BABY JOSEPH Vs. CHIEF SECRETARY, GOVT. OF KERALA

JUDGEMENT

(1.) The petitioners in this writ petition claim to be in absolute possession of 3 cents of land comprised in survey No.1279 of Poonithura Village, Kanayannur Taluk, Ernakulam District. The said property, it is not disputed, is marked as 'puramboke' land in the revenue records. It is the case of the petitioners that sometime in the year 1960, the land came into the possession of the husband of the first petitioner [late Joseph]. Thereafter, the late Joseph and his successors, including the petitioners herein, have been in possession of the said property where they are residing after constructing a residential building. The petitioners have approached this Court, seeking to quash Exts.P9 and P10, through which the petitioners were informed that the land would be taken over for the purposes of the Kochi Water Metro without subjecting the land to any proceeding under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as 'the Act') and without paying to the petitioners the compensation payable in terms of the provisions contained in the said Act.

(2.) Sri. T.R.S Kumar, the learned counsel appearing for the petitioners, would submit that there is absolutely no dispute that the land in question has been in possession of the late Joseph since 1960 and after his death, with the petitioners as legal heirs of late Joseph. It is submitted that the documents produced along with the writ petition will suggest that there can be no dispute that the petitioners had been in possession of the property for a long time and they are in a position to establish their title by adverse possession. It is submitted that the petitioners have already filed a suit claiming a declaration of title and for an injunction restraining the official respondents from taking over the property without following the procedure contemplated by the provisions of the Act. It is submitted that the petitioners are entitled to compensation for the land and the building. Reference is made in this regard to the provisions of the First Schedule of the Act as also to the provisions of Sec. 77(2) of the Act to contend that where a question regarding title is to be established, the entire compensation, including compensation for the land, has to be deposited before the authority competent to consider a reference under Sec. 64 of the Act. It is submitted that, without following such a procedure, the respondents cannot take over the land and residential building in question. Learned counsel appearing for the petitioners also would submit, with reference to the provisions in the Second Schedule of the Act, that the petitioners are entitled to the provision of housing units as the petitioners have been displaced from their dwelling unit. It is submitted that the benefits available to persons, who have lost houses in urban areas, have to be calculated in terms of the provisions contained in the Second Schedule of the Act. As far as the petitioners are concerned, it is submitted that the displacement of the petitioners from the house in question can be only after the rehabilitation and resettlement process is completed. It is also submitted that the petitioners are also entitled to a solatium as contemplated by Sec. 30 of the Act.

(3.) Sri. Jaju Babu, learned Senior counsel appearing for the additional 8 th respondent, on the instructions of Adv. Brijesh Mohan and Sri. Bimal K. Nath, the learned Senior Government Pleader appearing for the official respondents would contend that there is absolutely no merit in the contentions taken in the writ petition. It is submitted that, admittedly, the land in question is a 'puramboke' land. It is submitted that the petitioners do not fall within the definition of "land owner" and that unless the petitioners establish title in the suit stated to have been filed, the petitioners cannot claim any compensation for the land under Sec. 27 of the Act. It is further submitted that there is no question of a notification being issued under the provisions of the Act for the 'acquisition' of land, which is clearly marked as puramboke land especially when the status of the land is not disputed even by the petitioners. It is submitted that there was an application for the assignment of the land in the year 2009, and the same was rejected as per Ext.P6. It is submitted that it is, therefore, extremely difficult for the petitioners to establish that they have perfected title by adverse possession, taking into consideration the fact that their application for the assignment had been rejected by Ext.P6 order. It is submitted that the petitioners have been found entitled to compensation for the building as also for the rehabilitation and resettlement package as contemplated by the Second Schedule of the Act, and therefore, the petitioners cannot have any further grievance in the matter. Learned Senior Government Pleader would submit with reference to the averments in the counter affidavit (paragraph No.8) that an amount of Rs.3,96,003.00 (Rupees Three lakhs ninety-six thousand and three only) has been found payable to the petitioners. It is submitted that the question of providing alternative land and rehabilitating the petitioners by providing an alternative residential accommodation does not arise in the facts and circumstances of this case. It is submitted that the petitioners cannot be termed as an 'affected family ' as the land in question is, admittedly, a 'puramboke' land. It is also submitted that the question of awarding solatium cannot be considered. It is submitted that where the land in question is admittedly 'puramboke' land, the petitioners can only be awarded the value of the improvements and the solatium, which is awarded owing to the compulsory nature of the acquisition, cannot be paid to persons, who are in illegal occupation of Government land. Learned Senior Government Pleader also places reliance on the provisions of Ss. 4 and 5 of the Land Conservancy Act, 1957, to emphasise that occupation of government lands by the petitioners without the permission of the Government is clearly illegal.