are produced. It is alleged that the petitioners did not participate in the award enquiry. It is then contended that since there was an attachment already from KSIDC in respect of the property included in the L.A. proceedings notices were issued to the Special Tahsildar (RR). In LAC. 139/05 Special Tahsildar (RR) appeared. In LAC. 99/05 Special Tahsildar (RR) did not appear, but he filed claim statement. In LAC. 139/05 an amount of Rs.10,67,913/- and in LAC. No. 99/05 an amount of Rs.2,67,35,811/- have been awarded. Since there was already an attachment by the Special Tahsildar (RR) in respect of dues to the KSIDC, the amount awarded under the land acquisition proceedings was given to Special Tahsildar (RR) after deducting income tax. The properties in question have been taken possession and handed over to the requisitioning authority. WP(C)N0.6144/07 -7- 3. On the basis of the counter affidavit the writ petition was amended and as per the amended writ petition the following additional prayers were included. f) Call for the records/files from the office of the 2nd respondent with regard to the passing of the award in LAC. 99/05 and LAC. 139/05. g) Issue a writ of certiorari or other appropriate writ or order quashing Exts.P8 and P9 awards in LAC. 99/05 and LAC. 139/05 h) Declare that Exts.P8 and P9 awards passed by the land acquisition authorities in LAC.99/05 and in LAC. 139/05 are not awards under the land acquisition Act, as no enquiry was conducted before passing award and no notice was issued to the petitioners and as such the entire land acquisition proceedings has lapsed. i) Declare that the entire acquisition proceedings initiated by the Govt. as per Ext.P1 notification is lapsed as the purpose of the acquisition was not for the benefit of general public. j) Declare that the utilization of the land acquired under the Land Acquisition Act cannot be used for private, commercial purposes. k) Declare that the utilization of land acquired under the land acquisition act cannot be treated as public WP(C)N0.6144/07 -8- purpose under the Land Acquisition Act. Subsequently pursuant to order in I.A. 1103/08 yet another prayer was included as prayer (l) which reads as follows: (l) Declare that the amount of compensation awarded under the L.A. Act can be paid only to the owner of the land acquired and the award amount cannot be transferred to any other authority or agency under any circumstances. 4. Reiterating the same contentions, on behalf of the second respondent, yet another counter affidavit was filed on 6-11-2007 also. To these counter affidavits the first petitioner filed reply affidavit. It is contended therein that the notice to be issued to the land owner is to be issued in the manner provided under subsection (3) of section 9 of the L.A. Act. Such a notice is yet to be served on the petitioners. It is pointed out that though the correct address of the petitioners was intimated to the second respondent on 16-3-2004 the second respondent has not chosen to issue the notice to the petitioners in that correct WP(C)N0.6144/07 -9- address. Serious objections are taken to the various documents produced by the respondents to prove that notice was sent to the petitioners. It is also pointed out that going by the award, it is ridiculously low rates which have been offered as market value for the acquired property. It is lastly contended that for non-compliance of statutory procedure the land acquisition proceedings initiated against the petitioners are invalid and liable to be quashed. Additional reply affidavit also was filed by the first petitioner. It is pointed out therein that contrary to what is recorded in Exts.P8 and P9 awards no amount was deposited before the Sub Court in LAC. 99/05 and LAC. 139/05. Ext.P13 issued to the first petitioner by the Assistant Public Information Officer, Sub Court, Ernakulam is relied on in this context. Ext.P14 copy of the letter sent by the Tahsildar (R.R), Kanayannur to the petitioner is another document produced along with the additional reply WP(C)N0.6144/07 -10- affidavit which is relied on to show that a sum of Rs.27,76,594/- and a further sum of Rs.1,10,106/- from out of the amount covered by the awards in the two LACs. has been appropriated towards income-tax, collection charges etc. Ext.P15 letter of the Manager, State Bank of India, Broadway Branch and Ext.P16 letter of the Special Tahsildar (LA) are also relied on in the reply affidavit. 5. The KSIDC, the 4th respondent has also filed a detailed counter affidavit. It is pointed out therein that it is evident from Exts.P4 and P5 that the petitioners were fully aware of the land acquisition proceedings. It is also evident that the petitioners were not available at their usual address. The KSIDC had issued notices to the petitioners demanding repayment of the loans and informed them that on failure R.R. Proceedings will be initiated by them. The said notices were returned since the petitioners were not available at their respective addresses furnished. The WP(C)N0.6144/07 -11- KSIDC has made necessary requisition under the Kerala Revenue Recovery Act by letter dated 17-11-2000 to the District Collector, Trivandrum for recovery proceedings against both the petitioners as guarantors and their companies. A true copy of the requisition is produced as Ext. R1(f) in O.P. No. 18343 of 2001 filed by the second petitioner. The averment that the petitioners filed O.P. No.18343 of 2001 and therefore the petitioners were not able to challenge the L.A. proceedings is false and misleading. The said O.P. is filed by the 2nd petitioner challenging the attachment and recovery proceedings of their lands in Payyavoor Village on the ground that the said properties were not mortgaged as collateral security for the loans and that the 2nd petitioner has no objection to attachment and sale of her mortgaged properties in Thengode Village which are the subject matter of the present writ petition. It is contended that the KSIDC is a WP(C)N0.6144/07 -12- person interested as a mortgagee and requisitionist under the Revenue Recovery Act and therefore entitled to claim compensation awarded by the L.A. Officer for the lands under mortgage. Notice and intimation was duly given to the KSIDC by the revenue authorities who had attached the land as well as the compensation. The KSIDC had submitted its claim before the Special Tahsildar on 7-5-04 for the lands mortgaged in their favour. It is then pointed out that in order to defraud the KSIDC and defeat the recovery of the loan amount due to them the petitioners had executed sham and fictitious documents of alleged settlements in favour of their minor daughters purporting to transfer their properties in their favour. The said settlements are sham transactions by way of gift without any consideration. The settlements are liable to be ignored as non est and void. Lastly it is highlighted that the second petitioner had filed O.P. No. 26466 of 2002 challenging the attachment of WP(C)N0.6144/07 -13- properties of Sebastian Chokkattu and herself under the Revenue Recovery Act for recovery of the loan amount due to the KSIDC. It was alleged in the said O.P. that 48.035 cents of land in R.S. No. 705/04 and 45.93 cents in R.S. No. 712/3 and 712/4 in Kakkanad Village belong to their minor daughters to whom properties were settled. The attachment of the properties by Revenue Recovery Tahsildar was challenged and sought to be set aside in the said writ petition. The said writ petition was disposed of by this court at the admission stage directing the second petitioner to raise objections before the District Collector, the second respondent therein. Ext.R4(a) is copy of the said judgment. Pursuant to Ext.R4(a) the District Collector after hearing the petitioner's representative rejected the representation. 6. The Special Tahsildar (LA) was directed to explain as to why contrary to what was stated in the award the amount was not deposited before the Sub Court but was WP(C)N0.6144/07 -14- paid directly to KSIDC. Accordingly she has filed a statement on 9-4-2008 and she has stated that the opinion of the District Government Pleader was sought and the District Government Pleader opined that in view of the order of the District Collector pursuant to the judgment of this Court Ext.R4(a), the amount be made over to the Special Tahsildar (RR). Since the amount was made over to Tahsildar (RR), the then Tahsildar (LA) by proceedings dated 6-11-2006 and 17-11-2006 recorded the factum of deposit and it was stated in the proceedings that the proceedings may be treated as part of the award. True copies of the proceedings dated 6-11-2006 and 17-11-2006 are produced as Annexures 1 and 2. 7. The petitioner has produced yet another document to prove their case that they not actually served with notice either under sections 9(3), 10 or 12(2) of the L.A. Act. The document is photocopy of the relevant pages of the WP(C)N0.6144/07 -15- despatch-cum-stamp register dated 12-9-2006, 13-9-06, 15-9-06 and 19-9-06. It is stated that every tapal received in an office and despatched from the office is to be registered in the despatch cum stamp account register. 8. WP(C). 5128 of 2008 is filed by the children of the petitioners in WP(C) No. 6144 of 2007 viz., Olivia Chokkattu, Silvia Chokkattu and Evelyne Chokkattu. The third petitioner is a minor and is represented by her father Sebastian Chokkattu. The respondents are Special Tahsildar (LA), the District Collector, Ernakulam, The KSIDC, the Tahsildar (RR), the Development Commissioner, Cochin Special Economic Zone, the State of Kerala and the Registrar of Companies. It is stated in the writ petition that the permanent address of the petitioners is the address of their parents at Summer Castle Apartment, Desom P.O., Alwaye. But all the petitioners are now outside India and Exts.P1 and P2 are copies of powers of attorney executed by WP(C)N0.6144/07 -16- petitioners 1 and 2 in favour of Sri.Sunil Kumar.S., their agent. Ext.P3 is copy of settlement deed No. 599/2000 under which the first petitioner claims to have obtained title over 48.035 cents of property in R.S. No.705/4 in block No.9 of Kakkanad Village. Exts.P4 and P5 are copies of two other settlement deeds under which petitioners 2 and 3 claim to have ownership over 62 cents and 45.936 cents of property respectively in R.S. No.705/7A and 712/3 in Block No.9 of Kakkanad Village in Kanayannur Taluk. It is submitted that Sebastian Chokkattu, the father of the petitioners had started Trend Setters Group of Companies which were doing various industrial activities in the Cochin Export Zone. In connection with the business of the said company, the company availed credit facilities from the third respondent. By way of security for repayment of the said facilities immovable property of the company were mortgaged with the third respondent and since third WP(C)N0.6144/07 -17- respondent wanted to additional security the mother of the petitioners executed a power of attorney Ext.P6 in favour of her husband, the father of the petitioners so as to enable him to create mortgage in favour of the company. It is stated that the power of attorney Ext.P6 was executed for the limited purpose of creating mortgage of 4.04 acres of joint property belonging to Sri.Sebastian Chokkattu and Philomina Chokkattu. The mortgage created in favour of third respondent is a mortgage by deposit of title deed. Only documents in relation to 4.04 acres of property have been deposited with the third respondent with intention to create equitable mortgage. Petitioners' mother is not at all a share holder or a director of any of the group of companies floated by the father of the petitioners. She is not a promoter as well of the company. Exts.P7 and P8 are copies of inspection reports issued by the Company Secretary in Practice showing that the mother of the petitioners had WP(C)N0.6144/07 -18- never been a director of the group of companies. Ext.P9 is true copy of the notification under section 4(1) of the L.A. Act published in Mathrubhumi daily regarding the acquisition of properties in Kakkanad Village for the development of Kinfra Industrial Park. Ext.P10 letter is produced to show that the petitioners' parents had requested the respondents that all notices to be sent to them in respect of the L.A. proceedings shall be addressed to them in their address shown in the said letter as “Flat No.1A, Summer Castle Apartment, Desom P.O. Alwaye – 683 103” . The petitioners' parents have addressed Ext.P10 through their power of attorney holder who is the present power of attorney holder of petitioners 1 and 2. But neither the parents of the petitioner nor their power of attorney holder received any notice regarding the L.A. proceedings. In the meanwhile the company floated by the father of the petitioners ran into rough weathers. The 5th respondent Development WP(C)N0.6144/07 -19- Commissioner took proceedings and removed the entire records, assets both finished and semi finished including the plant and machinery and kept them in the open air subject to all vagaries of nature. The company was evicted from the premises by resorting to the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act. The company was ruined completely. The entire savings and hard earned money which they have earned by working abroad were also lost to them. In the meanwhile, the L.A. proceedings were started and proceeded with. The parents of the petitioners and the petitioners were under the bona fide belief that they will get notice in view of Ext.P10. But they never get any notice. Ext.P11 is true copy of the counter affidavit filed by the second respondent in WP(C) No. 6144/07. Ext.P12 is true copy of the award and the claims and objections attached thereto produced by the first respondent along with the counter affidavit in relation to WP(C)N0.6144/07 -20- LAC. No. 139/05 in the name of the petitioners' mother. Ext.P13 is copy of the award in relation to LAC. No. 99/05 relating to the joint property of the petitioners' parents. The O.P. refers to other proceedings initiated by their parents against the KSIDC etc. and points out that the stand taken by the third respondent in O.P. No. 18343/01 that the petitioners' mother is the Director/Promoter of Trend Setters Group of Companies is wrong. Ext.P14 is copy of the judgment of this Court in O.P. No.26466/02 and Ext.P14(a) is copy of the original petition in that O.P. According to the petitioners they are minors and their interest is not seen protected by anybody. Nobody has challenged the proceedings taken by the 4th respondent for attachment and sale of the property settled in their favour. It is in the midst of the above that it is now understood that the entire proceedings for acquisition of the properties were over without notice to the petitioners and without notice to the WP(C)N0.6144/07 -21- parents of the petitioners. 9. In paragraph 21 of the writ petition the petitioners contend that it is a ridiculously low amounts which have been awarded as compensation. Ext.P15 produced is copy of the statement filed by the 4th respondent in WP(C) No. 6144/07. The petitioners have raised various grounds and following are the prayers in the writ petition. 1) Call for all records in the case and peruse the same. 2) issue a writ in the nature of certiorari or such other appropriate writ order or directions quashing Ext.P12 and P13 and all proceedings which lead to the passing of Ext.P12 and P13 including Ext.P1 notification after calling for the same. 3) To declare by the issuance of an appropriate writ, order or direction that the 3rd respondent has no power or authority to get executed any loan agreement or guarantee agreement on the basis of Ext.P6 power of attorney. 4) To