Sophy Paul v. District Collector, Special Tahasildar (LA) and Inland Waterways Authority of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HON'BLE THE CHIEF JUSTICE MRS. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **THURSDAY, THE 1ST DAY OF NOVEMBER 2012/10TH KARTHIKA 1934** ## **WA.No. 1877 of 2012 ()** **-------------------------------AGAINST THE JUDGMENT IN WPC.11575/2012 DATED 22-08-2012. ..........** ## **APPELLANT(S)/PETITIONER** **------------------------------------------** **SOPHY PAUL, AGED 53 YEARS W/O. P.P. PAUL, 29/963, PURAYIDATHIL HOUSE L.M. PAILY ROAD, VYTTILA.P.O., ERNAKULAM.** **BY ADVS.SRI.SHAJI P.CHALY SMT.K.S.SUMITHA SRI.ABDUL JALEEL.A SRI.R.SANJITH SMT.C.S.SINDHU KRISHNAN** ## **RESPONDENT(S):RESPONDENTS** **------------------------------------------------** **1. THE DISTRICT COLLECTOR, CIVIL STATION, KAKKANADU, ERNAKULAM KOCHI-682030.** **2. THE SPECIAL TAHASILDAR OFFICE OF THE SPECIAL TAHASILDAR(LA) NH NO.3 VYTTILA ERNAKULAM, KOCHI-682019.** **3. INLAND WATERWAYS AUTHORITY OF INDIA PARAMARA SHOPPING COMPLEX PARAMARA ROAD KOCHI-682018, REP. BY ITS DIRECTOR.** **R1 & R2 BY GOVT. PLEADER SMT.GIRIJA GOPAL R3 BY ADV. SRI.V.SANTHARAM, SC, IWAI** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** ## **MANJULA CHELLUR, CJ & A.M.SHAFFIQUE, J. * * * * * * * * * * * * *** W.A.No.1877 of 2012 ---------------------------------------- Dated this the 1[st] day of November 2012 ## **J U D G M E N T** ## **SHAFFIQUE,J** Petitioner in W.P.C.No.11575/2012 is the appellant. The writ petition is filed for a direction to the 1[st] respondent to take action on Ext.P3 application filed under Section 28A of the Land Acquisition Act 1894 (hereinafter referred to as 'the Act'). Ext.P3 came to be filed after disposal of LAA No.754/2006 by judgment dated 5/3/2010, and a certified copy of the same seems to have been received on 01/07/2010. The said appeal was filed against an award passed by the Sub Court, Ernakulam in L.A.R.No.62/01. In fact, the petitioner had filed an earlier application dated 10/03/2007 before the District Collector based on the common judgment in L.A.R.Nos.62/01 and 64/01 which was rejected on the ground of limitation and that an appeal was pending against the same. W.A.No.1877/2012 2 2. The respondents, inter alia, contended that since the earlier application was rejected on the ground of delay and the appellate judgment produced related to confirmation of the award by the reference court, an application under Section 28A of the Act is belated. 3. Before the learned Single Judge, appellant relied upon Rule 12A(v) of the Land Acquisition (Kerala) Rules 1990 (hereinafter referred to as 'the Rules') which inter alia states that no application under Section 28A of the Act shall be entertained when a land acquisition appeal is pending before the Court. On the basis of this Rule, it was contended on behalf of the petitioner that in so far as the earlier application filed could not have been considered by the Land Acquisition Officer, the 2[nd] application filed after disposal of the appeal is definitely maintainable and within the statutory period, as no application could have been filed during the pendency of the appeal. It was therefore argued that the second application alone, that is, Ext.P3 which was filed in time, ought to have been considered by the respondent. W.A.No.1877/2012 3 4. The learned Single Judge, having considered the scope of Rule 12A(v) in the light of the provisions of the Act and the judgments of the Supreme Court in **M/s.Lakshmiratan Engineering Works Ltd. v. Asst.Commissioner (Judicial) -I, Sales Tax, Kanpur Range, Kanpur and another** [AIR 1968 SC 488] and also **Hindustan Commercial Bank Ltd. v. Punnu Sahu (died) through legal representatives** (AIR 1970 SC 1384] has come to a conclusion that the word “entertained” used in the Rules can only mean that consideration of application shall be kept pending till disposal of the appeal. In that view of the matter, learned Single Judge had come to a conclusion that since the application was already rejected as out of time and in the second application the judgment relied upon is dismissal of an appeal and there is no enhancement of the award passed by the Sub Court, the second application cannot be treated as the proper application and the petitioner is not entitled for any benefit under Section 28A of the Act. 5. It was inter alia contended by the learned Counsel for appellant based on Rule 12A(v) of the Kerala Rules that in so far as the first application could not have been entertained by the W.A.No.1877/2012 4 Land Acquisition Officer, the dismissal of the said application has no relevance at all. A right accrues on any person who had not proceeded for a reference under Section 18 of the Act to make an application under Section 28A of the Act, after disposal of the appeal and since Ext.P3 application is within time, the 1[st] respondent was bound to consider the said application in accordance with law. 6. We have also heard learned Government Pleader on behalf of 1[st] respondent and also learned counsel appearing on behalf of 3[rd] respondent. 7. It is not in dispute that the first application was not filed within the time stipulated under Section 28A of the Act and it was rightly rejected by the Land Acquisition Officer. The question is whether during the pendency of the appeal, such an application under Section 28A of the Act could have been “entertained” by the Land Acquisition Officer. 8. According to learned counsel for appellant, when the Rule clearly indicates that the application could not be entertained during the pendency of the appeal, there was no scope for filing such an application. Right to file an application W.A.No.1877/2012 5 arise only when the appeal is disposed of and the dismissal of the appeal will not change the situation. 9. We do not think that the above argument can be justified in any manner especially having gone through the detailed consideration of the matter by the learned Single Judge. As held by the learned Single Judge, the word “entertained” does not by itself indicate that no application under Section 28A could be filed by the claimant within the prescribed time. In the present case, admittedly, the appeal relied upon under Section 28A confirms the award of the Sub Court and appeal ended in dismissal. Such an application cannot create a right under Section 28A of the Act. 10. We are also in agreement with the finding of the learned Single Judge in regard to the interpretation given to Rule 12A(v) of the Rules and the observation that when the Act does not contemplate a situation as contended by the learned Counsel for Appellant, Rule 12A(v) cannot create a better right. W.A.No.1877/2012 6 In that view of the matter, we do not think that any ground exists for interfering with the judgment of the learned Single Judge and hence the appeal is dismissed. (sd/-) **(MANJULA CHELLUR, CHIEF JUSTICE)** (sd/-) **(A.M.SHAFFIQUE, JUDGE)** jsr //True Copy// PA to Judge W.A.No.1877/2012 7 W.A.No.1877/2012 8