T.R. Thomas v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 06TH DAY OF JANUARY 2021 / 16TH POUSHA, 1942** ## **W.P.(C) No.28515 OF 2020(L)** ## **PETITIONER/S:** **T.R.THOMAS, AGED 75 YEARS, S/O. RAFFEL, THOTTIYIL HOUSE, KALOOR P. O., ERNAKULAM - 682 017.** **BY ADVS. SRI.THOMAS JOHN AMBOOKEN SRI.B.SAJEEV KUMAR SMT.BLOSSOM MATHEW SRI.RENJIT JOHN** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY, DEPARTMENT OF REVENUE, GOVT. SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 THE DISTRICT COLLECTOR, ERNAKULAM CIVIL STATION, KAKKANAD, ERNAKULAM - 682030. 3 THE TAHSILDAR (LAND ACQUISITION) KOCHI CORPORATION OFFICE, VYTTILA - 682 019. 4 CORPORATION OF COCHIN REPRESENTED BY ITS SECRETARY, MARINE DRIVE, KOCHI - 682 011.** **R4 BY ADV. SRI.S.SUDHISH KUMAR R1-R3 BY SMT K.AMMINIKUTTY - SR. GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.28515 OF 2020(L) 2 ## **JUDGMENT** The petitioner is the owner in possession of 16 cents of property comprised in Survey No.168/1 of Elamkulam Village covered by Will bearing No.08/73-3 executed by his father, which was registered in the Sub Registrar Office, Ernakulam. Out of the said property, an extent of 2 ares (4.94210 cents) in Survey No.168/1-12 of Elamkulam Village was acquired for the purpose of development of Pulleppady Thammanam Road. The document marked as Ext.P1 is an agreement dated 09.03.2016 entered into between the petitioner and 2[nd] respondent District Collector. The petitioner has filed Ext.P3 application dated 21.11.2020, before the 2[nd] respondent District Collector, which is one filed invoking the provisions under Section 64 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 2[nd] respondent to consider Ext.P3 application and to refer the question of adequacy of compensation of the acquired land, under Section 64 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, to the authority constituted under Section 51 of the said Act. W.P.(C) No.28515 OF 2020(L) 3 2. On 21.12.2020, when this writ petition came up for admission, notice before admission was ordered to the respondents. The learned Government Pleader took notice for respondents 1 to 3 and the learned Standing Counsel took notice for the 4[th] respondent. 3. Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for respondents 1 to 3 and also the learned Standing Counsel for the 4[th] respondent Corporation. 4. Section 64 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act deals with reference to Authority. As per subsection (1) of Section 64, any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Authority, as the case may be, whether his objection be to the measurement of the land, the amount of the compensation, the person to whom it is payable, the rights of Rehabilitation and Resettlement under Chapters V and VI or the apportionment of the compensation among the persons interested. As per the first proviso to subsection (1) of Section 64, the Collector shall, within a period of W.P.(C) No.28515 OF 2020(L) 4 thirty days from the date of receipt of application, make a reference to the appropriate Authority. As per the second proviso to sub-section (1), where the Collector fails to make such reference within the period so specified, the applicant may apply to the Authority, as the case may be, requesting it to direct the Collector to make the reference to it within a period of thirty days. 5. As per sub-section (2) of Section 64 of the Act, the application shall state the grounds on which objection to the award is taken. As per the first proviso to sub-section (2), every such application shall be made (a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award; (b) in other cases, within six weeks of the receipt of the notice from the Collector under Section 21, or within six months from the date of the Collector's award, whichever period shall first expire. As per the second proviso to sub-section (2) of Section 64, the Collector may entertain an application after the expiry of the said period, within a further period of one year, if he is satisfied that there was sufficient cause for not filing it within the period specified in the first proviso. 6. In **Sreedharan and others v. District Collector,** W.P.(C) No.28515 OF 2020(L) 5 **Malappuram and another [2020 (5) KHC 424]** , this Court held that when the very object of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act is to ensure just and reasonable compensation to the affected families, while dealing with an application for condonation of delay under the second proviso to sub-section (2) of Section 64, the competent Authority should take a liberal, pragmatic and nonpedantic approach. The term 'sufficient cause' in the second proviso to sub-section (2) of Section 64 should be understood in its proper spirit, philosophy and purpose, regard being had to the fact that that term has to be applied in proper perspective to the obtaining fact-situation. The conduct and attitude of a petitioner relating to his inaction or negligence are relevant factors to be taken into consideration. An application for condonation of delay under the second proviso to sub-section (2) of Section 64 should be drafted with careful concern and not in a casual manner harbouring the notion that the competent Authority is required to condone delay as a matter of course. 7. Having considered the submissions made by learned counsel for the petitioner, the learned Senior Government Pleader for respondents 1 to 3 and also the learned Standing Counsel for W.P.(C) No.28515 OF 2020(L) 6 ## the 4[th] respondent, this writ petition is disposed of with the following directions; (i) In case, Ext.P3 application made by the petitioner under Section 64 of the said Act is in order and filed within the time limit specified, the 2[nd] respondent District Collector shall consider the same and take an appropriate decision on that application with notice to the petitioner and after affording him an opportunity of being heard, within the statutory time limit of 30 days. (ii) In case, that application is belated, the petitioner shall file an application for condonation of delay, within one week from the date of receipt of a certified copy of this judgment. Thereafter, the 2[nd] respondent shall consider and pass appropriate orders on that application, with notice to the petitioner and after taking note of the law laid down by this Court in **Sreedharan [2020 (5) KHC 424]** . 8. In **State of U.P. v. Harish Chandra [(1996) 9 SCC** **309]** the Apex Court held that no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. In **Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259]** the Apex Court reiterated that, generally, no Court has competence to issue a direction contrary to law nor can the Court direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law. W.P.(C) No.28515 OF 2020(L) 7 9. Therefore, pursuant to the direction contained in this judgment, the 2[nd] respondent District Collector shall consider Ext.P3 application and take an appropriate decision on the matter, strictly in accordance with law, taking note of the relevant statutory provisions and also the law on the point. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** MIN W.P.(C) No.28515 OF 2020(L) 8 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE AGREEMENT DATED 09.03.2016. EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.744 OF 2016. EXHIBIT P3 TRUE COPY OF THE APPLICATION DATED 21.11.2020 ALONG WITH THE POSTAL RECEIPT.**