KALLIYANIKUTTY AMMA Vs. SPECIAL TAHSILDAR

JUDGEMENT

(1.) The petitioners in this writ petition were owners of lands in Sy. Nos. 1/1, 2, 3 and 4 of Poonithura Village and Sy. No. 5 of Elamkulam village of Kanayannur Taluk, Ernakulam District. On the 19th of September, 1977, the petitioners entered into an agreement as per Ext. P1 with the District Collector, Ernakulam that an extent of 7.11 acres comprising in the aforesaid survey numbers is to be acquired under the Kerala Land Acquisition Act for the purpose of Housing Accommodation Scheme of the second respondent and that they are agreeable for receiving compensation at the rate of , Rs. 3458/- per Acre, inclusive of the solatium and value of all the improvements on the lands. These lands were sought to be acquired by issuing a preliminary notification under S.3 on 14-2-1978. The said notification lapsed for the reason that it was not followed by the issuance of an appropriate notification under S.6 within the statutory period. The petitioners however came to this court in O.P. No. 5689 of 1979 praying for quashing of the preliminary notification and for a direction to restore possession of the lands, of which they alleged forcible possession was taken from them on 6-2-1979. The said writ petition was disposed of by this court on the 7th of July, 1980. This court noticed that the preliminary notification under S.3 having since lapsed, the question of enforcing the agreement Ext. P1 would notarise. This court however found that the taking of possession forcibly from the petitioners was unwarranted. Consequently a direction was issued that they should be put back in possession of the lands within two weeks.

(2.) It is during the pendency of the said writ petition that another preliminary notification was issued under S.3(1) of the Act on the 18th of June 1980 proposing to acquire the very same lands of the petitioners and for the very same purpose. This fact was brought to the notice of the court in the earlier writ petition by the Additional Advocate General. In pursuance of the preliminary notification further steps were taken to issue a final notification under S.6 of the Act on 5-4-1981 to acquire the petitioners lands. The total extent of the lands of the petitioners which were sought to be acquired measure 2.3522 hectares. This includes an extent of 0.2455 hectare which was in possession of several kudikidappukars. The said kudikidappukars exercised their right to purchase the portions of the lands in their occupation under the provisions of the Kerala Land Reforms Act. They were able to secure orders in their favour from the Land Tribunal and they obtained purchase certificates on 8-10-1978. As a result of their obtaining purchase certificates in respect of the portions of the land of which they were kudikidappukars, the petitioners lost title to the said portions and the titles stood vested in the erstwhile kudikidappukars. This subsequent event was taken note of at the time of taking action for passing appropriate awards under the Kerala Land Acquisition Act. Notice was issued to the petitioners under S.9(3) of the said Act proposing to pass an award only in respect of an extent of 2.1067 hectares, in respect of which alone they had subsisting titles at that time, excluding an extent of 0.2455 hectare, in respect of which they had lost title in favour of Kudikidappukars. Separate notices were issued to the erstwhile kudikidappukars who had become owners of certain portions. So far as such kudikidappukars are concerned, separate awards were passed by settling their claim by allotting alternate sites in their favour in Award No. 1/1985 dated 30-11-1985. So far as the portion of the lands in respect of which the petitioners had title, a separate award came to be made as per Award No. 6/1981 on 31-8-1981, Ext. P5 on the basis of the agreement Ext. P1 dated 19-9-1977. It is in this background that the petitioners approached this court in this writ petition under Art.226 of the Constitution seeking a declaration that the provisions of the Kerala Land Acquisition (Amendment) Act 1980, Act 3 of 1981, are unconstitutional and void and for a declaration that the agreement Ext. P1 is not an agreement as envisaged by S.16 of the Kerala Land Acquisition Act 1961 and could not therefore be made the basis of the award Ext. PS and for the issue of a writ in the nature of mandamus directing the respondent to fix compensation of the lands mentioned in Ext. P3, ignoring Ext. P1 and Act 3 of 1981, after quashing the impugned order Ext. P5.

(3.) We shall first examine the contentions regarding validity of the amendment to S.16 of the Land Acquisition Act by Act 3 of 1981. S.16(1) of the Act before its amendment read as follows: