Mathew Joshna and Others vs The State of Kerala and Others

P.K. Shamsuddin, J.—One acre and 73 cents of land in Sy. No. 413/2 of Elamkulam Village, belonged to Petitioners and Respondents 4 to 7 was acquired by the State. Before that, notification u/s 12(5) of Town Planning Act was published in the Kerala Gazette, dated 17th June 1975 regarding the proposal for a Town Planning Scheme, for Elamkulam Road. On 28th September 1976, the 3rd Respondent issued a notification u/s 3(1) proposing to acquire the said land. Respondents 1 to 3 wanted to obtain advance possession in the year 1977 and the Petitioners surrendered possession of the land on 26th October 1977. Ext. P-1 is the surrender kychit. Petitioners allege that the land was surrendered on the assurance given by the Chairman of the 2nd Respondent that compensation for the land would be paid within one week of the surrender. The Petitioners expressed their willingness to accept compensation at the rate of Rs. 1,800 percent. Ultimately, Petitioners agreed that land value at the rate of Rs. 1,000 per cent may be paid to the Petitioners. Accordingly, Petitioners and other co-owners executed Ext. P-2 agreement. A sum of Rs. 1,00,000 alone was paid towards compensation. Petitioners further allege that Respondents 2 and 3 did not either pay the compensation to the Petitioners within a week or complete the acquisition proceedings as agreed. In the circumstances, Petitioners moved O.P. No. 8808/83 before this Court seeking to quash the land acquisition proceedings and restore possession of the land to the Petitioners. While the Original Petition was pending, an award No. 48/86 was passed on the basis of Ext. P-2 agreement, dated 2nd May 1978. Ext. P-3 is the award. According to Petitioners, the Respondents did not act as per the agreement. They would contend that the valuation was adopted in the agreement on the assurance that compensation would be paid in one week''s time, but that was not done and that though eight years elapsed since the expiry of time fixed for payment, the 3rd Respondent did not apply to the question relating to the market value of the land and other relevant matters before passing the award. They also averred that no enhanced solatium or benefits conferred by the Land Acquisition (Amendment) Act of 1984 were paid to them.

Petitioners filed an application u/s 20 of Land Acquisition Act seeking a reference of the question of enhanced compensation. Ext. P-4 is the application for reference. The 3rd Respondent sent Ext. P-6 communication stating that the award was passed as per the agreement executed between the G.C.D.A. and the Petitioners on 2nd July 1988 and therefore the reference sought is in violation of Clause 3 of the above agreement. In this Original Petition, Petitioners have challenged Ext. P-6.

Learned Counsel for Petitioners submitted that as the Respondents have violated the provisions of the agreement Ext. P-2 and did not pay the amount within the time the Petitioners are not bound by the agreement. Learned Counsel further submitted that in any event, the 3rd Respondent is bound under the law to refer the question of compensation to the civil court.

Learned Government Pleader and Sri. M.V. Joseph, who appeared for 3rd Respondent invited my attention to Section 16 of Kerala Land Acquisition Act, which reads as follows:

(1) If the Collector and all the persons interested agree as to the amount of compensation to be allowed, the Collector shall make an award under his hand for the same.

(2) Such award shall be filed in the Collector''s office and shall be conclusive evidence, as between the Government and all persons interested and the value of the land and the amount of compensation allowed for the same.

On the basis of this provision, it was argued that the question of compensation is not liable to be referred to the civil court.

Learned Counsel for Petitioners, however, invited my attention to a few decisions in support of his contention that the 3rd Respondent is bound to refer the question of compensation once a reference application is filed. In Radhakrishnan v. District Collector 1980 KLT 208 a similar question arose. Referring to the scope of Section 16, Kochu Thommen, J. (as he then was), made the following observations:

What Section 16 says is that the parties to the agreement are bound by the value of the land and the amount of compensation as accepted under the agreement. The owner of the land cannot claim a compensation in excess of what has been agreed upon. Nor can the Collector refuse to award compensation in accordance with such agreement. The agreement as to the value and compensation is conclusive evidence and it cannot therefore be questioned subsequently. That question cannot be raised either in proceedings under the Act or subsequently in a Court. That is all what Section 16 says. It does not say that because of the conclusive evidence an application for reference is barred.

Learned Judge also made it clear that it may be open to the parties on valid grounds to question the very existence of the agreement or the validity thereof and this can be investigated only in a Court of law, and that though it is not open to the parties to go behind the agreement as regards the stipulations therein, the right of a party to question the very existence of the agreement or the validity thereof is not barred by any provision of the Act. Learned Judge also held that it is not open to the Collector to refuse to make a reference solely by reason of a prior agreement and that such power cannot be read into either Section 16 or Section 20.

In Rajakumari v. State of Kerala 1988 (2) KLT 1032 by learned brother Viswanatha Iyer, J. held that if a person makes a written application for making a reference claiming interest in the land of in the compensation, the Land Acquisition Officer is obliged to make the reference, and the question as to whether the claim is justified or not is a matter for decision by the Court and not for the Collector. I am in respectful agreement with the views expressed in the above decisions.

In the instant case, the case of Petitioners is that Respondents 1 to 3 have not complied with the provisions of agreement. It is also the case of Petitioners that notwithstanding the agreement, they are entitled to the benefits of enhanced solatium provided in the Land Acquisition Act, 1894, as amended by Act 68/84. Validity of these contentions has to be examined by the civil Court and it is not open to the Land Acquisition Officer to decline to make reference merely on the ground of prior agreement regarding the value of the land.

For the reasons stated above, I direct the 3rd Respondent to refer the question of claim for enhanced compensation made by the Petitioners to the civil court. O.P. is allowed as above.