Chinnamma Benjamin, Mosses Cletus and Nelson alias Francis v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 25TH DAY OF FEBRUARY 2021 / 6TH PHALGUNA, 1942** ## **W.P(C).No.29110 OF 2020(K)** ## **PETITIONERS:** |**1**||**CHINNAMMA BENCHAMIN**| |---|---|---| |||**AGED 72 YEARS**| |||**W/O. BENCHAMIN, POLLAYIL HOUSE,**| |||**SOUTH CHELLANAM,**| |||**KOCHI - 682 008.**| |**2**||**MOSSES CLETUS**| |||**AGED 50 YEARS**| |||**S/O. BENCHAMIN,**| |||**POLLAYIL HOUSE,**| |||**SOUTH CHELLANAM,**| |||**KOCHI - 682 008.**| |**3**||**NELSON ALIAS FRANCIS**| |||**AGED 48 YEARS**| |||**S/O. BENCHAMIN,**| |||**POLLAYIL HOUSE, SOUTH CHELLANAM,**| |||**KOCHI - 682 008.**| |||**BY ADVS.**| |||**SRI. N. RETHEESH**| |||**SMT. SUMA RETHEESH**| |||**SRI. SHANKAR RETHEESH**| |**RESPONDENTS**<br>**:**||| |**1**||**THE STATE OF KERALA**| |||**REPRESENTED BY THE CHIEF SECRETARY,**| |||**GOVERNMENT OF KERALA,**| |||**SECRETARIAT,**| |||**THIRUVANANTHAPURAM - 695 001.**| |**2**||**THE SECRETARY,**| |||**FISHERIES AND PORTS DEPARTMENT**| |||**GOVERNMENT SECRETARIAT,**| |||**THIRUVANANTHAPURAM - 695 001.**| |**3**||**THE DISTRICT COLLECTOR**| |||**ERNAKULAM DISTRICT,**| |||**KAKKANAD, ERNAKULAM - 682 030.**| W.P.(C) No.29110 OF 2020 **2** - **4 THE CHIEF ENGINEER HARBOUR ENGINEERING DEPARTMENT, THIRUVANANTHAPURAM, GOVERNMENT OFFICERS COMPLEX, THIRUVANANTHAPURAM - 695 003.** - **5 THE SPECIAL TAHSILDAR (LA) LAND ACQUISITION DEPARTMENT, GREATER COCHIN DEVELOPMENT AUTHORITY, KADAVANTHRA, KOCHI - 682 020.** - **6 THE DEPUTY DIRECTOR OF SURVEY COLLECTORATE, ERNAKULAM - 682 030.** **SMT. A.C. VIDHYA - GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.29110 OF 2020 **3** ## **JUDGMENT** The petitioners, who were owners in possession of 18 cents of land comprised in Survey No.131/2 (Resurvey No.449/10, Block No.15) of Chellanam Village covered by Ext.P1 partition deed bearing No.1968/1977 dated 30.04.1997 of Sub Registrar Office, Kochi, have filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P7 award dated 25.07.2019 of the 5[th] respondent Special Tahsildar (LA). The petitioners have also sought for a writ of mandamus commanding the 3[rd] respondent to assess the compensation for the entire extent of land afresh, in the light of Ext.P6 report of the Taluk Surveyor. 2. On 04.01.2021, when this writ petition came up for admission the learned Government Pleader was directed to get instructions. 3. The petitioners have filed I.A No.1 of 2021 seeking an order to accept Ext.P9 as an additional document and the same was allowed on 18.2.2021. 4. During the pendency of this writ petition the petitioner filed Ext.P9 application dated 30.01.2021 before the 5[th] W.P.(C) No.29110 OF 2020 **4** respondent for condonation of delay in filing Ext.P8 application for reference dated 18.02.2020 filed under Section 64 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. 5. Heard the learned counsel for the petitioners and also the learned Government Pleader appearing for the respondents. 6. Section 64 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act deals with reference to Authority. As per subsection (1) of Section 64, any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Authority, as the case may be, whether his objection be to the measurement of the land, the amount of the compensation, the person to whom it is payable, the rights of Rehabilitation and Resettlement under Chapters V and VI or the apportionment of the compensation among the persons interested. As per the first proviso to sub-section (1) of Section 64, the Collector shall, within a period of thirty days from the date of receipt of application, make a reference to the appropriate Authority. As per the second W.P.(C) No.29110 OF 2020 **5** proviso to sub-section (1), where the Collector fails to make such reference within the period so specified, the applicant may apply to the Authority, as the case may be, requesting it to direct the Collector to make the reference to it within a period of thirty days. 7. As per sub-section (2) of Section 64 of the Act, the application shall state the grounds on which objection to the award is taken. As per the first proviso to sub-section (2), every such application shall be made (a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award; (b) in other cases, within six weeks of the receipt of the notice from the Collector under Section 21, or within six months from the date of the Collector's award, whichever period shall first expire. As per the second proviso to sub-section (2) of Section 64, the Collector may entertain an application after the expiry of the said period, within a further period of one year, if he is satisfied that there was sufficient cause for not filing it within the period specified in the first proviso. 8. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act was enacted W.P.(C) No.29110 OF 2020 **6** by the Parliament to ensure, in consultation with institutions of local self-government and Gram Sabhas established under the Constitution, a humane, participative, informed and transparent process for land acquisition for industrialisation, development of essential infrastructural facilities and urbanisation with the least disturbance to the owners of the land and other affected families and provide just and fair compensation to the affected families whose land has been acquired or proposed to be acquired or are affected by such acquisition and make adequate provisions for such affected persons for their rehabilitation and resettlement and for ensuring that the cumulative outcome of compulsory acquisition should be that affected persons become partners in development leading to an improvement in their post acquisition social and economic status and for matters connected therewith or incidental thereto. 9. When the very object of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act is to ensure just and reasonable compensation to the affected families, while dealing with an application for condonation of delay under the second proviso to sub-section (2) W.P.(C) No.29110 OF 2020 **7** of Section 64, the competent Authority should take a liberal, pragmatic and non-pedantic approach. The term 'sufficient cause' in the second proviso to sub-section (2) of Section 64 should be understood in its proper spirit, philosophy and purpose, regard being had to the fact that that term has to be applied in proper perspective to the obtaining fact-situation. The conduct and attitude of a petitioner relating to his inaction or negligence are relevant factors to be taken into consideration. An application for condonation of delay under the second proviso to sub-section (2) of Section 64 should be drafted with careful concern and not in a casual manner harbouring the notion that the competent Authority is required to condone delay as a matter of course. 10. In **Sreedharan and Others v. District Collector, Malappuram and Another [2020 (5) KHC 424]** this Court held that when the very object of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act is to ensure just and reasonable compensation to the affected families, while dealing with an application for condonation of delay under the second proviso to sub-section (2) of Section 64, the competent Authority should take a liberal, pragmatic and non- W.P.(C) No.29110 OF 2020 **8** pedantic approach. The term 'sufficient cause' in the second proviso to sub-section (2) of Section 64 should be understood in its proper spirit, philosophy and purpose, regard being had to the fact that that term has to be applied in proper perspective to be obtaining fact-situation. The conduct and attitude of a petitioner relating to his inaction or negligence are relevant factors to be taken into consideration. An application for condonation of delay under the second proviso to sub-section (2) of Section 64 should be drafted with careful concern and not in a casual manner harbouring the notion that the competent authority is required to condone delay as a matter of course. 11. Having considered the submissions made by the learned counsel on both sides this writ petition is disposed of by directing the 5[th] respondent to consider and take appropriate decision on Ext.P9 application made by the petitioners for condonation of delay, taking note of the law laid down in the decision referred to supra, with notice to the petitioners and after affording them an opportunity of being heard and thereafter consider Ext.P8 application for reference and take an appropriate decision as expeditiously as possible at any rate within a period of W.P.(C) No.29110 OF 2020 **9** one month from the date of receipt of a certified copy of the judgment. 12. In **State of U.P. v. Harish Chandra [(1996) 9 SCC 309]** the Apex Court held that no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. In **Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259]** the Apex Court reiterated that, generally, no Court has competence to issue a direction contrary to law nor can the Court direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law. Therefore, in terms of the direction contained in this judgment, the 5[th] respondent shall take an appropriate decision in the matter, strictly in accordance with law, taking note of the relevant statutory provisions and also the law on the point. Sd/- **ANIL K. NARENDRAN JUDGE** SPR W.P.(C) No.29110 OF 2020 **10** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE DOCUMENT NO.1968/1977 OF SRO, KOCHI DATED 30/04/1997.** **EXHIBIT P2 TRUE COPY OF THE TAX RECEIPT DATED 07/06/2018.** **EXHIBIT P3** **TRUE COPY OF THE GOVERNMENT ORDER GO(RT) NO.205/12/FQPOZ DATED 12/03/2012.** **EXHIBIT P4** **TRUE COPY OF THE LETTER DATED 24/06/2013 ISSUED BY THE 3RD RESPONDENT TO THE PRINCIPAL SECRETARY, REVENUE DEPARTMENT.** **EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 05/03/2015 OF THE PETITIONERS TO THE 3RD RESPONDENT.** **EXHIBIT P6** **TRUE COPY OF THE REPORT DATED NIL SUBMITTED BY THE TALUK SURVEYOR.** - **EXHIBIT P7 TRUE COPY OF THE AWARD DATED 25/07/2019 PASSED BY THE 5TH RESPONDENT.** - **EXHIBIT P8** **TRUE COPY OF THE PETITIONER'S OBJECTION DATED 18/02/2020 TO EXT.P7 AWARD.** **EXHIBIT P9 TRUE COPY OF THE APPLICATION DATED 30.01.2021 TO RESPONDENTS 3 AND 5.** **RESPONDENT'S/S EXHIBITS: NIL.**