GREATER COCHIN DEVELOPMENT AUTHORITY Vs. MATHEW

JUDGEMENT

(1.) The Greater Cochin Development Authority is the petitioner herein. The prayer in this Original Petition is to quash Exts.P9 and P10 orders (Proceedings) of the Special Tahsildar (LA), GCDA, Cochin (2nd respondent) in L.A.C. No. 46/82 dated 26-3-1988 and L.A.C. No. 22/80 dated 28-3-1988. The petitioner is having many schemes for the development of areas in Cochin and its suburbs. Elamkulam West Town Planning Scheme is one such scheme. The petitioner approached the third respondent Government of Kerala - for acquisition of land lying within the scheme area. It was sanctioned by the Government. The second respondent issued S.3(1) notification under the Kerala Land Acquisition Act in the Gazette dated 21-11-1978. The lands belonging to many persons were included therein. The land belonging to the first respondent herein was also included in the acquisition. In this Original Petition, the dispute is regarding 71 cents in Sy. No. 1013/ 1&5, belonging to the first respondent, which was also the subject matter of acquisition. We are not concerned with the other lands acquired in the said scheme belonging either to the first respondent or others. So far as the above 71 cents of land is concerned, the petitioner and the first respondent entered into an agreement on 20-2-1979. The amount of compensation to be paid to the first respondent for the above 71 cents of land was fixed in the said agreement. It was also agreed that the first respondent will not dispute the adequacy of compensation awarded in respect of the properties. The amounts have to be paid to the first respondent as per the conditions stated in the said agreement. It is stated that the petitioner took possession of the land on 21-4-1979 and the amounts due to the first respondent were paid at varying dates from 6-4-1979 to 24-3-1983. The second respondent passed the award in L.A.C. 46/82 and L.A.C. 28/83 on 11-3-1983. It is the petitioner's definite plea that the said agreement was entered into between the petitioner and the first respondent voluntarily and the first respondent accepted the amount fixed as compensation without protest and he was paid the amounts due. But, the petitioner complains that nearly five years after the award was passed and the amounts were paid to the first respondent, he filed Ext. P7 application on 25-1-1988 before the second respondent under S.28A of the Land Acquisition Act, 1894, on the strength of a decree in L.A.R. No. 176 of 1984, Sub Court, Ernakulam.

(2.) The first respondent has filed a detailed counter affidavit, dated 6th June, 1988, justifying Exts.P9 and P10. It is also stated that there is a violation of the agreement dated 20-2-1979 by the petitioner and so it was voidable at the instance of the first respondent and in this view he was entitled to and did press for an enhanced compensation. According to the first respondent, the property is a very valuable one than the adjacent property, which was the subject matter of L.A.R. No. 176 of 1984. He would also contend that no notice is necessary to the petitioner before passing orders on Ext. P7 under S.28A of the Land Acquisition Act. It is stated that the petitioner is not "a person interested" in the matter and so Exts.P9 and P10 orders, without notice to the petitioner, are not open to any challenge.

(3.) The third respondent has filed a detailed counter affidavit dated 19-9-1988. After stating about the acquisition of 71 cents of land in Sy. No. 1013/1 & 5, the payment of compensation on various dates to the first respondent in the sum of Rs. 85,000/- and the passing of the award on 11-3-1983, it is the third respondent's case that on motion by the first respondent the second respondent passed Exts.P9 and P10, which are illegal and unauthorised, and passed without adverting to the agreement entered into by the parties. The third respondent has categorically pointed out that the enhancement of compensation allowed is not in order and S.28A of the Land Acquisition Act is not applicable in the particular case, as the award was passed on the basis of the agreement and the agreement is still in force.