THOMAS KOCHUMATHU Vs. DISTRICT COLLECTOR ERNAKULAM

JUDGEMENT

(1.) 24 -957 cents in S.No.709/4 -1 /2 of Chengamanad Village,belonging to the petitioner was the subject of Land Acquisition Case No.851 of 1953 on the file of the District Collector,Trichur.It is agreed that the land concerned was in the Travancore area of the erstwhile T -C State and therefore the law governing the acquisition was as laid in the Travancore Land Acquisition Act,XI of 1089.Pursuant to the notice served on the petitioner under section 9(3)he filed his statement of claim on 8th March 1954 mentioning therein that he was the kanamdar of the property,the jenmi whereof was Padamittathu Mana and that he has only 17/18 share in the property as might be seen from the Thandaper of that property concerned.The petitioner alone was made a party to the land acquisition proceedings and in spite of his pointing out other persons as interested in the same no notice was taken of that statement by the Collector who proceeded to complete the proceedings and passed the award on 5th February 1957 fixing the petitioner as the owner and occupier of the land and compensation payable for the land as Rs.229 as.10.Ex.H is the notice issued to the petitioner under section 12 of the Act.It runs thus: ...[VERNACULAR TEXT OMITTED]... The learned Government Pleader placed before me the records of the LA.Case and they include the original award as also the statement filed by the petitioner under section 9(3 ).The award shows that the only defendant in the case was the petitioner and that after considering his statement dated 8th March 1954,he has been recorded as "the owner and occupant of the property " ;.The order then reads: "I award land value for 24.957 cents of land in S.No.709/4 -1/2 of Chengamanad Village,Parur Taluk,at Rs.8 a cent.The total land value payable in Rs.199 -10 -5.The usual 15 per cent solatium amounting to Rs.29 -15 -2 is also awarded.The total compensation in this L.A.case is thus fixed at Rs.229 -10 -0 in round figure.This amount will be paid to the defendant on proof of title and exclusive ownership. ( Sd.) Deputy Collector for Land Acquisition - " There is a post -scriptum in the award apparently in a different hand -writing,without a subscription,which reads: "Padamittathu Manakkal Janmy share 45.60 Damodaran Narayanan Tenants share 184.02 Namboodiri 229.62 Ex.H notice served on the petitioner under section 12 of the Act and the award quoted above make clear that the entire compensation was definitely found payable to the only person impleaded in the proceedings viz .,the petitioner.The counter -affidavit of the 2nd respondent,the Deputy Collector(Land Acquisition,Ernakulam)"the file appears to have been transferred to the Collectorate,Ernakulam,on the bifurcation of the old Trichur District as Trichur District and Ernakulam District "states: "The petitioner presented a claim for compensation on 8th March 1954.This was duly considered by the Land Acquisition Officer and he passed an award on 5th February 1957.The amount of compensation due to the petitioner was fixed as Rs.229 -10 -0 by this Award."

(2.) THE above statement is clear that the averments of the petitioner in his claim statement that he has only 17/18 share in the property and that he has only the kanom interest in the property leaving its jenmom interest outstanding with Padamittathu Mana,have been con­sidered By the Land Acquisition Officer who passed the award and been overruled,by the implication of the award of the entire compensation for the land to the petitioner himself.The counter -affidavit continues: "Notice of the Award was given to the petitioner and he was asked to be present before the Land Acquisition Officer on 10th April 1957 to receive payment of the compensation.No pay­ment was made to the petitioner on that date as he did not prove his exclusive title to the property." The petitioner has also stated likewise in his affidavit and has made it one of the main grounds of complaint on his part.Under section 28 of the Travancore Land Acquisi­tion Act,on making an award under section 11,the Division Peishkar has to pay the compensation awarded by him to the persons found entitled thereto in the award unless prevented by one or more of the contingencies mentioned in the sub -section,and it is not pretended here that any such contingency has occurred in this case.As the award and the notice issued under section 12 to the petitioner to receive the amount showed that he was entitled to the entire compensation found payable by the Land Acquisition Officer he ought to have made the pay­ment forthwith to the petitioner.The petitioner avers that even though he claimed the amount from the Officer he was not paid.Such non -payment is not only irregular but illegal.As the law insists that the payment should be made to the person found entitled to the compensation as per the award,it ought to have been paid forthwith by the Land Acquisition Officer.The third proviso to section 28(2)leaves any other person who might be interested in the land and therefore lawfully entitled thereto in full or in part to enforce his claim in law against the person who has received the amount from the Land Acquisition Officer.As the award stood,the Land Acquisition Officer had no excuse for not paying the amount to the petitioner.

(3.) NO section in or rule framed under the Act warrants such a direction which is fundamentally opposed to all known rules of procedure.Under section 11 of the Act,the Collector has to determine and pass an award on(1)the area of the land,( 2)the compensation payable for the land and(3)"an apportionment of such compen­sation among all the persons known or believed to be interested in the land of whom or of whose claim he has information whether or not they have respectively appeared before him '' ;.Section 9(3)of the Act that imposes a duty on the Collector to serve notices "on all persons known or believed to be interested "in the land being acquired,makes clear that that expression occurring in section 11 denotes the persons to whom notice had been issued under section 9(3 ),who in this case is only the petitioner.Having decided that the present petitioner is the sole person interested in the land and therefore entitled to the whole compensation and having passed an award to that effect,to direct that he should later on prove his title and exclusive ownership before he could get payment under the award is quite unwarranted.If the Collector felt any doubt as to the title of the party,he ought to have asked the party to prove his claim before he passed an award.Taking of evidence must precede the determination of the question,and not succeed it.The practice,wherever it exists,of requiring the parties to prove their title to the compensation amount after an award has been made in their favour by the Collector has to be stopped as unwarranted in law and against all principles of judicial procedure.