RP.NO. 574 OF 2017 IN WA. 977/2016 & RP.NO.580 OF 2017 IN WA.1327/2016

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN FRIDAY, THE 5TH DAY OF JANUARY 2018 / 15TH POUSHA, 1939 RP.NO. 574 OF 2017 IN WA. 977/2016 ------------------------------- AGAINST THE ORDER/JUDGMENT IN WA 977/2016 OF HIGH COURT OF KERALA DATED 16-12-2016 ## REVIEW PETITIONER(S)/REVIEW PETITIONERS: --------------------------------------- 1 THOMAS MATHEW NELLUVELI HOUSE, NADACKAL P O, ERATTUPETTA, PIN-686124 2 MARIAMMA MATHEW NELLUVELI HOUSE, NADACKAL P O, ERATTUPETTA, PIN-686124 3 PRADEEP JOSEPH VADAKKEPUTHENPURAYIL, (NADUTHOTTIYIL)HOUSE, NADACKAL P O, ERATTUPETTA, PIN-686124. BY ADVS.SRI.S.SREEKUMAR (SR.) SRI. PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT.ACHU SUBHA ABRAHAM SRI.P.PRIJITH SRI.JUSTINE JACOB SRI.P.MARTIN JOSE SRI.THOMAS P.KURUVILLA ## RESPONDENT(S)/RESPONDENTS: ------------------------- 1. KERALA STATE INDUSTRIES DEVELOPMENT CORPORATION REPRESENTED BY THEIR MANAGING DIRECTOR, TC 11/266, KESTON ROAD, KAWDIAR, THIRUVANANTHAPURAM,PIN-695003.. 2. THE STATE OF KERALA REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695001. R.P. NO.574 OF 2017 IN W.A. NO.977 OF 2016 ------------------- 3. THE DISTRICT COLLECTOR, KOZHIKODE 673001. 4. THE SPECIAL TAHSILDAR(LAND ACQUISITION) KOYILANDI,KOZHIKODE 673305. R2 - R4 BY ADV. SRI.K.V.SOHAN, STATE ATTORNEY R1 BY SRI.P.U.SHAILAJAN, SC, KSIDC THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 20.12.2017 ALONG WITH R.P. NO.580 OF 2018, THE COURT ON 05.01.2018 PASSED THE FOLLOWING: R.P. NO.574 OF 2017 IN W.A. NO.977 OF 2016 ------------------- ## APPENDIX -------- PETITIONERS' EXHIBITS: --------------------- ANNEXURE-1 A TRUE COPY OF THE JUDGMENT IN W.A. NO.977 OF 2016 DATED 16.12.2016 OF THE HONOURABLE HIGH COURT OF KERALA, ERNAKULAM. ANNEXURE-2 A TRUE COPY OF THE JUDGMENT AND FINAL ORDER DATED 04.05.2017 IN SLP (CIVIL) NOS.12459 OF 2017 AND 12460 OF 2017 OF THE HONOURABLE SUPREME COURT OF INDIA. RESPONDENTS' EXHIBITS: NIL ---------------------- /TRUE COPY/ P.S. TO JUDGE ## V. CHITAMBARESH ## & ## SATHISH NINAN, JJ. = = = = = = = = = = = = = = = = = = R.P. No.574 of 2017 in W.A. No.977 of 2016 & R.P. No.580 of 2017 in W.A. No.1327 of 2016 = = = = = = = = = = = = = = = = = = Dated this the 05[th] day of January, 2018 ## O R D E R ## SATHISH NINAN, J. The Review Petitions are at the instance of respondents 4 to 6 in W.A. No.977 of 2016 and respondents 1 to 3 in W.A. No.1327 of 2016 who were the original owners of the properties which were the subject matter of acquisition. 2. The judgment in the Writ Appeal is sought to be reviewed on two grounds: (1) The Gazette Notification (Ext P2 under Section 4(1) of the Land Acquisition Act, 1894 (for short, "the 1894 Act") was published on 21.09.2010 and the declaration under Section 6 of the 1894 Act was published in R.P. No.574 of 2017 in W.A. No.977 of 2016 & R.P. No.580 of 2017 in W.A. No.1327 of 2016 -: 2 :- the Gazette on 16.01.2012 (Ext P3) which is beyond the period of one year as stipulated in the proviso to Section 6 of the 1894 Act. Hence the declaration is bad in law. (2) Pending Ext P13 series draft awards, the new Land Acquisition Act - The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 - came into force and hence the proceedings under the 1894 Act lapsed. 3. The acquisition in question was under "negotiated purchase method", i.e., fixing the compensation amount on consensus with the land owners. As is revealed from the records, pursuant to the Notification under Section 4(1) of the 1894 Act, steps were in progress by way of discussions to arrive at a consensus regarding the compensation amount. Finally it was agreed that Rs.10,750/- per cent be fixed as the land value and the improvements on the land be valued in terms of G.O(Rt.) No.331/2004/RD dated 05.11.2004. Pursuant R.P. No.574 of 2017 in W.A. No.977 of 2016 & R.P. No.580 of 2017 in W.A. No.1327 of 2016 -: 3 :- thereto, the declaration under Section 6 was published in the Gazette on 16.01.2012. Eighty percent of the compensation amount was disbursed to the land owners in terms of their instructions and possession of the land was taken on 15.02.2012. The Writ Petition was filed on 18.12.2013. 4. In the writ petition, there was no plea to the effect that the declaration under Section 6 was made beyond the time stipulated. In the Writ Appeal also there was no such contention. Such a case was not projected even at the time of hearing of the Writ Appeal. As noticed, 80% of the compensation which is approximately Rs.10 crores was received by the land owners way back in 2012 and possession was taken in February, 2012. The contention regarding limitation with regard to the declaration under Section 6 is sought to be raised for the first time in this review petition. We have no hesitation to hold that the review petitioners are not entitled to raise the said question at this distance of time R.P. No.574 of 2017 in W.A. No.977 of 2016 & R.P. No.580 of 2017 in W.A. No.1327 of 2016 -: 4 :- since the same is hit by the doctrine of laches and delay. So also, as noticed, much water has flown since the declaration under Section 6 was made. 5. Apart from the above, it is to be noticed that the period of one year for making the declaration under Section 6 does not commence from the date of the Gazette Notification. In terms of section 6 read with Section 4(1), the period commences from the last date of publication of Section 4(1) Notification, which could even be the last date of giving public notice in the locality. Therefore, the date of the last public notice is the relevant date for commencement of running of time (See Nanappan Konthi v. District Collector - 1989 [1] KLT 582, Padmadas v. State of Kerala - 1991 [2] KLT 636, Rosy Augustine v. State of Kerala - 1998 (1) KLT 679 and Syed Mohammed v. State of Kerala - 1995 (2) KLT 857 ). So also, the relevant date regarding Section 6 declaration is not the date of publication of the same in the R.P. No.574 of 2017 in W.A. No.977 of 2016 & R.P. No.580 of 2017 in W.A. No.1327 of 2016 -: 5 :- Gazette. What is relevant is the date of making of the declaration, that is the date on which the authorised officer subscribes his signature to the declaration. The Apex Court as well as this Court has held so. (See S.H. Rangappa v. State of Karnataka and Another - ([2002] 1 SCC 538 = Srinivasa Ramanath Khatod v. State of Maharashtra and Others - ([2002] 1 SCC 689, Urban Improvement Trust, Udaipur v. Bheru Lal and Others - ([2002] 7 SCC 712 and Raveendran v. State of Kerala (2015 (3) KLT 210, Bhaskaran Panicker v. State of Kerala - 1989 [2] KLT 71, Bhaskara Panicker v. State of Kerala - 1991 [2] KLT 580 and Mohammed Kumhi v. Union of India - 1992 [2] KLT 336 ). The discussions as above are to point out that, these are factual aspects to be raised, pleaded, agitated and gone into at the relevant time. A plea of limitation is a mixed question of law and fact. Such a contention having never been urged either in the Writ Petition or in the Writ Appeal, the review petitioners are not entitled to raise such a R.P. No.574 of 2017 in W.A. No.977 of 2016 & R.P. No.580 of 2017 in W.A. No.1327 of 2016 -: 6 :- ## contention for the first time at this stage. 6. The contention of the review petitioners could possibly be negatived for yet another reason. Section 17(4) of the 1894 Act provides thus: ## “17. **Special Powers in cases of urgency** .- ........................................................................... (4) In the case of any land to which, in the opinion of the appropriate Government, the provisions of sub-section (1) or sub-section (2) are applicable, the appropriate Government may direct that the provisions of Section 5A shall not apply, and, if it does so direct, a declaration may be made under Section 6 in respect of the land at any time after the date of the publication of the notification under Section 4, sub-section (1)”. As is evident therefrom, if it is notified that the acquisition is by invoking the emergency powers under Section 17 of the 1894 Act with a specific direction to exclude the applicability of Section 5A thereunder, the provision regarding time does not have any relevance. Therefore, the one year R.P. No.574 of 2017 in W.A. No.977 of 2016 & R.P. No.580 of 2017 in W.A. No.1327 of 2016 -: 7 :- period as stipulated in the proviso to Section 6 may not stricto senso apply in such cases. Here, as is evident from Ext P2 Gazette publication, the acquisition has been notified to be one invoking the emergency provision in terms of Section 17 of the 1894 Act. It has been further notified that the provisions of Section 5A shall not be applicable to the acquisition in question. Therefore, as noticed, the stipulation regarding the period may not be of consequence. 7. Coming to the second contention, the very basis of the said contention is on the assumption that Ext P13 series are only draft awards. The said contention was specifically adverted to in the impugned judgment. In paragraph 22 of the judgment it has been answered thus: “22. Exhibits P9 to P11 are communications dated 30.10.2013, 22.10.2013 and 22.10.2013 issued by the Special Tahsildar (LA) to writ petitioners 1 to 3 respectively, regarding passing of award. Those communications when R.P. No.574 of 2017 in W.A. No.977 of 2016 & R.P. No.580 of 2017 in W.A. No.1327 of 2016 -: 8 :- considered along with Ext.P13 series awards, leaves no room of doubt that awards have been passed pursuant to the agreement arrived at between the parties in terms of Section 11(2) of the Act.” A finding has already been arrived at regarding Ext P13 series awards. Needless to observe that, a review is not an appeal in disguise. That apart, on the face of Annexure B in the Writ Appeal - true copy of the award dated 24.10.2013 - we do not think that there is any scope for the contention as urged. Added to all these, in the Review Petition, the Special Tahsildar, Land Acquisition has, through the State Attorney, filed an affidavit dated 24.11.2017, the relevant portion of which is extracted hereunder: “2. Exhibit P13, P13(a) and P13(b) are the awards passed in the case: (i) Award dated 24.10.2013 passed in favour of petitioner No.1 Shri Thomas Mathew is Exhibit P13 in W.P(C) No.32066 of 2013. (ii) Award dated 15.10.2013 passed in favour of R.P. No.574 of 2017 in W.A. No.977 of 2016 & R.P. No.580 of 2017 in W.A. No.1327 of 2016 -: 9 :- petitioner No.2 Smt.Mariamma Mathew is Exhibit P13(a) in W.P.(C) No.32066 of 2013. (iii) Award dated 07.10.2013 passed in favour of petitioner No.3 Shri Pradeep Joseph is Exhibit P13(b) in W.P(C) No.32066 of 2013. The second ground for review is also thus liable to be repelled. 8. We do not also find any error apparent on the face of the record liable to be interfered in review. The Review Petitions are accordingly dismissed. Sd/V. CHITAMBARESH, JUDGE. Sd/SATHISH NINAN, JUDGE. Vsv