V.P.GEORGE vs THE DEPUTY COMMISSIONER & ORS

The petitioner, owner of a certain extent of land comprised of Survey No.287/5/1 in Mazhuvannoor Village, is facing an expropriatory action with respect to his property under the provisions of the Land Acquisition Act, 1894. The disquiet that would be caused to a person facing such proceeding is obvious and, therefore, it was perhaps concedes justification to him in having litigated against such acquisition continuously. He had been doing so and he had filed this writ petition challenging the acquisition proceedings on various grounds.

He has alleged that the acquisition was illegal and that it was unnecessary in the circumstances available since his property being acquired only for the purpose of construction of the Well for the 4th respondent, KINFRA. He also maintains that the acquisition is being made not for a public purpose but for the benefit of KINFRA which is established for the purpose of commercial activity.

I have heard the learned senior counsel, Mr.Jayakumar assisted by Sri.T.A.Unnikrishnan appearing on behalf of the petitioner, the learned standing counsel appearing for the 4th respondent and the learned Government Pleader appearing for the respondents 1 to 3.

On the factual underpinning that this writ petition was filed early as in the year 2005 and that an interim order had been issued by this Court on 24.01.2005, interdicting the taking over of possession of property if it had not already been done, the petitioner asserts that his property is still in his possession and he maintains that it was never taken possession of by the authorities. This is contradicted very vehemently by the learned Government Pleader who says that contrary to this assertion of the petitioner, the property was taken over and that the same is now in the possession of the Government. Acting under Article 226 of the Constitution of India, this Court is proscribed from entering into any enquiry on facts as to whether the property has been taken possession or otherwise and unfortunately for the petitioner, the mechanism available to this Court jurisdictionally to look into these issues is completely circumscribed within a strict and short perimeter. I cannot travel beyond the jurisdictional limits of the powers available under the Constitution while considering disputed questions of facts under Article 226 of the Constitution. I therefore, leave it there for now to be dealt with little lower in this judgment but I record the submissions of both sides, which are conflicting with each other, regarding the possession and taking over of the property.

While this writ petition was pending, the petitioner obtained a much more potent weapon to challenge the acquisition proceedings under the provisions of the new Act, namely, Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as the ''Fair Compensation Act'' for the purpose of brevity). According to him, the acquisition has now lapsed because of the play of Section 24(2) of the Fair Compensation Act on the ground that since the amounts under the award had not been paid to the petitioner or offered to him, the entire proceedings would have to be deemed to have lapsed. The petitioner relies specifically on the provisions of the said Section to show that he had never been offered the compensation determined under the award and that the amounts were deposited by the District Collector without first offering it to him under the provisions of Section 31(2) of the Land Acquisition Act, 1894.

Since the entire edifice of the petitioner''s assertions are build on the bedrock of Section 24(2) of the Fair Compensation Act, I deem it appropriate to extract it below for ease of reference: "Section 24(2): Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under Land Acquisition Act, 1894 (1 of 1894), where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act:

Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under Section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act."

It is perspicuous from the sweep of Sub Section 2 of Section 24 that proceedings for acquisition, initiated under the Land Acquisition Act, 1894, will lapse in cases where an award under that Act had been made five years prior to the commencement of the Fair Compensation Act but the physical possession of the land has not been taken or the compensation has not been paid.

In the case at hand there is no contest against that the award was made five years prior to the commencement of the Fair Compensation Act, it having been made on 01.01.2014, and hence the focus of further examination about the petitioner''s contention, that the proceeding have lapsed, will shift as to whether the land has been taken possession of or if the compensation has not been paid.

As regards the possession of the land, I have already noticed above that the parties are severely in dissonance, the petitioner asserting that no process has been yet taken and the respondents maintaining that it has been. The petitioner''s assertion that he is still in possession is, however, not borne by material but is only his affirmation. The respondent, au contraire, contends that since this Court had not interdicted the taking over of the land, they have done so and that it is now in the possession of the State, which according to them is evidenced by records. This disaccord is indubitably in the factual realm, the resolution of which this Court would be incompetent, acting under Article 226 of the Constitution of India, recognizing the inherent jurisdictional constrains when called to decide disputed questions of fact. Mr.Jayakumar, Learned Senior counsel, who is no doubt better aware of this, fairly conceded that he does expect this Court to enter into areas of disputations on facts and he submits that he does not press this ground any more than this.

The available terrain for the petitioner in buttress of his contention, that the acquisition proceedings have lapsed, would now be hypostased only on the question that has the compensation under the award been paid to him. Before an analysis further of this, it will be fractiferous to read Sub sections 1 and 2 of Section 31 of the Land Acquisition Act, 1894 which is as below: "(1) On making an award under Section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award, and shall pay it to them unless prevented by some one or more of the contingencies mentioned in the next sub-section.

(2) If they shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the appointment of it, the Collector shall deposit the amount of the compensation in the Court to which a reference under Section 18 would be submitted. "

The petitioner, on the fulcrum of the mandate of Section 24(2) of the Transparency Act, impels a contention that in the absence of the amount being offered to him and the award having been issued as early as on 2005, the proceedings that have been initiated under the Land Acquisition Act, 1984 would automatically lapse and that no further proceedings can be taken in pursuance thereof. The petitioner relies upon two documents in support of this contention. He has produced Exts.P4 and P5 which are copies of the award issued by the District Collector, under the provisions of the Land Acquisition Act, 1894 and the order for reference made by him under Section 31(2) of the said Act. The endorsements contained in this two documents are of primary importance in the adjudication of the disputes that has been raised. In Ext.P4, the District Collector has recorded as under: "An extent of 0.1280 Hectares if wet land comprised in re sy.no.500/1 in Block No.32 of Mazhuvannur Village is registered in the name of Sri.Paily Varkey, Vattamattathil, Kunnakkal kara, Valakom Village as per TP No.2016 of Mazhuvannur Village. An extent of 0.1035 Hectares of wet land comprised in resy.No.500/2 in Block No.32 of Mazhuvannur Village is registered in the name of Narayanan Naryanan Namboothiripad, Palliprathu manakkal as per TP No.226 of Mazhuvannur Village. The occupant of the said land is Sri.V.P.George, S/o Pathrose, Variklayil House, Veettoor Kara, Mazhuvannur Village.

In response to the notice u/s 9(3) of the LA Act, Sri.V.P.George appeared on 13.01.2005. He has not filed any claim statement. He has submitted the photocopies of sale deed no.840/1998 of SRO, Puthencruz and Sale deed No.841/1998 of SRO, Puthencruz and photocopy of power of attorney No.7/IV/2005 of SRO, Puthencruz. He could not produce any title deed to prove the title over the land under acquisition such as tax receipt, encumbrance certificate etc. He has not filed any claim statement at the time of award enquiry or letter.

Resy.no.500/1-15 is a new number formed from resy.no.500/1 and resy.no.500/2-17 is a new number formed from resy.no.500/2 for land acquisition purpose. The land value fixed in this case is fair and reasonable according to the market rate prevailed in the locality for such land. The land was taken possession and handed over to the Requisitioning Authority on 18.1.2005. As the occupant of the land has not proved clear title over the land under acquisition, the entire amount of compensation will be deposited in court u/s 31(2) of LA Act."

Further in Ext.P5 a specific endorsement as under has been recorded: "Since the known interested party did not prove title over the land under acquisition by documentary evidence of the time of Award Enquiry u/s 9(3) of th L.A Act or even after giving notice for the purpose, it is not possible to disburse the compensation in the name of the petitioner. So the matter is referring to court for adjudication u/s 31(2) of the L.A Act impleading the pattadar."

On an attentive consideration of both these endorsements, it is obvious that what the District Collector has recorded is that the petitioner, who is admittedly the Power of Attorney holder of the owner, did not file any claim statement and that he did not produce the originals of any of the documents to prove that he is entitled to alienate the property under the provisions of Section 31(2) of the Land Acquisition Act, 1894. The District Collector has clearly inscribed in the proceedings that in spite of notice under Section 9(3) of the Land Acquisition Act, 1894, having been received, the petitioner has only produced and submitted the photocopies of the sale deeds as well as the Power of Attorney, under which he claims rights, and that he did not produce anything else in the nature of tax receipts, encumbrance certificate etc. to prove his capacity to alienate the property. It is in such circumstance that the District Collector has chosen to refer the matter under Section 31(2) of the Act and to deposit the amount awarded under Ext.P4 before the court of competent jurisdiction.

The law relating to Section 24(2) has been explicitly declared by the Honourable Supreme Court in the Judgment in Pune Municipal Corporation and another v. Harakchand Misirimal Solanki and others [2014(3) SC 183] the relevant paragraph of the said judgment which leculently states the law as under: "17. While enacting Section 24(2), Parliament definitely had in its view Section 31 of the 1894 Act. From that one thing is clear that it did not intend to equate the word "paid" to "offered" or "tendered". But at the same time, we do not think that by use of the word "paid", Parliament intended receip of compensation by the landowners/persons interested. In our view, it is not appropriate to give a literal construction to the expression "paid" used in this sub-Section [subsection( 2) of Section 24]. If a literal construction were to be given, then it would amount to ignoring the procedure, mode and manner of deposit provided in Section 31(2) of the 1894 Act in the event of happening of any of the contingencies contemplated therein which may prevent the Collector from making actual payment of compensation. We are of the view, therefore, that for the purpose of Section 24(2), the compensation shall be regarded as "paid" if the compensation has been offered to the person interested and such compensation has been offered to the person interested and such compensation has been deposited in the court where reference under Section 18 can be made on happening of any of the contingencies contemplated under Section 31(2) of the 1894 Act. In other words, the compensation may be said to have been "paid" within the meaning of Section 24(2) when the Collector (or for that matter Land Acquisition Officer) has discharged his obligation and deposited the amount of compensation in court and made that amount available to the interested person to be dealt with as provided in Sections 32 and 33."

What is important for my consideration in this case would be as to whether there was an offer by the District Collector of the amounts granted under the award to the petitioner before the reference under Section 31(2) of the Land Acquisition Act, 1894 has been made. However, any such offer would obviously have to be preceded by an enquiry as to whether the person who claims to be in occupation of the property would have the capacity to alienate it as is imperatively required under Section 31 of the Land Acquisition Act, 1894. The petitioner claims to be a person in occupation admittedly. He says that he is occupying the property and that he has rights over the same on the basis of the Power of Attorney which is a registered document. He therefore, asserts the fact that he has produced the photocopies of the said documents before the District Collector would be sufficient to obtain the benefit under Section 31(2) and to prove that he has the capacity to alienate the land. I am afraid that I cannot countenance this argument. For the first, the document that has been produced is only a photocopy. There is absolutely no proof as to the veracity or cogency of such document since, even for a prima facie view, the District Collector could not have entered into an inquiry about the genuineness or otherwise of the said document for the reason that it is only a photocopy. For the second, the petitioner had an obligation under Section 9(3) of the Land Acquisition Act, 1894 to produce the documents in response to the notice. The fact that he did not do so would, therefore, weigh against him and would militate against any claim that he be paid the compensation under the award, based on his entitlement to alienate the land. The District Collector obviously could not have entered into a conclusion as to the competence or otherwise of the petitioner who claims to be a Power of Attorney holder to alienate the land.

The Honourable Supreme Court, as has been noticed above, has declared the law succinctly and with no further room for doubt that in the event the three conditions mentioned under Section 31(2) of the Land Acquisition Act, 1894 is not complied with by the petitioner, the only option available to the District Collector would be to make a reference under Section 31(2) before the competent jurisdiction, which he has done. I cannot see any irregularity or illegality in the action that has been adopted by the District Collector, and on the contrary, I am of the view that he has exercised the jurisdiction vested on him correctly and that he has not exceeded jurisdiction by depositing the money under Section 31(2) of the Land Acquisition Act, 1894. Since the money has already been deposited by the District Collector, the rigor of Section 24(2) that the money be offered to the petitioner would stand discharged completely and therefore, the contention of the petitioner that the proceedings have lapsed would obviously hold no water now.

For the reasons that I have indited herein, obviously I cannot grant any reliefs prayed for by the petitioner in this writ petition and I hold that the acquisition that has been made is valid and for a public purpose and cannot be assailed by the petitioner for the reasons that have been stated in the writ petition. I also hold that the proceedings do not lapse under the terms of Section 24(2) of Fair Compensation Act, 2013 which opinion has been inevitably compelled by the analysis and explication of law and of its application to the facts of this case as chronicled above.

At this point of time, Sri.Jayakumar, learned Senior counsel brings to my notice an issue of practical difficulty relating to the money, under the award, that is now under deposit before the court below. He says that because of the pendency of this writ petition the petitioner had not applied for obtaining the amount that is deposited before the court below and that the amounts may have now reverted back to the Government Treasury. He therefore, says that this would lead to a situation where the petitioner is unable to obtain his money under the award or to obtain any further relief in the writ petition. I think this requires a look by the competent authority or Court.

To obtain equity and substantial justice, I am of the view that the petitioner should be allowed to approach the court below with a proper application and the court below, on receipt of such application, will consider the same in accordance with law to ensure that the petitioner at least receives the money that was deposited before the court below under the award. For this purpose I grant liberty to the petitioner to move the competent court, which is the reference court under the land acquisition Act, within a period of one month from the date of receipt of this judgment and if such application is received by the said court, it shall consider the same on its merits and in terms of the applicable Act and Rules and ensure that the petitioner is able to at least obtain the amounts that he is entitled to under the award. The writ petition is ordered as above. In the facts and circumstances of the case I order no costs and it is directed that the respective parties shall suffer their costs.