Saraswathi and Others v. District Collector, Neyyattinkara Municipality and Others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 18TH DAY OF NOVEMBER 2016/27TH KARTHIKA, 1938 ## WP(C).No. 32555 of 2008 (A) ---------------------------- PETITIONERS: ------------------- 1. SARASWATHI, W/O.PARAMESWARAN - KADAYIL VILAKATHU VEEDU, NOW RESIDING AT VADIYILTHOPPU VEEDU, KADAVATHARAM, CONVENT ROAD, NEYYATTINKARA. 2. MONY, S/O.PARAMESWARAN, VADIYIL THOPPU VEEDU, KADAVATHARAM, CONVENT ROAD, NEYYATTINKARA. 3. RADHA, D/O.SARASWATHI VADIYIL THOPPU VEEDU, KADAVATHARAM, CONVENT ROAD, NEYYATTINKARA. 4. JAYA, D/O.SARASWATHI., VADIYIL THOPPU VEEDU, KADAVATHARAM, CONVENT ROAD, NEYYATTINKARA. 5. GEETHA, D/O. PARAMEASWARAN VADIYIL THOPPU VEEDU, KADAVATHARAM, CONVENT ROAD, NEYYATTINKARA. 6. - RAVI, S/O.PARAMESWARAN VADIYIL THOPPU VEEDU, KADAVATHARAM, CONVENT ROAD, NEYYATTINKARA. 7. - USHA, D/O.SARASWATHI VADIYIL THOPPU VEEDU, KADAVATHARAM, CONVENT ROAD, NEYYATTINKARA. 8. PADMAKUMARI, D/O.SARASWATHI VADIYIL THOPPU VEEDU, KADAVATHARAM, CONVENT ROAD, NEYYATTINKARA. 9. PADMAKUMAR, S/O.PARAMESWARAN VADIYIL THOPPU VEEDU, KADAVATHARAM, CONVENT ROAD, NEYYATTINKARA. 10. AMBILI, D/O.SARASWATHI, VADIYIL THOPPU VEEDU, KADAVATHARAM, CONVENT ROAD, NEYYATTINKARA. 11. SARADHA, W/O.VELAYUDHAN, NARAYANAN VILASOM BUNGLOW, MANCHANKUZHI, AMARAVILA.P.O. 12. PADMAKUMAR, S/O.VELAYUDHAN NARAYANA VILASOM BUNGLOW, MANCHANKUZHI, AMARAVILA PO. WP(C).No. 32555 of 2008 (A) -2- 13. SULEKHA, D/O.SARADHA, - NARAYANAVILASOM BANGLOW, MANCHANKUZHI, AMARAVILA PO., 14. K.P.PERUMAL PILLAI, S/O.SWARNAMMAPILLA - THEKKEKKOTTARAM THOPPU BUNGLOW, NEYYATTINKARA. 15. LEKHMANAN PILLAI, S/O.SARNAMMAPPILLA - THEKKEKKOTTARAM THOPPU BUNGLOW, NEYYATTINKARA. 16. SAROJA DEVI, D/O.SWARNNAMMA PILLA - THEKKEKKOTTARAM THOPPU BUNGLOW, NEYYATINKARA. 17. RAMA LEKSHMI AMMA, D/O.SWARNAMMAPILLA, - MUTTAMMAL STREET, COURT ROAD, NAGERCOIL PO. 18. G.SAROJINI, THOTTAVAZHI VEEDU, NADAKKAVU, PERINGALA PO., KAYAMKULAM. 19. T.S.SANDHYA, THATTAZHIKUZHI, - PERINGALA VILLAGE, MAVELIKKARA TALUK, ALAPPUZHA. 20. SATHYA KUMARY, BHASKAR NIVAS, AMBALATHINVILA THIRUMALA 21. V.G.RADHAMMA, W/O.BHASKARA PANICKER POURNAMI, KAURIOURKONAM, PATTOM, THIRUVANANTHAPURAM(LR'S 25,26,27). 22. MANCHU, D/O.BHASKARA PANICKER POURNAMI, T.C.2/2375, PATTOM, THIRUVANANTHAPURAM. 23. MAYA, D/O.BHASKARA PANICKER POURNAMI, TC.2/2375, PATTOM, THIRUVANANTHAPURAM. 24. V.G.SASIDHARAN, ASWATHY VATTIYOORKAVU THIRUVANANTHAPURAM. 25. S.VIJAYAN, N.V.SADANAM, - OORATTUKALA, NEYYATTINKARA. 26. S.STREEKUMAR LEKSHMIVILAKOM VEEDU, NEYYATTINKARA 27. S.BABU, SREE SATHYA BHAVAN, CHAVADINADU, VENGANOOR. BY ADV. SRI.R.GOPAN RESPONDENTS: ----------------------- 1. DISTRICT COLLECTOR, COLLECTORATE, VANCHIYOOR, THIRUVANANTHAPURAM. 2. DEPUTY COLLECTOR(LA), COLLECTORATE, THIRUVANANTHAPURAM. WP(C).No. 32555 of 2008 (A) -3- 3. THE SECRETARY, NEYYATTINKARA MUNICIPALITY NEYYATTINKARA PO. R1 & R2 BY GOVERNMENT PLEADER SRI SUNIL KUMAR KURIAKOSE. R3 BY ADV. SRI.R.T.PRADEEP, SC, NEYYATTINKARA MUNCIPALITY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX IN W.P.(C)No.32555/08** ## **PETITIONERS' EXTS:** EXT.P1: COPY OF JUDGMENT DT.4.8.2000 IN LAR NO.25/94 PASSED BY THE COURT OF THE SUB JUDGE, NEYYATTINKARA. EXT.P2: COPY OF COMMON JUDGMENT IN LAR NO.41/93 & LAR NO.42/93 PASSED BY THE COURT OF THE SUB JUDGE, NEYYATINKARA DT.20.7.2000. EXT.P3: COPY OF JUDGMENT IN LA APPEAL NO.529/2001 PASSED BY THIS COURT DT.4.12.07. EXT.P4: COPY OF APPLICATION FOR REDETERMINATION OF AMOUNT OF COMPENSATION FILED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT DT.5.2.2008. EXT.P5: COPY OF CHART PREPARED BY THE PETITIONERS SHOWING THEIR CLAIM AMOUNT FOR AN EASY REFERENCE IN REDETERMINATION. EXT.P6: COPY OF LETTER DT.26.5.08 SENT BY THE 2ND RESPONDENT TO THE 1ST PETITIONER. ## **RESPONDENTS' EXTS: NIL** TRUE COPY P.S. TO JUDGE dsn ## **ANIL K.NARENDRAN, J. -----------------------------------W.P.(C)No.32555 of 2008 -------------------------------------Dated this the 18[th] day of November, 2016** ## **JUDGMENT** The petitioners have approached this Court in this writ petition seeking a writ of certiorari to quash Ext.P6 order dated 26.5.2008 of the 2[nd] respondent and seeking a writ of mandamus commanding the 1[st] respondent to reconsider Ext.P4 application submitted by the petitioners under Section 28A of the Land Acquisition Act, 1894 and redetermine the compensation on the basis of Exts.P1 and P2 judgments of the Subordinate Judge's Court, Neyyattinkara in L.A.R.No.25/1994 and that in L.A.R.No.41/1993 and connected cases. The petitioners have also sought for a declaration that Ext.P4 application is not barred by limitation. 2. Going by the pleadings and materials on record the properties belonging to the petitioners were acquired for the construction of a shopping complex by Neyyattinkara Municipality under Section 4(1) notification dated 15.9.1987. The Land Acquisition Officer fixed land value @ 25,571/- per Are for the₹ W.P.(C).No.32555 of 2008 2 property falling under first category and passed award on 12.12.1990. The petitioners did not raise any claim for enhanced compensation by invoking the provisions under Section 18 of the Act. Some of the land owners sought reference under Section 18 of the Act which resulted in Ext.P1 and P2 judgments of the reference court re-fixing the land value at 50,000/- per cent. Ext.P1 judgment₹ of the reference court in L.A.R.No.25/1994 is dated 4.8.2000 and Ext.P2 judgment in L.A.R.No.41/1993 and connected cases is dated 20.7.2000. Challenging Ext.P1 judgment the State filed L.A.A.No.529/2001 before this Court. According to the petitioners, they received the compensation amount awarded by the Land Acquisition Officer from the Sub Court, Neyyattinkara during JuneAugust, 2007. By judgment dated 4.12.2007 this Court dismissed L.A.A.No.529/2001 and connected cases filed by the State challenging re-fixation of land value @ ₹50,000/per cent. Thereafter the petitioner moved application before the 1[st] respondent under Section 28A of the Act for re-determination of the amount of compensation on the basis of the judgment and decree of the W.P.(C).No.32555 of 2008 3 reference court in Exts.P1 and P2, which has attained finality on 4.12.2007 by the dismissal of L.A.A.No.529/2001 and connected cases. However the said request was turned down by Ext.P6 communication dated 26.5.2008 on the ground that the application filed under Section 28A of the Act is not filed within three months from the date of award of the reference court. 3. In the writ petition the petitioners contended that, though Section 28A speaks of a time limit of three months from the date of award of the court, in the case in hand by virtue of the merger of the award of the reference court with the judgment of this Court dated 4.12.2007 in L.A.A.No.529/2001 their application under Section 28A of the Act is perfectly within the time limit, especially when they came to know about the said judgment only on 5.12.2007. In ground 12 of the writ petition the petitioners have also pointed out that a similar legal issue is pending before this Court in W.A.No.559/2008, arising out of the judgment of the learned Single Judge in W.P.(C).No.31996/2006, in which the learned Single Judge held that the date of limitation must be computed from the date of W.P.(C).No.32555 of 2008 4 award of reference court on basis of which re-determination is sought and not the date of judgment of the appellate court dealing with the appeal against the award of the reference court. 4. During the pendency of this writ petition W.A.No.559/2008 filed against the judgment of the learned Single Judge dated 14.2.2008 in W.P.(C).No.31996/2006 ended in dismissal. After considering the relevant provisions under the Land Acquisition Act and also the Land Acquisition (Kerala) Rules, 1990 the Division Bench affirmed the view expressed by the learned Single Judge in the judgment dated 14.2.2008. After referring to the proviso to Section 28A(1) of the Act the Division Bench held as ## follows:- “When the Legislature contemplated that for computing the period of three months, the day on which award was passed and the time required for obtaining a copy of the award is to be excluded, if the Legislature intended that period undertaken during the pendency of the appeal against the award of the court should also be excluded, the proviso would have been differently worded. What is to be excluded in computation of the three months from W.P.(C).No.32555 of 2008 5 the date of the award having been specifically provided under the proviso to Section 28A(1), to accept the submission of the learned counsel for the petitioners that the period shall start running after decision of the appeal against the award of the court would be adding words to Section 28A(1) of the Act which is not permissible.” 5. Regarding the period of limitation for making an application under Section 28A(1), the Division Bench after referring to the judgment of the Apex Court in **Jose Antonio Cruz Dos R.Rodriguese v. Land Acquisition Collector ([1996] 6 SCC 746)** and **Tota Ram v. State of U.P. ([1997] 6 SCC 280)** held that the issue that the period of limitation of three months for filing application under Section 28A(1) from the date of award of the reference court has already been settled and as such the view expressed by the learned Single Judge that the application filed by the petitioners in W.P.(C).No.31996/2006 were barred by time is in accordance with the settled proposition of law. 6. After referring to Rule 12(A)(v) of the Land Acquisition (Kerala) Rules, which provides that no application under Section 28A W.P.(C).No.32555 of 2008 6 shall be entertained when a Land Acquisition Appeal Case is pending before a court, the Division Bench held that Rule 12A(v) only prohibits consideration of application on merits/adjudication of application or admitting the application. But Rule 12A(5) cannot mean to prohibit even filing of the application. When limitation period is provided for filing application under Section 28A(1), holding that application cannot be filed if the appeal is pending shall be contrary to and not in accord with the object and purpose of Section 28A. 7. The Division Bench, after taking note of the decision in **District Collector v. Athickal Muhammed Kunhi (2013 [1] KHC** **13)** reiterated that the limitation for filing application under Section 28A of the Act is three months, which starts from the date of making the award and not from the date of knowledge of the award. 8. In view of the principle laid down by the Division Bench of this Court in its judgment dated 18.1.2016 in W.A.No.559/2008 the application filed by the petitioners herein under Section 28A of the Act were barred by limitation and as such no interference is W.P.(C).No.32555 of 2008 7 warranted on Ext.P6 order of the 2[nd] respondent. The petitioners are not entitled for any of the reliefs prayed for and the writ petition is accordingly dismissed. No order as to costs. Sd/- **ANIL K.NARENDRAN, JUDGE** skj True copy P.A to Judge