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Merly Paul, Represented by Power of Attorney Holder C.P. Paul & Others v/s State of Kerala, Represented by Secretary Revenue Department, Thiruvananthapuram & Others


Company & Directors' Information:- INDIA POWER CORPORATION LIMITED [Active] CIN = L40105WB1919PLC003263

Company & Directors' Information:- B L A POWER PRIVATE LIMITED [Active] CIN = U40102MH2006PTC165430

Company & Directors' Information:- L V S POWER PRIVATE LIMITED [Active] CIN = U40100TG1996PTC023552

Company & Directors' Information:- S L S POWER CORPORATION LIMITED [Active] CIN = U40109AP2005PLC047008

Company & Directors' Information:- S L V POWER PRIVATE LIMITED [Active] CIN = U40102KA2002PTC030448

Company & Directors' Information:- B V POWER PRIVATE LIMITED [Active] CIN = U40106DL2011PTC213428

Company & Directors' Information:- R AND H POWER COMPANY PRIVATE LIMITED [Active] CIN = U51109UP1965PTC003067

Company & Directors' Information:- B R POWER LTD [Active] CIN = U40106WB1995PLC073567

Company & Directors' Information:- N M S POWER PRIVATE LIMITED [Active] CIN = U51109WB1999PTC089747

Company & Directors' Information:- R. G. PAUL PRIVATE LIMITED [Active] CIN = U51597WB2016PTC216669

Company & Directors' Information:- P R B POWER PRIVATE LIMITED [Strike Off] CIN = U40101TG1995PTC020647

Company & Directors' Information:- KERALA POWER COMPANY LIMITED [Strike Off] CIN = U40101KL1995PLC009791

Company & Directors' Information:- S V G POWER PRIVATE LIMITED [Active] CIN = U40300AP2012PTC084435

Company & Directors' Information:- INDIA POWER PRIVATE LIMITED [Active] CIN = U31900DL1995PTC070096

Company & Directors' Information:- PAUL & COMPANY (INDIA) PRIVATE LIMITED [Active] CIN = U51909DL1998PTC091926

Company & Directors' Information:- M POWER INDIA PRIVATE LIMITED [Active] CIN = U31908MH2012PTC234343

Company & Directors' Information:- A N S INDIA POWER PRIVATE LIMITED [Active] CIN = U51101DL2014PTC266873

Company & Directors' Information:- M M K POWER PRIVATE LIMITED [Strike Off] CIN = U40106AP1998PTC030796

Company & Directors' Information:- C R E M POWER PRIVATE LIMITED [Strike Off] CIN = U40101DL2001PTC111631

Company & Directors' Information:- D T POWER PRIVATE LIMITED [Strike Off] CIN = U40300AP2015PTC097226

Company & Directors' Information:- O L G POWER P LTD [Active] CIN = U30007TN1991PTC020898

Company & Directors' Information:- G S POWER LIMITED [Strike Off] CIN = U40102KA2010PLC054033

Company & Directors' Information:- D K PAUL & COMPANY PRIVATE LIMITED [Strike Off] CIN = U27109WB2000PTC090959

Company & Directors' Information:- P D M POWER PRIVATE LIMITED [Active] CIN = U40104AS2014PTC011780

Company & Directors' Information:- S POWER PRIVATE LIMITED [Active] CIN = U19202DL1986PTC026505

Company & Directors' Information:- G M POWER PRIVATE LIMITED [Strike Off] CIN = U40105PN2003PTC017857

Company & Directors' Information:- S AND S POWER PRIVATE LIMITED [Active] CIN = U40109PY2004PTC001824

Company & Directors' Information:- POWER-X PRIVATE LIMITED [Strike Off] CIN = U99999DL1970PTC005331

Company & Directors' Information:- R G D POWER PRIVATE LIMITED [Strike Off] CIN = U41000TG1996PTC023809

Company & Directors' Information:- K PAUL PVT LTD [Strike Off] CIN = U74210WB1942PTC011033

Company & Directors' Information:- M M R POWER PRIVATE LIMITED [Active] CIN = U31104DL2008PTC174079

Company & Directors' Information:- S J POWER PRIVATE LIMITED [Strike Off] CIN = U45207HR2012PTC045937

Company & Directors' Information:- K C PAUL & CO PVT LTD [Strike Off] CIN = U36101WB1938PTC009323

Company & Directors' Information:- S & O POWER PRIVATE LIMITED [Active] CIN = U40107MH2010PTC206447

Company & Directors' Information:- V D M-POWER PRIVATE LIMITED [Active] CIN = U74999MH2015PTC262999

Company & Directors' Information:- W N POWER PRIVATE LIMITED [Strike Off] CIN = U40101JK2013PTC004009

Company & Directors' Information:- C K S POWER PRIVATE LIMITED [Strike Off] CIN = U40101KA2010PTC052199

Company & Directors' Information:- G C I POWER PRIVATE LIMITED [Active] CIN = U40107KA2010PTC053656

Company & Directors' Information:- C.P. CORPORATION PRIVATE LIMITED [Strike Off] CIN = U17200GJ2013PTC077268

Company & Directors' Information:- R. C. POWER PRIVATE LIMITED [Strike Off] CIN = U40100GJ2009PTC058005

Company & Directors' Information:- J R J POWER PRIVATE LIMITED [Active] CIN = U40300GJ2015PTC082396

Company & Directors' Information:- R C PAUL PVT LTD [Strike Off] CIN = U51909WB1945PTC012571

Company & Directors' Information:- D V N POWER PRIVATE LIMITED [Strike Off] CIN = U40101TG2007PTC053069

Company & Directors' Information:- S C PAUL & CO PVT LTD [Strike Off] CIN = U74999WB1943PTC011307

    WP(C). No. 2580 of 2020 (V)

    Decided On, 02 February 2021

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE V. RAJA VIJAYARAGHAVAN

    For the Petitioners: B.N. Shivsankar, K. Archana Haridas, Advocates. For the Respondents: R1-R3, Mable C. Kurian, Government Pleader, R4, K. Jaju Babu, Sr. Advocate, M.U. Vijayalakshmi, SC.



Judgment Text

1. This is the fourth in a series of Writ Petitions filed by the petitioners before this Court seeking enhanced compensation for a small piece of land owned by them. The said property was acquired for the Kochi metro rail Project for the purpose of constructing the Ernakulam South Metro Station.2. The petitioners initially approached this Court challenging the acquisition proceedings and this Court by judgment dated 10.6.2015 disposed of the writ petition by a short judgment which reads thus:“The petitioners are free to accept the amount tendered by the respondents which approximately is 80% of the compensation amount tentatively fixed. The same will however be without prejudice to the right of the petitioners to claim further compensation under the right to fair compensation and transparency in land acquisition, rehabilitation and resettlement Act, 2013. The amount shall be disbursed to the petitioners on their executing the necessary documents as enjoined by law”3. The petitioners thereafter entered into an agreement for sale on 7/7/2015 wherein among other terms it is also stated thus:-“Notwithstanding anything contained herein this judgement has been entered into in terms of the judgement of the High Court of Kerala in W.P. ( C ) No. 17339/2015”4. Later, they approached this Court and filed W.P (C) No.20085 of 2017 seeking a direction to the respondents to pass an award under Act 30 of 2013. This Court took note of the fact that the petitioners by then had received 80% of the compensation determined and the balance 20% was yet to be paid. This Court, after observing that the petitioners are entitled for determination of compensation under Act 30 of 2013, directed the respondents to refer the claim under Section 64 of the Act 30 of 2013 treating the sale deed as an award. However, this Court had cautioned that the reference is to be made only if the petitioners execute the sale deed based on the terms and conditions of the agreement.5. Later, the petitioners preferred W.P (C) No.7071 of 2017 contending that they are entitled to compensation on account of the diminution of the value of the property due to acquisition of a pathway leading to the said property. This Court by judgment dated 8/8/2019 ordered that the claim for compensation for diminution of the remaining land as well as the value of the property shall also be referred to the authority concerned under Section 64 of the Act.6. The petitioners have now come up with this Writ Petition contending that the draft of the sale deed which has been forwarded to the petitioners does not contain any reference to the entitlement of the petitioners to additional compensation in terms of the provisions of Act 30 of 2013 and therefore is not in tune with the agreement for sale entered into between the parties. In the said circumstances, the petitioners themselves have prepared a draft sale deed and forwarded the same to the respondents. It is in the above backdrop that they have approached this Court seeking the following reliefs:-“1. Pass a Writ of mandamus or such other Writ directing the respondent to prepare the date of conveyance in accordance with the order in Exhibits P1 and P2 expressly showing that the consideration shown in the deed of conveyance is not the final amount of compensation.2. Further direct the respondents to pass an award and refer the matter under Section 64 after paying the balance 20% of admitted interim compensation, leaving open all the claims permitted under the law to be raised by the petitioner under the Act 30 of 2013 before the forum under Section 64 of Act 30 of 2013 and to fix a time limit for reference.”7. The fourth respondent has filed a counter affidavit contending that in view of the earlier judgments rendered by this Court between the same parties, the petitioners herein are not entitled to any of the reliefs sought for. It is contended that the sale price offered to the petitioners and accepted by them was extremely lucrative when compared to the market value prevailing in the locality at the time. However in para 12 of the counter affidavit it is stated that all the rights of the petitioners under Act 30 of 2013 are protected by the judgments passed by this Court.8. Sri B.N. Shiv shanker, the learned counsel appearing for the petitioners submitted that the respondents have left out certain clauses in the draft sale deed to disenittle the petitioners from pursuing the reference and obtain enhanced compensation, if they are so entitled before the authority constituted under Section 64 of the Act.9. The submissions of the learned counsel is seriously opposed by Sri. Jaju Babu, the learned senior counsel appearing for the Kochi Metro Rail Ltd. and Sri. Jaffer, the learned senior Government pleader.10. I have considered the submissions advanced.11. In the case on hand, the property was sought to be acquired for the construction of a Mass Rapid Transit System (MRTS) for Kochi Metro project from Aluva to Petta as a joint venture project of the Government of India and the Government of Kerala. The third respondent initiated the acquisition process by publishing the preliminary notification under Section 4(1) of the Land Acquisition Act, 1894 for acquisition of land required for Kochi Metro in various villages of Kanayannur Taluk. However, immediately after the acquisition proceedings was started, Act 30 of 2013 came into force. Since the land was urgently required for commencing the work, the respondents requested the Government for permission to initiate the negotiation process for direct purchase of land instead of going for compulsory acquisition. The State Government thereafter issued orders authorising Kochi Metro Project to identify lands necessary for construction of metro project and allied works at the rate approved by the State Level Empowered Committee. Later, a modified order was issued authorising the second respondent to purchase land for the fourth respondent. The Government also allowed the Kochi Metro Rail Ltd. to take a suitable decision regarding resettlement and rehabilitation package as per Act 30 of 2013. The landowners were invited and a consensus was arrived at. It was at that stage that the petitioners approached this Court and secured Exhibit P13 judgment on the strength of which Ext.P12 agreement for sale was executed. I find that in the said agreement entered into between the parties it has been mentioned that the agreement has been entered into in terms of the said judgment.12. In Balakrishnan v. Union of India and others (2017) 3 SCC 634), the question was whether in a case wherein the compensation fixed based on negotiated settlement, the claim for exemption under Section 10 (37) of Income-tax Act, 1961, could be denied to the party. In the said case, the property was acquired by the Government for the purpose of development of the third phase of the Technopark. Notification under Section 4(1) of the Land Acquisition Act, 1894 was issued. It was thereafter that a decision was taken for negotiated purchase. This Court had held that the transfer of possession by way of sale deed after notification under Section 4(1) will not amount to compulsory acquisition liable for tax deduction under Section 194LA of the Income Tax Act. In Paragraph Nos. 8 and 9 of the judgment, the Apex Court had held as follows:-8. In our view, insofar as acquisition of the land is concerned, the same was compulsorily acquired as the entire procedure prescribed under the LA Act was followed. The settlement took place only qua the amount of the compensation which was to be received by the appellant for the land which had been acquired. It goes without saying that had steps not been taken by the Government under Sections 4 and 6 followed by award under Section 9 of the LA Act, the appellant would not have agreed to divest the land belonging to him to Techno Park. He was compelled to do so because of the compulsory acquisition and to avoid litigation entered into negotiations and settled the final compensation. Merely because the compensation amount is agreed upon would not change the character of acquisition from that of compulsory acquisition to the voluntary sale. It may be mentioned that this is now the procedure which is laid down even under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 as per which the Collector can pass rehabilitation and resettlement award with the consent of the parties/landowners. Nonetheless, the character of acquisition remains compulsory.9. This Court has doubts about the correctness of the judgment in Infopark Kerala v. CIT [Infopark Kerala v. CIT, (2008) 4 KLT 782 : 2008 SCC OnLine Ker 564] . The Court in the said case took the view that since the title in the property was passed by the landowners on the strength of sale deeds executed by them, it was not a compulsory acquisition. We are not in agreement with the aforesaid view. It is clear that but for Notification under Section 4 and award under Section 9 of the LA Act, the appellant would not have entered into any negotiations for the compensation of the consideration which he was to receive for the said land. As far as the acquisition of the land in question is concerned, there was no consent. The appellant was put in such a condition that he knew that his land had been acquired and he cannot reiterate the same. The appellant, therefore, only wanted to salvage the situation by receiving as much compensation as possible commensurate with the market value thereof and in the process avoid the litigation so that the appellant is able to receive the compensation well in time. If for this purpose the appellant entered into the negotiations, such negotiations would be confined to the quantum of compensation only and cannot change or alter the nature of acquisition which would remain compulsory. We, therefore, overrule the judgment of the Kerala High Court in Infopark Kerala v. CIT [Infopark Kerala v. CIT, (2008) 4 KLT 782 : 2008 SCC OnLine Ker 564].13. Applying the principles to the instant case, the mere fact that the property was purchased after negotiated purchase would not change or alter the nature of the acquisition. The petitioners had challenged the acquisition proceedings on more than one occasion and they were put in such a condition that they knew that their land would be acquired come what may. The Government had also allowed the KMRL to take suitable decisions regarding the rehabilitation and resettlement package as per Act 30 of 2013. It is thus obvious that the petitioners wanted to salvage the situation by receiving as much compensation as possible commensurate with the market value thereof and in the process avoid the litigation so that they would be able to receive the compensation well in time. As held by the Apex Court, such negotiations would be confined to the quantum of compensation on

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ly and cannot change or alter the nature of acquisition which would remain compulsory. If that be the case, the benefits due to the petitioners under Act 30 of 2013 cannot be denied to the petitioners even if there is no such reference in the sale deed executed by the petitioners and the Kochi Metro Rail Limited. This Court in more than one instance had repeatedly asserted this fact but it appears that the petitioners are still labouring under some misconception..In that view of the matter, the sale consideration under the agreement for sale shall be the deemed award for the petitioners to seek enhancement under Section 64 of Act 30 of 2013. I direct the petitioners to execute the sale deed handed over by the respondents without delay and receive the balance amount of 20% pending the enhancement proceedings before the Competent Authority under Section 64 of the Act. If the petitioners apply, the District Collector shall refer the matter to the competent authority under Section 64 of the Act. The principles laid down by the Division Bench of this Court in Kochi Metro Rail Limited v Shanavas and others (Judgment dated 13.12.2017 in W.A. No 2158 of 2017) shall apply.This writ petition is disposed of.
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