KERALA STATE HOUSING BOARD Vs. AMMALUKUTTY

JUDGEMENT

(1.) The power of the State to withdraw from the acquisition under S.52 of the Kerala Land Acquisition Act, (the Act) corresponding to S.48 of the Central Act, is the point that falls for decision in this writ appeal. By the judgment under appeal, the learned Judge quashed the withdrawal notification, Ext. P4 dated 4-2-1981, relying upon the decision reported in Lt. Governor, Himachal Pradesh v. Avinash Sharma ( AIR 1970 SC 1576 ), holding that once the land vested in the Government by the operation of law proceedings taken cannot be cancelled either under S.21 of the General Clauses Act or under S.52 of the Act.

(2.) The petitioners are members of a Puthravakasam tavazhi of the 1st petitioner. The 1st respondent is the State of Kerala and the 2nd respondent, the Assistant Collector and Land Acquisition Officer, Ottapalam, Palghat. The land involved lies in Sy. Nos. 27/3, 27/4, 27/5, 28/3 and 28/7 in Ottapalam II village in Palghat District, the total extent of which is 7.63.16 hectares. There was a partition in this tavazhi. Portions of the land were allotted to the daughters and grandchildren of the 1st petitioner. A notification under S.3 of the Act was published in the Kerala gazette dated 1-5-1979 proposing to acquire the lands for the public purpose of implementing the Ottapalam Housing Accommodation Scheme by the Kerala State Housing Board. The Housing Board requested the Land Acquisition Officer to take advance possession of the land. Accordingly the Land Acquisition Officer obtained possession from the various allottees on 21-5-1979 through the Revenue Inspector attached to the office of the Special Tahsildar for the Kerala State Housing Board. Ext. P1 is the true copy of the record given by the 1st petitioner to the Special Revenue Inspector evidencing surrender of possession. Similar records were given by the other members of the tavazhi in respect of the lands allotted to them. Subsequent to this, another notification under S.3(1) of the Act was published in the gazette dated 26-6-1979, when it was discovered that the original notification contained mistakes in the survey numbers. The formalities prescribed under the Act were gone through thereafter and ultimately Ext. P2 award No. 3/80 was passed. In the award, the entire compensation is made payable to the petitioners. The petitioners aver that they are liable to share the compensation amount with the other members of the tavazhi. Under the award the Ist petitioner has been awarded a total sum of Rs. 10,97,353/-and the 2nd petitioner, a sum of Rs. 14,336. 84. The petitioners' representative approached the 2nd respondent, the Assistant Collector and Land Acquisition Officer, Ottapalam, when he was told that the Housing Board bad not made available the amount for payment to the petitioners. The petitioners felt that the payment of the amount was being delayed because of the machination of the Panchayat President, against whom the 1st petitioner's husband had filed a suit. It was under these circumstances that the Original Petition was filed for the issue of a writ of mandamus directing respondents 1 and 2 to pay the petitioners the sum of Rs. 11,11,689.84, the amount awarded to them under Ext. P2 and to pay interest at 12% from 12-8-1980 and for other reliefs.

(3.) Subsequent to the filing of the petition, the Government issued Ext. P4 notification under sub-s.(1) of S.52 of the Act withdrawing the acquisition. The petitioners therefore filed C. M. P. No. 7232 of 1981, seeking amendment of the Original Petition raising additional grounds and including a prayer to quash Ext. P4 notification. The case of the petitioners is that the Government cannot exercise powers under S.52 of the Act since possession was taken and title had vested in it.