GREATER COCHIN DEVELOPMENT AUTHORITY Vs. VICTORIA XAVIER

JUDGEMENT

(1.) Both these appeals are preferred against the judgment of the learned Single Judge in OP No. 2895 of 1994. WA No. 1965 of 1999 is preferred by the second respondent in the Original Petition, the Greater Cochin Development Authority (hereafter referred to as "G.C.D.A.") while the other appeal is preferred by the State of Kerala and District Collector, Ernakulam. The Original Petition was filed for a writ of certiorari to quash Exts. P10, P11, and P12 awards to the extent of lands covered in L. A. R. No. 274/90 and 275/90 on the file of the Subordinate Judge's Court, Cochin or in the alternative seeking the issue of a writ of mandamus directing the respondents to initiate and complete fresh acquisition proceedings and further to direct the respondents 1 and 2 to adjust the amount already paid towards part of compensation that may become payable.

(2.) The facts of the case are as follows: The Government sanctioned the erstwhile Cochin Town Planning Trust for the implementation of the Elamkulam Road Scheme in the 1975 and to acquire the lands in Elamkulam Village in Kanayannur Taluk. Requisition was made to the Government for acquiring 24.0035 hectares of land in Elamkulam Village. The area included in the acquisition was split into three phases as North End, Middle Portion and South End. The middle portion having an extent of 13.5556 hectares of land were in Sy. Nos. 186, 187, 250, 270, 310, 311, 330, 414, 415 and 416 of Elamkulam Village. S.3(1) notification under the Kerala Land Acquisition Act was published in the Gazette on 17.7.1978. The declaration under S.6 was published on 6.7.1981. An extent of 0.9227 hectares of land (2.28 acres) in Sy. No. 330/3 and 330/4 of Elamkulam Village owned by one A. A. Xavier was included in the acquisition proceedings. After S.3 notification was published and before the declaration the said Xavier wanted the land to be taken possession of immediately and accordingly the above 2.28 acres was taken possession on 25.4.1979 on the basis of a Kaichit dated 25.4.1979. An amount of Rs. 75,000/- was paid to A. A. Xavier on 26.4.1979 as part of compensation. Thereafter S.6 declaration was made in respect of the lands on 1.7.1981. Then it would appear that, later Xavier raised a claim before the G.C.D.A. that he had surrendered only 1.14 acre and not 2.28 acres. He therefore demanded return of 1.14 acres of lands and he obtained an order to that effect from the Government. But, subsequently, the Government was convinced that earlier order was a mistake and cancelled the order. After taking possession of the land on 17.7.1979, the G.C.D.A. reclaimed the wet land and converted it into garden land, constructed roads, drains and culverts spending large amounts. Due to delay in taking further proceedings after the coming into force of the Land Acquisition (Amendment) Act, 1984, the entire proceedings lapsed in 1986. Thereafter on 25.8.1987 a fresh S.4(1) notification was published and the proceedings under the new Act was followed. There was no objection in response to the notice and hence, there was no scope for an enquiry under S.5A. S.6 declaration was published in the Kerala Gazette on 16.8.1988. S.9 enquiry was conducted on 2.3.1989 and the basis for the draft valuation statement was approved on 26.4.1989 by the District Collector. At that time, petitioners filed Contempt Case No. 36 of 1989 for non completion of the acquisition proceedings as ordered by the High Court. During the pendency of the contempt proceedings, awards were passed. The Awards are 6 and 7 of 1989. The G.C.D.A. had placed an amount of Rs. 57,71,000/- by order dated 22.9.1986. When the amount was sought to be deposited before the Court, the petitioner filed O. P. No. 4245 of 1989 for a direction to the respondents not to deposit the amount, but to pay the same to the petitioners. Thereafter, cheques were handed over to the petitioners representing the award amount, which was encashed by the petitioners on 12.6.1989. Not satisfied with the amount granted by the District Collector, they made an application for reference to the Sub Court, Ernakulam. Accordingly, reference under S.18 was made to Sub Court, Ernakulam. We are told that, subsequently the awards were passed by the Sub Court, and that is pending in appeal before this Court. After the two awards were passed on 16.5.1989, petitioners preferred O. P. No. 6737 of 1989 before this Court. During the pendency of the earlier notification, Xavier died and petitioners are the legal representatives. Petitioners challenged the award before this Court in O. P. No. 6737 of 1989. That Original Petition was disposed by K. A. Nair, J. by judgment dated 28th November, 1989. A perusal of the judgment shows that petitioners had no objection against the acquisition of the land. They had no objection regarding the notifications. The validity of the notifications had not been challenged. It is stated in Para.5 of the judgment that, petitioners wanted acquisition proceedings to be completed in accordance with S.4 notification. S.6 declaration was also not challenged. The case of the petitioners in O. P. 6737/89 is that Ext. P4 and P5 awards are passed without application of mind, namely relating to the nature of the land, the extent of the land taken possession of, the applicability of S.23(1A), and the provisions of S.34 of the Act. The learned Judge after hearing both sides, disposed of the Original Petition as follows:

(3.) The main grounds taken in the Writ Petition was as follows: