M/S. SAMEEKSHA HOUSE & HOMES PVT. LTD. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **FRIDAY, THE 28TH DAY OF JUNE 2013/7TH ASHADHA, 193** **WP(C).No. 15712 of 2007 (U) ----------------------------** **AGAINST THE ORDER/JUDGMENT IN LAR 57/2003 of II ADDL.SUB COURT,THRISSUR DATED 10-11-2006** **PETITIONER(S):** **--------------** **M/S. SAMEEKSHA HOUSE & HOMES PVT. LTD. 1/103 MAROTTICHUVADU, EDAPPALLY, KOCHI-682 024 REPRESENTED BY ITS DIRECTOR, MR.V.VIJAYAKUMAR.** **BY ADV. SRI.BASANT BALAJI** **RESPONDENT(S):** **--------------** **1. STATE OF KERALA REP. BY THE SPECIAL TAHSILDAR (L.A), GURUVAYOOR DEVASWOM GURUVAYOOR.** **2. THE DISTRICT COLLECTOR, THRISSUR.** **3. THE ADMINISTRATOR, GURUVAYOOR DEVASWOM, GURUVAYOOR.** **4. LORD KRISHNA BANK LTD., KALOOR BRANCH, ERNAKULAM, KOCHI-17.** **R3 BY ADV. SRI.U.K.RAMAKRISHNAN - SC(SR.) R3 BY ADV. SMT.P.VIJAYAMMA R3 BY ADV. SMT.UMA GOPINATH R3 BY ADV. SRI.V.KRISHNA MENON R4 BY ADV. SRI.S.R.DAYANANDA PRABHU BY GOVERNMENT PLEADER SMT. LILLY JAMES** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 15712 of 2007 (U) ----------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1 COPY OF THE OBJECTION FOPR SECTION 9(3) NOTICE UNDER LA.ACT FILED BEFORE THE SPEIAL TAHSILDAR (LA) DATED 9.11.2001.** **EXT.P2 COPY OF THE AWARD NO.5/2002 BY THE COILLECTOR DATED 8.5.2002.** **EXT.P3 COPY OF THE PROTEST AND REQUEST FOR REFERENCE TO COURT IN AWARD NO.5/2002 DATED 12.12.2002.** **EXT.P4 COPY OF THE REFERENCE BY THE COLLECTOR DATED 2..6.2003 UNDER SECTION 18 OF THE L..A.ACT REFERRING THE MATTER TO SUB JUDGE, THRISSUR.** **EXT.P5 COPY OF THE CLAIM STATEMENT DATED 6..7.2005 WHICH WAS SIGNED BY MR. V. VIJAYAKUMAR, DIRECTOR.** **EXT.P6 COPY OF THE OBJECTION FILED BY RESPONDENT NOS.1 AND 2 DATED 22.9.2004 IN LAR.NO.57/2003.** **EXT.P7 COPY OF THE OBJECTION FILED BY R3 DATED 3..2.2004 IN LAR NO.57/2003.** **EXT.P8 COPY OF THE CLAIM STATEMENT FILED BY R4 IN SEPTEMBER, 2005 IN LAR.NO.57/2003.** **EXT.P9 COPY OF THE DEPOSITION BY MR..V.VIJAYAKUMAR DIRECTOR AW-1 INCLUDIJNG THE PROOF AFFIDAVIT IN LAR.NO57/2003.** **EXT.P10 COPY OF THE DEPOSITION BY R W1 INCLUDING THE PROOF AFFIDAVIT IN LAR.NO.57/2003.** **EXT.P11 COPY OF THE JUDGMENT IN LAR.NO.57/2003 DATED 10.11.2006 OF SUB COURT, THRISSUR.** **EXT.P12 COPY OF THE DECREE IN LAR.NO.57/2003 DATED 10.11.2006 OF SUB COURT, THRISSUR.** **EXT.P13 COPY OF THE DEATH CERTIFICATE ISSUED BY HEALTH OFFICER AND REGISTRAR OF BIRTH AND DEATHS, CORPORATION OF COCHIN REGARDING DEATH OF MR.C.N. SRIDHARAN DATED 26.4.2002.** **EXT.P14 COPY OF THE DEATH CERTIFICATE WITH REGISTRATION NO.66/2001 AND THE DATE OF REGISTRATION ON 14.6.2001 DATED 13.7.2007 ISSUED BY SPECIAL GRADE SERETARY AND REGISTRAR OF BIRTH AND DEATHS, SPECIAL GRADE KORATTY GRAMA PANCHAYATH, KORATTY REGARDING THE DEATH OF MR.N.V. JOY.** **EXT.P15 COPY OF THE REGISTERED A/D LETTER NO.E2-31525/00 DATED 16.6.07 FROM THE STATE PUBLIC INFORMATION OFFICER, DEPUTY COLLECTOR (la) COLLECLTORATE TRICHUR WITH THE ENCLOSURE AND THE REGISTERED A/D COVER.** **EXT.P16 COPY OF THE LETTER NO.A250/2006 DATED 21.7.2007 FROM THE DESIGNATED OFFICER UNDER RIGHTS TO INFORMATION ACT PUBLIC** **INFORMATION OFFICER SPECIAL TAHSILDAR (LA) GURUVAYOOR DEVASWAM, GURUVAYOOR AND THE COVER SENT UNDER CERTIFICATE OF POSTING.** **RESPONDENTS' ANNEXURES:** **ANNEXURE I COPY OF THE NOTICE HAVING ENDORSEMENT OF RECEIPT. ANNEXURE II COPY OF THE OBJECTIION DATED 9.11.2001.** **ANNEXURE III COPY OF THE NOTICE COMMUNICIATION DATED 1.7.2002.** **/TRUE COPY/** **P.S. TO JUDGE** **cl** **K. VINOD CHANDRAN, J.** ...................................................... W.P.(C).NO.15712 OF 2007 ...................................................... Dated this the 28[th] day of June, 2013 ## **JUDGMENT** The petitioner is before this Court challenging, Ext.P11 judgment of the Second Additional Subordinate Court, Thrissur. The petitioner was the owner of 48.43 Ares of land comprised in Sy.Nos.115/3-17 and 115/3-18B of Guruvayoor village, Chavakkad taluk. The said lands were acquired on the requisition of the third respondent; by the first respondent State. In pursuance to the land acquisition proceedings, Ext.P2 award was passed under Section 11 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act'). According to the petitioner, an application for referring the matter under Section 18 was also made as per Ext.P3. The Special Tahsildar (LA), Guruvayoor Devaswom, Guruvayoor forwarded the same to the Subordinate Court, Thrissur by Ext.P4. 2. The reference court having taken up the said reference, numbered the same as L.A.R.No.57/2003 wherein notice was issued to all the parties. The claimant as also the authorities under the Act appeared. One of the objections raised by the State was with respect to the W.P.(C).NO.15712 OF 2007 2 limitation under Section 18 of the Land Acquisition Act. In fact, the State contended before the Subordinate Court that the application for reference was barred by limitation as provided under the Act. However, the lower court while considering the issue of maintainability looked into the files and specifically searched for the application made under Section 18 before the Special Tahsildar (LA), for the purpose of considering the plea of limitation. The court found that there was no reference application filed by the Managing Director of the petitioner Company and hence refused to answer the questions referred for its consideration and rejected the reference on the ground that reference is not maintainable. 3. A counter affidavit, on the very same lines, was filed before this Court in the writ petition by the State. To the said counter affidavit the petitioner Company filed a reply affidavit wherein it was contended that though it was claimed by the State that the petitioner was present, at the time of passing of the award, in fact, the Directors who represented the Company had expired, as is evidenced by the death certificates Exts.P13 and P14. The award was pronounced on 8.5.2002 and the W.P.(C).NO.15712 OF 2007 3 Directors, as evidenced by Exts.P13 and P14, had expired on 26.4.2002 and 27.5.2001. The petitioner also relies on Ext.P15 which is the covering letter of the State Public Information Officer of Land Acquisition Collectorate (LA), Thrissur dated 16.6.2007 issued on a query under the Right to Information Act, 2005 (hereinafter referred to as the RTI Act) wherein a copy of the reference application dated 12.12.2002 filed by the petitioner Company was issued to the petitioner. The same also shows that it was despatched from the office of the L.A. Collectorate on 4.1.2003. In fact Ext.P4 dated 2.6.2003 is the copy of the letter of the Special Tahsildar (LA), Guruvayoor Devawom to the Sub Judge, Thrissur making the reference under Section 18 of the Act which shows the original of the claim petition as being enclosed. 4. Ext.P16 is another letter again issued on a query under the RTI Act issued by the Designated Officer under the RTI Act, in the office of the Special Tahsildar (LA), Guruvayoor Devaswom. Guruvayoor. The said letter though expressed inability to issue a copy of the application; specifically refers to the application dated 12.12.2002 made by the petitioner W.P.(C).NO.15712 OF 2007 4 Company under Section 18 which was said to have been received in the office on 16.12.2002 as per the tapal register. Ext.P16 also specifically refers to the covering letter of that office dated 2.6.2003 (Ext.P4) bearing No.345/2000 B by which the original application along with allied information as also Form Nos.15, 16 and 17 were forwarded to the Subordinate Judge, Thrissur with copies to the District Collector, Government Pleader, Thrissur and Administrator, Guruvayoor Devaswom. 5. On the basis of the above documents the contention of the learned counsel for the petitioner is that no representative of the petitioner Company was present on the date of passing of the award. He relies on Exts.P13 and P14 to contend that both the Directors were no more on that date. 6. Further on the specific direction of this Court, regarding the factual aspects of the enquiry and the passing of the award; State has filed an affidavit dated 1.3.2013. From the affidavit it is evident that there was a notice under Section 9 of the Land Acquisition Act and that the petitioner had participated in the enquiry. However, there is nothing to show W.P.(C).NO.15712 OF 2007 5 that the petitioner was present on the date of passing of the award nor is there any contention regarding notice having been sent under Section 18 of the Land Acquisition Act. In such circumstance, the limitation ought to be calculated from the date of knowledge, is the contention of the petitioner. In any event, none of these aspects were gone into by the reference court and as is evident from Ext.P4, the reference court refused to answer the reference since it found that the reference is not maintainable for reason only of there being no application for reference seen filed by the claimant. 7. The documents Exts.P15 and P16 as noticed above, would reveal that in fact a reference was made by the Special Tahsildar (LA), Guruvayoor Devaswom, Guruvayoor. It is the duty of the officer who passes the award to see that the application for reference along with the connected records reaches the court of competent jurisdiction. In such circumstance, the petitioner seeks for issuance of a writ of certiorari to quash Ext.P11 judgment and Ext.P12 decree and inter alia direct the Sub Court, Thrissur to consider the matter afresh in accordance with law. The learned counsel for the W.P.(C).NO.15712 OF 2007 6 petitioner also relies on two decisions of this Court reported in Mary Philip v. Kerala State (2006 KHC 1476) and Janamma and v. State of Kerala (2007 (2) KHC 307). 8. The learned Government Pleader, however, contends that the award was passed on 8.5.2002 and dehors the absence of the petitioner at the time of passing of the award or in the absence of a notice under Section 18; the specific mandate of Section 18 is that there shall be an application for reference within six months from the date of passing of the award. Even going by the date 12.12.2002, as is evident from Ext.P15, issued under the RTI Act, the same was barred by limitation. The learned Government Pleader asserts that the application was rejected as being filed after the expiry of the statutory time provided. Further it is also contended that there is nothing evident from the application, that the petitioner came to know of the passing of the award, at a date later to that seen in the award. The learned counsel appearing for the third respondent Devaswom also takes a further contention that it is also the mandate of the Land Acquisition Act that an application for reference can only be made by the person who is entitled to 7 W.P.(C).NO.15712 OF 2007 accept the award amount under protest. 9. Looking at the entire records on evidence as also the affidavit of the State dated 1.3.2013 what comes to the fore is that the petitioner was diligent in participating at the enquiry. True, the death certificates of the Directors cannot be a definite indication that none was present at the time of passing of the award. However, it is pertinent to note that the Government in its aforementioned affidavit does not make a statement that the claimant or his representative was present at the time of passing of the award. What is stated is that “it is not necessary that the claimant can be present when the award is pronounced” (sic). It is also very pertinent to note that the Government has no case that a notice was sent under Section 18. In the circumstance referred above, the ratio of the decision reported in Janamma v. State of Kerala (2007 KHC 307) assumes significance. A learned Single Judge of this Court in the said decision found that when an application for reference is made, it is the duty of the Land Acquisition Officer to see that the reference application reaches the court and to enquire about further development of the W.P.(C).NO.15712 OF 2007 8 case. It was also categorically held that there is nothing that the claimant would be expected to do in accordance with the provisions of the Land Acquisition Act or the Land Acquisition (Kerala) Rules after he files an application for reference under Section 18 of the Land Acquisition Act. 10. In fact, in the instant case, it is evident that a reference was made by the competent authority. The reference was held to be not maintainable only on the basis of the fact that the application for reference was absent in the records. Rule 378 (3) of the Civil Rules of Practice states that the application before the Collector for reference shall be treated as a plaint and investigation shall be with reference to the claim made therein. The Sub Court cannot be faulted with, holding the reference to be not maintainable in so far as the application for reference was not found. However, the State cannot, after having made a reference as provided under Section 18; now turn around and say that the same was rejected for being outside the statutory limitation period. Having forwarded the application for reference, it was for the court to decide as to whether the application was hit by limitation. The petitioner 9 W.P.(C).NO.15712 OF 2007 also could have led evidence on that aspect. 11. Further contention is, with respect to the alternate remedy of an appeal being available for the petitioner. It is trite that this Court having admitted a writ petition under Article 226 and the matter having been kept pending for a number of years, this Court at the time of hearing the same, cannot dispose of the case solely on the ground of availability of alternate statutory remedy. Apart from this, going by the dictum in the decision reported in Mary Philip v. Kerala State (2006 KHC 1476) a refusal to answer the reference would not be an award passed under Section 26 of the Act and the claimant cannot be compelled to file an appeal under Section 24 of the Act. That was a case in which the reference application having been taken up by the court and numbered, was eventually closed on the finding that the claim for enhancement of compensation was made after the expiry of the statutory period. A learned Single Judge of this Court found that; that is not an award as contemplated under Section 26. The Sub Court merely held that the court is not bound to answer the reference. The finding that the petitioner is not W.P.(C).NO.15712 OF 2007 10 entitled to enhance the compensation was found to be a consequential one to the finding of the court that, it is not bound to answer the reference. Hence, even in accordance with the law declared by this Court, the above writ petition is maintainable. 12. As has been found above, the ground for finding the maintainability of the claim against the document was only due to the absence of the reference application before the court. It is evident that the reference application was in fact made on 12.12.2002 as is revealed from Exts.P15 and P16 received under the RTI Act. The State in its affidavit dated 1.3.2013 also affirms that such an application was received but further asserts that the same was rejected for being outside the period of limitation. That has held to be bad by this Court for the simple reason that the reference having been made by the competent authority, it was for the court to consider the question of limitation. Moreover, but for the assertion, State does not produce any order to substantiate the factum of rejection. On the contrary, the records clearly reveal the fact of an application made by the claimant, its W.P.(C).NO.15712 OF 2007 11 receipt in the office of the competent authority and its despatch to the jurisdictional reference court. 13. This Court is also bound by the reasoning in Janamma v. State of Kerala (2007(2) KHC 307) that it is the duty of the Land Acquisition Officer to see that the reference application reaches the court. The reference application having been filed and the same found to be absent in the records of the Land Acquisition Court, such absence cannot prejudice the claimant. The claimant is also not responsible for the loss of the application from the records. In such circumstances, the Special Tahsilar (LA), Guruvayoor Devaswom, Guruvayoor shall obtain a copy of the original claim petition dated 12.12.2002 from the L.A. Collectorate (LA), Deputy Collector (LA), Thrissur and forward, a copy of the same, which was issued to the petitioner under the RTI Act; to the Subordinate Judge, Thrissur. Obviously the original of the application is lost and the reference court shall treat the copy forwarded by the Special Tahsildar (LA) as the reference application upon which the claim including the question of limitation is to be considered. The Special Tahsildar 12 W.P.(C).NO.15712 OF 2007 (LA) shall forward the same within two weeks of the date of appearance hereinafter specified by this Court. If the reference application as directed above is not received within the stipulated time, the petitioner shall file the copy of the application received under the RTI Act with the covering letter, before the Sub Court, Thrissur and the Sub Court, Thrissur shall consider the same as the original reference application. 14. The judgment passed in Ext.P11 and the decree in Ext.P12 are hereby set aside and L.A.R.No.57/2003 is restored to the file of the Second Additional Subordinate Court at Thrissur. The parties shall appear before the Subordinate Court on 29.7.2013. The Subordinate Court, Thrissur shall consider the same expeditiously, in accordance with law, keeping in mind the fact that any delay would burden the State with further liability of interest and solatium. Needless to say that this Court has not at all considered the question of limitation and the same shall be considered by the Subordinate Court, Thrissur in accordance with law untrammeled by any observations made in this judgment regarding the question of W.P.(C).NO.15712 OF 2007 13 limitation. Writ petition is allowed. No costs. **K. VINOD CHANDRAN, JUDGE.** cl