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Mouvanal Kalyani v. State of Kerala

Kerala HC11 Jan 2019WP(C)/831/2019

Case brief

AI extract

What is this about?

In this writ petition challenging the rejection of land acquisition compensation applications coupled with orders to waive statutory interest, the Court held that State authorities cannot legally insist on waiving statutory interest under Section 28 to consider Section 28A claims.

What did the court decide?

The conditional orders (Ext.P-7), rejection orders (Ext.P-2 & P-5) were set aside. The applicant was granted an opportunity of hearing and directed to get the Section 28A applications decided by the 3

Mouvanal Kalyani Vs State of Kerala — Land Acquisition | Kerala HC (2019)

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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 ALEXANDER THOMAS

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FRIDAY ,THE 11TH DAY OF JANUARY 2019 / 21ST POUSHA, 1940

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WP(C).No. 831 of 2019

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PETITIONER:

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MOUVANAL KALYANI

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D/O CHIYEYI, PARATHIKKAD, P.O. PALAKODE, VENGOLA (VIA), KANNUR DISTRICT.

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BY ADV. SRI.V.N.RAMESAN NAMBISAN

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, DEPARTMENT OF REVENUE (B), SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2 THE DISTRICT COLLECTOR KANNUR-673 001.

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3 THE SPECIAL TAHSILDAR (LA) GENERAL THALASSERY-670 104.

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SRI.SAIGI JACOB PALATTY,SR.GOVT.PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P(C)No.831 of 2019

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ALEXANDER THOMAS, J.

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===========================

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W.P(C)No.831 of 2019

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===========================

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Dated this the 11^th day of January, 2019

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JUDGMENT

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The prayers in the above Writ Petition (Civil) are as follows:

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“ (i) to set aside Exhibits P2 and P5 as the same are totally illegal and without jurisdiction;

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(ii) to declare that the respondents cannot deny the benefit to the petitioner from receiving statutory interests provided under Section 28 of the Land Acquisition Act while adjudicating Exhibits P1 and P4 applications under Section 28A of the Land Acquisition Act;

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(iii) to issue a writ of mandamus or any other appropriate Writ, order or direction commanding the respondent to restore Exhibits P1 and P4 applications on the file of the 3^rd respondent and to decide those applications afresh after herein the petitioner;

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and

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(iv) to grant such other and further relief as this Honorable Court may consider just and proper in the facts and circumstances of the case.”

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2. Heard Sri.V.N.Ramesan Nambisan, learned counsel

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appearing for the petitioner and Sri.Saigi Jacob Palatty, learned

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Sr.Government Pleader appearing for the respondents.

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It is stated that two items of properties measuring to an

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extent of 0.1650 Hectares of land comprised in R.S.No.234/2 and

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0.2005 Hectares of land comprised in R.S.No.233 of Ramanthali Village, Taliparamba Taluk, Kannur District were acquired for the purpose of establishment of Naval Academy at Ezhimala, Payyannur, Kannur District. According to the petitioner, the compensation awarded was a meagre one and the petitioner had preferred Exts.P-1 and P-4 application under Sec.28A of the Land Acquisition Act, 1894 seeking enhanced compensation as envisaged in that provision. That on receiving that application, the 3^rd respondent-Special Tahsildar (Land Acquisition) General, Thalassery, who is the Land Acquisition Officer, by referring to Ext.P-7 order dated 17.10.2017 issued by the 1^st respondent-State Government had directed the petitioner to submit statement expressing the willingness to give up statutory interest @9% p.a. from the first year from taking over the possession and @15% p.a. from second year onwards and the petitioner had refused to comply the said petitioner as according to him the respondent-State Authorities cannot compel the land owners to give up their statutory entitlement, interest, etc. as conferred under the Act, in order to indicate their rights under Sec.28A. That therefore, as per the impugned Ext.P-2 order dated 06.12.2017 & P-5 order dated 16.04.2018, the 3^rd respondent has rejected the abovesaid Sec.28A

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applications of the petitioner. The petitioner thereafter had submitted Exts.P-3 & P-6 applications under Sec.28A of the Land Acquisition Act, 1894 before the 3^rd respondent praying to refer the matters to the civil court concerned and the same is pending. The petitioner would essentially pray to set aside Exts.P-2 & P-5 orders and to restore Exts.P-1 & P-4 applications under Sec.28A and to direct the 3^rd respondent to consider the said application, etc. It is in the light of these factual averments, the petitioner has filed the instant Writ Petition with the aforementioned prayers.

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It has now been held by this Court in a series of judgments as in one dated 04.10.2018 in W.P(C)No.32249/2018 that the respondent-Governmental Authorities have no power in law to insist that the land owner should necessarily give up their right to claim statutory interest as conferred under the Land Acquisition Act, 1894, in order to enable consideration of their Sec.28A applications and that such insistence by the Governmental Authorities as the one contained in Ext.P-7 is illegal, ultra vires , etc. In such cases, this Court has held that such impugned conditions are illegal and ultra vires and has also consequently directed the respondent-Land Acquisition Officer concerned to pass orders on Sec.28A application, without any further delay or without

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insisting any such conditions.

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Accordingly, it is ordered and declared that the impugned conditions stipulated in Ext.P-7 order datd 17.10.2017 issued by the 1^st respondent-State Government that the land owners like the petitioner should necessarily give up and forego their claim for statutory interest at the rate of 9% / 15%, etc., as aforestated, in order to facilitate Sec.28A application is illegal and ultra vires and such conditions will stand rescinded. Accordingly, such impugned conditions as well as rejection orders, as per Exts.P-2 & P-5 will stand set aside. Consequently, it is ordered that the 3^rd respondent will grant reasonable opportunity of being heard to the petitioner and will pass orders on Exts.P-1 & P-4 applications filed under Sec.28A, without much delay, preferably within a period of two months from the date of production of a certified copy of this judgment.

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With these observations and directions, this Writ Petition (Civil) will stand disposed of.

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Sd/-

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ALEXANDER THOMAS, JUDGE

vgd/14.01.19

APPENDIX

PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE APPLICATION DATED 18.3.2017 FILED BY THE PETITIONER UNDER SECTION 28A OF THE LAND ACQUISITION ACT. EXHIBIT P2 TRUE COPY OF THE REJECTION ORDER NO.REF.G-2477/16 DATED 6.12.2017 ISSUED BY 3RD RESPONDENT. EXHIBIT P3 TRUE COPY OF THE APPLICATION DATED 2.6.2018 UNDER SECTION 28A(3) OF THE LAND ACQUISITION ACT BEFORE THE 3RD RESPONDENT. EXHIBIT P4 TRUE COPY OF THE APPLICATION DATED 10.4.2017 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT. EXHIBIT P5 TRUE COPY OF THE ORDER NO.REF.G-892/17 DATED 16.4.2018 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P6 TRUE COPY OF THE APPLICATION DATED 24.4.2018 SUBMITTED BY THE PETITIONER. EXHIBIT P7 TRUE COPY OF THE ORDER NO:NO.REVB3/733/2017-REV DATED 17.10.2017 OF THE IST RESPONDENT.

Mouvanal Kalyani v. State of Kerala

Case brief

What is this about?

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Mouvanal Kalyani v. State of Kerala

Case brief

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