GCDA Vs. IQBAL

JUDGEMENT

(1.) First respondent's father had some properties in survey Nos. 124 and 125 of Ernakulam Village. Those properties alongwith adjacent properties were notified for acquisition for the town planning scheme prepared by the Ernakulam Municipal Council. Notification was issued under S.9(3) of the Kerala Land Acquisition Act. Two land acquisition cases were registered as 1/72 and 2/72 in respect of portions of land in R.S. 125/1 and 124 respectively. In pursuance to the notice, statements were filed by first respondent's father claiming a sum of Rs.8000/- per cent as compensation. It appears that first respondent's father agreed to sell the properties in survey Nos. 124 and 125 for Rs. 2000/- per cent. He had offered to sell about 3 1/2 acres at this rate provided the compensation was paid within three months. That request of first respondent's father was considered by the Cochin Town Planning Trust and petitioner was requested to be present in the Trust Office for a discussion. Thereafter a statement was presented to the Land Acquisition Special Tahsildar of Cochin Town Planning Trust by first respondent's father agreeing to surrender the land for the purpose of Government on paying value at the rate of Rs 1.900/- per cent inclusive of the value of improvements. Awards were passed on 25-1-73 and 1-2-1973 and the entire compensation amount was received by first respondent's father. First respondent's father died on 4-10-1973. In respect of a portion of the land in survey 124/2CD the acquisition proceedings were not completed before the death of first respondent's father. That was continued as land acquisition case 52/77 against first respondent and the other legal representatives. The award notice was received by first respondent on 23-11-1982. The compensation amount was accepted by him under protest and he claimed interest from 1973 onwards together with enhanced solatium under the amended Land Acquisition Act. Those amounts were also paid since then. A petition was presented by the first respondent who is the power of attorney holder of the other legal representatives of his father on 12-5-1987 to the Special Tahsildar, Greater Cochin Development Authority objecting to the amount of compensation awarded in land acquisition cases 1/72 and 2/72 as well as in land acquisition case 52/77. The statement given by his father on 12-12-1972 was not voluntary according to him and was the result of coercion and undue influence exercised on him by the officers by exploiting his dire financial necessity. As per Ext. P31 the Special Tahsildar informed first respondent that his application cannot be considered in view of the statement executed by his father agreeing that no reference application would be filed for enhanced compensation. Challenging that order first respondent filed O.P. 8550/87 before this court seeking (a) a writ of certiorari or other appropriate writ, direction or order quashing Ext. P31 and (b) a writ of mandamus or other writ, direction or order requiring the Special Tahsildar (L.A.) Greater Cochin Development Authority to refer the claims for enhanced valuation in L.A.C. 1/72,2/72 with Ext. P13 statement and L. AC. 52/77 to Sub Court, Ernakulam for determining whether Ext. P13 statement (it should be Ext. P14) given by AB. Saithumohammed is a voluntary statement and whether he or his legal heirs are entitled to enhanced compensation for the land involved in these acquisition cases. As per judgment dated 19-7-1990 a single Judge of this Court set aside Ext. P31 and directed the land acquisition officer to refer the application under S.20 to the court for determination of the question regarding enhancement of compensation. It was made clear that the parties to the land acquisition case are free to agitate the question untrammelled by anything stated in Ext. P31 order. This appeal is filed by the Greater Cochin Development Authority against that decision.

(2.) The main question that we are called upon to consider in this case is whether Ext. P30 application presented by first respondent for reference under S.20(2) of the Kerala Land Acquisition Act is barred since the awards were passed in pursuance to the statement presented by first respondent's father whereby he had agreed to accept land value at the rate of Rs.1,900/- per cent inclusive of the value of improvements. It is urged by Sri. Abdul Gafoor, learned counsel for appellant that the compensation amount was received by first respondent's father otherwise than under protest and as such was not entitled to make an application under S.20 of the Act by virtue of the prohibition contained in the second proviso to S.33(2) of the Land Acquisition Act (for short the Act). It is his contention that first respondent's father had agreed to receive compensation at the rate of Rs.1,900/- per cent by presenting Ext. P14 statement. Even before that he had informed the Town Planning Trust as per Ext. P11 that he was prepared to sell his entire properties lying north of Dunlop Tyre Company and comprised in Survey Nos. 124 and 125 at the rate of Rs.2000/-per cent. He had agreed to sell an area of 31/2 acres provided the amount was paid within a period of three months. That letter is seen to have been sent on 17-11-1982 though the letter does not bear a date. Realising this mistake first respondent's father had sent a letter on the next day informing the trust about the omission to mention the date in Ext. P11. It was thereafter that the trust invited first respondent's father for a discussion on 8-12-1982 at the trust office to discuss his offer contained in the letter. It would appear that first respondent's father bad agreed to surrender the land on receiving compensation at the rate of Rs. 1,900/- per cent inclusive of the value of improvements during the discussions which took place on 8-12-1982 and a few days thereafter Ext. P14 statement was presented by him. The awards were also passed without much delay on 25-1-1973 and 1-2-1973. Notice of the award under S.12(2) was issued on the date of the award itself. In pursuance to the awards the awarded had received the entire compensation. He died on 4-10-1973 several months after receipt of the amount. The acquisition proceedings in respect of a portion of the land was completed only in 1982. The compensation was received by the legal representatives. It would appear that first respondent had claimed the amount as power of attorney holder of the other legal heirs. In the meantime some of the adjacent land holders had objected to the compensation awarded and on their request reference had been made to Sub Court, Ernakulam. Enhanced compensation was awarded by that court as per order dated 22-3-1986 in a batch of land acquisition references. A copy of the common judgment is Ext. P29. The request for a reference to the Land Acquisition Court was made by the first respondent more than a year after the decision rendered in the batch of the land acquisition references as per Ext. P29. Learned counsel for appellant would therefore contend that the Special Tahsildar was under no obligation to refer the dispute to the Land Acquisition Court. According to him first respondent's father had accepted the award and had not objected to the amount of compensation and claim for enhanced compensation is also barred by virtue of the second proviso to S.33(2) of the Act, the amount of compensation having been received otherwise than under protest. It is also pointed out that there has been inordinate delay in making the request for a reference. The learned single Judge was in error, according to the counsel in setting aside Ext. P31 and directing the land acquisition officer to refer the application under S.20 of the Act

(3.) Going by the letter of the law, learned counsel for the appellant is right in his submissions. It is mandatory on the part of the Collector to refer the dispute for the determination of the court if any person interested who has not accepted the award, has by written application objected to the amount of compensation, the measurement of the land, the person to whom the compensation is payable or the apportionment of the compensation among the persons interested. Such an application has to be filed within six weeks from the date of the Collector's award in case the person making the application was present or represented before the Collector at the time when he made the award. In other cases, the application has to be presented within six weeks of the receipt of the notice of the award from the Collector or within six months from the date of the Collector's award, whichever period expires first. First respondent's father Saithumohammed was present before the Collector at the time when the award was made. Notice was issued to him in both the land acquisition cases on the date on which the award was made, viz. 25-1-1973 and 1-2-1973 respectively. The compensation amount was accepted by Saithumohammed otherwise than under protest and no objection was raised by him regarding the amount of compensation till his death. It is open to the collector to rely on the second proviso to S.33(2) of the State Act (S.31 of the Central Act) which provides that no person who has received the amount otherwise than under protest shall be entitled to make any application under S.20. Here is therefore a case where the father of the first respondent was present at the time when the award was made and did not object to the amount of compensation within the period prescribed in S.20 of the Act. Since the compensation was assessed on the basis of the statement presented by Saithumohammed himself and since he wanted determination of the amount without any delay whatsoever on the basis of that statement he had received the amount otherwise than under protest. It would therefore appear that Saithumohammed during his lifetime had not raised any objection nor was any request made to make a reference under S.20 of the Act. Years thereafter first respondent who is one of the heirs of Saithumohammed wanted a reference to be made under S.20 on his own behalf and on behalf of other heirs who had executed a power of attorney in his favour. In the meantime adjacent land owners had been awarded enhanced compensation by Sub Court, Ernakulam to which Court the Collector had made references under S.20 of the Act on the applications presented by those landholders. The request for a reference is seen to have been made on the ground that the statement Ext. P14 was vitiated by undue influence and coercion and because of the dire penury. He was subjected to on account of the freezing of the land by Ext. P3 notification and the indifference and inaction of the land acquisition authorities for a period of 8 years from 1964. Therein request was also made for making a reference in respect of the land acquisition case 52/77 registered after death of Saithumohammed and wherein an award was passed in favour of his heirs. By Ext. P26 first respondent had informed the Secretary of appellant authority that he had received the amount under protest. He further wanted the authority to determine and pay the interest for the amount from 1973 onwards together with enhanced compensation under the amended Land Acquisition Act. The grievance of first respondent was that the Special Tahsildar, Land Acquisition had refused to make a reference even though the amount was received by him under protest. The reason for the refusal appears to be that the land in question inclusive of the land involved in L.A.C. 52/77 was acquired from Saithumohammed as per the agreement executed by him and he had agreed that he would not request for a reference under S.20 of the Act. On a consideration of the materials on record it would appear that the request for making a reference has not been made by the award within the prescribed period and no objection was raised regarding the amount of compensation within that period.