KALLIANIKUTTY AMMA Vs. SPECIAL TAHSILDAR (LAND ACQUISITIONS) COCHIN

JUDGEMENT

(1.) THE petitioners in this Original Petition are the owners of about nine acres of land in section Nos.1/1,1/2,2,3 and 4 of Poonithura Village and section No.5 of Elamkulam Village of Kanayannur Taluk,Ernakulam District.The land is said to be a yielding coconut garden situate by the side of the National Highway in Cochin City.The 2nd respondent in the Original Petition,Kerala State Housing Board,negotiated with the petitioners for the sale to the Board of the aforesaid lands and pursuant to this a final offer was made to sell the land to the Board at a flat rate of Rs.1,600 per cent,the offer to be open till the end of September,1977.There appears to have been further negotiations as a result of which the petitioners entered into an agreement with the District Collector,Ernakulam for the sale of 7.11 acres at Rs.3,458 per acre.Ext.P -2 is the copy of the agreement.There is mention in the agreement that the property was to be taken by the State for the purpose of the Kerala State Housing Board by acquisition.According to the petitioners it was intended by the parties that the land will be taken forthwith and compensation paid without delay.It is further said that on 24th December 1977 the petitioners agreed to hand over possession of the property and receive 50 per cent of the compensation and this was agreed to in order to expedite the proceedings.The complaint of the petitioners is that the 1st respondent,the Special Tahsildar(Land Acquisition ),Greater Cochin Development Authority,did not expedite the proceedings as contemplated.It is said that even the notification under section 3 of the Kerala Land Acquisition Act,1961,proposing acquisition was published only on 14th February 1978 and that was done without specifying or demarcating the particular area to be acquired out of the total extent of nine acres.It is said that since the acquisition proceedings were irregular,the petitioners objected to it and they claimed compensation at the rate of Rs.3,000 per cent besides the value of improvements.While so,on 15th February 1978 the 1st respondent,Special Tahsildar,wrote to the petitioners proposing to take possession of the land with immediate effect as soon as the survey work was completed and directed the petitioners to give alternate sites to the kudikidappukars and shift them.According to the petitioners this was not possible because alternate sites could be granted only after the area out of the nine acres which was to be acquired was fixed and demarcated and even then the petitioners obligation was said to be only to pay the shifting charges,the actual shifting being the responsibility of the 1st respondent.It is the complaint of the petitioners that nothing further happened for a long time and no steps were taken to complete the acquisition expeditiously.Ultimately by Ext.P -13 letter dated 3rd February 1979 addressed to the petitioners intimation was given to them about the proposal to take possession of the land required for the Kaloor Housing Scheme and the petitioners were requested to be present at the site and hand over possession to the Revenue Inspector who had necessary instructions in the matter.This letter is dated 3 rd February 1979 and it proposed taking possession at 11 a.m.on 6 th February 1979.This was received by the petitioners 1 to 3 only after the time fixed for surrender of possession namely,at 12 noon on 6 th February 1979 at Trichur.The petition does not mention at what time the 4 th petitioner received this order.On 6 th February 1979 as proposed in Ext.P -13,possession seems to have been taken.The petitioners 1 and 2 wrote in the 1 st respondent on 3 rd February 1979 intimating him that the requisition to them to hand over possession was received by them only at 12 noon on 6 th February 1979 and that the proposal to take possession will not be in accordance with law.Ext.P -14 is the copy of the letter.By a letter dated 7 th February 1979 the 1st respondent informed the petitioners that the lands were already taken possession of and handed over to the Housing Board on 6th February 1979. The petitioners were requested to collect the advance payment on 19th February 1979. It was then that the petitioners approached this Court with this petition.

(2.) THE petitioners pray quashing of all proceedings for acquisition of the lands of the petitioners which is the subject of notification under section 3(1)of the Land Acquisition Act and also seek appropriate direction from this Court for putting them back in possession of the lands taken possession of on 6 th February 1979.Subsequent to the filing of this Original Petition,C.M.P.8681 of 1980 has been moved for amending the Original Petition.This take note of a circumstance that has arisen after filing of the Original Petition.The notification under section 3(1)impugned in the original petition was that published in the Gazette dated 14 th February 1978.No declaration under section 6 was issued within a period of 2 years as required by proviso to section 6 of the Kerala land Acquisition Act.It is urged in the amendment petition that the proceedings initiated for the acquisition of the lands have lapsed and therefore cannot be continued.It is said that since this contention was not available at the time of filing of the Original Petition,this was not incorpora­ted therein.We allow the amendment.

(3.) THE agreement executed by the petitioners in favour of the District Collector,Ernakulam,copy of which is Ext.P -2,provides for surrender of advance possession,by the petitioners to the District Collector.It is not quite in evidence whether the agreement is intended to operate de -hors the provisions of the Kerala Land Acquisition Act.Apparently that is not the case.That is because in the agreement there is reference to the proposed acquisition of the land in question and the agreement reached between the parties as to the price appears to be for the purpose of settling compensation in accordance with the provisions of the Kerala Land Acquisition Act.There is reference in the agreement to section 16 of the Act.Since we have come to notice similar agreements in other cases too,it may be profitable to refer to section 16 of the Act and notice the scope of an agreement under that section,for,if the procedure that is being adopted by the State is erroneous,it will be necessary for the State to correct it as early as possible.