Jose Santy S/o Santy v. Land Acquisition Officer and Tahsildar, Kothamangalam, Ernakulam District; District Collector, Kakkanad, Ernakulam District; The State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE THE ACTING CHIEF JUSTICE MR.ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU THURSDAY, THE 18TH DAY OF JANUARY 2018 / 28TH POUSHA, 1939 WA.No. 1546 of 2014 IN WPC. 24698/2014 AGAINST THE JUDGMENT IN WP(C) 24698/2014 of HIGH COURT OF KERALA DATED 30-09-2014 APPELLANT/PETITIONER: JOSE SANTY S/O SANTY, DOING BUSINESS, RESIDING AT POTHANIKAT HOUSE, ANGADIKKARA, KOTHAMANGALAM 686666, ERNAKULAM DISTRICT BY ADVS.DR.GEORGE ABRAHAM SRI.MATHEW GEORGE VADAKKEL RESPONDENTS/RESPONDENTS: 1. LAND ACQUISITION OFFICER AND TAHSILDAR - KOTHAMANGALAM, ERNAKULAM DISTRICT 686666 2. THE DISTRICT COLLECTOR, KAKKANAD-682 030, ERNAKULAM DISTRICT. 3. THE STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695001 R BY SPL.GOVERNMENT PLEADER TO ADDL.A.G.SRI M.A.ASIF THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **Antony Dominic, Ag.C.J. & Dama Seshadri Naidu, J.** ------------------------------------------- ## W.A.No.1546 of 2014 -------------------------------------------- Dated this the 18[th] day of January, 2018 ## **JUDGMENT** ## **Antony Dominic, Ag.C.J.** This appeal is filed by the petitioner in Writ Petition No.24698 of 2014. The writ petition was filed challenging Ext.P8 order passed by the first respondent rejecting an application made by the appellant for reference under section 18 of the Land Acquisition Act, 1894 ('the Act', for short) on the ground that it was made belatedly. By the judgment under appeal, the learned Single Judge upheld Ext.P8. It is this judgment which is under challenge. 2. We heard the counsel for the appellant and the learned Government Pleader appearing for the respondents. 3. By notification dated 25.2.2006 issued under Section 4(1) of the Act, 16.85 cents of land of the appellant in W.A.No.1546 of 2014 2 Sy.No.1030/4-A-4 of Kothamangalam Taluk was acquired for the purpose of construction of a new bye-pass road crossing NH-49. The notice under Section 9(3) of the Act was given to the appellant on 6.2.2008 and in response, the appellant filed his objection on 12.3.2008 where he _inter alia_ sought compensation of `6 lakhs per cent apart from the statutory benefits. Alternatively, he also sought reference under section 18. Subsequently on 10.6.2009, notice for taking possession of the land was issued and award was passed on 30.12.2013. Still later, Ext.P5 notice under Section 12(2) of the Act dated 6.1.2014 was served on the appellant on 21.2.2014. The appellant says that he received compensation amount by Ext.P6 pay order cheque on 24.3.2014, when he made his protest known to the respondents. Subsequently, he made an application under Section 18(4) for reference on 19.4.2014. It was this application which was rejected by the first respondent by Ext.P8 order stating that the application was made beyond six weeks permitted under Section 18(2)(b) of the Act, calculating the same from 21.2.2014, when the notice under section 12(2) was served on the appellant. In the W.A.No.1546 of 2014 3 judgment under appeal, the learned single Judge rejected the challenge against Ext.P8 and held that having regarding to the provisions of Section 18(2)(b), irrespective of whether copy of the award was also enclosed along with the notice under section 12(2) or not, the period of six weeks specified in Section 18(2)(b) should be reckoned from the date of service of notice under Section 12(2), viz. 21.2.2014 and that if so reckoned, the application under Section 18 submitted on 19.4.2014 is belated. It is on that reason the learned Single Judge upheld Ext.P8. This judgment was attacked by the learned counsel for the appellant mainly referring to sections 18 and 31 of the Act as also the principles laid down by the Apex Court in the judgment in _**Premji Nathu**_ v _**State of Gujarat and another**_ [(2012) 5 SCC 250]. According to the counsel, if award is not enclosed along with notice under Section 12(2), the claimant is entitled to apply to have a copy of the award and the date of receipt of the award should be the starting point of limitation prescribed under Section 18(2)(b). This contention of the learned counsel for the appellant was contradicted by the W.A.No.1546 of 2014 4 learned Government Pleader who made available the relevant files and also placed reliance on the judgment of the Apex Court in _**State of Punjab and another** v_ _**Satinder Bir Singh** (1995) 3 SCC 330)_ . According to him, the principles laid down by the Apex Court in _Premji Nathu_ v _State of Gujarat and another_ (supra) are inapplicable to the case under consideration. 4. We have considered the submissions made. On facts, it may be relevant to state that after the notification dated 25.2.2006 under Section 4(1), notice was issued to the appellant under Section 9(3) on 6.2.2008. He responded by filing Ext.P2 objection on 12.3.2008. Subsequently on 10.6.2009, notice under section 17 was served for taking possession of the land and still later award was passed on 30.12.2013. Notice of award was issued to the appellant under Section 12(2) on 6.1.2014 and Ext.P5 notice was served on the appellant on 21.2.2014. A perusal of Ext.P5 notice under section 12(2) shows that the first respondent had called upon the appellant to appear before him on 25.2.2014 to receive compensation. Instead of complying with that W.A.No.1546 of 2014 5 requirement, on 14.3.2014, the appellant submitted a representation to the first respondent asking him to release the compensation. Files also show that in pursuance thereof, cheque was issued to the appellant on 19.3.2014 and in the receipt acknowledging the cheque, the appellant had registered his protest. Ext.P6 produced in the writ petition is the treasury cheque which was obtained by the appellant issued on behalf of the Land Acquisition Officer for the purposes of encashment from the bank. It is thereafter that on 19.4.2014, the application under Section 18 was made by the appellant. 5. The question that arises here is whether the period of six weeks provided in Section 18(2)(b) of the Act is to be reckoned from 21.2.2014 when notice under Section 12(2) was served on the appellant or whether it should be reckoned from any day thereafter. A reading of Section 18(2)(b) makes it clear that every application governed by Section 18(2)(b) shall be made within six weeks of receipt of notice from the Collector under Section 12(2). It is to be so reckoned and this position is specifically made clear in the judgment of the Apex ## W.A.No.1546 of 2014 6 ## Court in _**State of Punjab and another** v_ _**Satinder Bir Singh**_ _(supra)_ where in paragraph-6, it has been held thus: The question then is whether the notice under s..12(2)is a valid notice. From a conjoint reading of s. 11 and 12, it is clear that notice is only an intimation of making of the award requiring the owner or person interested to receive compensation awarded under section 11. On receipt of the notice, if the person interested receives compensation without protest, obviously no reference need be made. The determination of compensation becomes final and binds the parties. When he receives the compensation under protest as contemplated under s.31 of the Act, the need to make the application for reference under S.18(1) would arise. At that juncture it will be open to the person interested either to make an inspection of the award which was conclusive between him and the Collector by operation of sub-s.(1) of s. 12, or seek a certified copy of the award from the Collector and the contents. Thereon be could make necessary objection for the determination inter alia, of compensation for the land. It is not necessary that the notice should contain all the details of the award including his consideration and its manner of determination of the compensation as opined by the learned Judge of the High Court. It is not incumbent that the person interested should immediately make the reference application on his receiving compensation under s.31. In other words receipt of the amount and making the reference application are not simultaneous. The statutory operation of limitation mentioned by s.18(2) does not depend on the ministerial act of communication of notice in any particular form when the Act or Rules has not prescribed any form. The limitation begins to operate from the moment the notice under s.12(2) is received or as envisaged bu s.18(2). W.A.No.1546 of 2014 7 6. It is this view which has been taken by the learned Single Judge also. 7. However, the appellant is attempting to get over this difficulty relying on the provisions of Section 31 of the Act. Sub Section (1) of Section 31 states that on making an award under Section 11, the Collector shall tender payment of compensation awarded by him to the persons interested entitled thereto according to the award, and shall pay it to them unless prevented by some one or more of the contingencies mentioned in sub section (2). Counsel relied on the second proviso to sub section (2) which states that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount and also to the third proviso which further provided that no person who has received the amount otherwise than under protest shall be entitled to make any application under Section 18. Relying on these provisions, in the judgment in _Premji Nathu v State of Gujarat and another_ (supra), the Apex Court has taken the view that the knowledge of the party affected by the award, W.A.No.1546 of 2014 8 either actual or constructive, being an essential requirement of fair play and natural justice, the expression 'the date of the award' used in the proviso to section 18 must mean the date when the award is either communicated to the party or is known to him actually or constructively. According to the Apex Court, it would be unreasonable to construe the words 'from the date of the collector's award' used in the proviso to Section 18 in a literal or mechanical way. Applying that principle, in the case under consideration, the Apex Court found that notice issued by the Collector under Section 12(2) was served upon the claimant on 22.2.1985 and thereafter his advocate obtained the certified copy of the award and filed application under Section 18 on 08.04.1985. That application was held to be within the period prescribed in Section 18(2) (b). 8. Drawing support from the above, the learned counsel appearing for the appellant contended that since the award was not enclosed along with the notice under Section 12(2) served on the appellant on 21.2.2014, the six weeks' period specified in Section 18(2)(b) could not have been reckoned W.A.No.1546 of 2014 9 from that date. Although this contention would appear to be sound and attractive at the first blush, on a closer scrutiny of the same, we are unable to accept it. 9. In so far as the facts of this case are concerned, though there is nothing to show that the notice under Section 12(2) was accompanied by a copy of the award, there is no pleading or other material before this Court to indicate that the appellant had in fact obtained a copy of the award before 19.4.2014 when he made the application under Section 18. The fact that he made the application without obtaining a copy of the award would show that either he had constructive knowledge of the particulars of the award to make the application or that the absence of an award did not in any manner disable him from making the application. Resultantly, therefore, he cannot call any assistance of the principles laid down by the Apex Court in _Premji Nathu_ v _State of Gujarat and another_ (supra) and if so, the principles laid down in _State of Punjab and another v Satinder Bir Singh_ (supra) that limitation begins to operate from the moment notice under Section 12(2) is received or as envisaged under Section W.A.No.1546 of 2014 10 18(2), would operate against him. If that be so, the view taken by he learned Single Judge, necessarily has to be withheld. The appeal fails and is therefore, dismissed. From the files produced by the learned Government Pleader itself, we find that the application under section 28(a) (1) made by the appellant on 4[th] November 2017 is pending consideration of the Land Acquisition Officer. The Land Acquisition Officer shall re-determine the compensation in accordance with law, with notice to the appellant and as expeditiously as possible, at any rate within three months from the date of receipt of a copy of this judgment. **Sd/- Antony Dominic Acting Chief Justice** **sd/- Dama Seshadri Naidu Judge** css/ true copy P.S.TO JUDGE