Kerala High Court
Joseph C.X vs Union Of India on 6 January, 2025
2025:KER:1664
W.P.(C). No.7529 of 2022 :1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
MONDAY, THE 6TH DAY OF JANUARY 2025 / 16TH POUSHA, 1946
WP(C) NO. 7529 OF 2022
PETITIONERS:
1 JOSEPH C.X
AGED 66 YEARS
S/O. LATE CHIRAKKAL XAVIER, RESIDING AT CHIRAKKAL HOUSE,
20 ACRE IRUTTALLA, POTTANKADU P.O., IDUKKI DISTRICT,
MUNNAR-685 565
2 PHILOMINA C.X.,
D/O. LATE CHIRAKKAL XAVIER, RESIDING AT MULAVARICKAL
HOUSE, THATTANPADY, KANGOOR P.O., ERNAKULAM-683 501
3 VIMALA.C.X.,
D/O. LATE CHIRAKKAL XAVIER, RESIDING AT ARAKKAPARAMBIL
HOUSE, KOCHAL ROAD, MANJUMMAL P.O., UDYOGAMANGAL,
ERNAKULAM-683 501
4 JINNY.C.X.,
D/O. LATE CHIRAKKAL XAVIER, RESIDING AT MULLOOR HOUSE,
KOONAMAVU, ERNAKULAM-683 518
5 SR.TRESA MOLY C.X.,
CARMELITE NUN, D/O. LATE CHIRAKKAL XAVIER, RESIDING AT
ST.MARY'S CONVENT, OPPOSITE ITI, KANJICODE, WEST PALAKKAD-
678 623
BY ADVS.
B.PREMNATH (E)
SARATH M.S.
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY TO MINISTRY OF ROAD TRANSPORT
AND HIGHWAYS, TRANSPORT BHAVAN, SANSAD MARG, NEW DELHI-110
001
2025:KER:1664
W.P.(C). No.7529 of 2022 :2:
2 SPECIAL DEPUTY COLLECTOR (LAND ACQUISITION),
N.H-66, AND COMPETENT AUTHORITY, (KUTTIPPURAM-EDAPPALLY),
N.PARAVOOR, ERNAKULAM, PIN-683 513
3 SPECIAL TAHSILDAR (LA),
N.H-66, UNIT -1, NORTH PARAVOOR, ERNAKULAM,PIN-683 513
4 SEBASTIAN.C.X.,
S/O. LATE CHIRAKKAL XAVIER, RESIDING AT CHIRAKKAL HOUSE,
20 ACRE IRUTTALLA, POTTANKADU P.O., IDUKKI DISTRICT,
MUNNAR-685 565
5 MARIA LEENA.C.X.,
D/O. LATE CHIRAKKAL XAVIER, RESIDING AT 780/46, AISHWARYA,
32ND FLOOR, GOKULAM 1ST STAGE, 2ND PHASE, DIVANARAPALAYA,
MATHIKERE P.O., BANGALORE-560 054
6 JESTY .C.X.,
D/O. LATE CHIRAKKAL XAVIER, RESIDING AT 14 STRUTHERS
STREET, ETOBICOKE, ONTARIO, M8V 1Y1, CANADA
7 MARY SHAGEELA.C.X.
D/O. LATE CHIRAKKAL XAVIER, RESIDING AT 4518 MARILEE CHRIS
CT, SUGAR LAND, TEXAS, 774793565 USA
8 SELIN C.X.,
D/O. LATE CHIRAKKAL XAVIER, RESIDING AT 223, 3RD CROSS,
HRBR LAYOUT, KALYAN NAGAR, BANGALORE-560 043
BY ADVS. JUSTUS S., CGC
Varghese K Paul
N.K.SUBRAMANIAN
PETER KURIAN(P-434)
KASHMEERA ASHRAF(K/000844/2021)
SMT.SNEHA DIVAKARAN P.(K/001203/2021)
ABRAHAM MATHAN
OTHER PRESENT:
GP - NIMA JACOB
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
06.01.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:1664
W.P.(C). No.7529 of 2022 :3:
VIJU ABRAHAM, J.
-- -- -- -- -- -- -- -- -- -- -- -- --
W.P.(C) No.7529 of 2022
-- -- -- -- -- -- -- -- -- -- -- -- --
Dated this the 6th day of January, 2025
JUDGMENT
The above writ petition is filed challenging Ext.P5 order of the 2nd respondent and also for a consequential direction to the 2 nd respondent to refer the dispute between the parties regarding the apportionment of award amount in respect of the acquired land to the Principal Civil Court of original jurisdiction, as mandated under Section 3H(4) of the National Highways Act, 1956.
2. It is contended that petitioners and respondents 4 to 8 are siblings and they are the children of one Chirakkal Xavier and Mary Xavier. A land having an extent of 0.2271 hectares in Sy.No.23/3-2 Village, Paravoor Taluk belonged to Sri.Chirakkal Xavier, the father of petitioners and respondents 4 to 8. The said Sri.Chirakkal Xavier passed away on 22.01.2006. It is the contention of the petitioners that the said property devolved on his wife Mary Xavier and petitioners and respondents 4 to 8 as per the provisions of Indian Succession Act, 1925. On 26.03.2016, with the passing away 2025:KER:1664 W.P.(C). No.7529 of 2022 :4: of their mother Smt.Mary Xavier, the said land devolved on petitioners and respondents 4 to 8 equally. The 4 th respondent was managing the entire family estate including the aforesaid land. While so, as per the gazette notification of the National Highway Authority, the aforesaid land was notified for acquisition for the development of NH-66. The 2nd respondent issued a notice under Section 3E(1) of the National Highways Act, notifying the 4 th respondent that the compensation for acquiring the aforesaid land having an extent of 0.2271 hectares has been allowed and ready for disbursement. As per Ext.P1 notice, the 4th respondent was asked to appear before the 2nd respondent along with the title deeds of the said land, so that the award amount could be deposited. It is the case of the petitioners that the 4 th respondent has devised a way to project himself as the sole owner of the acquired property. Much later, petitioners and respondents 5 to 8 came to know that the 4th respondent has created bogus settlement deed Nos.6992 of 2002 dated 27.12.2002 and 7002 of 2002 dated 28.12.2002 of Sub Registrar's Office, Alangad as per which he claimed that their late father had gifted the acquired land in question to him. On having 2025:KER:1664 W.P.(C). No.7529 of 2022 :5: come to know of the same, Ext.P2 lawyer notice was issued to the 2nd respondent opposing the move to release the award amount to the 4th respondent. The 2nd respondent issued a hearing notice, which was also served on the petitioners and respondents 5 to 8 and they submitted Ext.P4 written statement objecting the release of the award amount to the 4th respondent. It is contended that though the 2nd respondent found that there is a title dispute between the petitioners, respondents 4 to 7 and the 3 rd respondent, did not refer the dispute to the Principal Civil Court of original jurisdiction as mandated under Section 3H(4) of the National Highways Act, 1956. Instead, the 2 nd respondent relied on the report of the 3rd respondent and rejected Ext.P4 objections as per Ext.P5 order and it is the said order that is under challenge in this writ petition.
3. It is contended by the learned counsel for the petitioners that going by the Indian Succession Act, the petitioners and respondents 4 to 8 being the legal heirs of the deceased Sri. Chirakkal Xavier, are entitled to obtain the share of compensation allowed towards acquisition of the property. It is further contended 2025:KER:1664 W.P.(C). No.7529 of 2022 :6: that settlement deeds Nos.6992/2002 dated 27.12.2002 and 7002/2002 dated 28.12.2002 of Sub Registrar's Office, Alangad, whereby the property sought to be acquired, gifted to the 4 th respondent by the late father, are bogus one. The learned counsel for the petitioners relying on the judgment of the Apex Court in Vinod Kumar and Others v. District Magistrate, Mau and Others [2023 SCC OnLine SC 787], the decision of the Panjab and Haryana High Court in Nirmal Singh v. Union of India and Others [2012(2)ILR(Punjab & Haryana) 604], in Arun v. State of Maharashtra and Others[2017 (6) Mh.L.J. 612] and the decision of this Court in Hari Hara Nandanan v. Suresh Ezhuvath [2015 (1) KLT SN 105] submitted that whenever there is a dispute as to the entitlement to receive compensation amount, the competent authority is obliged to refer the matter to the Principal Civil Court of original jurisdiction and that the title to the property, entitlement to the proportionate share of compensation are not matters to be enquired by the land Acquisition Officer or the District Collector and the same is within the province of Court concerned.
2025:KER:1664 W.P.(C). No.7529 of 2022 :7:
4. Per contra, the learned counsel appearing for the 4 th respondent, based on a detailed counter affidavit would submit that the claim raised by the petitioners is absolutely without any basis and with an intention to delay the payment of the amount legally due to the 4th respondent. It is contended that the 4 th respondent is in absolute ownership in possession and enjoyment of the property having an extent of 20.24 Ares, made up of 3.24 Ares, comprised in Sy.No. 23/3-2 and the residential building thereon and 17 Ares, comprised in Sy. No. 23/3-2 of Alangad Village in Paravur Taluk, obtained as per Settlement deed Nos.6992/2002 dated 27/12/2002 and 7002/2002 dated 28/12/2002 of SRO, Alangad, respectively, copies of which are produced as Exts.R4(a) and R4(b). Later, mutation was effected and tax was also paid in the name of the 4 th respondent as evident from Ext.R4(c) tax receipt. Ext.R4(d) is the ownership certificate issued by the Alangad Grama Panchayat in the name of the 4th respondent. On the basis of the above document, it is the contention of the 4th respondent that apart from the 4th respondent, nobody else has any claim or right over the said property. Since the 4th respondent is in ownership and title over the 2025:KER:1664 W.P.(C). No.7529 of 2022 :8: said property, notices were issued in his name by the land acquisition authority. Since the amount determined as per the award was low and meager, the 4 th respondent received the award amount under protest and accordingly filed an application for Arbitration under Section 3G(5) of the National Highways Act, 1956 for the determination of the compensation by the Arbitrator. It is further submitted that the property covered by Ext.R4(a) and R4(b) was settled in favour of the 4 th respondent by the father of the petitioners and respondents 4 to 8, out of the natural love and affection towards the 4th respondent. While executing Ext.R4(a) and R4(b) settlement deeds, late father Sri.Chirakkal Xavier has decided to bequeath his other properties in favour of the 1 st, 2nd and 5th petitioners and accordingly, Ext.R4(i) Will was prepared and signed by late Sri. Chirakkal Xavier and the Will was registered as Will bearing No.111/2002 of SRO, Alangad dated 27.12.2002. Moreover, it is submitted that Exts.R4(a) and R4(b) settlement deeds in favour of the 4 th respondent executed by late father is dated 27.12.2002 and 28.12.2002 respectively, whereas the Will executed as Ext. R4(i) was also registered on 27.12.2002 in favour 2025:KER:1664 W.P.(C). No.7529 of 2022 :9: of petitioners 1, 2 and 5. On the basis of the same it is contended that the 2nd respondent has rightly rejected the request of the petitioners as per Ext.P5, since the 4 th respondent alone is in true ownership in possession of the acquired property and entitled for the compensation awarded to the said property. The learned counsel for the 4th respondent relies on the judgment in Kaprat Family Trust v. Union of India [2024 (2) KHC 143] and the judgment dated 01.04.2022 in WP(C) No.25088/2021 in support of his contentions.
5. A detailed counter affidavit was filed by the 2 nd respondent also, that the 4th respondent has submitted all the relevant documents in proof of the title ownership and possession of the land acquired having an extent of 0.1281 Hectares in Sy. No.23/3- 2, and the documents produced by the 4 th respondent are as follows:
1. Settlement deed No. 6992/2002
2. Settlement deed No. 7002/2002
3. Possession and Non-attachment certificate No.61152436 dated 08.11.2021 issued by Village Officer, Alangad Village.
4. Basic Tax receipt No.KL07030114093/21 issued 2025:KER:1664 W.P.(C). No.7529 of 2022 : 10 : from Alangad Village
5. Non-Encumbrance certificate issued No. 14280/21 dated 11.03.2021 issued from SRO Alangad.
6. Ownership certificate No.5063101/3943/21 dated
06.11.2021 issued by Alangad Grama Panchayath.
7. Purchase certificate dated 13.02.1976 issued by Land Tribunal and Spl. Tahsildar L.F No.2, Ernakulam, Cochin.
It is also submitted that from the records it is seen that the properties are in continuous, uninterrupted, lawful possession of the 4th respondent for nearly 20 years. On the other hand, even though the petitioners have given ample opportunities to establish their claim, they failed to produce any documents to establish their claim over the acquired land.
6. A detailed reply affidavit was also filed by the petitioners in answer to the counter affidavit filed by the 4 th respondent.
7. I have heard the rival contentions on both sides.
8. It has come on record that by Exts.R4(a) and R4(b) settlement deeds, the 4th respondent became the absolute ownership and possession and enjoyment of the property, which is sought to be acquired. These documents were executed as early as 2025:KER:1664 W.P.(C). No.7529 of 2022 : 11 : on 27.12.2002 and 28.12.2002 respectively. It is also to be noted that on the date of execution of the settlement deeds, a Will was executed by the father of the petitioners and respondents 4 to 8 as per Ext.R4(i) dated 27.12.2002, bequeathing his other properties in favour of petitioners 1, 2 and 5. The contention raised by the petitioners is that Exts.R4(a) and R4(b) settlement deeds are bogus. It is further contended by the petitioners that the witnesses and the scribe have colluded together with the 4 th respondent and fraudulently created Exts.R4(a) and R4(b) settlement deeds. Even though it is averred that the 4 th respondent has colluded with the witnesses as well as scribe in executing Exts.R4(a) and R4(b), there is no averment that any complaint has been preferred by the petitioners against the said persons for creating bogus deeds, either before the Police Authorities or before the registering authority. Further, even after coming to know the execution of Exts.R4(a) and R4(b) deeds, no suit has been filed by the petitioners seeking to declare the deeds as void. But for the assertion made in the written statement before the Acquisition Officer, produced as Ext.P4, no steps have been taken by the 2025:KER:1664 W.P.(C). No.7529 of 2022 : 12 : petitioners either to cancel Exts.R4(a) and R4(b) or made any complaint before the authorities concerned regarding the creation of bogus settlement deeds. This Court in Kaprat Family Trust's case in W.P.(C) No.25088/2021 has categorically held that it is not sufficient that a person merely projects a contest but will have to establish before the land Acquisition Authority that this leads to "arising" of a dispute and that it is not enough that someone approaches the land Acquisition Authority and asserts that he has a dispute with respect to the entitlement of the owner of the property to receive the eligible compensation, but it is imperative for him to establish that such imputation given rise to a valid dispute and that a mere trifle allegation would be not sufficient. The court has rejected the contention raised in the said case stating that though claim was made on the basis of 'patta' issued by the competent authority, the parties have filed appeal challenging the same and the court held that mere pendency of such appeal challenging the 'patta' cannot be a ground for anyone to hold that a dispute has arisen, unless the title of the owner is shown to be, at least, prima facie vitiated. Similar view was taken in Kaprat Family Trust's 2025:KER:1664 W.P.(C). No.7529 of 2022 : 13 : case cited (Supra), wherein also this Court has held that so long as the purchase certificates are in force, it cannot be said that there is a "dispute arises" in the said case and if the petitioners are able to show that the purchase certificates were obtained by fraud or in an illegal manner in the pending legal proceedings filed by them against the same, the petitioners can sue the party respondents for returning the compensation amount and that till the validity of the purchase certificate is decided by the competent authorities, the claim of the party respondents for compensation need not be deferred indefinitely.
9. The learned counsel for the petitioners rely on the judgments in Nirmal Singh's case, Vinod Kumar's case, Arun's case and Hari Hara Nandanan's case cited supra, to contend for the position that it is not for the Land Acquisition Officer or the District Collector to determine a dispute as to the entitlement to receive compensation and it was incumbent on the Land Acquisition Officer as per Section 3H of the National Highways Act in case of 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 2025:KER:1664 W.P.(C). No.7529 of 2022 : 14 : thereof is payable, to refer the dispute to the decision of the Principal Civil Court for adjudication. But the question here is whether as held by this Court in Kaprat Family Trust's case cited supra, it is enough that someone approaches the Land Acquisition Authority and asserts that he has a dispute with respect to the entitlement of the owner of the property to receive the eligible compensation, or he has to establish that such imputation give rise to a valid dispute, since a mere trifle allegation would not be sufficient. As stated above, the contention of the petitioners is that the 4th respondent has created bogus settlement deeds in collusion with the witnesses and the scribe, it is to be seen that these documents were created as early as in 2002. The petitioners have absolutely no case that any complaint has been preferred before any authorities including police authorities or before the registering authority regarding the same. It is also noted that the case of the petitioners that any complaint or a suit has been filed by the petitioners seeking to declare the deeds as void, soon after the said factum of execution of the deeds came to the knowledge of the petitioners.
2025:KER:1664 W.P.(C). No.7529 of 2022 : 15 :
10. In view of the above facts and circumstances, I am of the view that the dictum laid down by the judgment in Kaprat Family Trust's case cited supra, will apply in the facts and circumstances of the present case.
In view of the above, the challenge against Ext.P5 order fails and the writ petition is accordingly, dismissed.
Sd/-
VIJU ABRAHAM JUDGE sm/ 2025:KER:1664 W.P.(C). No.7529 of 2022 : 16 : APPENDIX OF WP(C) 7529/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE EVICTION NOTICE NO.B1- 124/2021 ISSUED BY THE 2ND RESPONDENT, DATED 29.09.2021 Exhibit P2 TRUE COPY OF THE LAWYER NOTICE ISSUED BY ADV.PHILOMINA TO THE 2ND RESPONDENT BY REGISTERED POST, DATED 24.11.2021 Exhibit P3 TRUE COPY OF THE REPLY NO.RTI NO.1684/2021 OF THE PUBLIC INFORMATION OFFICER, SPECIAL TAHSILDAR (LR) OFFICE, ERNAKULAM DATED 04.01.2022 Exhibit P4 TRUE COPY OF THE OBJECTIONS BY WAY OF WRITTEN STATEMENT, FILED BY PETITIONERS AND RESPONDENTS 5 TO 8 BEFORE THE 2ND RESPONDENT DATED 03.02.2022 Exhibit P5 TRUE COPY OF THE ORDER NO.B1-2394/2022 OF THE 2ND RESPONDENT, DATED 17.02.2022 RESPONDENT EXHIBITS Exhibit R4(a) The true copy of the Settlement deed Nos.
6992/2002of SRO Alangad.
Exhibit R4 (b) The true copy of the Settlement deed Nos.7002/2002 of SRO Alangad.
Exhibit R4 (c) The true copy of the land tax paid receipt dated 10/09/2021 Exhibit R4 (d) The true copy of the Ownership Certificate dated 06/11/2021, issued from Alangad Grama Panchayath.
2025:KER:1664 W.P.(C). No.7529 of 2022 : 17 : Exhibit R4 (e) A true copy of the list of documents dated 12/11/2021, submitted by the 4th respondent before the 3rd respondent.
Exhibit R4 (g) The true copy of the proceedings dated 23/02/2022, of the 2nd respondent Exhibit R3(i) The true copy of the Will dated 27/12/2002.
Exhibit R3(h) The true copy of the application filed under Section 3G(5) of the National Highways Act, 1956 for the determination of compensation by the Arbitrator, filed before the District Collector, Ernakulam Exhibit R4 (j) The true copy of the Caveat Applications, filed before the Hon'ble Sub Court Nort Paravur.
Exhibit R4 (k) The true copy of the Caveat Applications, filed before the Hon'ble Munsiff Court, North Paravur Exhibit R4 (l) The true copy of the postal acknowledgment card, evidencing serving of the above-mentioned Caveat Applications Exhibit R3(m) The true copy of the postal acknowledgment card, evidencing serving of the above-mentioned Caveat Applications.
Exhibit R4 (n) The true copy of the postal acknowledgment card, evidencing serving of the above-mentioned Caveat Applications.
2025:KER:1664 W.P.(C). No.7529 of 2022 : 18 : Exhibit R3(p) The true copy of the postal acknowledgment card, evidencing serving of the above-mentioned Caveat Applications.
Exhibit R3(q) The true copy of the postal acknowledgment card, evidencing serving of the above-mentioned Caveat Applications.
Exhibit R3(s) The true copy of the postal acknowledgment card, evidencing serving of the above-mentioned Caveat Applications.
Exhibit R4 (t) The true copy of the postal acknowledgment card, evidencing serving of the above-mentioned Caveat Applications.
Exhibit R4 (v) The true copy of the postal acknowledgment card, evidencing serving of the above-mentioned Caveat Applications.
Exhibit R4 (o) The true copy of the postal acknowledgment card, evidencing serving of the above-mentioned Caveat Applications.
Exhibit R4 (r) The true copy of the postal acknowledgment card, evidencing serving of the above-mentioned Caveat Applications.
Exhibit R3(u) The true copy of the postal acknowledgment card, evidencing serving of the above-mentioned Caveat Applications.
2025:KER:1664 W.P.(C). No.7529 of 2022 : 19 : Exhibit R4 (W) The true copy of the postal acknowledgment card, evidencing serving of the above-mentioned Caveat Applications.
Exhibit R4 (f) The true copy receipt in LAC No.41/2021/A2GI dated ‘nil' issued by the 3rd respondent.
PETITIONER EXHIBITS Exhibit P6 TRUE COPY OF THE CAVEAT ORIGINAL PETITION FILED BY THE 4TH RESPONDENT BEFORE THE HON'BLE SUB COURT, NORTH PARAVUR, DATED 17/10/2022 Exhibit P7 TRUE COPY OF THE POSTAL COVER IN WHICH THE CAVEAT O.P WAS SENT TO THE 1ST PETITIONER, AND THE POSTAL RECEIPT DATED 20/10/2022 OF THE ERNAKULAM HIGH COURT POST OFFICE RESPONDENT EXHIBITS Exhibit R1(a) True copy of the relevant pages of the Gazette Notification No.S.O.363(E) dated 25.01.2021 Exhibit R1(b) True copy of the relevant pages of the Gazette Notification No.S.O.3193(E) dated 09.08.2021 PETITIONER EXHIBITS Exhibit P8 True copy of the Gift Deed No.1975 of 2021 executed in the Sub Registrar Office, Rajakumari, dated 26.11.2021 2025:KER:1664 W.P.(C). No.7529 of 2022 : 20 : Exhibit P9 TRUE COPY OF THE PLAIN CT SCAN OF THE HEAD OF THE FATHER OF THE PETITIONERS AND RESPONDENTS 4 TO 8, ISSUED BY DR.K.GAJANANAN, RADIOLOGIST OF THE LOURDES HOSPITAL, COCHIN, DATED 24.04.2000.
Exhibit P10 TRUE COPY OF THE DISCHARGE SUMMARY ISSUED FROM THE DEPARTMENT OF CARDIOLOGY OF LOURDE'S HOSPITAL, KOCHI TO SRI.XAVIER.C.K., DATED 27.05.2000.
Exhibit P11 TRUE COPY OF THE DISCHARGE SUMMARY CERTIFICATE ISSUED FROM LOURDE'S HOSPITAL, KOCHI TO SRI.XAVIER.C.K., DATED 01.09.2004.
Exhibit P12 TRUE COPY OF THE REPORT OF THE PLAIN CT SCAN OF THE HEAD OF SRI.XAVIER.C.K. BY DR.GAJANANAN, RADIOLOGIST, OF LOURDE'S HOSPITAL, COCHIN, DATED 25.06.2005.