Kerala High Court
Jones Mathews vs State Of Kerala on 13 January, 2020
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
MONDAY, THE 13TH DAY OF JANUARY 2020 / 23RD POUSHA, 1941
WP(C).No.37618 OF 2017(B)
PETITIONER:
JONES MATHEWS
NEDUMCHIRA THOTTATHIL HOUSE, ADICHANALLOOR P.O.,
KOLLAM DISTRICT - 691 573.
BY ADVS.
SRI.JOJU KYNADY
SRI.TOM THOMAS (KAKKUZHIYIL)
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM.
2 SECRETARY TO GOVERNMENT
INDUSTRIES DEPARTMENT,SECRETARIAT,
THIRUVANANTHAPURAM.
3 THE SPECIAL TAHSILDAR (LAND ACQUISITION)
SREE PANDARAVAKA LANDS NO.III,
CIVIL STATION, THIRUVANANTHAPURAM - 695043.
BY SMT.LATHA THANKAPPAN, SPL. GOVERNMENT PLEADER
(LAND ACQUISITION)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
13.01.2020, ALONG WITH WP(C).40098/2017(J), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
W.P.(C) Nos.37618 & 40098/2017 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
MONDAY, THE 13TH DAY OF JANUARY 2020 / 23RD POUSHA, 1941
WP(C).No.40098 OF 2017
PETITIONER:
ANSU GEORGE
W/O. MANOJ N MATHEW,
NEDUMCHIRA PEARL HILL,
ADICHANALLOOR P.O, KOLLAM - 691 573.
BY ADV. SRI.H.RAMANAN
RESPONDENTS:
1 STATE OF KERALA
REP.BY ITS SECRETARY,
DEPT. OF LAND ACQUISITION, SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2 SPECIAL TAHSILDAR
SREE PANDARAVAKA LANDS NO.3 & LA CIVIL STATION,
KUDAPPANAKUNNU P.O,
THIRUVANANTHAPURAM - 695 043.
OTHER PRESENT:
SRI.LATHA THANKAPPAN, SPL GOVT. PLEADER (LAND
AQUISITION)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
13.01.2020, ALONG WITH WP(C).37618/2017(B), THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) Nos.37618 & 40098/2017 3
JUDGMENT
[ WP(C).37618/2017, WP(C).40098/2017 ] Dated this the 13th day of January 2020 In both the writ petitions, the petitioners, subsequent purchasers of the land involved in the land acquisition proceedings, claimed that the land acquisition proceedings have been lapsed consequent upon the non- publication of the Award within the time indicated under Section 11A of the Land Acquisition Act, 1894. Section 11A stipulates as follows:
"11A. Period within which an award shall be made.- (1) The Collector shall make an award under section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse:
Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984, the award shall be made within a period of two years from such commencement.
Explanation.- In computing the period of two years referred to in this section, the period during which any action or proceedings to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded".W.P.(C) Nos.37618 & 40098/2017 4
2. Section 4(1) notification was published on 22.07.2008. Declaration under Section 6(1) was published on 24.11.2009. The last date of publication was on 21.01.2010. Reckoning the last date of publication, the Award ought to have been published on 22.01.2012. In this case, Award was passed only on 02.11.2017. Taking shelter under the explanation to Section 11A, the learned Government Pleader submits that there were challenge against the land acquisition in several connected notifications and therefore, there was delay in publishing the Award.
3. It is to be noted several parcels of land were subjected to land acquisition proceedings under different notifications. There were challenge against such notifications and stay was granted by the court. However, there was no stay pursuant to the notification issued in respect of the petitioners' property. The exclusion of the period involved in the stay of this Court or any other court is relatable to declaration under Section 6(1) of the Act. Even if it is connected to the declaration, such period cannot be excluded. The law does not exclude all that period connected to notification but only related to the declaration. In view of the fact that there was no delay and there was no stay in any of the W.P.(C) Nos.37618 & 40098/2017 5 notifications covering the property belonged to the petitioners, the proceedings are to lapse.
4. However, learned Senior Government Pleader placed reliance on the judgment of the Apex Court in K.N.Aswathnarayana Setty (D) Tr. LRs and others vs. State of Karnataka and others (AIR 2014 SC
279). Paragraph 10 of the said judgment is reproduced herewith:
"10. The law on the issue can be summarised to the effect that a person who purchases land subsequent to the issuance of a Section 4 notification with respect to it, is not competent to challenge the validity of the acquisition proceedings on any ground whatsoever, for the reason that the sale deed executed in his favour does not confer upon him, any title and at the most he can claim compensation on the basis of his vendor's title".
5. The aforesaid judgment is relating to the challenge available to a subsequent purchaser. Here is the case there is no challenge against the proceedings. In this case, the petitioners' claim is that acquisition proceedings have been lapsed. Therefore, the court only need to consider whether the acquisition proceedings have come to an end or not. No owner can be deprived of his property without following the procedure of law. The challenge to the land acquisition proceedings and depriving the land owner of his property without recourse to the procedure of law are two different aspects. Therefore, the judgment as W.P.(C) Nos.37618 & 40098/2017 6 above is of no avail. In view of the fact that the proceedings have been lapsed as early as on 21.01.2012, the Award is void. The petitioners cannot be deprived of their property based on a void Award.
Accordingly, these writ petitions are allowed. If the petitioners have been deprived of possession of their property, the same shall be restored to them forthwith. However, nothing precludes the respondents in initiating fresh land acquisition proceedings against the property in accordance with law.
Sd/-
A.MUHAMED MUSTAQUE JUDGE smp W.P.(C) Nos.37618 & 40098/2017 7 APPENDIX OF WP(C) 37618/2017 PETITIONER'S EXHIBITS:
EXHIBIT-P1: TRUE COPY TAX RECEIPT DATED 04.07.2017 FOR RE SURVEY NUMBER 216/1-5 AND 216/1-6.
EXHIBIT-P2: TRUE COPY OF SALE DEED NO.2027/2014 DATED 22.11.2014 BEFORE SRO MURUKKUMPUZHA.
EXHIBIT-P3: TRUE COPY OF NOTICE DATED 09.10.2017. EXHIBIT-P4: TRUE COPY OF RIGHT TO INFORMATION APPLICATION 22.08.2017.
EXHIBIT-P5: TRUE COPY OF RTI REPLY DATED 15.09.2017. EXHIBIT P6 TRUE COPY OF NOTICE DTD.20.11.2017. EXHIBIT P7 TRUE COPY OF NOTICE DTD.20.11.2017. EXHIBIT P8 TRUE COPY OF THE INTERIM ORDER DTD.18.12.2017 IN WP(C) 40098/2017 EXHIBIT P9 TRUE COPY OF THE INTERIM ORDER DTD.10.01.2018 IN WP(C) 40098/2017.
RESPONDENTS' EXHIBITS: NIL.
True Copy
P.S to Judge
smp
W.P.(C) Nos.37618 & 40098/2017 8
APPENDIX OF WP(C) 40098/2017
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF SALE DEED NO. 2050/2014
DT.26-11-14 EXECUTED IN FAVOUR OF
PETITIONER
EXHIBIT P2 TRUE COPY OF LATEST LAND TAX RECEIPT
DT. 22-08-17
EXHIBIT P3 TRUE COPY OF 2ND RESPONDENT NOTICE
DT.31-07-17 TO THE PETITIONER
EXHIBIT P4 TRUE COPY OF APPLICATION DT. 16-08-2017
FILED BY PETITIONER'S ADVOCATE UNDER RTI ACT EXHIBIT P5 TRUE COPY OF REPLY DT.15-09-2017 OF EXT.P-4 APPLICATION EXHIBIT P6 TRUE COPY OF 2ND RESPONDENT'S NOTICE TO THE PETITIONER EXHIBIT P7 TRUE COPY OF 2ND RESPONDENT'S NOTICE DTD. 20-11-17 EXHIBIT P8 TRUE COPY OF 2ND RESPONDENT'S NOTICE DTD.20-11-17 TO THE PETITIONER EXHIBIT P9 TRUE COPY OF PETITIONER'S REPLY DT. 30-11-17 TO EXT.P-8 RESPONDENTS' EXHIBITS: NIL.
True Copy P.S to Judge smp