Kerala High Court
Kerala State Industrial Development vs State Of Kerala on 7 October, 2015
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.MOHAN M.SHANTANAGOUDAR
&
THE HONOURABLE MR. JUSTICE SATHISH NINAN
FRIDAY, THE 16TH DAY OF DECEMBER 2016/25TH AGRAHAYANA, 1938
WA.NO. 977 OF 2016 () IN WP(C).32066/2013
-------------------------------------------
AGAINST THE JUDGMENT IN WP(C) 32066/2013
OF HIGH COURT OF KERALA DATED 07-10-2015
APPELLANT(S)/4TH RESPONDENT IN WPC NO.32066/2013:
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KERALA STATE INDUSTRIAL DEVELOPMENT
CORPORATION LIMITED
KESTON ROAD, KOWDIAR,
THIRUVANANTHAPURAM 695 003
REPRESENTED BY ITS MANAGING DIRECTOR.
BY ADVS.SRI.M.PATHROSE MATTHAI (SR.)
SMT.MARIAM MATHAI
SRI.SAJI VARGHESE
RESPONDENT(S)/RESPONDENTS IN W.P:
---------------------------------
1. STATE OF KERALA
REPRESENTED BY THE SECRETARY,
REVENUE DEPARTMENT, GOVERNMENT OF KERALA,
THIRUVANANTHAPURAM 695 001.
2. THE DISTRICT COLLECTOR
KOZHIKODE 673 001.
3. THE SPECIAL TAHSILDAR (LAND ACQUISITION)
KOYILANDI, KOZHIKODE 673 305.
4. THOMAS MATHEW
NELLUVELIL HOUSE,
NADACKAL P.O., ERATTUPETTA
WA.NO. 977 OF 2016
5. MARIAMMA MATHEW
NELLUVELIL HOUSE,
NADACKAL P.O., ERATTUPETTA.
6. PRADEEP JOSEPH
VADAKKEPUTHENPURAYIL
NADUTHOTTIYIL HOUSE,
NADACKAL P.O., ERATTUPETTA.
R4-R6 BY ADV. SRI.PHILIP T.VARGHESE
R4-R6 BY ADV. SRI.THOMAS T.VARGHESE
R4-R6 BY ADV. SMT.ACHU SUBHA ABRAHAM
R4-R6 BY ADV. SRI.S.SREEKUMAR (SR.)
R1-R3 BY ADV. SRI.K.V.SOHAN, STATE ATTORNEY
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
25.11.2016 ALONG WITH W.A. 1327/2016, THE COURT ON
16.12.2016 THE SAME DAY DELIVERED THE FOLLOWING:
MOHAN M.SHANTANAGOUDAR, C.J.
&
SATHISH NINAN, J.
===================================
W.A. Nos.977 and 1327 of 2016
===================================
Dated this the 16th day of December, 2016
J U D G M E N T
SATHISH NINAN, J.
These appeals are directed against the judgment dated 07.10.2016 rendered by the learned single judge in W.P(C) No.32066 of 2013. The subject matter relates to acquisition of land belonging to petitioners in the Writ Petition.
2. W.A. No.977 of 2015 is filed by the Kerala State Industrial Development Corporation Ltd. (hereinafter referred to as "the Requisitioning Authority") and W.A. No.1327 of 2016 is filed by the State along with the District Collector, Kozhikode and Special Tahsildar (LA), Kozhikode (hereinafter referred to as "the Acquisitioning Authority"). W.A. Nos.977 & 1327 of 2016 -: 2 :-
3. Writ petitioners are owners of an estate known as Manimala Estate in Velom Village, Vadakara Taluk in Kozhikode District. At the request of the requisitioning authority, for setting up its industrial project, "Coconut Industrial Park", the Acquisitioning Authority commenced proceedings for acquisition of 53.0558 Hectares (131.10 acres) of land from the Manimala Estate for the purpose of the aforesaid project. Exhibit P2 notification dated 20.09.2010 under Section 4(1) of the Land Acquisition Act, 1894 (for short, "the Act") was published in the Gazette dated 21.09.2010 for acquisition of the aforesaid extent of land. There were various meetings between the Acquisitioning Authority and the land owners for arriving at a consensus value regarding the properties to be acquired by a negotiated purchase price method. The records reveal that various meetings were held W.A. Nos.977 & 1327 of 2016 -: 3 :- by the District Level Purchase Committee along with the District Collector, land owners and the requisitioning authority. As seen from the records (Ext.R2[c]), the land owners had pointed out to the Acquisitioning Authority that the properties were mortgaged by them with a bank and that in the event of acquisition, amounts required to discharge the debt is to be paid to them forthwith. Finally, in the discussion held in March, 2011, the District Collector offered to fix the value of the bare land at Rs.10,750/- per cent and in addition thereto, the value of the improvements. Consent letters were given by the land owners agreeing to the compensation amount to be fixed at Rs.10,750/- per cent and the additional value for the improvements in the land. Exhibit R2(g) Government Order, G.O(Ms) No.235/11/1D dated 30.12.2011 was issued sanctioning acquisition. It was ordered that the land can be W.A. Nos.977 & 1327 of 2016 -: 4 :- acquired for an amount of Rs.10,750/- per cent and the structures and trees thereon to be valued as per the existing norms of the Government in terms of G.O (Rt.) No.331/2004/RD dated 05.11.2004. Pursuant to the said Government Order, the land owners issued Ext.R4(b) letter dated 09.01.2012 to the Special Tahilsdar (LA) referring to Government Order (Ext.R2(g), with specific reference to the valuation as indicated in the said Government Order and requesting for release of an advance amount of 80% out of the total amount payable, immediately, so as to liquidate the bank liability and also to settle the liability of the estate workers. It was further pointed out that the land owners had arrived at settlement amounts with the Indian Overseas Bank, their creditor, and also the Union of the estate workers and that their amounts are to be paid forthwith. The Acquisitioning Authority was W.A. Nos.977 & 1327 of 2016 -: 5 :- authorised to pay Rs.850 lakhs to the Bank directly in full settlement of their dues and the balance amount was requested to be paid to the land owners to settle the liability of the workers. On 16.12.2012 as per Ext.P3, Section 6 declaration was published in the Kerala Gazette. The properties were taken possession of on 15.02.2012 and an amount of Rs.7,90,15,000/- was remitted by the Acquisitioning Authority directly to the Indian Overseas Bank and Rs.2,00,00,000/- was paid in cash to the land owners jointly. It is the case of the land owners that at the time of release of the said amounts, the Acquisitioning Authority informed the land owners that instead of the capitalised value of the improvements in the land, only timber value would be added to the basic land price. That was objected to by the land owners and the amounts were received under protest. It is revealed that W.A. Nos.977 & 1327 of 2016 -: 6 :- thereafter disputes cropped up between the land owners and the Acquisitioning Authority regarding the total compensation payable, especially with regard to the compensation payable for the improvements. Since there arose dispute between the parties regarding the total compensation payable for the land with improvements, according to the land owners, the Acquisitioning Authority ought to have proceeded in terms of the procedure prescribed under Section 11(1) of the Act for passing an award. Acquisition proceedings could not be continued treating it as negotiated purchase. However, the Acquisitioning Authority proceeded to prepare draft awards as per Ext.P13 series dated nil proposing to pass award under Section 11(2) of the Act. The land owners had not agreed to the amount of compensation now proposed to be passed under the awards. The required agreements as mandated under the Land W.A. Nos.977 & 1327 of 2016 -: 7 :- Acquisition Act, 1894 (for short, 'the Act") and Land Acquisition (Kerala) Rules, 1990 (for short, "the 1990 Rules") had not been executed by the land owners and therefore, awards under Section 11 (2) of the Act could not be passed. Accordingly, the land owners prayed that the Acquisitioning Authority may be directed to pass awards under Section 11(1) of the Act.
4. According to the Requisitioning and Acquisitioning Authorities, they had negotiated with the land owners at various meetings with the District Level Purchase Committee and it was agreed that compensation for the land acquired would be paid at Rs.10,750/- per cent and the value of the improvements to be paid in addition thereto. The land owners had agreed for the said mode of calculation of the compensation. Pursuant to the said agreed terms, major portion of the compensation W.A. Nos.977 & 1327 of 2016 -: 8 :- was paid in terms of the agreement and the same was accepted by the land owners. After accepting the major portion of the compensation amount, the land owners have changed their stand and objected to the land acquisition proceedings on the ground that the value fixed for the improvements and structures is not correct. Though agreements as required in terms of the Act and Rules were not obtained, land owners had agreed to the acquisition proceedings, compensation amount, and the mode of payment, and hence the Acquisitioning Authority was to pass award in terms of Section 11(2) of the Act. It is contended that land owners are entitled to compensation only in terms of Ext.P13 series of awards.
5. Learned single Judge allowed the Writ Petition directing the Acquisitioning Authority to pass awards in terms of Section 11(1) of the Act and W.A. Nos.977 & 1327 of 2016 -: 9 :- further to pay compensation in terms of Ext.P6 and as shown in Exts.P9 to P11 notices. Learned single Judge relied on the non-execution of the agreements for negotiated settlement in Form 10(a) of the 1990 Rules, and that in the absence of any agreement between the land owners and the acquisitioning authority that only timber value would be paid as compensation for the improvements effected in the land, it cannot be held that there is a negotiated settlement regarding the price, and further held that Ext.P13 series awards are only draft awards. It was concluded by the learned single Judge that the claim of the Requisitioning and Acquisitioning Authorities that there has been agreement between the parties regarding the compensation payable for the land acquired is not substantiated by material available on record. It is challenging the said findings, these Writ Appeals have been preferred. W.A. Nos.977 & 1327 of 2016 -: 10 :-
6. Heard learned Senior Advocate Shri M.Pathros Mathai and learned State Attorney for the appellants in the respective appeals and learned Senior Advocate Shri S.Sreekumar for the land owners.
7. It is contended on behalf of the appellants that the learned single Judge went wrong in concluding that Ext.P13 series awards are only draft awards and further directing to pass award under Section 11(1) of the Act. According to the appellants it should have been held by the learned single Judge that the agreement between the Acquisitioning Authority and the land owners was one for a negotiated purchase, and based on the said agreement, compensation was fixed on consensus between the parties. Awards on consent were accordingly passed which are produced as Ext.P13 series. Even if the learned single Judge was of the W.A. Nos.977 & 1327 of 2016 -: 11 :- opinion that Ext.P13 series awards are only draft awards, the Acquisitioning Authority should have been directed to pass award under Section 11(2) of the Act, in terms of the consent between the parties. Various documents relied on by the acquisitioning and requisitioning authorities relating to the discussions between the parties including the District Level Purchase Committee were brought to our notice to argue that, as is evident from the said documents there has been an agreement between the parties fixing the value of the land as well as regarding the improvements. Out of the total compensation payable, 80% was paid on the request of the land owners, and as agreed. After accepting the benefits under negotiated purchase method, the land owners are estopped from retracting from the consent already given. The appellants, brought to our attention certain sale deeds W.A. Nos.977 & 1327 of 2016 -: 12 :- executed by the land owners regarding portions of the property that were left unacquired, to contend that value fixed in those documents are much lower than the basic land value agreed to by the Acquisitioning Authority which would prove that the value as offered and agreed to between the parties is more than adequate compensation. According to the appellants there has been consensus between the parties regarding the compensation payable and Ext.P13 series of awards are passed under Section 11 (2) of the Act.
8. Learned Senior Counsel appearing for the land owners would contend that though initially there were proposals and suggestions regarding the compensation payable for the acquisition of the lands and though initially proceedings for acquisition were taken and continued on the assumption that awards could be passed on a W.A. Nos.977 & 1327 of 2016 -: 13 :- negotiated purchase basis, the same failed due to various reasons. It is alleged that one of the essential terms of the proposal for a negotiated purchase was immediate payment of the compensation. However, as revealed from the documents, the entire compensation was not paid forthwith. So also though capitalisation method should have been followed for fixing the compensation for the improvements in the property acquired, the authorities proceeded to fix only the timber value. Properties that were acquired contained high yielding rubber trees, coconut trees, arecanut trees, Mahagony trees, etc. The mode of fixation of compensation for the high yielding trees, as stated, was totally improper and hence the land owners could not agree for passing the awards. It is also contended that though the Acquisitioning Authority referred to consent letters stated to have been given by the land owners, as is W.A. Nos.977 & 1327 of 2016 -: 14 :- evident from the documents produced and relied on by the acquisitioning authority, consent does not relate to all the land owners. According to them even in terms of the consent given, the "Kuzhikoors" (improvements as is usually referred to, including income from cultivation) ought to have been valued. However, the authorities calculated only the timber value. The land owners never agreed for such terms and hence awards could not be passed under Section 11(2) of the Act as consent awards. As regards payment of 80% of the compensation amount, the land owners would contend that as is evident from the records relating to land acquisition, the Acquisitioning Authority had proceeded for invoking the emergency clause under Section 17 of the Act, and that as per the said provision, the authorities were required under law to pay 80% of the compensation. Therefore, it is contended that W.A. Nos.977 & 1327 of 2016 -: 15 :- payment of 80% of the compensation, which is a factor mainly relied on by the appellants, could not be taken as a kind gesture on their part or as an act in furtherance of the proposed agreement or consensus, but was something that was mandatorily required under the provisions of the Act. It is contended that in view of the above facts and circumstances, the argument of the appellants regarding estoppel and promissory estoppel will not stand for a moment. Learned Senior Counsel drew our attention to various correspondences between officials of the authorities to contend that as is evident from the correspondences, the authorities had accepted the fact that consensus award could not be passed in the facts and circumstances of the case. It is further pointed out that at any rate, passing of consent award mandatorily presupposes existence of agreement between the Acquisitioning W.A. Nos.977 & 1327 of 2016 -: 16 :- Authority and the land owners in Form 10(a) of the Rules. Admittedly, it is not there. On that sole ground alone, the acquisitioning authority is disabled from passing an award on consent under Section 11(2) of the Act.
9. Since the main issue for determination is as to the nature of award passed or to be passed in the matter relating to acquisition in question, it would be relevant to refer to Section 11(1) and (2) of the Act which reads thus:
"11. Enquiry and award by Collector.-(1) On the day so fixed, or on any other day to which the enquiry has been adjourned, the Collector shall proceed to enquire into the objections (if any) which any person interested has stated pursuant to a notice given under Section 9 to the measurements made under Section 8, and into the value of the land at the date of the publication of the notification under Section 4, sub-section (1) and into the respective interests of the persons claiming the compensation and shall make an award under his hand of-
(i) the true are of the land;
(ii) the compensation which in his opinion should be allowed for the land; and W.A. Nos.977 & 1327 of 2016 -: 17 :-
(iii) the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom, or of whose claims, he has information, whether or not they have respectively appeared before him;
Provided that no award shall be made by the Collector under this sub-section without the previous approval of the appropriate Government or of such officer as the appropriate Government may authorise in this behalf:
Provided further that it shall be competent for the appropriate Government to direct that the Collector may make such award without such approval in such class of cases as the appropriate Government may specify in this behalf.
(2) Notwithstanding anything contained in sub-
section (1), if at any stage of the proceedings, the Collector is satisfied that all the persons interested in the land who appeared before him have agreed in writing on the matters to be included in the award of the Collector in the form prescribed by rules made by the appropriate Government, he may, without making further enquiry, make an award according to the terms of such agreement."
10. As per Ext.P2 dated 21.09.2010 notification under Section 4(1) of the Act was published in the Gazette regarding acquisition of the lands in question. As revealed from Ext.R2(c), on 22.11.2010, a meeting was held by the District W.A. Nos.977 & 1327 of 2016 -: 18 :- Collector regarding acquisition of the land in the presence of the land owners. The District Collector explained that for acquisition of the land, the method that is being proposed to be adopted is by way of negotiated purchase of the land. Though there were discussions between the parties relating to value of the lands, the value as suggested by the acquisitioning authority was not acceptable to the land owners. Thereafter, several meetings were held for discussions between the parties for the purpose of negotiation regarding the land value and the compensation payable. Finally in March, 2011, the parties arrived at a consensus regarding the value of the land, agreeing to fix it at Rs.10,750/- per cent. Value of the improvements were to be paid in addition to the basic land value as above fixed. The said fact is not in dispute. According to the land owners, the compensation amount was to be paid W.A. Nos.977 & 1327 of 2016 -: 19 :- within three months, and further, value of improvements were to be assessed and fixed by adopting capitalisation method. Pursuant to the agreement as above regarding compensation, Exts.R2
(a) and R2(b) consent letters were given by the land owners. As per the consent letters, land was to be valued at Rs.10,750/- per cent in addition to which value for "Kuzhikkoors" (income from cultivation) were to be paid. Here itself, it is to be noted that, it is the contention of the land owners that Ext.R2(a) was signed not by the owner of the property, viz., Smt.Mariamma Thomas but by her husband, Thomas Mathew. According to the learned senior counsel, the said document cannot be relied on to find grant of consent by the owner of the property. The said contention shall be dealt with in the course of discussions hereinafter.
11. On 30.12.2011 Government Order, G.O(MS) W.A. Nos.977 & 1327 of 2016 -: 20 :- No.235/11/ID was issued accepting value of land at Rs.10,750/- and the structures and trees to be valued in accordance with the existing norms of the Government as per G.O(Rt.) No.331/04/RD dated 01.11.2004 as suggested by the District Level Empowered Committee. Relevant portion of the said Government Order reads as follows:
"Government have examined the matter in detail and are pleased to accord sanction for the acquisition of 113 acres of land at Manimala Estate in Velom Village, Vadakara Taluk, Kuttiyadi, Kozhikode District for an amount of Rs.10,750/- (Rupees Ten Thousand Seven Hundred and Fifty only) per cent and also the structures and trees adjacent to it in accordance with G.O(Rt.) No.331/2004/RD dated 05.11.2004 and as per the existing guidelines based on the recommendations of State Level Empowered Committee for setting up a Coconut Industrial Park."
On 09.01.2012, i.e., immediately after Ext.R2(g) Government Order dated 30.12.2011, the land owners sent Ext.R4(b) letter to the Special Tahsildar (LA) in terms accepting Ext.R2(g) Government Order W.A. Nos.977 & 1327 of 2016 -: 21 :- regarding the compensation payable and the mode of valuation. As regards the value of land, it was specifically stated as Rs.10,750/- per cent; as regards the improvements including trees, mode of valuation agreed to was "in accordance with the existing norms as per G.O(Rt.) No.331/2004/RD dated 05.11.2004". As per the said letter, the land owners wanted release of advance amount of 80% of the total amounts payable, urgently, for liquidating their liabilities with their Creditor, Indian Overseas Bank and also to settle the claims of the estate workers. As per the said letter, the Acquisitioning Authority was further informed that amounts due to the Bank were to be paid before March, 2011 and that claims of the estate workers in terms of the compensation settlement agreements between the land owners, workers and their Union were to be paid forthwith. As per the said letter, W.A. Nos.977 & 1327 of 2016 -: 22 :- the authorities were authorised to pay Rs.850 lakhs out of the compensation to the Indian Overseas Bank, Creditor of the land owners directly in full settlement of the dues and the balance amount to be paid to the land owners for settling the claims of the workers. As per the said letter, the land owners further gave their consent to give advance possession of the property to the Requisitioning Authority before final settlement, but on payment of 80% of the compensation amount as stated above. As is evident from the said letter, the land owners had in categoric terms accepted the proposal regarding the value, mode of valuation of the improvements, total compensation payable, and in effect, passing of a consent award. Here it is to be noted that as regards Ext.R2(a) consent letter given by Thomas Mathew, husband of Smt.Mariamma Mathew, on behalf of Smt. Mariamma Mathew, though a contention was raised W.A. Nos.977 & 1327 of 2016 -: 23 :- that owner of the property, viz., Smt.Mariamma Mathew has not signed Ext.R2(a) and therefore it could not be taken that the land owner Smt.Mariamma Mathew had given her consent regarding fixation of land value and compensation, present letter, viz. Ext.R4(b) dated 09.01.2012 has been sent by Smt.Mariamma Mathew herself under her own signature. The said document has not been disputed by Smt.Mariamma Mathew. Apart from the same, at no point of time, as is clear from the records, Smt.Mariamma Mathew had raised a contention that her husband Thomas Mathew was not authorised nor was incompetent to give Ext.R2(a) consent letter. Therefore, it can only be concluded that all the land owners including Smt.Mariamma Mathew had given their consent for acquisition of the lands by fixing Rs.10,750/- per cent as basic land value and further compensation regarding improvements to W.A. Nos.977 & 1327 of 2016 -: 24 :- be calculated and paid in terms of the norms stipulated in G.O(Rt.) No.331/2004/RD dated 05.11.2004. Exhibit R4(c), letter dated 09.02.2012 issued by the land owners to the Special Tahsildar (LA) further reinforces the said conclusion. As per the said letter, the land owners referring to Ext.R2
(g) Government Order dated 30.12.2011 wherein compensation was fixed, requested for release of the compensation amount without deducting tax at source therefrom. They further reiterated their liability to the Indian Overseas Bank and to the estate workers which were to be settled from the 80% of the advance compensation amount to be paid. They further assured to give advance possession of the land to the Requisitioning Authority on settlement of the bank liability and the workers' compensation. On 15.02.2012, the land in question was taken possession of. The Acquisitioning W.A. Nos.977 & 1327 of 2016 -: 25 :- Authority remitted Rs.7,90,15,000/- directly to the Indian Overseas Bank for settlement of the liability of the land owners and Rs.2,00,00,000/- was paid in cash to the land owners jointly. Therefore, as is evident from the records, there has been agreement between the land owners and the Acquisitioning Authority regarding basic value of the land and regarding the mode of calculation of compensation payable for the improvements and trees. Pursuant to the said agreement, as requested by the land owners as per Ext.R2(b) letter dated 09.01.2012 referred to supra, 80% of the amount was paid by the Requisitioning Authority in terms of the agreement. According to the land owners at the time of disbursal of the said amounts, the Special Tahsildar (LA) informed them that as regards the improvements, viz., trees, only timber value would be paid. The land owners thereupon expressed their W.A. Nos.977 & 1327 of 2016 -: 26 :- inability to agree to such a course. It is alleged in the Writ Petition that payment as above was accepted under protest. As discussed above, documents reveal that the land owners had agreed for fixation of the land value by way of negotiated purchase method. Pursuant to the same and on deliberations and discussions, compensation payable was also arrived at. Compensation was to consist of two heads: one is the basic land value and the other is the value of kuzhikooors (income from cultivation). From the records, it is evident that value of the land was agreed to be fixed at Rs.10,750/- and as regards the value of Kuzhikkoors (income from cultivation), the proposal of the Acquisitioning Authority to fix value in accordance with G.O(Rt.) No.331/2004/RD dated 05.11.2004 was agreed to by the land owners. It could not be said that there was no agreement between the parties to W.A. Nos.977 & 1327 of 2016 -: 27 :- the said effect. From the records, it is evident that there has been a consensus ad idem between the Acquisitioning Authority and the land owners on the above terms. Exhibits R2(a), R2(b), R4(b) and R4(c) above referred to are more than sufficient to indicate the striking of consensus between the parties on the issue of compensation and negotiated purchase.
12. Having arrived at the conclusion that there was a consensus between the parties and there was an agreement fixing the compensation for the land, the next contention to be considered is regarding the non-compliance of Rule 12(4) and (5) of the Rules which requires execution of an agreement in Form 10
(a) while passing the award on consent in terms of Section 11(2) of the Act. As per Section 11(2) of the Act, if the Collector is satisfied that there is an agreement between the parties in writing W.A. Nos.977 & 1327 of 2016 -: 28 :- regarding the matters to be included in the award in the form prescribed, he may without further enquiry pass an award in terms of the agreement. Rule 12(4) and (5) of the 1990 Rules deals with the agreement referred to above. It is relevant to quote Rule 12 (4) and (5) which reads thus:
"12. Awards for compensation.-............................. (4) Where all the persons interested in the land notified for acquisition executes an agreement as required under sub-section (2) of Section 11, award at any stage of the proceedings after the publication of the draft declaration under Section 6 of the Act in terms of such agreement without making any further enquiry.
(5) The agreement shall be in Form No.10(a) appended to these rules and it shall be executed between the owner or owners of the land of any person or persons interested therein on the one part and the District Collector for and on behalf of the Government of Kerala, on the other part."
Therefore, going by the said provisions, in the case of award being passed on consent, an agreement has to be executed in Form 10(a) of the 1990 Rules. According to the land owners, agreement in the form W.A. Nos.977 & 1327 of 2016 -: 29 :- as contemplated under the 1990 Rules has not been executed. Therefore, an award under Section 11(2) of the Act could not be passed by the acquisitioning authority. Learned Senior Counsel appearing for the land owners has placed reliance on K.P. Nazeer v. State of Kerala (2000 [119] STC 162 (Ker.) and contended that when the statute prescribes an act to be done in a particular manner, it can be done only in that manner. It is true that when the statute prescribes a particular act to be done in a particular manner, it has to be done in that way. Here, it would be necessary to refer to Form 10(a). It reads thus:
"Form No.10(a) See Rule 12(5) Agreement to be executed when land is acquired for public purposes by agreement between the persons interested and the Acquiring body.
An agreement made this ..... day of........19..... between hereinafter called......................................................
AND WHEREAS the said land/lands have been W.A. Nos.977 & 1327 of 2016 -: 30 :- notified for acquisition under Section 4 of the Land Acquisition Act, 1894 under Notification No. dated... published on ... and under Section 6 of the said Act Declaration No...... dated ..... published on ......
AND WHEREAS the owner and the interested party agree to refer the matter to the reference of the Collector and to accept the award to be made thereon as compensation payable under Section 23 of the Land Acquisition Act including additional amount @ 12% under sub-section (1A) solatium @ 30% under sub-section (2) thereof for the said land/lands and also agree to apportion the same between themselves as stated in detail at the end.
AND WHEREAS the owner and the interested persons further agree to deduction of the total amount shown in the award, in case any or all of the said thing(s) attached to the earth or permanently fastened to anything attached to the earth is withdrawn with the prior approval of the Land Acquisition Collector.
AND WHEREAS the owner and the interested persons further agree to deduction of the amount to be mentioned in the said award in case they are allowed to harvest the standing crop thereon by the Land Acquisition Collector.
Now therefore, the owner or interested party of thereby agree with the Government as follows:-
(1) That the Land Acquisition Collector shall be competent to declare the award as per terms of this agreement without any further enquiry which is required to be held under the provisions of the Land Acquisition Act, W.A. Nos.977 & 1327 of 2016 -: 31 :- 1894.
(2) If the Government as deems it necessary to take immediate possession of the land under acquisition even though there is a standing crop on it the Government will be entitled to do so provided that compensation for the standing crop as shown in as per the award is paid.
(3) That the owner and the interested party shall not claim any amount in addition to the amount agreed upon as aforesaid as compensation and accept it without any protest.
(4) If it hereafter or after the payment of compensation as per the award transpires that the owner and/or the interested party is not entitled at all or are not exclusively entitled to the entire amount of compensation awarded by the Land Acquisition Collector in terms of this agreement in respect of the said land/lands as mentioned at the end, the Government is required to pay any compensation to any other person, the owner and the interested party shall on demand refund to the Government the entire amount of money received by them or such amount as may be determined by the Land Acquisition Collector as refundable by them to the Government and shall also indemnify jointly and severally the Government against any claim or compensation or part thereof by any other person and against all proceedings and liabilities of any loss or damage suffered or any costs charges or expenses incurred by Government by reason of the payment to them and the owner and the interested party shall pay the interest at the rate of 9% on the amount so refundable for the first year and the rate of 15% for the subsequent years.
W.A. Nos.977 & 1327 of 2016 -: 32 :- (5) If the owner/interested party fails to refund to the Government the amount mentioned in the preceding Para, the Government shall have the full right to recover the same as arrears of land revenue or to proceed under any law in force for recovery of such amount.
(6) Without prejudice to any other remedies for the enforcement of any refund or indemnity the Government may recover any sum determined and certified by the Land Acquisition Collector to be due and payable by the owner and the interested party to the Government by way of refunded or otherwise under these presents an arrear of land revenue.
(7) If any Government dues/shares/premium from this land/lands are payable by the owner or interested party and the loans of any public financial institutions are outstanding against the land/lands the same shall be deducted from the said compensation amount that may be awardable under these presents.
(8) The Government shall bear the stamp duty payable in respect of this agreement.
(Schedule of the land/lands) ................................................................................................
Signed by the owner of the land the interested party and the Acquiring Authority on behalf of the Governor.
Land owners/interested parties Governor"
Clause (1) of the said agreement deals with the W.A. Nos.977 & 1327 of 2016 -: 33 :- competency of the land acquisition authority to declare the award without further enquiry. Clause (2) deals with the agreement to take immediate possession of the land. Under Clause (3), it is agreed that no amounts in addition to the amount agreed between the parties shall be claimed by the land owners. Clause (4) provides about the consequences in the event it turns out that persons from whom land has been taken possession of, are found to be not the exclusive owners of the property. It also provides for indemnity to Acquisitioning Authority against loss and damage in the said regard. It also provides that, in such contingency, the person to whom payment of compensation has been made by the Acquisitioning Authority shall repay the amount with interest.
Clauses (5) and (6) provide that in case of failure to repay as provided in the preceding clause, the W.A. Nos.977 & 1327 of 2016 -: 34 :- Government shall have right to recover the same as arrears of land revenue or other modes. Clause (7) provides that if any outstanding dues on the land exist, the same would be deducted from the compensation amount. As per Clause (8), stamp duty payable on the agreement shall be borne by the Government.
13. Here, on an analysis of various clauses of the agreement in Form 10(a), it is seen that in the agreement that has been concluded between the land owners the Acquisitioning and the Requisitioning Authorities as revealed from Exts.R2(a), R2(b), R2
(g), R4(b) and R4(c), all the necessary ingredients and stipulations under the agreement in Form 10(a) are satisfied from the said records. Apart from that, all the relevant particulars detailed in Form 10(a) are to support claims of the Requisitioning Authority rather than for the land owners. Since W.A. Nos.977 & 1327 of 2016 -: 35 :- all the requirements as detailed in Form 10(a) have been otherwise satisfied, on construction of documents referred to above, it has to be concluded that there is substantial compliance of the requirements of Rule 12(4) and (5) of the Rules. Therefore, there is no favour for the contention that there is no concluded agreement between the parties consequent to non-execution of the agreement in Form 10(a).
14. At this juncture, it is important to note that pursuant to the agreement between the parties, 80% of the agreed amount has been paid by the Requisitioning Authority and that too in the manner and mode as directed by the land owners. The learned Senior Advocate for the land owners would contend that payment of 80% of the amount by the Requisitioning Authority was not in terms of the agreement between the parties. According to W.A. Nos.977 & 1327 of 2016 -: 36 :- him, the records relating to acquisition, viz., Section 4(1) notification and Section 6 declaration reveal that emergency provision under Section 17 of the Act was invoked, and while invoking the emergency provision it is mandatory that 80% of the compensation amount has to be deposited. According to him payment of 80% was only in terms of the said provision and not on the basis of any agreement or request or at the instance of the land owners. It is true that Section 17(3A[a]) provides for payment of 80% of the compensation in cases where emergency provisions are invoked. However, in the case at hand, as is evident from Exts.R4(b) and R4(c) payment effected was at the request of the land owners, though we cannot be unmindful of the fact that the Acquisitioning Authority is bound to make the said payment, from the sequence of events and as is evident from the records, there cannot be any W.A. Nos.977 & 1327 of 2016 -: 37 :- doubt that payment of 80% of the compensation was based upon the agreement between the parties. There is no circumstance or material on record to hold that payment of 80% of the compensation was but for the agreement between between parties in terms of the 1990 Rules.
15. Learned Senior Counsel for the appellants would heavily rely upon the principles of estoppel and promissory estoppel to contend that, after having taken advantage of and under the agreement between the parties, the land owners cannot resile from the same. The Acquisitioning and Requisitioning Authorities have based on the representation of the land owners, effected payments; and therefore, they cannot contend that they can withdraw from the consent already given.
16. Learned State Attorney referred to the decision reported in State of Karanata and Another W.A. Nos.977 & 1327 of 2016 -: 38 :- v. Sangappa Dyavappa Biradar and Others ([2005] 4 SCC 264) to contend that on an agreement between the land owners and the acquisitioning authority, right to receive solatium and interest could be waived by the land owners for the purpose of passing a consent award, and that agreement between the parties need not be strictly drawn up in the form prescribed under the 1990 Rules nor need be it in conformity with the requirements of Article 299 of the Constitution of India. Learned State Attorney referred to the decision reported in State of Gujrat v. Daya Shamji Bhai ([1995] 5 SCC 746) to contend that once consent award is passed or agreed to be passed, the right to seek a reference is lost. Learned Senior Counsel appearing for the Requisitioning Authority would place reliance on the decisions reported in Union of India v. Anglo Afghan Agencies (1968 SC 178), M.P.Sugar Mills v. State of W.A. Nos.977 & 1327 of 2016 -: 39 :- U.P. (AIR 1979 SC 621) and Manuelsons Hotels Private Ltd. v. State of Kerala (2016[2] KLT 694) to contend that land owners, after having agreed for passing consent awards and having received the benefits thereunder, cannot be permitted to retract from the same and that the principle of promissory estoppel prohibits them from retracting from the agreement. Learned Senior Counsel drew our attention specifically to paragraph 25 of the judgment in M.P.Sugar Mills v. State of U.P. (supra) to contend that while applying the principle of promissory estoppel, there is no distinction between a private individual and a public body. According to him estoppel being a rule of equity, in the facts and circumstances of the case, the principle is to be applied in the interests of justice.
17. Learned Senior Counsel for the land owners would contend that even assuming that there was an W.A. Nos.977 & 1327 of 2016 -: 40 :- agreement entered into between the land owners and the Acquisitioning Authority, the terms of agreement are vague in so far as it relates to compensation for "Kuzhikkoors" (income from cultivation). According to him, regarding compensation relating to improvements in the land, capitalization method has to be followed. It is contended that presently only timber value has been awarded and the same is not acceptable to the land owners. Learned Senior Counsel placing reliance on decision reported in Nutakki Sesharatnam v. Sub-Collector, Land Acquisition, Vijayawada and Others ([1992] 1 SCC
114) contended that the value suggested by the land owners was only an offer on their part and that they were entitled to withdraw the offer at any time before its acceptance by the Acquisitioning Authority. According to the learned Senior Counsel, their offer was not accepted in stricto senso by W.A. Nos.977 & 1327 of 2016 -: 41 :- the Acquisitioning Authority and therefore, especially in the background of absence of consensus ad idem as regards fixation of value of improvements, the land owners were entitled to withdraw their offer. Therefore, according to the learned Senior Counsel, an award under Section 11(2) of the Act could not be passed. However, we feel that, it may not be correct to contend that terms of the agreement in relation to assessment of the value of improvements is vague or is not specific, or not discernible from the agreement between the parties. Exts.R2(a) and R2(b) are consent letters given by the land owners, writ petitioners 1 and 3, respectively. In Ext.R2(a) and R2(b) it is stated that land value payable is at the rate of Rs.10,750/- per cent and additional value will be paid for kuzhikkoors (income from cultivation). In Ext.R2(a), there is a further recital to the effect W.A. Nos.977 & 1327 of 2016 -: 42 :- that compensation for the value of kuzhikkoors (income from cultivation) will be 'as per provision only'. Such a clause is absent in Ext.R2(b). Exhibit R2(g) is the Government Order accepting fixation of compensation. As noted supra, land value was fixed at Rs.10,750/- per cent and regarding compensation for structures and trees, it was provided that it will be "...in accordance with G.O(Rt.) No.331/2004/RD dated 05.11.2004 and as per the existing guidelines....". The said Government Order has been produced and marked as Ext.P16. However, it is seen that the said document is not complete. The learned State Attorney has made available a copy of the entire Government Order along with Annexures thereto. Annexure-2 to the said Government Order is titled as:
"Fast Track Projects Rehabilitation & Resettlement:
Principles and Policy Framework"
W.A. Nos.977 & 1327 of 2016 -: 43 :- Clause 7.7 of the same reads as under:
"7.7. Compensation for trees will also be based on their market value in case of timber bearing trees and replacement cost in case of fruit bearing trees as per the rates decided by the competent authority in consultation with Dept. of Agriculture, Forest, Horticulture, Sericulture, etc., as the case may be."
Clause 2C of Annexure-2 provides as follows:
"2C. Compensation for perennial crops and trees, calculated as annual produce value for last three years".
Therefore, it is evident that for perennial crops and tress, the compensation is to be calculated based on the annual produce value for the last three years. Therefore, the mode of calculation of compensation for the trees has been specifically provided and agreed to between the parties. It cannot be said that there is any manner of vagueness in that regard. Therefore, the contention that the agreement between the parties is vague falls to the ground.
W.A. Nos.977 & 1327 of 2016 -: 44 :-
18. Learned counsel appearing for the land owners would contend that as per the agreement between the parties, the entire compensation amount was to be paid by the Acquisitioning Authority immediately. Though 80% of the compensation was paid, there was huge delay in payment of the balance compensation and therefore, that itself means breach of the terms of the contract. According to the learned counsel, consequent to the said breach, the agreement could not be relied on by the acquisitioning and requisitioning authorities for passing a consent award under Section 11(2) of the Act. Annexure-A1 document produced in W.A. No.1327 of 2016 assumes significance while considering the said contention. It is the copy of the minutes of the meeting held on 05.07.2013 chaired by the District Collector in the presence of the Deputy Collector (LA), Assistant General Manager, KSIDC, W.A. Nos.977 & 1327 of 2016 -: 45 :- Deputy Manager, KSIDC, Thomas Mathew, one of the land owners and Advocate Shri A.Basheer, representing the land owners. In the said meeting delay on the part of the Acquisitioning Authority to deposit the balance amount was discussed. Pursuant to the discussions and negotiations, it was agreed that 12% interest would be paid on the unpaid compensation amount, from the date of taking possession till date of payment. Copy of the said minutes is seen forwarded to all the parties concerned. Therefore, it is evident that it is agreed to between the parties that as regards the delay in payment of the unpaid compensation, interest would be paid at the rate of 12% per annum from the date of taking possession till date of payment. Therefore, the contention presently sought to be urged by the learned Senior Counsel for the land owners regarding failure of the agreement on W.A. Nos.977 & 1327 of 2016 -: 46 :- account of delayed payment of compensation, cannot be sustained.
19. Learned State Attorney, relying on certain sale deeds executed by the land owners with respect of the portions of land remaining left out of acquisition has contended that the actual value of the property is much less than what has been agreed to by the Acquisitioning Authority as is evident from the value fixed in the sale deeds and therefore the compensation agreed is sufficient and proper. For the issue at hand, even assuming that the said contention is correct, it will not have any consequence on the conclusion, since what is to be looked into is whether there has been an agreement between the land owners and the Acquisitioning Authority relating to the compensation payable. Actual value of the land may not have much of significance in the said background. W.A. Nos.977 & 1327 of 2016 -: 47 :-
20. Learned Senior Counsel for the land owners would contend that Ext.P5 issued by the District Collector to the Land Acquisition Officer and Ext.P7 communication by the Land Revenue Commissioner to the District Collector to acquire the properties, etc., would indicate that Acquisitioning Authority was aware that there has been no agreement between the parties enabling the Acquisitioning Authority to pass a consent award under Section 11(2) of the Act. As noted, those are internal correspondences between the officers of the acquisitioning authority. The land owners cannot make a claim based on those correspondences, since those are internal communications between the authorities. Those are not Government Orders or directions in favour of or granting any right to the land owners to give them a right to seek its enforcement.
21. From the discussions as above, there cannot W.A. Nos.977 & 1327 of 2016 -: 48 :- be any doubt that there has been an agreement between the land owners and the Acquisitioning Authority regarding voluntary acquisition of land and passing of awards on consent. We hold that there has been agreement between the land owners and the Acquisitioning Authority that the compensation for the land would be payable at the rate of Rs.10,7850/- per cent and the compensation for the improvements on the land would be paid in accordance with G.O(Rt.) No.331/2004/RD dated 05.11.2004, and regarding delayed payment of compensation, interest at the rate of 12% per annum would be paid on the unpaid part of the compensation from the date of taking possession till date of payment. We cannot agree with the reasoning given by the learned single Judge to discard the agreement arrived at between the parties.
22. Exhibits P9 to P11 are communications dated W.A. Nos.977 & 1327 of 2016 -: 49 :- 30.10.2013, 22.10.2013 and 22.10.2013 issued by the Special Tahsildar (LA) to writ petitioners 1 to 3 respectively, regarding passing of award. Those communications when considered along with Ext.P13 series awards, leaves no room of doubt that awards have been passed pursuant to the agreement arrived at between the parties in terms of Section 11(2) of the Act. However, Ext.P13 series awards are to be modified in so far as it relate to compensation for improvements. As is evident from Ext.P13 series awards land value has been rightly fixed at Rs.10,750/- per cent in terms of the agreement between the parties. Even assuming that Ext.P13 series are only draft awards, in view of the findings as entered supra, Ext.P13 series awards with the rectification as above shall be deemed to be award passed on consent.
In the result, the Writ Appeals are allowed. W.A. Nos.977 & 1327 of 2016 -: 50 :- The judgment dated 07.10.2015 in W.P(C) No.32066 of 2013 is set aside. The Acquisitioning Authority is directed to rectify Ext.P13 series awards by fixing the compensation for the improvements on the land in accordance with G.O(Rt.) No.331/2004/RD dated 05.11.2004. Interest at the rate of 12% per annum shall be paid on the unpaid portion of the compensation from the date of taking possession till the date of payment. The rectification of Ext.P13 series awards as above shall be carried out within a period of three months from this day.
MOHAN M.SHANTANAGOUDAR, CHIEF JUSTICE.
SATHISH NINAN, JUDGE.
vsv