L.A.A.No.28 of 2016 (Against the Decree/Judgment in L.A.R. No.32 of 2007, Sub Court, Thiruvalla)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU** ## **TUESDAY, THE 22ND DAY OF NOVEMBER 2016/1ST AGRAHAYANA, 1938** ## **LA.App..No. 28 of 2016 ()** ## **-------------------------AGAINST THE DECREE/JUDGMENT IN LAR 32/2007 of SUB COURT, THIRUVALLA DATED 29-07-2009** ## **APPELLANT/3RD CLAIMANT: -------------------------** **1. MARIAMMA CHACKO, AGED 92 YEARS, W/O.LATE CHACKO MATHUNNI, KOTTAYERIL HOUSE, MAVELIKKARA, NOW RESIDING AT 13-C, FLAT NO.13-C, CLIFF DALE APARTMENT, YMR JUNCTION, NANDANCODE, THIRUVANANTHAPURAM- 695 003.** - ***ADDL. APPELLANTS 2 TO 5:** **2. ANNAMMA JACOB D/O.LATE CHACKO MATHUNNI, KOTTAYERIL HOUSE, MAVELIKKARA, ALAPPUZHA DISTRICT-690 101.** **3. MARIAMMA JACOB D/O.LATE CHACKO MATHUNNI, KOTTAYERIL HOUSE, MAVELIKKARA, ALAPPUZHA DISTRICT-690 101.** **4. ALEZABETH CHACKO D/O.LATE CHACKO MATHUNNI, KOTTAYERIL HOUSE, MAVELIKKARA, ALAPPUZHA DISTRICT-690 101.** **5. SARAMMA K.JACOB D/O.LATE CHACKO MATHUNNI, KOTTAYERIL HOUSE, MAVELIKKARA, ALAPPUZHA DISTRICT - 690 101.** **SOLE APPELLANT DIED AND LEGAL REPRESENTATIVES (R2 TO R5) ARE TRANSPOSED AS ADDL. APPELLANTS 2 TO 5 VIDE ORDER DATED 22.11.2016 IN IA NO.1181/2016.** ## **BY ADV. SRI.R.SANTHOSH BABU** ## **RESPONDENTS/RESPONDENT & CLAIMANTS 1, 2, 4 & 5:** **--------------** **1. STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, PATHANAMTHITTA DISTRICT, COLLECTORATE, PATHANAMTHITTA - 689 645.** ## **LA.App..No. 28 of 2016** ## ****[[2. ANNAMMA JACOB** **D/O.LATE CHACKO MATHUNNI, KOTTAYERIL HOUSE, MAVELIKKARA, ALAPPUZHA DISTRICT-690 101.** ## **3. MARIAMMA JACOB** **D/O.LATE CHACKO MATHUNNI, KOTTAYERIL HOUSE, MAVELIKKARA, ALAPPUZHA DISTRICT-690 101.** ## **4. ALEZABETH CHACKO** **D/O.LATE CHACKO MATHUNNI, KOTTAYERIL HOUSE, MAVELIKKARA, ALAPPUZHA DISTRICT-690 101.** ## **5. SARAMMA K.JACOB** - **D/O.LATE CHACKO MATHUNNI, KOTTAYERIL HOUSE, MAVELIKKARA, ALAPPUZHA DISTRICT - 690 101.]]** ## ****TRANSPOSED AS ADDL. APPELLANTS 2 TO 5.** **R1 BY GOVERNMENT PLEADER SMT.K.M.RASHMI.** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 22-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **vpv** ## **P.N.RAVINDRAN & DAMA SESHADRI NAIDU, JJ.** **=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= L.A.A.No.28 of 2016 & C.M.Appln.No.48 of 2016 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 22[nd] day of November, 2016** ## **JUDGMENT** ## _**P.N.Ravindran, J.**_ A small bit of land, 124 sq. metres in extent, situate in Sy. No.176/57 of Thiruvalla Village, Thiruvalla Taluk, Pathanamthitta District was acquired for widening the M.C. Road. By award passed on 20.3.2006 the Land Acquisition Officer awarded the total sum of Rs.48,361/- as compensation. Since none had appeared before him during the award enquiry to prove ownership over the property, he made a reference under section 30 of the Land Acquisition Act, 1894 to the Court of the Subordinate Judge of Thiruvalla where it was taken on file and numbered as L.A.R.No.32 of 2007. He had in the reference stated that as per the revenue records, the acquired land originally belonged to Mariamma Chacko, the third claimant before the court below and her children Annamma Jacob, Mariyamma Jacob, Elezabeth Chacko and Saramma K. Jacob who are claimants 1, 2, 4 and 5 respectively. Though the reference court issued notices to the said persons on more than one occasion, they could not be served. The reference court thereupon answered the reference in the following terms: ## **L.A.A.No.28 of 2016** ## **-:2:-** _“On a perusal of the award enquiry file would disclose that the acquired property originally belonged to 6 persons who are the daughters of Chacko, Kottayadiyil house, Mavelikkara village. In spite of repeated notices the presence of claimants could not be secured before the court. There is no meaning in further adjourning the matter for service of notice to claimants. As per entries in the award enquiry file the claimants are the owners of the acquired property and that they are the only persons entitled to receive the compensation amount awarded by the Land Acquisition Officer. If that be so the compensation amount deposited before the court can be released to the claimants on proper identification. Accordingly the point is found in favour of the claimants._ _In the result, the reference is answered in favour of the claimants. The deposited amount before the court shall be given to the claimants on proper identification. No costs.”_ 2. It is challenging the aforesaid judgment, that the instant appeal was filed on 18.12.2015 by Mariamma Chacko, the third claimant, with a delay of 2242 days. The main contention in the instant appeal is that she is the only person entitled to claim compensation and that the court below erred in holding that respondents 2 to 5 are also entitled to a share in the compensation. She had also claimed enhanced compensation at the rate of Rs.6,00,000/- per cent. The appellant has also contended that she did not receive notice from the Land Acquisition Officer or from the reference court. She had also inter alia stated that for the past several years, she is residing along with her daughters at Thiruvananthapuram and that respondents 2 to 5 are residing at different parts of India and abroad with their respective families. She had also contended that the acquired land forms part of 15 cents of property which belongs to her exclusively. ## **L.A.A.No.28 of 2016** ## **-:3:-** 3. As stated earlier, the instant appeal was filed on 18.12.2015 with a delay of 2242 days. The appellant has in paragraph 3 of the affidavit filed by her in support of the application averred that she had not received any notice either from the Land Acquisition Officer or from the reference court and therefore she had no knowledge about the fact that her land had been acquired or that compensation amount has been deposited in court and a reference made under section 30 of the Act. She has averred that it was only when her son-in-law visited Thiruvalla in November, 2015 that she came to know about the land acquisition proceedings and immediately thereafter she applied for the certified copy of the decree and judgment. 4. The endorsements on the certified copy of the decree and judgment produced along with the memorandum of appeal disclose that they were applied for on 28.11.2015, that the stamp papers were called for and produced on 1.12.2015, that the copy was made ready on 4.12.2015 and that it was delivered over to the counsel who submitted the application, on 5.12.2015, prior to the date fixed for appearance to receive the copy, viz. 8.12.2015. 5. C.M.Appln.No.48 of 2016 came up for consideration before a Division Bench of this court on 18.1.2016. On that day, this court ordered urgent notice to the respondents. Though notice was thereupon issued from this court on 23.1.2016 with the hearing date fixed as 1.2.2016, the notices issued to respondents 2 to 5 were ## **L.A.A.No.28 of 2016** ## **-:4:-** returned unserved with the endorsement “not known”. Later on 27.10.2016, a Division Bench of this court granted to the appellant two weeks' time to take steps to serve notice on respondents 2 to 5. Notices were however not taken out from this court by the respondents. However, they themselves filed I.A.No.1181 of 2016 with a prayer that they may be transposed as supplemental appellants 2 to 5 on the averment that the sole appellant passed away on 23.1.2016 and they are her legal representatives. We have by a separate order passed today allowed the said application. 6. The State of Kerala has filed a counter affidavit opposing the application to condone delay. It is contended that as the award passed by the reference court is one under section 30 of the Land Acquisition Act, 1894, the appellant cannot claim enhanced compensation. It is also stated that the delay in filing the appeal has not been adequately explained. 7. We heard Sri.R.Santhosh Babu, learned counsel appearing for the supplemental appellants and Smt.K.M.Rashmi, learned Government Pleader appearing for the State of Kerala. We have also gone through the pleadings and the materials on record. The materials on record disclose that neither the appellants nor their predecessor-in-interest had appeared before the Land Acquisition Officer. They had also not entered appearance before the reference court. It is no doubt true that the reference court was not able to ## **L.A.A.No.28 of 2016** ## **-:5:-** serve notice on them. It is not known whether the Land Acquisition Officer was successful in serving notice on them. The appellants and their predecessor-in-interest have a case that they had not received any notice from the Land Acquisition Officer as well. Be that as it may, the materials on record disclose that the deceased appellant came to know about the acquisition proceedings, the award passed by the Land Acquisition Officer and the judgment of the reference court, in the second week of November 2015. The statement of the deceased appellant in the affidavit filed in support of the application is that she came to know about it from her son-in-law Mathews when he visited Thiruvalla in the last week of November 2015. This would presuppose the fact that her daughter also had knowledge of the acquisition proceedings in November 2015 or immediately thereafter. 8. The Apex Court has in **Raja Harish Chandra Raj Singh v. The Deputy Land Acquisition Officer and Another** (AIR 1961 SC 1500) and **State of Punjab v. Mst. Qaisar Jehan Begum and Another** (AIR 1963 SC 1604) held that if notice of award is not served and one is absent in the award enquiry he or she can apply within six months from the date of knowledge of the award. It is also now well settled that in a reference under section 30 of the Act claims for enhanced compensation cannot be made (vide the decision of the Apex Court in **Ajjam Linganna and Others v. Land Acquisition Officer, Revenue Divisional Officer, Nizamabad and Others** [(2002) 9 SCC ## **L.A.A.No.28 of 2016** ## **-:6:-** 426]. The Apex Court has in the said decision held that the claim for enhanced compensation would not lie in a reference under section 31 of the Act as the appellants have not approached the Land Acquisition Officer seeking a reference under section 18 of the Act for enhanced compensation. In such circumstances, we are of the opinion that the instant appeal filed by the deceased appellant was not maintainable and therefore, no purpose will be served by considering the question whether the appellants have made out sufficient cause to condone the delay of 2242 days in filing the appeal. Such being the situation, the application to condone delay in filing the appeal is dismissed as not maintainable. Consequently the appeal shall also stand dismissed. However in the light of the decision of the Full Bench of this court in **Sukumaran Nair v. Special Tahsildar** [2009 (4) KLT 342], one-half of the court fee paid on the memorandum of appeal shall be refunded to the appellants. ## Sd/- **P.N.RAVINDRAN JUDGE** ## Sd/- **DAMA SESHADRI NAIDU JUDGE** /TRUE COPY/ P.A. TO JUDGE **kav/vpv**