Disposed

The Calicut University Staff Co-Operative Credit Society Limited NO.M-266 v. the University of Calicut

Kerala HC12 Jul 2021WP(C)/2002/2021

Case brief

AI extract

What is this about?

The petitioner society fought a writ petition against the University of Calicut and acquisition authorities regarding compensation for a building and leased land. The Court held that the society is entitled to claim compensation and directed the competent authority to determine the eligible parties and sit on their claim with university interest, deferring the disbursement of compensation until a

What did the court decide?

Directed competent authority to hear both parties and determine entitlement within one month. Stayed disbursement of compensation pending such decision.

The Calicut University Staff Co-Operative Credit Society… — Land Acquisition | Kerala HC (2021)

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WP(C) NO. 2002 OF 2021

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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 RAJA VIJAYARAGHAVAN V

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MONDAY, THE 12^TH DAY OF JULY 2021 / 21ST ASHADHA, 1943

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WP(C) NO. 2002 OF 2021

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PETITIONER/S:

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THE CALICUT UNIVERSITY STAFF CO-OPERATIVE CREDIT SOCIETY LIMITED NO.M-266 CALICUT UNIVERSITY CAMPUS, THENHIPALAM, CALICUT UNIVERSITY P.O., MALAPPURAM DISTRICT - 673 635, REPRESENTED BY ITS SECRETARY-IN-CHARGE, SANTHOSHKUMAR M., AGED 53 YEARS, S/O.UNNIKRISHNAN NAIR, RESIDING AT MULLASSERY HOUSE, CHENAKKALANGADI POST, PIN - 673 636.

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BY ADVS. ELVIN PETER P.J. SRI.K.R.GANESH SMT.KAIMAL PRIYA PADMANABHA SIDHARTH SUDHEER

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RESPONDENTS:

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1 THE UNIVERSITY OF CALICUT REPRESENTED BY ITS REGISTRAR, CALICUT UNIVERSITY CAMPUS, THENHIPALAM, CALICUT UNIVERSITY P.O., MALAPPURAM DISTRICT - 673 635.

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2 THE REGISTRAR, UNIVERSITY OF CALICUT CALICUT UNIVERSITY CAMPUS, THENHIPALAM, CALICUT UNIVERSITY P.O., MALAPPURAM DISTRICT - 673 635.

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3 THE DEPUTY COLLECTOR LAND ACQUISITION (N.H.) UNIT I, MALAPPURAM, VALAKKULAM P.O., PIN - 676 508.

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4 THE SPECIAL TAHSILDAR LAND ACQUISITION (N.H.) UNIT I, MALAPPURAM, VALAKULAM P.O., PIN - 676 508.

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WP(C) NO. 2002 OF 2021

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5 ADDL.R5. THE PROJECT DIRECTOR, NATIONAL HIGHWAY AUTHORITY OF INDIA, PROJECT IMPLEMENTATION UNIT, NO.7/511-B, NEYTHELI, MAVELIPURAM ROAD, MAVELIPURAM, KAKKANAD – 682 030 ADDL R5 IMPLEADER AS PER ORDER IN I.A.NO.2 OF 2021 DATED 12.07.2021

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SRI PC SASIDHARAN, SC SMT.A.C.VIDHYA, GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 2002 OF 2021

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JUDGMENT

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The Calicut University Staff Co-operative Credit Society Ltd., the petitioner herein, is a Society registered under the Kerala Co-operative Societies Act, 1969. The said Society was formed for the benefit of the employees working in Calicut University. On 19.9.1987 by Ext.P2 order, the University of Calicut sanctioned the allotment of 10 cents of University land to the petitioner society on lease for the construction of their office. Ext.P3 lease deed was consequently executed on 7.5.1988 as per which, the petitioner Society was permitted to occupy the property for a period of 30 years on payment of rent of Rs.167/-. Liberty was granted to the petitioner to construct a building in the premises leased out. Clause (9) of the deed provided that subject to the covenant regarding renewal of the lease, the lessee shall, on the expiry of the term or on sooner determination of the lease, surrender possession of the premises with such building thereon as may be standing at the time to the lessor.

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The petitioner states that on the cover of Ext.P3 deed, the Society constructed a building in the said property. The building was registered in the name of the petitioner and ownership certificate has been issued to them as is evident from Ext.P4. Later, a milk booth was constructed after obtaining orders from the 2nd respondent.

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The petitioner states that the term of the lease expired on 15.10.2018. Much prior to the expiry of the terms of the lease, the petitioner approached the 1st

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respondent and sought for renewing the lease for a further period. A sub committee was constituted and they later submitted a report. By Ext.P9 order of the 1st respondent, the petitioner was permitted to continue to occupy the land by maintaining status quo.

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The petitioner contends that the building constructed by them is the subject matter of acquisition proceedings for the widening of the National Highway. Ext.P11 notice was issued by the 4th respondent to the petitioner to appear before the said authority along with necessary documents to ascertain the compensation due. In the said circumstances, they approached the respondents and submitted a representation demanding that the compensation due for the demolition of the building be credited to their accounts. By Ext.P10 order, the 2nd respondent informed the petitioner that the Syndicate has taken a decision that the demand made by the petitioner need not be considered at the moment. Being aggrieved, the petitioner is before this Court seeking the following reliefs:

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(i) to issue a writ of certiorari or any other writ, order or direction calling for the records leading to Ex.P10 and quash the same.

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(ii) to issue a writ of mandamus, or any other appropriate writ, order or direction directing respondents 3 and 4 to determine the compensation payable to the petitioner Society for acquiring their building bearing No.5/473 and 472 of Thenhipalam Grama Panchayath together with the tenancy rights in the land to be acquired and to disburse the compensation amount to the petitioner society directly;

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(iii) to declare that the petitioner Society is entitled to get the compensation amount for their buildings registered with Thenhipalam Grama Panchayat bearing No.5/472 and 473 and also the compensation for the tenancy rights in the acquired land for widening National Highway in Malappuram District;

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(iv) to declare that the 1st respondent University is not legally entitled to get or appropriate the compensation amount legally due to the petitioner Society for themselves on any account;

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I have heard Sri. K.R.Ganesh, the learned counsel appearing for the petitioner, Sri. P.C.Sasidharan, the learned standing counsel appearing for the respondents 1 to 3, Sri.Mathews K. Philip, the learned standing counsel appearing for the NHAI and the learned Government Pleader.

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Sri. P.C.Sasidharan, the learned counsel appearing for the University submitted that it is clear from Ext.P3 lease deed that on the expiry of the lease, the petitioner will have to surrender the premises along with the building. According to the learned counsel, the building is situated in the property of the University and the petitioner cannot raise any claim over the same.

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I have considered the submissions advanced. It was on the strength of Exts.P2 and P3 that 10 cents of property was allotted to the petitioner and permission was granted to put up structures therein. There is no dispute with regard to the fact that the buildings were put up by the petitioner. Exts.P4 to P6 clearly substantiate the same. After the period of expiry of the lease, the petitioner had requested for renewal of lease for a further period of 50 years and by Ext.P9, the status quo as on date was ordered to be maintained. In other words, the petitioner was permitted to continue as the lessee on payment of rent. Ext.P11 notice has been issued by the 4th respondent calling upon the petitioner to produce documents in their possession to ascertain the compensation due. As per the provisions of the National Highways Act, 1956, after the declaration of acquisition under Section 3D of the Act, powers have

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been conferred on the competent authority to issue notice directing the owner as well as any other person who may be in possession to deliver vacant possession of the land.

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Section 3G of the Act provides for determination of amount payable as

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compensation. The said provision reads as follows:

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3G. Determination of amount payable as compensation.—(1) Where any land is acquired under this Act, there shall be paid an amount which shall be determined by an order of the competent authority.

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(2) Where the right of user or any right in the nature of an easement on, any land is acquired under this Act, there shall be paid an amount to the owner and any other person whose right of enjoyment in that land has been affected in any manner whatsoever by reason of such acquisition an amount calculated at ten per cent, of the amount determined under subsection (1), for that land.

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(3) Before proceeding to determine the amount under sub-section (1) or sub-section (2), the competent authority shall give a public notice published in two local newspapers, one of which will be in a vernacular language inviting claims from all persons interested in the land to be acquired.

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(4) Such notice shall state the particulars of the land and shall require all persons interested in such land to appear in person or by an agent or by a legal practitioner referred to in sub-section (2) of section 3C, before the competent authority, at a time and place and to state the nature of their respective interest in such land.

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(5) If the amount determined by the competent authority under sub-section (1) or sub-section (2) is not acceptable to either of the parties, the amount shall, on an application by either of the parties, be determined by the arbitrator to be appointed by the Central Government--

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(6) Subject to the provisions of this Act, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to every arbitration under this Act.

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(7) The competent authority or the arbitrator while determining the amount under sub-section (1) or sub-section (5), as the case may be, shall take into consideration—

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(a)the market value of the land on the date of publication of the notification under section 3A;

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(b) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the severing of such land from other land;

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(c) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the acquisition injuriously affecting his other immovable property in any manner, or his earnings;

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d) if, in consequences of the acquisition of the land, the person interested is compelled to change his residence or place of business, the reasonable expenses, if any, incidental to such change.

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The provision says that when land is acquired under Act 48 of 1956, the compensation due shall be assessed by the competent authority. When the right of user or any right in the nature of an easement on any land is acquired, an amount shall be paid to the owner and any other person whose right of enjoyment in that land has been affected in any manner whatsoever by reason of such acquisition and an amount calculated at 10% of the amount determined under sub section (1) of the land shall be paid. Before proceeding to determine the amount, the competent authority is required to give public notice and invite claims from all persons interested

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in such land. The interest persons are expected to appear before the competent authority and state the nature of their respective interest. If the amount determined by the competent authority is not acceptable, they are entitled to move an application before the Arbitrator appointed by the Central Government. The competent authority or the Arbitrator while determining the amount are to take into consideration the factors made mention of in Section 3G(7)(a) to (d).

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Section 3H of the Act provides for Deposit and payment of compensation. The said provision reads thus:

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3H. Deposit and payment of amount.—(1) The amount determined under section 3G shall be deposited by the Central Government in such manner as may be laid down by rules made in this behalf by that Government, with the competent authority before taking possession of the land.

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(2) As soon as may be after the amount has been deposited under sub-section (1), the competent authority shall on behalf of the Central Government pay the amount to the person or persons entitled thereto.

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(3) Where several persons claim to be interested in the amount deposited under sub-section (1), the competent authority shall determine the persons who in its opinion are entitled to receive the amount payable to each of them.

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(4) If any dispute arises as to the apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, the competent authority shall refer the 5 dispute to the decision of the principal civil court of original jurisdiction within the limits of whose jurisdiction the land is situated.

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(5) Where the amount determined under section 3G by the arbitrator is in excess of the amount determined by the competent authority, the arbitrator may award interest at nine per cent, per

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annum on such excess amount from the date of taking possession under section 3D till the date of the actual deposit thereof.

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(6) Where the amount determined by the arbitrator is in excess of the amount determined by the competent authority, the excess amount together with interest, if any, awarded under sub-section (5) shall be deposited by the Central Government in such manner as may be laid down by rules made in this behalf by that Government, with the competent authority and the provisions of subsections (2) to (4) shall apply to such deposit.

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As per Section 3 H , the Central Government is to deposit the amount determined by the competent authority before taking possession of the land and the competent authority is to disburse the amount to the person entitled thereto. However, when several persons claim to be interested in the amount deposited under sub-section (1), the competent authority is required to determine the persons who in its opinion are entitled to receive the amount payable to each of them. If any dispute arises as to the apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, the competent authority is required to refer the dispute to the decision of the principal civil court of original jurisdiction within the limits of whose jurisdiction the land is situated.

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The provisions of the Act 48 of 1956 provides for the procedure to be adopted when several persons lay claim to the amount deposited. Now that the petitioner has been served with Ext.P11 notice, they shall appear before the competent authority and place records to substantiate that they are also interested in such land and are entitled to compensation. If claims are raised by the University, the competent authority is required to determine the persons who in its opinion are entitled to receive the amount. If dispute arises as to the apportionment of amount

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or any part thereof, the competent authority may also invoke 3H(4) and relegate the parties to the Civil Court. Before taking any decision, the competent authority shall hear the petitioner as well as the representative of the University. A decision shall be taken expeditiously, in any event, within a period of one month from today. Till such time, the amount determined for the building bearing No. 5/473 and 472 of Thenhipalam Grama Panchayat together with the tenancy rights, if any, shall not be disbursed to either of the parties.

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This writ petition is disposed of.

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Sd/-

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RAJA VIJAYARAGHAVAN V

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JUDGE

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WP(C) NO. 2002 OF 2021

PETITIONER ANNEXURE

EXHIBIT	P1 TRUE COPY OF THE ORDER NO.D.1481/79 DATED
	12/03/1979 ISSUED BY THE DEPUTY REGISTRAR OF CO-OPERATIVE SOCIETY (GENERAL), MALAPPURAM, REGISTERING THE SOCIETY.
EXHIBIT	P2 TRUE COPY OF THE ORDER NO.PLD.B1/11349/84 DATED 19/09/1987 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT	P3 TRUE COPY OF THE LEASE DEED EXECUTED WITH THE 2ND RESPONDENT DATED 07/05/1988.
EXHIBIT	P4 TRUE COPY OF THE OWNERSHIP CERTIFICATE DATED 13/11/2020 ISSUED BY THE THENHIPALAM GRAMA PANCHAYAT TO THE PETITIONER.
EXHIBIT	P5 TRUE COPY OF THE ORDER NO.PLD./B1/10351/86 DATED 30/04/1987.
EXHIBIT	P6 TRUE COPY OF THE OWNERSHIP CERTIFICATE DATED 13/11/2020 ISSUED BY THE THENHIPALAM GRAMA PANCHAYAT TO THE PETITIONER.
EXHIBIT	P7 TRUE COPY OF THE COMMUNICATION NO.PLD/D/ASST-2 DATED 05/11/2020 ISSUED BY THE 2ND RESPONDENT INFORMING THE SOCIETY FOR REMITTANCE OF THE ELECTRICITY AND WATER CHARGES.
EXHIBIT	P8 TRUE COPY OF THE SKETCH OF THE LAND BELONGING TO THE UNIVERSITY THAT COMES UNDER THE ACQUISITION FOR NATIONAL HIGHWAY WIDENING.
EXHIBIT	P9 TRUE COPY OF THE ORDER U.O.NO.623/2020/ADMN. DATED 17/01/2020 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT	P10 TRUE COPY OF THE COMMUNICATION NO.189082/PLD- B-ASST-1/2020/ADMN. DATED 14/01/2021 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT	P11 TRUE PHOTOCOPY OF THE NOTICE NO.TGI/1648/2018 DATED 07/02/2021 ISSUED BY THE SPECIAL TAHSILDAR, LA (NH) UNIT.1

The Calicut University Staff Co-Operative Credit Society Limited NO.M-266 v. the University of Calicut

Case brief

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The Calicut University Staff Co-Operative Credit Society Limited NO.M-266 v. the University of Calicut

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