Disposed

Chandroth Dhamodaran Nair v. the State of Kerala

Kerala HC24 Nov 2020WP(C)/14312/2020

Case brief

AI extract

What is this about?

Petitioner filed a writ petition seeking a mandate for the Special Tahsildar to resolve ownership disputes under Rule 18 of the Kerala Rules and mark the land as disputed before acquisition. The court directed the respondent to consider the claim and mark the land as disputed.

What did the court decide?

Directed 3rd respondent to consider claim under Rule 18(4) and mark land as disputed under Rule 18(6) within one month.

Chandroth Dhamodaran Nair Vs the State of Kerala — Land Acquisition | Kerala HC (2020)

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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 ANIL K.NARENDRAN

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TUESDAY, THE 24TH DAY OF NOVEMBER 2020 / 3RD AGRAHAYANA, 1942

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PETITIONER:

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CHANDROTH DHAMODARAN NAIR

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AGED 72 YEARS,S/O. RAMAN NAIR, RESIDING AT AYODHYA, MATTANNUR COLLEGE P.O. KEEZHALLUR, THALASSERY, KANNUR DISTRICT.

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BY ADVS. SRI.JOBY JACOB PULICKEKUDY SRI.ANIL GEORGE SRI.T.ANCY SMT.N.B.FATHIMA SULFATH SHRI.DAJISH JOHN SHRI.BASIL PAUL

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RESPONDENTS:

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1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.

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2 THE DISTRICT COLLECTOR KANNUR, CIVIL STATION, KANNUR 670 002.

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3 THE SPECIAL TAHSILDAR (LA) AIRPORT NO-11, MATTANNUR, KANNUR 670 102.

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R1 TO R3 BY SMT A.C.VIDHYA – GOVT. PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

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According to the petitioner, he is the owner in possession of 50 cents of land in Re.Sy.No.3/1(j) of Keezhalloor Village covered by Ext.P1 settlement deed bearing No.1553/1994 of the Sub Registrar Office, Mattannur. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 2^nd respondent District Collector to take action on Ext.P7 representation dated 19.03.2020 and Ext.P8 application dated 31.03.2020 by resolving the dispute raised in it or in case he cannot resolve the dispute regarding the ownership or other interest, direct to make a report of the claim/objection, after conducting enquiry, and thereafter, direct the petitioner to have it resolved by a competent court of law and till such dispute is resolved by a court of law, mark the land in question in the revenue records as ‘disputed’ for the purpose of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and take possession of the property only after the dispute is thus resolved.

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On 15.07.2020, when this writ petition came up for

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admission, the learned Government Pleader took notice for respondents 1 to 3 and sought time to get instructions.

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A statement has been filed on behalf of the 2^nd respondent.

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Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondents.

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The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for brevity, 'the Act') was enacted by the Parliament to

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ensure, in consultation with institutions of local selfgovernment and Gram Sabhas established under the Constitution, a humane, participative, informed and transparent process for land acquisition for industrialisation, development of essential infrastructural facilities and urbanisation with the least disturbance to the owners of the land and other affected families and provide just and fair compensation to the affected families whose land has been acquired or proposed to be acquired or are affected by such

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acquisition and make adequate provisions for such affected persons for their rehabilitation and resettlement and for ensuring that the cumulative outcome of compulsory acquisition should be that affected persons become partners in development leading to an improvement in their post acquisition social and economic status and for matters connected therewith or incidental thereto.

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Clause (e) of Section 3 of the Act, unless the context otherwise requires, 'appropriate Government' means, (i) in relation to acquisition of land situated within the territory of a State, the State Government; (ii) in relation to acquisition of land situated within a Union Territory (except Puducherry), the Central Government; (iii) in relation to acquisition of land situated within the Union Territory of Puducherry, the Government of Union Territory of Puducherry; (iv) in relation to acquisition of land for public purpose in more than one State, the Central Government, in consultation with the concerned State Governments or Union territories; and (v) in relation to the acquisition of land for the purpose of the Union as may be specified by notification, the Central Government.

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As per the proviso to clause (e) of Section 3, in respect of a public purpose in a District for an area not exceeding such as may be notified by the appropriate Government, the Collector of such District shall be deemed to be the appropriate Government. Clause (g) of Section 3 of the Act, unless the context otherwise requires, 'Collector' means the Collector of a revenue district, and includes a Deputy Commissioner and

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any officer specially designated by the appropriate Government to perform the functions of a Collector under this Act. Section 11 of the Act deals with publication of preliminary notification and power of officers thereupon.

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In exercise of the powers conferred under Section 109 of the Act, the Government of Kerala made the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Kerala) Rules, 2015 (for brevity, 'the Kerala Rules'). Chapter V of the Kerala Rules deals with preliminary notification. Rule 18 deals with publication of preliminary notification. As per sub-rule (1) of Rule 18, whenever the Government decides to proceed with the land acquisition, the Government shall publish a

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preliminary notification as provided in sub-section (1) of Section 11 of the Act showing the details of the land proposed to be acquired, categorising them separately as rural or urban areas as applicable in Form No.7 and in the case of notifications as provided in sub-section (4) of Section 40 of the Act in Form No.7A. As per sub-rule (2) of Rule 18, the date of publication of the notification shall be the date on which the latest publication was made along the various modes in which the notification as per Clauses (a) to (e) of sub-section (1) of Section 11 is published.

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As per sub-rule (3) of Rule 18 of the Act, any person who owns land or has any other interest in the land covered by a preliminary notification, shall within fifteen days of the notice published by the Collector report to the concerned offices of the Government and stake his claim on the said land as provided under any law for the time being in force. As per sub-rule (4) of Rule 18, all disputes arising out of any application made by any persons claiming ownership or other interest in respect of any land included in the preliminary notification to update the concerned records with

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the Government or its officers, shall be referred by the officer concerned to the Collector who shall endeavor to resolve it in accordance with any law for the time being in force regarding resolution of such disputes. As per sub-rule (5) of Rule 18, if for any reason the Collector concerned cannot resolve the dispute regarding the ownership or other interest claimed by any person in respect of any land covered in the preliminary notification, the Collector concerned shall make a report of the claim, the objections raised, if any, and the disputed questions and shall direct the parties concerned to have it resolved by a competent court of law or by any other agency/tribunal/forum vested with jurisdiction to resolve the said dispute as per any law for the time being in force. As per sub-rule (6) of Rule 18, till the dispute is resolved by a court of law, or by any other agency/tribunal/forum, the land in question shall be marked in the revenue records as disputed property for the purpose of the Act and the Kerala Rules. Any claims for compensation, rehabilitation or resettlement in respect of any person interested in a land over which any right is disputed shall only be settled after the dispute is resolved by a competent court

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of law or by any agency, tribunal or forum empowered to settle such disputes under any law for the time being in force.

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In the instant case, going by the pleadings and materials on record, the Government of Kerala vide G.O. (Ms.)No.37/2009/Trans. dated 25.06.2009 accorded sanction to acquire 316.8976 hectares of land in Keezhalloor Amsom Kotheri Desam in Kannur District for the purpose of Additional Development of Kannur International Airport – Phase III. Notification under sub-section (1) of Section 4 of the Land Acquisition Act, 1894 was published in Kerala Gazette Ext.No.1366 dated 25.07.2009. Since the said notification in respect of certain extent of land lapsed, the Government, vide G.O.(Rt.)No.4873/14/RD dated 10.10.2014, accorded sanction to the 2^nd respondent District Collector to resort to negotiation to purchase 53.2204 hectares of land in various survey numbers in Kotheri, Kanad and Therur desom in Keezhalloor Village in Thalassery Taluk. The Government, vide G.O. (Rt.)No.4272/15/RD on 11.08.2015, approved the land value fixed by the District Level Purchase Committee in its meeting held on 25.05.2015. It was decided to purchase 27.6007

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hectares through negotiation and to acquire the remaining extend by resorting land acquisition proceedings. Accordingly, the Government issued notification, vide G.O.(Rt)No.95/2017/ Trans dated 01.03.2017, to acquire 19.7245 hectares of land.

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According to the petitioner, the land having an extent of 50 cents in Re.Sy.No.3/1C of Keezhalloor Village was purchased by the Kerala Industrial Infrastructure Development Corporation (KINFRA) on 08.02.2017. The petitioner would claim that he is in possession of a further extent of 3.22 Ares in Re.Sy.No.3/1C of Keezhalloor Village, which is included in the schedule of Ext.P5 notification, issued by the 3^rd respondent Special Tahsildar, which appeared in Mathrubhoomi daily dated 23.02.2019. The petitioner was issued with Ext.P3 notice dated 14.06.2019 regarding the inspection scheduled on 05.07.2019. Thereafter, the petitioner was issued with Ext.P4 notice dated 29.09.2019, which was followed by Ext.P5 notice dated 27.01.2020 under Section 21 of the Act. The petitioner submitted Ext.P6 objection dated 27.01.2020, which was followed by Ext.P7 representation dated 19.03.2020. Since no action under sub-rule (4) of Rule

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18 of the Kerala Rules was taken on Exts.P6 and P7, the petitioner submitted Ext.P8 application before the 2^nd respondent, under sub-rule (5) of Rule 18 of the said Rules.

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The 2^nd respondent has filed a statement in which it

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is stated that, an extent of 0.0129 hectare of land in the possession of the petitioner was measured by the Surveyor and the sub divisional records and sketch was scrutinised by District Survey Superintendent Kannur. As per survey records, an extent of 0.0129 hectare land is now in the possession of the petitioner and his brother Ramachandran Nair, jointly. The petitioner was issued with notice under Section 21 of the Act

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to present before the 3^rd respondent along with relevant documents to prove his title. The petitioner appeared on the appointed day but no document was produced except the basic tax receipt. The petitioner submitted an objection stating the extent of land and for measurement of the property. Based on that objection, the 3^rd respondent issued another notice in order to gave one more chance to the petitioner for personal hearing. The petitioner did not turn up on that notice. Instead, the petitioner had caused to issue the

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2^nd respondent a lawyer notice dated 19.03.2020, to which the 2^nd respondent sent a reply denying all the allegations raised in that notice. The petitioner submitted another representation dated 31.03.2020 before the 2^nd respondent alleging inaction on the part of the 3^rd respondent on his request. The 2^nd respondent has already directed the 3^rd respondent to consider the representation made by the petitioner, once again, and to take further action in the matter, within one month.

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In view of the provisions under sub-rule (4) of Rule 18 of the Kerala Rules, all disputes arising out of any application made by any persons claiming ownership or other interest in respect of any land included in the preliminary notification to update the concerned records with the Government or its officers, shall be referred by the officer concerned to the Collector who shall endeavor to resolve it in accordance with any law for the time being in force regarding resolution of such disputes. Therefore, the 3^rd respondent Special Tahsildar, who has been designated by the State Government to perform the functions of the 2^nd respondent

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Collector under the Act, shall endeavor to resolve the claim made by the petitioner in Ext.P6, in accordance with any law. If for any reason the 3^rd respondent cannot resolve the said objection/claim made by the petitioner, he shall make a report on the objection/claim as provided under sub-rule (5) of Rule 18, and direct the parties concerned to have it resolved by a competent court of law or by any other agency/tribunal/forum vested with jurisdiction to resolve the said dispute as per any law for the time being in force. Till the dispute is resolved by a court of law, or by any other agency/tribunal/forum, the land in question shall be marked in the revenue records as disputed property for the purpose of the Act and the Kerala Rules, as provided in sub-rule (6) of Rule 18 of the said Rules. Any claim for compensation, rehabilitation or resettlement in respect of the said property shall only be settled after the dispute is resolved by a competent court of law or by any agency, tribunal or forum empowered to settle such disputes under any law for the time being in force.

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In the result, this writ petition is disposed of by directing the 3^rd respondent Special Tahsildar to consider the

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claim made by the petitioner in Ext.P6 objections, in terms of the provisions under sub-rule (4) of Rule 18 of the Kerala Rules, read with sub-rules (5) and (6) of Rule 18, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of the judgment. Till the said objection/claim is resolved in accordance with law, the land in question shall be marked as ‘disputed property’ in the revenue records, as provided in subrule (6) of Rule 18 of the Kerala Rules.

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In State of U.P. v. Harish Chandra [(1996) 9

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SCC 309] the Apex Court held that no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. In Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259] the

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Apex Court reiterated that, generally, no Court has competence to issue a direction contrary to law nor can the Court direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law.

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Therefore, the 3^rd respondent Special Tahsildar shall

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take an appropriate decision on the matter, strictly in accordance with law, taking note of the relevant statutory provisions.

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No order as to costs.

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Sd/-

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ANIL K.NARENDRAN, JUDGE

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AV/30/11

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE PHOTOCOPY OF SETTLEMENT DEED NO. 1553/1994 OF S.R.O. MATTANNUR. EXHIBIT P2 TRUE PHOTOCOPY OF PLAN ISSUED BY THE SPECIAL TAHSILDAR. EXHIBIT P3 TRUE PHOTOCOPY OF NOTICE DATED 14.06.2019. EXHIBIT P4 TRUE PHOTOCOPY OF NOTICE DATED 29.09.2016 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P5 TRUE PHOTOCOPY OF NOTICE NO.120/2018 ISSUED BY THE 3RD RESPONDENT REQUESTING TO APPEAR THE PETITIONER ON 21.02.2020. EXHIBIT P6 TRUE PHOTOCOPY OF OBJECTION SUBMITTED BY THE PETITIONER DATED 27.01.2020. EXHIBIT P7 TRUE PHOTOCOPY OF REPRESENTATION DATED 19.03.2020 SUBMITTED BEFORE THE RESPONDENTS 2 AND 3 BY THE PETITIONER.

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EXHIBIT P8 TRUE PHOTOCOPY OF APPLICATION SUBMITTED UNDER RULE 18 (5) DATED 31.03.2020.

Chandroth Dhamodaran Nair v. the State of Kerala

Case brief

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Chandroth Dhamodaran Nair v. the State of Kerala

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