SHANAVAS Vs. STATE OF KERALA

JUDGEMENT

(1.) The captioned writ petitions arose in the premise of Sec. 4(1) notification issued under the Land Acquisition Act, 1894, vis-a-vis introduction of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, (hereinafter called "Act, 2013"), and consequential agreements entered into by and between the petitioner land owners and respondent State Government in some cases, and securing consent letters from the petitioners in some cases, paying part consideration, and refuse to pay compensation under the Act, 2013, in view of the agreements executed to sell off the lands in accordance with the negotiated purchase value. The fact circumstances and the documents put forth in W.P.(C) 33708/2016 and the counter affidavit filed by the State Government in the said writ petition are referred to, in order to dispose of the writ petitions.

(2.) An extent of 0.09 Ares situate in Sy.No.575/7 Pt of Ernakulam Village and the building owned by the petitioner is under acquisition for the Kochi Metro Rail Project. Act 30 of 2013 has come into force w.e.f. 1.1.2014. However, unreasonable delay was caused by the State Government in framing rules under the said Act. As no rules were framed, the Land Acquisition Authorities did not proceed under the provisions of the new Act and instead, forced the petitioners and others to deliver the property in advance. Taking into account the larger public interest, petitioner decided to cooperate with the acquisition subject to the right to get due compensation and other benefits under the law governing land acquisition. Basically petitioner is claiming the benefits under the Act, 2013, which has come into force w.e.f. 1.1.2014, evident from Ext.P1 notification. According to the petitioner, as projected in the very preamble itself, the Act is introduced to ensure a humane, participative, informed and transparent process for land acquisition with the least disturbance to the owners of the land and other affected families and provide just and fair compensation and make adequate provisions for such affected persons for their rehabilitation and resettlement, and for ensuring that the cumulative outcome of compulsory acquisition should be, affected persons become partners in development leading to an improvement in their post acquisition social and economic status and for matters connected therewith and incidental thereto. It is submitted Sec. 11 of Act, 2013 mandates publication of a preliminary notification to the effect that land in the area is required or likely to be required in connection with any public purpose, along with details of the land to be acquired in the official gazette, in two daily newspapers circulating the locality of which one shall be in the regional language and in the local language in the Panchayat, Municipality or Municipal Corporation as the case may be, in the offices of the District Collector, the Sub Divisional Magistrate and the Tahsil and uploaded in the website of the appropriate Government, in the affected area etc. etc. The first proviso to Sec. 12 provides that even the survey of the land cannot be conducted in the absence of any person authorized in writing by the owner. Sec. 15 deals with 'Hearing of objections' and sections 16 to 18 deal with rehabilitation scheme. Sec. 19 makes strict provisions for publication of declaration and summary of rehabilitation and resettlement. Sec. 21 of the Act provides for 'notice to persons interested' and the enquiry and land acquisition award by the Collector is contemplated under section 23 of the Act. Therefore, the Act deals with determination of compensation, award of solatium, rehabilitation and resettlement award etc. etc.

(3.) Therefore, according to the petitioner, even though the petitioner is not against the acquisition of the property, if it is inevitable for a public purpose, that does not mean that, petitioner can be deprived of his property in gross disregard of the law of land. Therefore, petitioner is entitled for due compensation and other legal benefits as provided under Act, 201 It is also contended that, the authorities are legally obliged to issue notice, invite objections, provide ample opportunities to the petitioner, pass award, disburse compensation, solatium, interest etc. etc. Even though Act, 2013 came into force w.e.f. 1.1.2014, the rules not being framed have caused many difficulties, and the land acquisition authorities did not take prompt steps as provided under the new Act. In the case of the petitioners, advance possession of the property was taken, land acquisition authorities approached the petitioner and informed that, he will be paid 80% of the compensation calculated at around Rs. 52,00,000.00per cent along with building situated therein, if the petitioner signs certain papers without prejudice to the right of the petitioner to claim compensation and other benefits under Act, 201 To impress upon the petitioner, the respondents also cited a Government Order viz., Ext.P2 dated 5.7.2014, which provides for payment of further compensation after framing of rules under Act, 201 Thereupon, it is submitted in view of Ext.P2 G.O. and the assurance of the respondents to pay further compensation after framing rules under the new Act, petitioner issued Ext.P3 consent letter dated 29.2014. In Ext.P3 consent letter itself petitioner has specifically noted that land value is not decided in it, which thus means, it is issued without prejudice to the claim of the petitioner for enhanced land value and for further compensation under the new Act. The respondents have taken advance possession of the land and building immediately. According to the petitioner, in spite of taking advance possession, respondents did not pay any amount to the petitioner. As per the provisions of Act, 2013 respondents are bound to pay 80% compensation before taking advance possession. Here the petitioner was paid 80% compensation calculated at the rate of Rs. 52,00,000.00 per cent for land and building only much later. Petitioner was persuaded to sign certain papers in standard forms as a formality. However, the oral understanding was that acceptance of money on the basis of agreement is only a formality and without prejudice to the right of the petitioner to receive more compensation under Act, 201 But according to the petitioner, no registered agreement or deed was executed.