## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN**
**THURSDAY, THE 21ST DAY OF NOVEMBER 2019 / 30TH KARTHIKA, 1941**
## **WP(C).No.19388 OF 2010(W)**
## **PETITIONER:**
**ALAVIKUTTY, AGED 41 YEARS, S/O. ALIPPA, VILAKKUMADATHIL, NSS COLLEGE P.O., MANJERI,, MALAPPURAM DISTRICT.**
**BY ADV. SRI.ABDUL JAWAD K.**
## **RESPONDENTS:**
- **1 UNION OF INDIA, REPRESENTED BY SECRETARY TO GOVERNMENT, MINISTRY OF RURAL DEVELOPMENT, NEW DELHI-1**
- **2 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, TRIVANDRUM - 695 001**
- **3 DISTRICT COLLECTOR MALAPPURAM - 676 505**
**R1 BY ADV. SRI.GEORGE JOSEPH CGC ADV. SRI.RON BASTIAN, GOVT. PLEADER**
**THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **JUDGMENT**
This writ petition is filed challenging the constitutional validity of the proviso to Section 28A(1) of the Land Acquisition Act, 1895 (for short 'the Act'). The proviso which is under challenge reads as follows:
“provided that in computing the period of three months within which an application to the Collector shall be made under this Sub Section, the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be excluded.”
2. It is submitted that the petitioner is the owner of 4.68 ares of land in Survey No.180/1 and 180/3 of the Manjeri Village in Malappuram District. It is stated that the land had been acquired for the purpose of the Manjeri bypass road and the notification under Section 4(1) of the Land Acquisition Act, 1895 was published on 15.3.2003. The petitioner submitted an application for reference under Section 18 of the Act which was rejected as being belated. Thereafter, the petitioner came to know that certain other claimants who had submitted applications for reference as
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L.A.R. No.16/07 had received enhanced compensation. The Sub Court, Manjeri by its judgment dated 14.9.2009 had enhanced the compensation awarded to the claimants in the said L.A.R. It is stated that immediately on coming to know about the grant of enhanced compensation, the petitioner had made an application for a copy of the judgment and had submitted his application on 29.5.2010. It is submitted that since the judgment in L.A.R. was dated 14.9.2009, the application of the petitioner would not be considered in view of the time limit provided in Section 28A of the Act as has been explained in the proviso thereto. It is submitted by the petitioner that he came to know of Ext.P3 award only on 15.5.2010 and that his application which was dispatched on 29.5.2010 should therefore be considered as one made within time from the date of knowledge of the factum of the award.
3. The learned counsel for the petitioner submits that Section 28A of the Act is a benevolent provision in favour of the land owner who loses his land due to the operation of law. It is intended to do away with the discrimination between land owners whose lands are
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acquired under the same notification. It is therefore contended that the strict insistence that the application under Section 28A of the Act should be preferred within three months from the date of the judgment excluding only the time that could be taken for the certified copy of the award to be handed over is per se discriminatory. It is stated that the original claimant in the L.A.R. also made an application for copy only on 15.3.2010 and the copy was obtained only on 30.3.2010. It is therefore contended that the insistence that the petitioner who was not the claimant should have made the application under Section 28A of the Act earlier than the dates on which the application for the judgment in the L.A.R. itself was submitted by the claimant in the case is highly unreasonable. It is stated that the petitioner is denied of reasonable compensation for the loss of his land on account of the provisions contained in Section 28A of the Act and the proviso thereto.
4. The learned Government Pleader would submit that the issue with regard to the dates on which application under Section 28A of the Act is to be submitted stands covered by several decisions of this Court as well as the
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Apex Court. It is contented that the Apex Court has clearly considered the issue and has repeatedly held that the time for preferring the application under Section 28A of the Act starts running from the date of the passing of the award by the reference Court and not from the date of knowledge of the applicant of the passing of the award. Relying on the decision of the Apex Court in “ **State of A.P. and another v. Marri Venkaiah and others [AIR 2003 SC 2949]** ”, it is contended that this issue has been given a quietus by the Apex Court in the year 2003 itself. It is contended that the statute position as complained of by the petitioner had been repeatedly considered by this Court as also the Apex Court and no illegality was found in the same.
5. The learned counsel for the petitioner on the other hand submits that there was no specific challenge to the time limit as prescribed in Section 28A of the Act or the proviso thereto in the judgments of the Apex Court as are referred. It is stated that in view of the fact that the original claimants themselves came to know only much later, that is in March 2010, about the award of the reference Court, the petitioner ought to have been granted
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three months' time atleast from March 2010 to make the application.
6. I have considered the contentions advanced. The scheme of the Act provides for an award to be issued by the competent authority after considering the factual aspects of the matter. Section 18 of the Act provides that any person who has not accepted the award may make an application to the Collector for reference of the matter for determination of the competent court as to the amount of compensation to be awarded. The said application is to be made within six weeks from the date of the Collector's award, where the person is present or represented before the Collector and in other cases, within six weeks of the receipt of the notice from the Collector under Section 12 Sub-Section (2), or within six months from the date of the Collector's award whichever is earlier. In the instant case, the petitioner had submitted an application under Section 18 of the Act. However, the same was rejected as being belated. The further provision as contained in Section 28A of the Act is a special provision which permits the person interested to seek an enhancement of the amount of order
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as compensation where a reference with respect of land covered by the same notification has been answered in favour of some of the claimants. This is a specific and special provision which provides a further relief in respect of persons who had not submitted applications for reference within the time prescribed as per Section 18 of the Act. Being a specific provision, the time limit provided therein also has to be specifically adhered to. The contention of the learned counsel for the petitioner is to the effect that the prescription of three months from the date of the award excluding only the date on which the award was pronounced and the time requisite for obtaining a copy of the same to be excluded from the same is illegal and unreasonable. However, I find that no sustainable grounds have been raised to support the challenge raised to a statutory prescription of time for preferring the application. I fail to see how three months from date of award can be held to be an arbitrary or unreasonable prescription. The petitioner in normal circumstances could have made an application for reference under Section 18 of the Act. He failed to do so within the time granted. In the
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said circumstances, I am of the opinion that he should have been vigilant in view of the fact that his only further remedy lay in making an application under Section 28A of the Act, in case the application preferred by claimants under the same notification proved successful. It is an admitted case that the petitioner did not make such an application within time.
In the above view of the matter, I am of the opinion that the grounds raised in the writ petition as against the prescription of time under Section 28A of the Act do not justify a challenge against the said provision. The writ petition fails and is accordingly dismissed.
**Sd/-**
**ANU SIVARAMAN JUDGE**
np
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## **APPENDIX**
**PETITIONER'S/S EXHIBITS:**
**EXHIBIT P1 TRUE COPY OF THE DISCHARGE SUMMARY ISSUED ON 15.9.2007 TO THE PETITIONER.**
- **EXHIBIT P2 TRUE COPY OF THE ORDER DATED 16.11.2007 BY THE SPECIAL TAHASILDAR, MALAPPURAM**
- **EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 14.9.2009 IN LAR.16/2007 PASSED BY THE SUBORDINATE JUDGE OF MANJERI.**
- **EXHIBIT P4 TRUE COPY OF WHOLE BODY IODINE SCAN REPORT OF THE PETITIONER FOR THE YEAR 2009**
- **EXHIBIT P5 TRUE COPY OF THE MEDICAL CERTIFICATE TO THE PETITIONER ISSUED BY DR.ROJAN KURUVILLA DATED 19.5.2010**
- **EXHIBIT P6 TRUE COPY OF THE APPLICATION DATED 29.5.2010 SUBMITTED BY THE PETITIONER THROUGH REGISTERED POST TO THE 2ND RESPONDENT.**
**RESPONDENT'S/S EXHIBITS: NIL**
