Allowed

Varghese v. State of Kerala

Kerala HC1 Dec 2016WP(C)/5206/2016

Case brief

AI extract

What is this about?

The Court held that awards passed under the Land Acquisition Act 1894 on or after the commencement of the RFLAR 2013 are illegal. The writ petitions challenging specific awards dated 17.02.2014 were allowed, and the 3rd Respondent was directed to pass fresh awards under the 2013 Act.

What did the court decide?

The Award dated 17.02.2014 was set aside. A direction was issued to the 3rd Respondent to pass awards in accordance with the RFLAR 2013 within three months.

Varghese Vs State of Kerala — Land Acquisition | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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THURSDAY, THE 1ST DAY OF DECEMBER 2016/10TH AGRAHAYANA, 1938

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WP(C).No. 5206 of 2016 (A)

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PETITIONER(S):

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1. VARGHESE, S/O.PAILY, MATTATHIKUZHI, VENMANI KARA, MAMALA PO, ERNAKULAM DISTRICT.

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2. POULOSE, S/O.PAILY, MATTATHIKUZHI, VENMANI KARA, MAMALA PO, ERNAKULAM DISTRICT

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3. JOY, S/O.PAILY, MATTATHIKUZHI, VENMANI KARA, MAMALA PO, ERNAKULAM DISTRICT

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4. CHINNAMMA, D/O.PAILY, MATTATHIKUZHI, VENMANI KARA, MAMALA PO, ERNAKULAM DISTRICT

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5. KURIAKOSE, S/O.PAILY, MATTATHIKUZHI, VENMANI KARA, MAMALA PO, ERNAKULAM DISTRICT.

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BY ADVS.SRI.VARGHESE K.PAUL SRI.PETER KURIAN SRI.BIJU.V.JOHN SMT.VINCY MARY VAVACHAN

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RESPONDENT(S):

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1. STATE OF KERALA, REPRESENTED BY SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN 695001

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2. THE DISTRICT COLLECTOR, CIVIL STATION, KAKKANAD, ERNAKULAM 682030.

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3. THE SPECIAL TAHSILDAR (LA) KOCHI REFINERIES LTD. NORTH FORT GATE, TRIPUNITHURA 682301

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-2WPC NO 5206 OF 2016:

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4. THE CHIEF MANAGER (LEGAL) BPCL KR, KUNDANNOOR, 682304.

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R1-R3 BY SPL GOVERNMENT PLEADER SMT LATHA T THANKAPPAN R4 BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-12-2016, ALONG WITH WPC. 8196/2016, WPC. 8199/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.V.

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WP(C).No. 5206 of 2016 (A)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1:THE TRUE COPY OF THE SALE DEED NO.1678/1972 OF SRO, AIKKARANAD DATED 04.04.1972

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P2:TRUE COPY OF THE LEGAL HEIRSHIP CERTIFICATE DATED 29.04.2014 OF LATE MRS.ALEY.

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P3:TRUE COPY OF THE AWARD NO.162/2013 DATED 17.02.2014 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.

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P4:TRUE COPY OF THE ORDER DATED28.09.2015 IN LAR. NO.47/2014

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P5:TRUE COPY OF THE ORDER DATED 26.03.2015 IN WPC.NO.27041/2014

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RESPONDENT(S)' EXHIBITS NIL

/TRUE COPY/

P.A.TO JUDGE

K.V.

SHAJI P. CHALY, J.

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W.P.(C) Nos.5206, 8196 & 8199 of 2016 ----------------------------------------------Dated this the 1^st day of December, 2016

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JUDGMENT

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Captioned writ petitions are materially connected with respect to the question to be decided, and therefore I heard them together, and propose to deliver a common judgment. The issue relates to correctness and legality of passing an award in a Land Acquisition proceeding on 17.02.2014 as per the provisions of the Land Acquisition Act, 1894 [Act No.1 of 1894], since by that time, the Right to Fair Compensaton and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 [Act No.30 of 2013] has come into force on and with effect from 01.01.2014, by which, as provided under Sec.24, no award could be passed under the provisions of Act No.1 of 1894. Separate narration of facts are not required since the cases are materially connected in all respects, and the facts are similar. Detailed description with respect to acquisition is not at all warranted since the date of passage of the award under Act No.1 of 1894 alone is material vis-a-vis the provisions of Act No.30 of 2013. Section 24 of

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W.P.(C) No.5206/2016 & conn. cases

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Act No.2013 reads as follows:

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“ 24. Land Acquisition process under Act No.1 of 1894 shall be deemed to have lapsed in certain cases .-(1) Notwithstanding anything contained in this Act in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894,-

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(a) where no award under Section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or

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(b) where an award under said Section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed.

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(2) Notwithstanding anything contained in subsection (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894, where an award under the said Section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have raised and the appropriate Government, it is so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act.

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Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under Section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act.”

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Admittedly, in these cases, award under Act No.1 of

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1894 was passed on 17.02.2014. Act No.30 of 2013 came into

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force on and with effect from 01.01.2014. Therefore, by virtue of the provisions of Sec.24 of Act No.30 of 2013, passage of

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W.P.(C) No.5206/2016 & conn. cases 3

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award under the provisions of Act No.1 of 1894 cannot be legally sustained. Therefore, the award passed on 17.02.2014 under Act No.1 of 1894 is arbitrary and illegal.

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In that view of the matter, Ext.P3 award passed in W.P.(C) Nos.5206 and 8196 of 2016 and Ext.P1 award in W.P. (C) No.8199 of 2016 dated 17.02.2014 are set aside, and consequentially, there will be a direction to the 3^rd respondent to pass awards in accordance with the provisions of Act No.30 of 2013, at the earliest and at any rate, within three months from the date of receipt of a copy of this judgment.

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The writ petitions are disposed of accordingly.

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Sd/- SHAJI P. CHALY JUDGE

//true copy//

P.S. to Judge

St/-

03.12.2016

Varghese v. State of Kerala

Case brief

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Varghese v. State of Kerala

Case brief

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