IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 6144 of 2007(F)
1. SEBASTIAN CHOKKATTU,
... Petitioner
2. PHILOMINA CHOKKATTU,
Vs
1. THE DISTRICT COLLECTOR,
... Respondent
2. THE SPECIAL TAHSILDAR,
For Petitioner :SRI.M.P.ASHOK KUMAR
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :19/09/2008
O R D E R
PIUS C. KURIAKOSE, J.
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W.P.(C)Nos. 6144 of 2007 & 5128 of 2008
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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 declare by the issuance of an appropriate writ,
order or direction that the entire proceedings taken
by the 1st respondent for acquisition of the
petitioners’ property from Ext.P1 notification is
illegal and unsustainable for noncompliance of the
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mandatory statutory provisions contained in the
Land Acquisition Act.
5) To declare by the issuance of an appropriate writ,
order or direction that the payment of the
compensation amount as per Ext.P12 and P13 either
to the 4th respondent and or to the 3rd respondent is
illegal.
6) To declare by the issuance of an appropriate writ,
order or direction that the entire acquisition
proceedings on the basis of Ext.P1 notification is
lapsed prior to Ext.P12 and P13 in view of the
provision contained in Section 11A of the Land
Acquisition Act.
7) To declare by the issuance of an appropriate writ,
order or direction, that the property belonging to
the petitioners and covered by Ext.P3 to P5
settlement deeds are not liable to be attached for
the alleged dues towards 3rd respondent either by
initiating Revenue Recovery Proceedings or by
recourse to any other proceedings.
8) To declare by the issuance of appropriate writ, order
of direction that the deduction of Rs.2781594/- as
TDS and deduction of Rs.1671225/- as collection
charges are illegal and bad in law.
10. A detailed counter affidavit has been filed by the
first respondent Tahsildar. It is contended that the parents
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of the petitioners are challenging L.A. proceedings in WP(C)
No. 6144/07 and that they had no contention therein that
they have executed settlement deeds in favour of their
children. It is submitted that the contention of the
petitioners that they are the owners of 158.91 cents of land
in various survey numbers is not correct as per the revenue
records. No mutation has been effected so far in the village
records on the basis of the settlement deeds claimed by
them. According to the revenue records the land continues
to be owned by the parents of the petitioners. The 4th
respondent R.R.Tahsildar has also filed counter affidavit. It
is contended therein that no R.R. Proceedings have been
initiated against the petitioners or their assets. On the
contrary proceedings were initiated against the defaulter
Sri.Sebastian Chokkattu and the guarantor Smt.Philomina
Chokkattu, the parents of the petitioners for realisation of
arrears of a sum of Rs.9,98,44,000/- due to the KSIDC as
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per the revenue recovery certificate No.B11-7624/01 dated
8-2-2001 issued by the District Collector, Ernakulam. On
receipt of the revenue recovery certificate and requisition
from the competent authority the Deputy Tahsildar R.R. has
issued demand notice under sections 7 and 34 of the Kerala
Revenue Recovery Act through the Village Officer, Kakkanad
for realisation of the amount. By notification No.MS
065/83 RD dated 22-11-1983 published in the official
Gazette dated 22-11-83 the Government notified that the
provisions of the Kerala Revenue Recovery Act, 1968 shall
be applicable to the amounts due from any person or class
of persons to the Kerala State Industrial Development
Corporation Ltd. Sri.Sebastian Chokkattu and
Smt.Philomina Chokkattu are the promoters and guarantors
of the Company Trend Setters Instyle India Limited and four
other companies. The companies availed financial
assistance from the KSIDC. The lands belonging to them
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have been mortgaged by them as security. Sri.Sebastian
Chokkattu who is the Managing Director of the Company has
given collateral security for the loan amounts. The borrower
company failed to comply with the terms and conditions of
the loan and committed default in payment of loan amount
and interest It is under the above circumstances that R.R.
Proceedings were initiated against them. Both of them are
jointly and severally liable to repay the loan amount. On
enquiry it was revealed that an extent of 3.7595 Hectares of
land in Sy. No.705/4 and 712/7 of Kakkanad Village was
owned and possessed by Sri.Sebastian Chokkattu and
Philomina Chokkattu. The land was proposed to be sold in
public auction by the Tahsildar R.R. Aggrieved by this
Smt.Philomina Chokkattu, filed a petition before the District
Collector stating that she was not a personal guarantor.
She filed O.P. No.26466 of 2002 before this Court and this
Court directed the District Collector to conduct enquiry and
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take decision. Pursuant to this Court’s judgment, the
District Collector conducted enquiry and rejected
Smt.Philomina Chokkattu’s application and hence R.R.
Proceedings were started by attachment of property of the
defaulter. At that juncture it was understood that the
auctioned land comes under the acquisition proceedings for
KINFRA. Therefore the land acquisition officer was
requested to forward the award amount to Tahsildar (RR)
towards the arrears due from the defaulter and the owners
of the property as there was a valid attachment pending
against the properties. As such the L.A. Tahsildar forwarded
an amount of Rs.2,39,54,217/- and Rs.9,56,807/- vide D-
form cheques. The amount was forwarded to the KSIDC
after deducting collection charges. This office has not been
taken any revenue recovery steps against the petitioners
and their assets. The alleged settlement deeds are
executed after the amounts have become due from the
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defaulter. The said transactions were done in order to
defeat the interest of the creditor.
11. This court appointed Advocate V.R.Rakesh as
commissioner and he has filed a report. As directed by me,
the Special Tahsildar (LA) placed before me for perusal the
original files of proceedins inLAC Nos. 99/05 and 139/05
through the Government Pleader. These papers reveal that
the stand taken by the land acquisition officer regarding the
dates of publication of section 4(1) notification, declaration
under section 6, award and regarding payment of the
compensation are correct.
12. Very extensive submissions were addressed before
me by Sri.M.P.Ashok Kumar and Sri.K.K.Chandran Pillai,
learned counsel for the petitioners in the two writ petitions
and by Sri.D.Anil Kumar, learned senior Government
Pleader for the Government and the official respondents.
Mr.Ashok Kumar and the learned Senior Government
WP(C)N0.6144/07
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Pleader Mr.Anil Kumar would place reliance on a catena of
decisions. Mr.Ashok Kumar referred to the various statutory
provisions such as sections 9(3), 10, 12(2) and 45 of the
Land Acquisition Act and Rules 11(2), 11(c) 13 and 16 of
the Land Acquisition Rules. He drew my attention to the
provisions of the Income tax Act and also to Rule 5 of the
Revenue Recovery Rules. Attention was drawn also to
Article 300A of the Constitution. In support of his argument
that it is mandatory that notice is served on the parties
interested in the Compensation and in the land under
acquisition, Mr. Ashok Kumar placed reliance on the
judgment of this Court in Harikumar v. Special Tahsildar
(LA) (2007 (1) KLT 277). The learned counsel relied on the
judgment of this court in Nalini v.Deputy Collector (2006(4)
KLT 87) in support of his argument that it was not within the
power of the land acquisition officer to adjudicate on the
dispute regarding the assessee’s liability to pay income tax.
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The dispute should have been adjudicated by the income tax
authorities. 2007(2) ILR Kerala 57, Najeeb Rawther v.
District Collector and another, was also relied on by
Mr.Ashok Kumar to argue that notice under section 12(2) is
mandatory. To support the learned counsel’s argument that
levy of collection charges under the Revenue Recovery Rules
is not at all justifiable when amount has been directly paid
by the land acquisition authorities to the requisitioning
authority, he relied on the judgment of this Court in
Bhaskaran v. Sub Registrar, (2005(3) KLT 150). Right to
property is a human right which is not to be taken away
without recourse to the statutory procedure and for this
proposition Mr.Ashok Kumar relied on the judgment of the
Supreme Court in Lachman Dass v. Jagat Ram and others,
(2007) 10 SCC 448. He also relied on the judgment of this
court in Sukapuram Sabhayogam v. State of Kerala, (1989
(2) KLT 511) and that of the Supreme Court in Rameswar
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Prasad and others v. Union of India and another, (2005) 7
SCC 625, in support of his argument based on Article 300A
of the Constitution.
12. Sri.D.Anil Kumar, senior Govt. Pleader also did not
lag behind in citing precedents. Judgment of Justice
K.K.Mathew, as a Judge of this Court in Skaria Francis v.
State of Kerala and others, (AIR 1967 Kerala 128) was
relied on by the learned Govt. Pleader in support of his
argument, that just because notice under section 9(3) has
not been served on the owner or occupier of the land, the
proceedings will not become void. Almost for the same
proposition, the learned Govt. Pleader relied on the
judgment of the Calcutta High Court in P.K.Shaikh v. State
of West Bengal (AIR 1976 Calcutta 149). Referring to
Article 141 of the Constitution the learned Govt. Pleader
submitted that the law declared by the Supreme Court shall
be binding on all courts within the territory of India and it is
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not open to this Court to ignore a judgment of the Supreme
Court on the reason that it is without considering the legal
position that the Supreme Court has delivered the
judgment. Learned Govt. Pleader relied on the judgment of
the Supreme Court in Suganthi v. Jagadeeshan, (2002 (1)
KLT 581 (SC). The learned senior Govt. Pleader also relied
on the judgment of the Constitution Bench of the Supreme
Court in Somawanti v. State of Punjab, (AIR 1963 SC 151).
Very strong reliance was placed bay the learned senior
Govt. Pleader on the judgment of the Supreme Court in M/s.
Girias Investment Pvt. Ltd. v. State of Karnataka (JT 2008
(4) SC 242).
13. Sri.M.Pathrose Mathai, learned senior counsel for
the KSIDC also would strongly defend the writ petition on
the basis of the various contentions raised. The judgment
of the Supreme Court in Nasik Municipal Corporation v.
Harbanslal Laikwant Rajpa, (1997) 4 SCC 199) was relied on
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by the learned senior counsel to argue that the acquisition
cannot be challenged on the reason that notice has not been
personally served. He referred to sections 34, 35 and 36 of
the Revenue Recovery Act and argued that there was
justification for payment of the compensation to KSIDC in
view of the subsistence of the attachment order in revenue
recovery proceedings.
14. I have very anxiously considered the rival
submissions addressed at the Bar in the light of the
pleadings raised by the parties and the documents and the
records. I have kept in mind the relevant statutory
provisions and have gone through the ratio emerging from
the various decisions cited by counsel. The records will
reveal that there is no substance in the contention raised by
the petitioners that the land acquisition proceedings have
lapsed due to non-passage of award within the statutory
period of two years. I am convinced that award has been
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passed within the time limit and the proceedings have not
become lapsed. I am also convinced that possession of the
property has been taken over. Once award is passed and
possession is taken over, the land acquisition proceedings
attain finality. This Court under Article 226 of the
Constitution is not expected to set at naught the L.A.
proceedings which have become final unless there are
compelling reasons to do so. The public nature of the
purpose of the acquisition – establishment of an Industrial
Park for KINFRA is not seriously in dispute. Acquisition is
challenged by the petitioners in WP(C). 6144 of 2007 who
are parents of the petitioners in the other writ petition on
the ground that there is no direct personal service of the
relevant notices to them. Though it would appear on a
perusal of the records that the above grievance of the
petitioners in WP(C). No. 6144/07 is correct I do not think
that this Court will be justified in setting at naught the L.A.
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proceedings which have attained finality since the records
reveal that notice was attempted to be served.
15. I do not find any substance at all in the contentions
raised by the petitioners in WP(C). No. 5128 of 2008. In
fact there is much force in the contention of the KSIDC that
the settlement deeds on the basis of which those petitioners
claim title to the properties under acquisition were executed
inter alia with the object of defeating the creditor KSIDC.
Whatever that be, the petitioners in both the case belong to
one and the same family and the entire properties were
under enjoyment by all these petitioners as one common
holding. The legality of the R.R. Proceedings was subject
matter of an earlier writ petition which was disposed of by
this court in directing the District Collector to take a
decision. The District Collector did take a decision which
was unfavourable to the petitioner in the writ petition (the
second petitioner in WP(C). No. 6144 of 2007)and it is
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thereafter that the L.A. proceedings continued and attained
finality.
16. According to me, the only relief which the writ
petitioners can be granted in respect of the challenges they
have made against the acquisition proceedings is to permit
them to have the question of determination of the correct
compensation for the acquired properties in a proceeding
under section 18 of the L.A. Act. I also notice some merit
in the contention of the petitioners in WP(C). 6144 of 2007
that there was no justification for recovering collection
charges from out of the total compensation awarded by the
L.A. Officer, since this was a case where the compensation
amount was directly paid by the L.A. Officer to KSIDC. The
ground raised by the petitioners in challenge of recovery of
collection charges is supported by judgment of this court in
Bhaskaran v. Sub Registrar, (2005(3) KLT 150). There is
also merit in the submission of the counsel for the
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petitioners that their liability or otherwise of payment of
income-tax on the compensation determined by the L.A.
Officer has not been properly adjudicated. Accordingly, both
the writ petitions are disposed of issuing the following
directions:
1) The petitioners in WP(C). No. 6144 of 2007 are
directed to make applications for a reference under section
18 of the question of determination of the correct
compensation payable for the properties under acquisition to
the L.A. Officer within two weeks of receiving copy of this
judgment. If applications are so submitted by them, the
L.A. Officer will entertain the applications as though they are
filed on time and make a reference under section 18 to the
competent court of the question of determination of the
correct compensation payable for the acquired properties.
2) The petitioners in that writ petition are also
permitted to submit a representation before the Land
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Revenue Commissioner voicing their grievance regarding
levy of collection charges by the revenue authority from out
of the compensation awarded to them by the L.A. Officer. If
such a representation is received by the Land Revenue
Commissioner, the same will be disposed of by the Land
Revenue Commissioner after affording hearing opportunity
to the petitioner in accordance with law, at the earliest and
at any rate within one month of receiving copy of this
judgment. The Registrar will communicate a copy of this
judgment to the Land Revenue Commissioner who will be
bound by the terms of this judgment.
3) The petitioners in WP(C) No. 6144 of 2007 are also
directed to pursue the statutory remedies available to them
under the Income-tax Act and Rules so as to seek redressal
of the grievance voiced by them regarding deduction of
income-tax from out of the compensation amount. The time
during which this writ petition was pending before this Court
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after the deductions were made and a further period of one
month of receiving copy of this judgment by the petitioners
will be excluded from the reckoning of limitation by the
appropriate authority under the Income-tax Act and Rules.
(PIUS C.KURIAKOSE, JUDGE)
ksv/