Joy Cherian, K.K. Abraham and P.A. John v. State of Kerala, District Collector, Deputy Collector, L.A. (NH) Changanacherry, Kottayam District

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **MONDAY, THE 24TH DAY OF JUNE 2013/3RD ASHADHA, 1935** ## **WP(C).No. 1155 of 2010 (T)** ## **--------------------------------------** ## **PETITIONER(S):** **-----------------------** **1. JOY CHERIAN, CHERIAN, AGED 53 YEARS, RESIDING AT CHELLIYANPURATHU HOUSE, KIZHUMURI KARA AND P.O. RAMAMANGALAM VILLAGE, MUVATTUPUZHA TALUK.** **2. K.K.ABRAHAM, S/O. KURIAN, AGED 56 YEARS, RESIDING AT KADUVANKULAM HOUSE, MANNATHOOR KARA AND P.O., THIRUMARADI VILLAGE, MUVATTUPUZHA TALUK** **3. P.A.JOHN, S/O. ABRAHAM, AGED 54 YEARS, RESIDING AT MALIKAYIL HOUSE, MANNATHOOR KARA AND P.O. THIRUMARADI VILLAGE, MUVATTUPUZHA TALUK.** - **BY ADV. SRI.P.C.HARIDAS** ## **RESPONDENT(S):** - **----------------------------** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. DISTRICT COLLECTOR, KOTTAYAM.** **3. DEPUTY COLLECTOR, L.A., COLLECTORATE, KOTTAYAM.** **4. SPECIAL TAHSILDAR L.A.(NH), CHANGANACHERRY, KOTTAYAM DISTRICT.** - **R1 TO 4 BY GOVT. PLEADER SRI.NOUSHAD THOTTATHIL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-06-2013, THE COURT ON 24/06/2013 DELIVERED THE FOLLOWING:** **tss** ## **W.P.(C) 1155/2010** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **P1:- COPY OF THE SALE DEED NO.1543/05 IN FAVOUR OF THE IST PETITIONER.** **P2:- COPY OF THE SALE DEED NO.12564/05 IN FAVOUR OF THE 2ND PETITIONER.** **P3:- COPY OF THE SALE DEED NO.1565/05 IN FAVOUR OF THE 3RD PETITIONER.** **P4:- COPY OF THE NOTICE DTD. 3.11.2P007 OF THE 3RD RESPONDENT.** **P5:- COPY OF THE REPRESENTATION DTD. 23.11.2007 OF THE IST PETITIONER.** ## **P6:- COPY OF THE REPRESENTATION DTD. 16.1.2008 OF THE PETITIONER TO THE 4TH RESPONDENT.** **P7SERIES:- COPY OF THE REPRESENTATION DTD. 3.3.2008 OF THE PETITIONER TO THE 3RD RESPONDENT.** ## **P8:- COPY OF THE RECTIFIED AWARD DTD 5.8.2009.** **P9 SERIES(3 IN ONE) COPIES OF THE APPLICATION FOR REFERENCE SUBMITTED BY THE PETITIONER.** **P10 SERIES(3 IN ONE):- COPY OF THE LETTERS OF THE 4TH RESPONDENT.** **P11SERIES(23 IN ONE):- COPY OF THE REPLY GIVEN BY THE 4TH RESPONDENT UNDER RIGHT TO INFORMATRION ACT TO THE PETITIONERS 2 AND 3.** ## **RESPONDENT'S EXHIBITS** ## **NIL** **TRUE COPY** ## **P.S. TO JUDGE** **tss** A.M.SHAFFIQUE, J. ---------------------------------------------------W.P.(C) No. 1155 of 2010-T --------------------------------------------------Dated this the 24[th] June, 2013 **J U D G M E N T** The petitioners challenge Exts.P10 series and Ext.P11 by which the request of the petitioners for reference under S.18 of the Land Acquisition Act, 1894 (hereinafter referred to as the 'L.A. Act') has been rejected by the Land Acquisition Officer on the ground of delay in submitting the application for reference. 2. The facts involved in the case would disclose that the petitioners land was acquired pursuant to a notification under S.4(1) of the L.A. Act and notices were issued to them on the award enquiry. But the case of the petitioners is that they were not given any notice of passing of the award in terms of Section 12(2) of the L.A. Act and as W.P.(C) No. 1155 of 2010-T **==> picture [7 x 9] intentionally omitted <==** such they were not in a position to submit their objection to the award. Subsequently, petitioners were served with notices for handing over possession of the property, under S.47 of the L.A. Act. At that time, it was noticed that an award has been passed. 3. According to the petitioners an award dated 5.8.2009 shown as rectified award was served on the petitioners. Ext.P8 is the said award. They submitted Ext.P9 series requesting for reference under S.18 of the L.A. Act. But the same came to be rejected as per Ext.P10 series. 4. The main contention urged by the petitioners is that they were not served with any award prior to Ext.P8 nor any notices were given in regard to the passing of the award. Under such W.P.(C) No. 1155 of 2010-T 3 circumstances, the reference application filed as Ext.P10 series on 30.9.2009 is within the time specified under S.18 of the L.A.Act. Hence the petitioners seek to quash Ext.P10 series and for a direction to refer the matter for adjudication under S. 18 of the L.A.Act. 5. Counter affidavit is filed by the 4[th] respondent supporting the stand taken by them in the impugned orders. According to them, the notices in Form No. 10(b) (Section 12(2)of L.A. Act were despatched to the petitioners under certificate of posting on 11.6.2008. The address for communication used in the notice was exactly the same as in the previous notice under S.9(3) of the L.A. Act which the petitioners have admittedly received. According to the respondents, the W.P.(C) No. 1155 of 2010-T **==> picture [7 x 9] intentionally omitted <==** have submitted an on petitioners application 9.7.2008 requesting that they may be exempted from further acquisition proceedings till the disposal of the application pending with the District Collector. Therefore it is assumed that it is after receiving notices in Form No. 10(b), the petitioners have approached the District Collector. Further it is also contended that the rectified award dated 5.8.2009 was issued to the petitioners only on their request regarding the apportioned value of land for the three parties and no notice of award in Form No.10(b) was issued at that time. Further it is contended that those persons who were unwilling to give possession of the land were given notice under S. 47 of the L.A. Act. These notices were served on the petitioners on 8.6.2009 and it is W.P.(C) No. 1155 of 2010-T **==> picture [7 x 9] intentionally omitted <==** pursuant to the direction issued by the Sub Divisional Magistrate, Pala, the petitioners appeared for hearing and in the written statement, the petitioners clearly stated that they have received all the notices under Ss.9(3), 12(2) etc. and that they were willing to hand over the land subject to their objection. Subsequently a memo is also filed producing the acceptance of the hearing note. In the hearing note it is recorded that the petitioners have given a statement on 8.7.2009 stating that they were in receipt of notices under S.4(1) and thereafter notices in Form 9(b), Rule 12 and Form 10(b). It is also recorded that since the possession of the land was not given, the award amount is not paid, and that the petitioners are willing to surrender the land. On this basis it is W.P.(C) No. 1155 of 2010-T **==> picture [7 x 9] intentionally omitted <==** contended by the Government that the petitioners were well aware of the award which was approved by the District Collector on 31.1.2008. According to them, the award enquiry was conducted on 22.11.2007 and 23.11.2007 and the second petitioner appeared on 22.11.2007 on behalf of all the petitioners. They have claimed their title over the acquired land. They did not present any claim demanding higher land value at that time. After the award enquiry, the award was submitted to the District Collector for approval and the same was approved on 31.1.2008. 6. Since reference application is submitted only on 28.8.2009, it is far beyond the time limit specified under the Act and therefore the petitioners are not entitled for a reference under W.P.(C) No. 1155 of 2010-T 7 Section 18. 7. Heard the learned counsel for the petitioner and the learned Government Pleader. I have already perused the files produced by the Government Pleader in this regard. 8. The main contention urged by the petitioners is that no notice of passing of the award was issued to them. The Land Acquisition Officer however submits that notices were sent under Certificate of Posting. The learned counsel for the petitioners relies upon S.45 of the L.A. Act to contend that the notice under certificate of posting is not the notice as contemplated under the Act and the Rules framed thereunder. Notice has to be personally served on the petitioners or if it is not ossible of notice with p by way registered W.P.(C) No. 1155 of 2010-T 8 acknowledgement due and notice under certificate of posting is not a valid notice under law. 9. That apart, it is submitted that the reference application was filed within six weeks from the date of passing the rectified award which is the only award received by the petitioners and therefore the Land Acquisition Officer was bound to refer the matter under S.18 of L.A. Act. The learned counsel for the petitioners also relied upon the **Harikumar** v. judgments in **Special Tahsildar (L.A)** [2007(1) KLT 277] and **Reeta George** v. **Special Tahsildar** [2005 (1) KLT 79]. 10. On a perusal of the file in this connection there is no material to indicate that notice under S.12(2) of the L.A. Act (Form 10(b) had been served on the petitioners. It is stated that the W.P.(C) No. 1155 of 2010-T 9 award has been sent to the petitioners under certificate of posting. Apparently, going by S.12(2) of the Act, the Collector shall give immediate notice of the award to the land owner. Notices has to be sent in accordance with the provisions of S.45, which reads as under: “Service of notices.- (1) Service of any notice under this Act shall be made or by delivering tendering a copy thereof signed in the case of a notice under section 4, by the officer therein mentioned, and in the case of any other notice, by an order of the Collector or the Judge. (2) Whenever it may be practicable, the service of the notice shall be made on the person therein named. W.P.(C) No. 1155 of 2010-T 10 (3) When such person cannot be found, the service may be made on any adult male member of his family residing with him; and if no such adult male member can be found, the notice may be served by fixing the copy on the outer door of the house in which the therein named person ordinarily dwells or carries on business or by fixing a copy thereof in some conspicuous place in the office of te officer aforesaid or of the Collector or in the courthouse, and also in some conspicuous part of the land to be acquired: Provided that if the Collector or Judge shall so direct, a notice may be sent by post, in a letter addressed to the person named W.P.(C) No. 1155 of 2010-T 11 therein at his last known residence, address or place of business and registered under sections 28 and 29 of the Indian Post Office Act, 1898 (6 of 1898) and service of it may be proved by the production of, the addresse's receipt”. 11. Though it is stated that notice was sent under certificate of posting, other than a seal in the copy of award, there is no document to substantiate the same. It is therefore clear that the respondents have not complied with the provisions of S.45 of the L.A. Act while passing the award. In that view of the matter, I am of the opinion that there is no proper service of notice of the award under Section 12(2) of the L.A. Act to the petitioners. W.P.(C) No. 1155 of 2010-T **==> picture [13 x 9] intentionally omitted <==** 12. Then the question is whether the petitioners has a right to seek a reference under S.18 from the date of knowledge of the award. The judgment of a learned single Judge of this Court in Harikumar's case (supra) indicates that the six months period from the date of award by the Collector indicates that it should be six months from the date of knowledge of the award by the Collector and not with reference to the date on which the Collector has passed the award. Relying upon the said judgment, there is only one presumption that the petitioners have come to know about the award only when notice under S.47 was received by them. 13. Apparently, there is some doubt regarding the fact that the petitioners were not aware of the W.P.(C) No. 1155 of 2010-T **==> picture [13 x 9] intentionally omitted <==** passing of the award as they had participated in the award enquiry. It is contended by the respondents that the petitioners have intimated the respondent that they are awaiting for the decision by the District Collector. But still in the absence of any material to indicate that notices of the award was sent to them, I do not think that it will be justified on the part of this Court to deny a reference under S.18 as far as the petitioners are concerned. 14. Government Pleader relied on a hearing note preferred by the concerned officer, wherein the petitioners have also signed underneath. This apparently is a statement recorded by the officer concerned and the petitioners would not have known the implication of the provisions under the W.P.(C) No. 1155 of 2010-T **==> picture [13 x 9] intentionally omitted <==** Act or the Rules. However, it is stated that they have objections to the award. That means that they were not aware of the award until such time. 15. Under these circumstances, I am of the view that the respondents ought to have referred the matter to the Court under S. 18 of the L.A. Act. In the result, this writ petition is allowed as follows: The respondents shall refer the awards passed in favour of the petitioners to the Court under S.18 of the L.A. Act. This shall be done within a period of one month from the date of receipt of a copy of this judgment. Sd/- **A.M.SHAFFIQUE, JUDGE.** rka /true copy/ W.P.(C) No. 1155 of 2010-T 15