C.B. Sreekumar vs. The Principal Secretary - Kerala High Court, 07 January 2022

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 7TH DAY OF JANUARY 2022 / 17TH POUSHA, 1943 WP(C) NO. 28902 OF 2021 PETITIONERS: 1 C.B.SREEKUMAR,AGED 54 YEARS, MUKKORAAPARAMBIL HOUSE, ANJUMANA, EDAPPALLY P.O., KOCHI 24, ERNAKULAM. 2 P.G. SHIBU, AGED 54 YEARS, PARACKKAL HOUSE, THENGODU P.O., KAKKANAD, ERNAKULAM - 682 030. BY ADVS.T.R.S.KUMAR K.RAJAN (MUHAMMA) DEENA JOSEPH DEEPA R MENON MITHUN C THOMAS AKSHAY JOSEPH ADHIKARAM SWARNA THOMAS RESPONDENTS: 1 THE PRINCIPAL SECRETARY, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 LAND REVENUE COMMISSIONER, PUBLIC OFFICE COMPOUND, MUSEUM ROAD, THIRUVANANTHAPURAM - 695 033. 3 THE DISTRICT COLLECTOR, COLLECTORATE, CIVIL STATION, KAKKANAD, ERNAKULAM - 682 030. 4 THE DY. COLLECTOR (LA), KOCHI METRO RAIL PROJECT, COLLECTORATE, CIVIL STATION, KAKKANAD, ERNAKULAM - 682 030. 5 KOCHI METRO RAIL LIMITED, REP. BY ITS MANAGING DIRECTOR, JNL METRO STATION, 4TH FLOOR, KALOOR, KOCHI, ERNAKULAM - 682 017. SRI.JAFAR KHAN, SR G.P. SMT.M.U.VIJAYALAKSHMI, SC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C) NO. 28902 OF 2021 -2- JUDGMENT The petitioners say that they were running a business under partnership between themselves, in the building situated in a land now acquired for the purposes of the Kochi Metro Rail Limited (KMRL).

The petitioners say that even though they were running the business under a partnership, they are entitled to the benefits under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 ('Fair Compensation Act', for short), individually; but that when Ext.P7 list of beneficiaries was prepared by the 2nd respondent – Land Revenue Commissioner, their names were clubbed and they were allotted an amount of Rs.6,10,000/- jointly and not severally. They say that this was carried forward by the

WP(C) NO. 28902 OF 2021 -3- competent Authority while issuing Ext.P10 Award, wherein, again they had been given only a joint 'One Time Annuity' of Rs.6,10,000/-; and, consequently, that they have been constrained to approach this Court challenging the same.

I have heard Smt.Deepa R.Menon – learned counsel for the petitioners; Smt.T.S.Athira – learned counsel,representing Smt.M.U.Vijayalakshmi – learned Standing Counsel for the KMRL and Sri.Jafar Khan – learned Senior Government Pleader, appearing for the official respondents.

Smt.T.S.Athira – learned counsel for the KMRL, submitted that her client has no role to play with respect to the compensation payable to the petitioners; and that it is upto the 3rd and 4th respondents to take a final decision on this. She, therefore, prayed that no further orders be issued against her client.

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Sri.Jafar Khan – learned Senior Government Pleader, submitted that, while issuing Ext.P7 proceedings and Ext.P10 Award, the competent Authorities have gone strictly as per the definition of 'family' contained in Section 3(c) (ii) of the 'Fair Compensation Act'; and that, therefore, the petitioners cannot seek any further amount than what has been awarded to them. He argued that petitioners cannot contend that they are two different families running a common business and therefore, that they are not entitled to have separate compensation under the Award.

The learned Senior Government Pleader concluded his submissions saying that, in any event of the matter, even if the petitioners have any such claim, their remedy is not to approach this Court through this writ petition, but to seek a reference of the Award under Section 64 of the 'Fair Compensation Act'.

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In reply, Smt.Deepa R.Menon, submitted that what is important for the purpose of interpretation of Section 3 of the 'Fair Compensation Act' is to find out whether individual families are eking out livelihood from the business in the premises acquired and not whether they are doing it as a firm. She argued that even though her clients were conducting the business under a partnership, their individual families are depending upon the same and therefore, that both are entitled to the benefits under Section 3(c)(ii) thereof.

Even when I hear Smt.Deepa R.Menon on the afore lines, and though her contentions may require to be considered appropriately, I do not think that the Forum which the petitioners have chosen at this stage is correct, because this Court is incapacitated from considering the merits of Ext.P10 Award, while acting under Article 226

WP(C) NO. 28902 OF 2021 -6- of the Constitution of India, particularly when there is an alternative efficacious remedy available to them under Section 64 of the 'Fair Compensation Act'.

Thus, if the petitioners are to approach the District Collector, under the afore provision for reference of the Award to the competent Civil Court, certainly, all such contentions can be impelled before him, which will then have to be considered by the Court in terms of law, particularly within the ambit of Section 3 of the 'Fair Compensation Act'. Resultantly, I dispose of this writ petition, leaving liberty to the petitioners to approach the juri ictional District Collector with an appropriate application under Section 64 of the 'Fair Compensation Act'; and if this is done within a period of two weeks from the date of receipt of a copy of this judgment, same shall be

WP(C) NO. 28902 OF 2021 -7- considered by the said Authority and an appropriate reference made to the competent Civil Court, without any avoidable delay, but not later than one week thereafter. Needless to say, all the contentions of the petitioners, and that of the official respondents, are left open to be pursued by them appropriately at the time when the competent Civil Court considers the matter. At this time, Sri.Jafar Khan – learned Senior Government Pleader, intervened to say that petitioners may not be entitled to any further reliefs, because Section 3(c)(ii) of the 'Fair Compensation Act' makes it incumbent that the beneficiaries' family should be landless. I am afraid that I cannot accede to the afore argument at all, because, even going by Ext.P10 Award, the petitioners have been awarded

WP(C) NO. 28902 OF 2021 -8- Rs.6,10,000/- jointly and therefore, same would be of no relevance at this stage, since the competent Authority has already found that they are entitled to the benefits under the said Act. Pertinently the official respondents have not challenged Ext.P10 Award, and this will also be kept in mind by the District Collector and by the competent Court while the application/s of the petitioners under Section 64 of the 'Fair Compensation Act' and the reference respectively are considered and disposed of. DEVAN RAMACHANDRAN JUDGE akv

WP(C) NO. 28902 OF 2021 -9- APPENDIX OF WP(C) 28902/2021 PETITIONER EXHIBITS EXHIBIT P1 THEOF THE PARTNERSHIP DEED DATED 01/04/1996. EXHIBIT P2GST REGISTRATION CERTIFICATE BEARING NO. 32ABYFS4960QIZ3 DATED 17/07/2018. EXHIBIT P3 THEOF THE RENT AGREEMENTS DATED 12/11/2019 EXECUTED IN FAVOUR OF FIRST PETITIONER. EXHIBIT P4 THEOF THE RENT AGREEMENTS DATED 12/11/20219 EXECUTED IN FAVOUR OF SECOND PETITIONER. EXHIBIT P5 THEOF THE LIST OF PERSONS ELIGIBLE FOR REHABILITATION AND RESETTLEMENT PACKAGE BEARING NO. C-12 1047/2016 DATED 25.10.2019. EXHIBIT P6 THEOF THE NOTICES BEARING NO. C12-1047/16 DATED 26/10/2019. EXHIBIT P7 THEOF THE APPROVED REHABILITATION AND RESETTLEMENT SCHEME BEARING NO. LR.C4-7251/2020 DATED 11.03.2020 PUBLISHED BY 2ND RESPONDENT. EXHIBIT P8 THEOF THE REPRESENTATION FILED BY PETITIONERS DATED NIL. EXHIBIT P9 THEOF REPLY LETTER BEARING NO. C12-197/2019(3) DATED 14/05/2020. EXHIBIT P10 THEOF AWARD IN L.A.C. NO. 77/2021 DATED 16.09.2021.