IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 18392 of 2008(M)
1. KERALA STATE WAREHOUSING CORPORATION,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY ITS
... Respondent
2. THE DISTRICT COLLECTOR,
3. THANKAMMA HORMESE THARAKAN,
4. P.K.GEORGE THARAKAN,
5. MRS.PENNAMMA ABRAHAM THARAKAN,
6. P.A.THOMAS THARAKAN,
7. P.A.GEORGE THARAKAN,
8. P.A.ANTONY THARAKAN, S/O.DO. DO.
9. EBBY ABRAHAM, S/O.P.A.ABRAHAM THARAKAN
10. P.H.GEORGE THARAKAN, PARAYIL BHAVAN,
11. P.H.MATHEW THARAKAN,
12. P.H.PAUL THARAKAN, OF DO. DO.
13. MRS.MARIAMMA XAVIER OF DO. DO.
14. MRS.ROSSAMMA CHERIAN OF DO. DO.
15. MRS.MARIYAMMA ABRAHAM THARAKAN OF DO.
16. HORMISE ABRAHAM THARAKAN OF DO. DO.
17. MOLLY PRATHAP THARAKAN,
18. ROSY THOMAS, OF DO. DO.
19. P.ABRAHAM THARAKAN OF DO. DO.
20. RANI JOSE OF DO. DO.
21. ANNAMMA HORMISE THARAKAN, DO. DO.
22. MEEMY R.THOMAS OF DO. DO.
23. P.H.HORMISE THARAKAN OF DO. DO.
24. ANNU HORMISE, DO. DO.
25. P.G.THOMAS THARAKAN,
26. P.G.JOHN THARAKAN, S/O.DO. DO.
27. GEETHAN GEORGE,
28. GEENA GEORGE OF DO. DO.
29. ABRAHAM GEORGE THARAKAN,
30. JOHN GEORGE THARAKAN OF DO. DO.
For Petitioner :SRI.MAJNU KOMATH, SC, K.S.W.C.
For Respondent :DR.V.N.SANKARJEE
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :17/07/2009
O R D E R
THOTTATHIL B.RADHAKRISHNAN, J.
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W.P(C).No.18392 OF 2008
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Dated this the 17th day of July, 2009
JUDGMENT
“C.R.”
1.An extent of 0.2820 Hectares (around 70 cents) of land in
Cherthala North Village in Cherthala Taluk of Alappuzha
District was declared by the Board of Revenue as needed for a
public purpose, to wit, the construction of a go-down for the
writ petitioner, the Kerala State Warehousing Corporation.
The notification under Section 3(1) of the Kerala Land
Acquisition Act, 1961, hereinafter referred to as the “Kerala
Act”, was published on 12.6.1982 as evidenced by Ext.P1
award dated 27.5.1985, passed under Section 11 of the Kerala
Act. On reference, the Court passed Ext.P4 award on LAR
No.10/87 on 20.1.1992 on the question of apportionment and
on the claim for enhancement of compensation. On appeal by
the claimants, this Court further enhanced the compensation
as per Ext.P5 decree dated 16.12.2002, of which, Ext.R16 (a) is
the judgment. The proceedings for execution commenced in
2005.
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2. This writ petition is filed on 18.6.2008 on the ground that on
27.5.2008, the petitioner was intimated from the Collector,
Alappuzha that it has to deposit an amount of Rs.15 lakhs
towards enhanced compensation. Pleading that apart from
Ext.P2 calling for deposit of the amount covered by the award
of the Collector, it had no notice or information of the
proceedings before the reference Court or of the appeal before
this Court and claiming that it was a necessary party to those
proceedings, but was not given the opportunity of being heard,
the petitioner challenges the award passed by the reference
Court and seeks a declaration that is a “person interested” in
terms of Section 20 of the Land Acquisition Act, meaning
thereby, the Land Acquisition Act, 1994 (as amended by Act 68
of 1984), hereinafter, the “LA Act”. It also seeks a declaration
that the award of the reference Court, having been issued
without hearing, is not sustainable.
3. The contesting respondents, through counter affidavit,
contend, among other things, the admitted receipt of Ext.P2
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and the fact that the petitioner even deposited amounts
pursuant to that communication reveals that it had knowledge
of LAR 10/87; that the matter was contested by the State, also
by placing on record, documents B1 to B3 and the evidence of
DW1 and that the reference Court relied on documentary
evidence A1 to A4 and the depositions of PWs.1 to 5 to render
the award by it. It is also contended that the State of Kerala
was a party to the reference and the petitioner corporation is
owned by the State of Kerala. It is further pleaded that the
petitioner was not made party to the LA appeal before this
Court because it was not a party to the proceedings in the
reference Court. It is contended that the judgment of the
reference Court, which alone is sought to be quashed, has
merged in the appellate decree passed by this Court, which is
not under challenge. It is also contended that the award is
passed on merit after meticulously considering all facts and
law in force and does not call for interference. It is also
pleaded that the petitioner’s effort is, virtually, to have a writ
issued against Ext.P5 decree passed by the Division Bench of
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this Court.
4. Adv. Sri. Majnu Komath, on behalf of the petitioner, argued
that under Section 20 of the LA Act, the Court is duty bound to
serve notice on all parties interested in the objection, thereby
meaning, interested in the objection to the compensation fixed
by the Collector and hence, since the acquisition of land was
for the purpose of the petitioner, obliging it to pay the
compensation, it is a person interested in the determination of
the objections to the land value fixed by the Collector. It is
accordingly argued that the reference Court having passed the
award without issuing such notice to the petitioner, the said
decision is liable to be struck down. Reliance is placed on the
decision of the Division Bench of this Court in Steel Authority
of India Ltd. v. State of Kerala [1995(2) KLT 683],
hereinafter – SAIL – wherein, this Court held that a
corporation owned or controlled by the State is a person
interested for the purpose of Section 3(b) of the LA Act in
relation to an acquisition made for its purpose and would
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hence be entitled to notice under Section 20 of that Act. The
said precedent was also relied on to argue that such a person
interested, who is aggrieved by the award passed without
notice to it, is entitled to invoke the extra ordinary jurisdiction
of the High Court under Article 226 of the Constitution.
Reliance was also placed on U.P.Awas Evam Vikas Parishad
v. Gyan Devi [(1995) 2 SCC 326], hereinafter – Gyan Devi,
laying down that a local authority, which is aggrieved by the
deprivation of opportunity under Section 50(2) of the LA Act,
would be entitled to invoke the writ jurisdiction under Article
226 of the Constitution. Agra Development Authority v.
Special land Acquisition Officer [(2001)2 SCC 646] was
relied on to state that where land was acquired at the cost of a
local development authority, it would be mandatory for the
acquisition authority to issue notice to such local authority and
to give it an opportunity to adduce evidence for the purpose of
determining the compensation amounts. The said decision was
also quoted to state that even if the local authority, as the
interested person, had participated in meetings of Government
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and Collector, that would not be sufficient compliance of
Section 50. Learned counsel further referred to an unreported
decision of this Court rendered on 18.5.2005 in W.P(C).
8652/05, wherein, following the aforesaid decisions, the award
passed by the reference Court was set aside on ground that
the requisitioning authority, for whose purpose the land was
being acquired, was not heard by the reference Court.
5. Per contra, Adv. Dr.V.N.Sankerjee argued on behalf of the
contesting respondents that Ext.P2 communication issued by
the Revenue Divisional Officer to the Managing Director of the
petitioner corporation refers to LA.R.10/87 of the Sub Court,
Cherthala and therefore, the petitioner cannot feign ignorance
of the pendency of that reference. He pointed out that
communication referred only to Section 32 of the Kerala Act
which dealt with only apportionment and not a reference on
the question of enhancement, a public authority cannot
justifiably turn round at this distant point of time to contend
that they were ignorant that LAR 10/87 referred to in Ext.P2
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included a reference on the question of the quantum of
compensation. It was further argued that in Gyan Devi, the
five Judge Bench of the Apex Court had categorically stated
that matters which stand finally concluded will, however, not
be re-opened applying the law laid in that decision. He,
accordingly, contended that the said judgment having been
issued by the Apex Court only on 20.10.1994, that could not be
a ground for interfering with Ext.P4 award issued by the
reference Court, much earlier, on 20.1.1992. Learned counsel
further pointed out that barring a superfluous statement in
ground B of the writ petition that “if without affording an
opportunity to the person who has to bear the acquisition cost,
land value is increased by leaps and bounds, then necessarily
it would be in violation of the principles of natural justice”
there is really no plea, on facts, in the writ petition,
demonstrating that the land value fixed by the reference
Court or by this Court in appeal is contrary to facts and
evidence, to treat it as an unjust decision calling for the
interference of this Court under Article 226 of the
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Constitution.
6. The expression “person interested” includes all persons
claiming an interest in the compensation to be paid on account
of the acquisition. This inclusive definition in Section 3(b) was
held by this Court in SAIL to be one which should get a wide
and literal construction. That judgment was rendered after
noticing Gyan Devi. Section 20 of the LA Act, read with that
definition, has made it obligatory on the Court to which a
reference is made in terms of Sections 18 and 19 of that Act, to
cause notice to all persons interested in the objection. Section
50(2) of the LA Act provides that in any proceedings held
before a Collector or Court in cases where the provisions of
that Act are put in force for the purpose of acquiring land at
the cost of any fund controlled or managed by a local authority
or any company, the local authority or company concerned
may appear and adduce evidence for the purpose of
determining the amount of compensation. That right carries
with it the right to be given adequate notice by the Collector
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as well as the reference Court as to the date on which the
matter of determination of compensation will be taken up. In
the event of denial of that right conferred under Section 50(2)
on account of failure to serve notice, the jurisdiction under
Article 226 of the Constitution can be invoked. Such
jurisdiction can be invoked even in cases where grounds for
judicial review exist even when notice was served on the local
authority. In terms of these findings, it was laid down in Gyan
Devi, that the local authority or company 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 the enhancement of the said amount
and also adduce evidence in that regard. In the event of
enhancement of the compensation by the reference Court, if
the Government does not file an appeal, the local authority can
file an appeal against the award of the reference Court after
obtaining leave of the High Court. It was further laid down
that in an appeal by the person having interest in the land
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seeking enhancement of the amount of compensation awarded
by the reference Court, the local authority/company should be
impleaded as a party and it would be entitled to be served
notice on that appeal. In that judgment delivered on
20.10.1994, it was further ordered that the matters which
stand finally concluded will, however, not be re-opened.
7. Gyan Devi lays down that the local authority/company is a
proper party to the reference proceedings and also the
proceedings before the Collector. It is entitled to file an
appeal in cases where the State Government does not file
appeal. It is a proper party to appeals filed by claimants for
enhancement of compensation. Holding that the company for
which the acquisition is made is a proper party and a person
interested, for the purpose of being heard in relation to a
reference and appeal thereon, the SAIL and Gyan Devi lay
down that a local authority or company would be entitled to
invoke the jurisdiction of the High Court under Article 226 of
the Constitution to seek judicial review. Yet, when the matter
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falls for consideration as to whether the award ought to be set
aside under Article 226 or 227, on grounds referable to the
propositions of law noticed above, it is not as if this Court
should inevitably set aside the award of the reference Court, in
exercise of its visitorial jurisdiction, merely on the ground of
failure of that Court to hear the local authority/company at
whose cost, the acquisition was made. Be it a writ of
certiorari or the exercise of supervisory jurisdiction, none is
available to correct, unless a grave injustice or gross failure of
justice has occasioned by an error which is manifest and
apparent on the face of the proceedings, including one issued
in utter disregard with the provisions of law. The power to
issue such orders in the nature of writ of certiorari or in
exercise of the supervisory jurisdiction is to be exercised
sparingly and only in appropriate cases where the judicial
conscience of the High Court dictates it to act, lest a gross
failure of justice or grave injustice should occasion. See Surya
Devi Rai v. Ram Chander Rai [(2003) 6 SCC 675].
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8. Gyan Devi was decided on 20.10.1994, categorically stating
that matters which stand finally concluded will, however, not
be re-opened applying the law laid in that decision. In the
case in hand, the award of the Land Acquisition Officer and
that by the reference Court were made before the aforesaid
judgment, Ext.P4 LAR award being on 20.1.1992 continuing to
recall that Gyan Devi was rendered directing that matters
which stand finally concluded will, however, not be re-opened
applying the law laid in that decision, it needs to be noticed
that the claimants’ appeal to this Court against the award of
the reference Court was filed in 1993, that is before Gyan
Devi was decided on 20.10.1994, though Ext.P5 appellate
award by this Court in the Land Acquisition Appeal was on
16.12.2002, long after Gyan Devi.
9.There is one more aspect that gains attention in the
consideration of the question as to whether exercise of the
visitorial jurisdiction under Article 226 or 227 is necessary in
the case in hand. The acquisition was following a notification
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under Section 4(1) of the Kerala Act, issued on 12.6.1982
while the LA Act became applicable to the State of Kerala only
with effect from 24.9.1984 by virtue of the Land Acquisition
(Amendment) Act, 1984. The Kerala Act, though contains the
inclusive definition for the term “person interested” in Section
2(2) thereof, which though not in pari materia with Section 3
(b) of the LA Act but may be even wider; there is no provision
in the Kerala Act similar to Section 50 of the LA Act which
obliges notice and hearing of the requisitioning authority. Part
VII of the Kerala Act deals with acquisition of land for
companies. Section 44 provides an agreement to be entered
into between the Government and the company, which, among
other things, obliges the company to agree for the payment to
the Government of the cost of the acquisition. These
provisions tend to indicate that statutorily, under the Kerala
Act, the company for which acquisition is made may not have
any expressly spelt out right to notice and participation before
the reference court or to appeal against the award of the
reference court. Bearing in mind that the decision in SAIL
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and Gyan Devi are fundamentally footed on the judicial urge
to ensure that real justice has to be done between the person
whose land is being acquired and the person at whose cost it is
acquired, I would immediately recall Section 59 of the Kerala
Act, which provides that save in so far as they may be
inconsistent with anything contained in the Kerala Act, the
provisions of the Code of Civil Procedure shall apply to all
proceedings before the Court under the Kerala Act. This
would take me to Section 99 of the CPC, which provides that
no decree shall be reversed or substantially varied, nor shall
any case be remanded, in appeal on account of any misjoinder
or non-joinder of parties or causes of action or any error,
defect or irregularity in any proceedings in the suit, not
affecting the merits of the case or the jurisdiction of the Court.
Following the amendment of 1976, that Section carries a
proviso that nothing therein shall apply to non-joinder of a
necessary party. The nature of the findings and directions in
Gyan Devi essentially give the company/authority for which
the acquisition is made, only the status of a proper party. I say
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this not only because the term “proper party” is used in that
judgment but also because Their Lordships thought it fit to
hold that such company/authority the right to appeal to the
High Court against the award of the reference court, only with
leave of the High Court. These statutory situations and what
emerges from the noted precedents would show that in the
case in hand, even if I proceed to consider the contentions in
this writ petition at par with grounds available for a statutory
first appeal under the LA Act or under the CPC, there is
nothing to be interfered with, as can be seen from the
discussions herein below.
10.As noticed, the total extent of land acquired is 28.02 Acres
(about 70 cents) in Cherthala North Village. Ext.P4 shows that
the reference Court considered the objections of the State
Government contending that the compensation fixed by the
Land Acquisition Officer is fair and adequate. The reference
Court took into consideration the evidence of one of the
claimants, PW1, on behalf of the claimants, who spoke about
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the different land marks and the importance of the locality. It
noticed that the witness cited by the State had admitted that
the acquired property is situated on the northern side of the
iron bridge and the National Highway is at a distance of 100
meters from the acquired property and that there is a tarred
road on the eastern side of the acquired property and
Alappuzha-Cherthala Canal is on the eastern side and the road
on the eastern side leads to the National Highway, from there
it leads to the private bus stand. He had also admitted that
the National Highway is situated on the southern side of the
entire property of which, the acquired property forms part and
there are institutions such as Regional office and branch office
of Dhanalakshmi Bank, situated on the southern side of the
acquired property and important business concerns are
situated on the western side of the road and on the eastern
side there is a taxi stand and other shops and through the
Cherthala canal, water transportation facilities are available.
Such evidence of DW1 was taken along with documents
reflecting the land value of different other sites in the locality.
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The purchasers or vendors under those documents were also
examined. DW3 Commissioner who prepared Ext.A11 report
in a civil case in relation to one of the properties covered by
Ext.B1 sale deed was to the effect that the transaction relied
on by the Land Acquisition Officer to fix the compensation
related to a property lying away from the acquired land and
lay nearly 2 feet lower than the road level. On the basis of
these materials, the reference Court enhanced the
compensation.
11.The Division Bench of this Court further enhanced the
compensation after adverting to the material documents and
holding that the valuation reflected by Ext. A11 document
cannot be discarded having regard to the fact that the said
transaction was before the notification and therefore, the
amounts ought to be fixed at Rs.10,000/- per Are. The State
was heard by this Court in that appeal.
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12. Having noticed that the aforesaid findings have been
rendered by the reference Court and by this Court in appeal,
after adverting to and considering the materials and after
having heard the learned counsel on behalf of the State
Government also, it needs to be immediately noticed that even
in the writ petition, the petitioner corporation does not state
that the land value fixed by the reference Court or by this
Court is unjust and unreasonable or is exorbitant in reality. As
noticed earlier, on scanning the pleadings, all that I find is a
statement in ground B that, “if without affording an
opportunity to the person who has to bear the acquisition cost,
land value is increased by leaps and bounds, then necessarily
it would be in violation of the principles of natural justice”.
Even before me, it was not pointed out, on any count, that the
land value as determined is unreasonable.
13.Its learned counsel candidly stated that the real heart burn for
the petitioner corporation is the fact that the statutory add-ons
such as solatium and interest would have mounted by this
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time. But, such statutory entitlements cannot be prevented
since they are part of the legislative conferment on the
claimants under the LA Act, on which the gaze of Article 300
A, read with the equality principle enshrined in Article 14 of
the Constitution continuously falls. That cannot be deprived
by judicial order. In support of this are the decisions of the
Apex Court in Sunder vs. Union of India (2001) 7 SCC 211
and Patel Joitaram kalidas vs. Spl. Land Acquisition
Officer (2007) 2 SCC 341.
14.For the aforesaid reasons, this Court does not find it
necessary to extend its visitorial jurisdiction to set aside the
impugned award.
In the result, this writ petition fails and the same is
accordingly dismissed. No costs.
Sd/-
THOTTATHIL B.RADHAKRISHNAN,
Judge.
kkb.17/7.