Dismissed

State of Kerala v. a.K.Abdul Latheef

Kerala HC20 Jan 2021WA/154/2021

Case brief

AI extract

What is this about?

A two-Judge Division Bench of the Kerala High Court dismissed a writ appeal by the State challenging a single Judge's order that directed the Government to pay compensation to a landholder. The Court upheld the reliance on a prior precedent granting deemed tenant status and compensation rights under Section 7E of the Kerala Land Reforms Act.

What did the court decide?

The writ appeal was dismissed, upholding the direction to consider compensation claims under Section 7E of the Kerala Land Reforms Act.

State of Kerala Vs a.K.Abdul Latheef — Land Acquisition | Kerala HC (2021)

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W.A.No. 154/2021 : 1 :

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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WEDNESDAY, THE 20TH DAY OF JANUARY 2021 / 30TH POUSHA, 1942

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WA.No.154 OF 2021

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AGAINST THE JUDGMENT DATED 25.02.2020 IN WP(C) 31804/2019(A) OF HIGH COURT OF KERALA

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APPELLANTS/RESPONDENTS IN WPC:

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1 STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2 DISTRICT LEVEL PURCHASE COMMITTEE, REPRESENTED BY ITS CHAIRMAN, THE DISTRICT COLLECTOR, COLLECTORATE, ERNAKULAM-682 031.

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3 DISTRICT COLLECTOR, COLLECTORATE, ERNAKULAM-682 031

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4 SPECIAL TAHSILDAR (LR), LAND TRIBUNAL, TRIPUNITHURA P.O, ERNAKULAM-682 301.

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BY GOVERNMENT PLEADER

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RESPONDENT/PETITIONER IN WPC:

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A.K.ABDUL LATHEEF, AGED 65 YEARS, S/O. KADER PILLAI, ALAMANA HOUSE, PARAMBAYAM, PUTHUSSERY, NEDUMBASSERY P.O, ERNAKULAM-683 585.

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SRI. ROBSON PAUL FOR RESPONDENT

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 20.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A.No. 154/2021

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Dated this the 20^th day of January, 2021.

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JUDGMENT

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SHAJI P. CHALY, J.

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The appeal is preferred by the State and its officials challenging the judgment of the learned single Judge dated 25.02.2020 in W.P.(C) No. 31804 of 2019, whereby the learned single Judge followed Ext. P13 judgment dated 25.06.2015 of a learned single Judge of this Court in W.P.(C) No. 14514 of 2013 and has issued the following directions:

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“2. This Court, in Ext.P13 Judgment held that, persons who had the benefit of Section 7E of the Amended Kerala Land Reforms Act, are also entitled for the land acquisition benefit for compensation.

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The petitioner's claim for compensation shall be considered in the light of Ext.P13 Judgment. After notice to the petitioner, necessary decisions shall be taken in regard to the grant of award of compensation by the Government, on production of the order passed under Section 7E of the Amended Kerala Land Reforms Act, within a period of two months. All directions in the Ext.P13 judgment would be given in this matter as well.”

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It is, thus, challenging the legality and correctness of the said judgment, this writ appeal is filed.

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W.A.No. 154/2021

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The paramount contention advanced in the writ appeal is that possession of the property acquired under the Land Acquisition Act was taken over as early as on 04.07.2016 and therefore, by virtue of the provisions of the Land Acquisition Act, the property vested with the Government is free from all claims.

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The sum and substance of the contention is that when the property was taken possession of by the Government under the Land Acquisition Act on 14.07.2016 and handed over to the requisitioning authority, the title of the property was as excess land vested with the Government under the Kerala Land Reforms Act, 1963 ('Act, 1963' for short). It was also submitted that the factual background in Ext. P13 judgment relied upon by the writ petitioner was entirely different and therefore, he was not entitled to claim the benefit under Section 7E of the Act, 1963. Other contentions are also raised.

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Brief material facts raised by the writ petitioner in the writ petition were as follows:

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The writ petitioner was the owner of 2.13 acres of land in Resurvey No. 474 of Chovara Village, which was purchased by him as per Sale deed No. 1428 of 1979 of SRO, Sreemoolanagaram. Later, the property was declared as excess land by the Government and a notice was issued to him. The writ petitioner represented that he is entitled

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for the benefit under Section 7E of the amended Kerala Land Reforms Act and claimed for exemption. Thereafter, W.P.(C) No. 32374 of 2014 was filed before this Court challenging the said proceedings, in which an interim order in regard to the possession was made subject to the result of the writ petition and without prejudice to the right of the writ petitioner to claim compensation. Later, the Government issued a notification granting exemption. Hence, Ext. P7 certificate of title dated 02.02.2018 was issued by the Special Land Tribunal (LR), Ernakulam

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in O.A.No. 1 of 2018, by which the petitioner was entitled to get all benefits out of the acquisition of the property in question .

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It was further submitted that on 14.07.2016, 13.93 Ares of land was taken possession from the writ petitioner from the total extent specified above by the Special Tahsildar for widening of Seaport-Airport road. The writ petitioner claimed compensation for the acquisition. Even though favourable reports were forwarded to the concerned officers by the appellants/respondents, the writ petitioner was not paid the compensation fixed by the Special Tahsildar amounting to Rs.1,55,27,655/-. It was, thus, seeking appropriate directions, the writ petition was filed. In order to sort out the issue, and since the learned single Judge has relied upon the judgment of a learned single Judge dated 25.06.2015 to dispose of the writ petition,

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it is only appropriate that the relevant portion of the said judgment is extracted hereunder for a better understanding:

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“3. The petitioners subsequently claimed the benefit of Section 7E of the Kerala Land Reforms Act, 1963 (the 'Act' for short). Ext. P1 application was filed before the Taluk Land Board claiming the benefit of Section 7E of the Act followed by W.P.(C). No. 15628/2003 on the file of this Court. This Court by Ext. P2 judgment directed the Taluk Land Board to consider Ext. P1 application within a period of six months. It was clarified therein that the interim stay of dispossession of the petitioners passed in the said writ petition would continue pending disposal of Ext. P1 application by the Taluk Land Board. The Taluk Land Board by Ext. P3 order 'admitted' the claim put in by the petitioners under Section 7E of the Act. It was however stated that exemption could be granted only on production of a certificate of title from the Land Tribunal under Section 106 B of the Act.

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This Court in Rajeev v. District Collector [ 2014 (4) KLT 209] has held that the grant of a certificate of title under Section 106 B of the Act by the Land Tribunal is not sine qua non to get the benefit of deemed tenancy under Section 7E of the Act. There is therefore no necessity for the petitioners to obtain a certificate of title from the Land Tribunal which can also be superfluous after having admitted the claim under Section 7E of the Act. I should note that the State unsuccessfully challenged Ext. P3 order in C.R.P.(L.R.). No. 564/2014 on the file of this Court. The Civil Revision Petition was dismissed by order dated 11.12.2014 on the premise that the order impugned was not final. It is

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true that Rules under Section 106 B of the Act have been framed subsequently regulating the grant of certificate of title by the Land Tribunal. There is no reason as to why the benefit of deemed tenancy under Section 7E of the Act shall not be extended to the petitioners. There are no supervening factors to deny the benefit of Section 7E of the Act as delineated in State of Kerala v. Thomas Kurian [ 2014 (4) KLT 417]. The fact that the physical possession of the petitioners were protected even in Ext. P2 judgment of this Court has already been narrated above. Added to this is the fact that the Village Officer, Chowara has acknowledged the possession of the petitioners in Ext. P10 mahazar as well as in Ext. P11 possession certificate. Ext. P10 mahazar and Ext. P11 possession certificate was prepared at the time when the petitioners moved the Land Tribunal for obtaining a certificate of title under Section 106B of the Act. But then the applications were not proceeded further since the Rules under Section 106 B of the Act had not then been framed. Ext. P10 mahazar would at best show that the lands claimed by the petitioners have been included as excess land on the file of the Taluk Land Board about which there is no quarrel at all. This is discernible from Ext. P5 letter issued by the Special Tahsildar of the Land Tribunal to the first petitioner in this writ petition.

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49 cents out of the 52 cents of land was earlier included in the notification issued under Section 4(1) of the Land Acquisition Act, 1894. Emergency clause was also seen invoked since the property was needed for Phase – II of the Seaport-Airport Road. The petitioners were invited for a negotiated settlement offering a sum of Rs. 4,50,000/- for the 49 cents of land earlier earmarked. But then the land of the petitioners were not included in the declaration issued under Section 6 of the Land Acquisition Act, 1894 on the premise that it belonged to the government.

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This was done without acknowledging the right of deemed tenancy of the petitioners under Section 7E of the Act. The amount earlier offered was neither paid nor was the property included in the declaration under Section 6 of the Land Acquisition Act, 1894.

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The third respondent Corporation maintains that the land in question is very much needed for the Seaport-Airport Road and that all other adjacent lands have been assumed possession of. The only course open under such circumstances is to either go in for a negotiated settlement or initiate proceedings for land acquisition afresh. Any proceedings for acquisition can of course be under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 only. The petitioners lament that three cents of land lying in a strip (52 cents - 49 cents) will go waste if the alignment is finalised as proposed. The petitioners have offered to surrender the said extent of three cents also on the same price for the purpose of the road and the same has been duly recommended by the Special Tahsildar as evidenced by Ext. P8 letter. It is for the respondents to decide as to whether the said extent of three cents of land is also required for the road lest it remains priceless with the petitioners. The petitioners shall not be dispossessed from the property except after resorting to any of the courses available as indicated above. The third respondent is permitted to surge ahead with the proceedings after paying the requisite compensation to the petitioners.”

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Therefore, on a consideration of the facts and circumstances

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involved in the said writ petition, we are of the view that the writ petitioner in the case on hand can only be treated as similarly situated.

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Section 7E was brought by the State Government through an amendment in the year 2006 in order to protect the interest of such persons who were transferred with properties having adverse consequences due to the introduction of the Kerala Land Reforms Act. The said provision reads thus:

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“ 7E. Certain persons who acquired lands to be deemed tenants. - Notwithstanding anything to the contrary contained in section 74 or section 84 or in any other provisions of this Act, or in any other law for the time being in force or in any contract, custom or usage, or in any judgment decree or order of any Court, Tribunal or other authority, a person who at the commencement of the Kerala Land Reforms (Amendment) Act, 2005, is in possession of any land, not exceeding [1 hectare 61 ares and 87 square metres] in extent, acquired by him or his predecessor-in-interest by way of purchase or otherwise on payment of consideration from any persons holding land in excess of the ceiling area, during the period between the date of the commencement of the Kerala Land Reforms Act, 1963 (1 of 1964), and the date of commencement of the Kerala Land Reforms (Amendment) Act, 2005, shall be deemed to be a tenant.”

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On a reading of Section 7E of Act, 1963, it would be clear that it is a sweeping provision by which irrespective of other restrictive provisions of the Act, it is introduced into the statute book on and with effect from 18.10.2006 with the avowed object of protecting such people, who have purchased properties which had adverse consequences under the Act, 1963, treating them as tenants under the

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Act 1963. We have also appreciated Section 7E of the Act, 1963 in its tenor and terms, and the relevant facts put forth by the writ petitioner, and we are satisfied that there is no illegality or any other legal infirmities in the discretion exercised by the learned single Judge.

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Having heard the learned Senior Government Pleader Sri. Aravindakumar Babu for the appellants and Sri. Robson Paul appearing for the writ petitioner/respondent, we are of the considered opinion that the appellants have not made out any case justifying interference in the subject matter, especially due to the fact that Ext.P13 judgment dated 25.06.2015 relied upon by the learned single Judge in the instant writ petition would clearly apply to the facts of the case also.

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Needless to say, the writ appeal fails and accordingly, it is dismissed.

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sd/-

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S. MANIKUMAR, CHIEF JUSTICE.

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sd/-

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SHAJI P. CHALY, JUDGE.

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