Judicial Determination of Compensation for Arbitrary Land Acquisition in the Kottayam Corridor Project: Ensuring Fair Remuneration under LARR Act 2013: Kerala High Court
Judicial Determination of Compensation for Arbitrary Land Acquisition in the Kottayam Corridor Project: Ensuring Fair Remuneration under LARR Act 2013: Kerala High Court
Case title: R. ASOKAN & ORS VS State of Kerala & ORS
Case no.: W.P. (C) NO.26234 of 2023
Dated on: 19th April 2024
Quorum: Justice Hon’ble Mr. Justice Viju Abraham.
FACTS OF THE CASE
The writ petition is filed seeking to declare that the action on the part of the respondents in acquiring the properties of the petitioner for the ‘Kottayam Corridor Project’ without following due process of law and without payment of compensation amount is arbitrary, illegal and violative of the fundamental rights and constitutional rights guaranteed to the petitioner under Articles 14,19,21 and 300A of the constitution of India and for other consequential reliefs. Petitioners are absolute owners in possession and enjoyment of different extents of land in Nattakam and Panachikkadu Village in Kottayam District, as is evident from Exts.P1 to P4. The 1st respondent formulated a project by the name ‘Kottayam Development Corridor’ as part of a larger proposal for the development and expansion of the town. The 1st respondent after realizing that such project would require full co-operation and voluntary surrender by the land owners, called for a meeting on 08.10.2011 and on the basis of the promises and assurances given by the respondents that their demand for conversion of the remaining extent of land after the surrender, would be accepted, the petitioners granted permission for effecting construction in their property and surrendered. By Ext.P5 minutes of the meeting which was attended by the Minister and the other officials wherein it was reiterated that the land owners surrendering the lands will be permitted to convert an equal extent of their remaining lands and that exemption will be granted for effecting changes in the BTR records to enable change in the zoning for carrying out the project. While so, Ext.P6 order was issued by the 1st respondent stating that those land owners who have surrendered their whole extent of land will be allotted with Government land to an extent of 50% of the total surrendered land and such of the land owners who have surrendered a portion of their holdings will be allowed to convert paddy land (excluding wetland) to an extent of 50% of the land which they have surrendered to State Government. Petitioners submit that a conjoint reading of Exts.P5 and P6 would clearly denote that respondent No.1 reneged on its initial promise to the landowners and instead of allowing them to convert an equal extent of the surrendered property for construction, the new order stipulated that the landowners including the petitioners herein would only be allowed to convert 50% of the surrendered land for construction purposes. While contempt of court proceeding was pending, the 1st respondent issued Ext.P8 order holding that change of character of remaining lands of persons who have surrendered portions of their lands for road widening cannot be permitted as the same will be in violation of the provisions of the Kerala Conservation of Paddy Land and Wet Land Act, 2008.
CONTENTIONS OF THE APPELLANT
The Petitioners submitted that action on the part of the respondents in taking over possession of their property without taking recourse to acquisition proceedings or following due process of law is arbitrary and violative of the constitutional rights of the petitioners guaranteed under Article 300A of the Constitution. In the said circumstances, the petitioners have approached this Court. Despite the unilateral modification, petitioners decided not to raise any objection against Ext.P6. Even thereafter, no action was taken from the side of the 1st respondent. And further submitted that a conjoint reading of Exts.P5 and P6 would clearly denote that respondent No.1 reneged on its initial promise to the landowners and instead of allowing them to convert an equal extent of the surrendered property for construction, the new order stipulated that the landowners including the petitioners herein would only be allowed to convert 50% of the surrendered land for construction purposes.
CONTENTIONS OF THE RESPONDENTS
The respondent submitted that the petitioners have handed over lands for the Kottayam Corridor Project based on the G.O. (Rt)No.5925/2015/RD dated 13/11/2015, on condition that those who handover land for the Kottayam Corridor Project will be allowed to reclaim paddy land (except wetland) equal to 50% of the extent of land handed over to Government and those who handover their whole extent of land will be given land equal to 50% of the land transferred to Government but as per the G.O.(Rt.)4064/2018/RD dated 04.10.2018, the benefit earlier granted was cancelled and those persons who handed over land for Kottayam Corridor Project will be compensated for the exact extent of land they have actually surrendered at the rate of Market Value which was prevalent at the time of surrendering of their land by fixing land value as per LARR Act, 2013. It is also stated that in the case of the petitioners who have surrendered large extents of their land for the Kottayam Corridor Project, the benefit of G.O.(Rt.)4064/2018/RD dated 04/10/2018 will be made applicable and that those persons who handed over land to Kottayam Corridor Project would be compensated for the exact extent of land they have actually surrendered at the rate of Market Value which was prevalent at the time of surrendering of their land by fixing land value as per LARR Act, 2013 and the same will be done on the basis of negotiation or on payment the value of land at the time of taking possession of the land for the project.
ISSUES
• Whether respondent should initiate proceedings as per the LARR Act 2013 and pay compensation in accordance with the provisions of the said Act?
LEGAL PROVISIONS
Article 14 of the Indian Constitution 1950: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
Article 300(A) of the Indian Constitution 1950: That a person can be deprived of his property only through an Act passed by the Parliament/State Legislature and not by executive order or fiat
Article 21 of the Indian Constitution 1950: Protection of Life and Personal Liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.
44th Constitution Amendment Act: The government enacted the 44th Amendment Act in 1978 to reverse some modifications made under the 42 Amendment Act of 1976. It was passed to ensure that everyone has the same right to choose their type of government.
COURT’S ANALYSIS AND JUDGEMENT
The petitioners surrendered their land as early as in 2015 only on an assurance given, as evident from Ext.P5 that they would be permitted to convert equal extent of land that they have surrendered. Thereafter, the Government retracted from their promise and imposed a further condition as per Ext.P6. Even Ext.P6 was modified by the Government by Ext.P8 order wherein they have given away all the promises given to the petitioners and ordered that the land will be acquired as per the provisions of LARR Act, 2013 fixing the land value as on the date of surrender. The right to property was initially a fundamental right guaranteed as per the Constitution of India, by the 44th Constitution Amendment Act, the said right is no longer a fundamental right but it is still a constitutional right and a part of human right. Though democracy governed by the rule of law, the State cannot deprive a citizen without the sanction of law. The facts of the present case reveal that the land was taken over from the petitioners without paying any compensation solely based on the undertaking given to the petitioners regarding certain benefits to be extended to the petitioners as is evident from Ext P5 and P6, the Government has even retracted from the said promises and the present stand taken as per Ext P8 order and as per the counter affidavit is that they will be granted compensation as per LARR Act 2013 at the rate of market value which was prevalent at the time of surrendering of their land.
From 2015 onwards, the land is in possession of the Government and the same has been utilized for the ‘Kottayam Corridor Project’ without even paying any compensation till this date. In the said backdrop, the question to be considered is as to whether the stand taken by the Government that the petitioner will be paid compensation based on the value of the land as on the date of the surrender of the property is legally sustainable or not. Taking into consideration the fact that the property was taken over almost a decade back without giving a single penny towards compensation, the decision now taken to acquire the land fixing the land value as on the date of taking possession will cause serious hardships to the petitioners. I am of the opinion that the same will not be adequate compensation in view of the fact that petitioners will not be able to purchase now even a small extent of land which the petitioners could have purchased had the compensation amount been given at the time of taking possession itself. In other words, Article 300-A only limits the powers of the State that no person shall be deprived of his property save by authority of law. There is no deprivation without due sanction of law. Deprivation by any other mode is not acquisition or taking possession under Article 300-A. Yet another aspect to be considered is that in the matter of taking over the property of a citizen, the authorities are bound to follow the procedure established by law. When the authorities are given power under the LARR Act 2013 to acquire the land, they are bound to follow the procedures prescribed therein, if not, the taking over of the property becomes arbitrary. On the basis of the same, the award will be passed in accordance with law, at any rate within an outer limit of 3 months from the date of receipt of a copy of the judgment and thereafter, the compensation amount/award amount shall be paid to the claimants/petitioners along with all statutory benefits within a further period of one month. Since the property has already been taken over and a road has been formed long back, it is made clear that the proceedings now directed to be initiated by this court as per the provisions of the LARR Act 2013 including issuance of Section 4 notification for the purpose of ascertaining the land value as on the date of the said notification and the passing of the award are intended only for fixing adequate compensation to be paid to the petitioners and therefore it is made clear that the proceedings shall be treated as deemed acquisition proceedings and only steps provided as per the LARR Act 2013 that are required for fixation of adequate compensation alone need be initiated by the respondents. The petitioners will be entitled to pursue the statutory remedies available to them for further enhancement of compensation, if so desired.
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Judgement Reviewed by – HARIRAGHAVA JP
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