V. Sukumari v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY ,THE 29TH DAY OF JANUARY 2019 / 9TH MAGHA, 1940** ## **WP(C).No. 32616 of 2017** ## **PETITIONER/S:** |||**V.SUKUMARI,**| |---|---|---| |||**W/O. MOHANDAS, AGED 68 YEARS,**| |||**KURUVILA VEEDU,PEEDIKKATTUMURI,**| |||**MEDICAL COLLEGE P.O, THIRUVANANTHAPURAM.**| |||**BY ADV. SRI.R.S.SARAT**| |**ENT/S**|**:**|| |**1**||**STATE OF KERALA**| |||**REP. BY THE SECRETARY, PUBLIC WORKS**| |||**DEPARTMENT,GOVERNMENT SECRETARIAT, STATUE,**| |||**THIRUVANANTHAPURAM- 695 001.**| |**2**||**THE SPECIAL TAHSILDAR**| |||**ADDL. L.A UNIT, B BLOCK, 6TH FLOOR, CIVIL**| |||**STATION,KODAPPANAKKUNNU,**| |||**THIRUVANANTHAPURAM - 695 001.**| |**3**||**THE CHIEF ENGINEER, (GENERAL),**| |||**PUBLIC WORKS DEPARTMENT, GOVERNMENT OF**| |||**KERALA,'THIRUVANANTHAPURAM - 695 001.**| |**4**||**THE DISTRICT COLLECTOR**| |||**THIRUVANANTHAPURAM DISTRICT, CIVIL**| |||**STATION,KODAPPANAKKUNNU,**| |||**THIRUVANANTHAPURAM - 695 001.**| ## **RESPONDENT/S:** ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)NO.32616/2017 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------- W.P.(C)No.32616 of 2017 ---------------------------------------------Dated this the 29[th] day of January, 2019 ## **JUDGMENT** The petitioner is aggrieved by the impugned decision of the 2[nd] respondent Special Tahsildar (Land Acquisition) rendered as per Ext.P7 proceedings dated 21.3.2017, whereby his application made under Section 28A(1) of the Land Acquisition Act, 1894 seeking enhancement of compensation based on Ext.P8 award dated 26.3.2015 has been rejected on the ground that the said application is time barred. 2. The prayers in the above writ petition (Civil) are as follows: _“i) Issue a writ of mandamus or appropriate order or direction calling for records leading to Ext.P7 order and to quash the same;_ _ii) Issue a writ of mandamus or appropriate order or direction setting aside Ext.P7 order and to direct the 4[th] Respondent to consider Ext.P5 petition made under Section 28A of Land Acquisition Act, 1894 on merits based on Ext.P8 judgment.”_ 3. Heard Sri. R.S. Sarath, the learned counsel appearing for the petitioner and Sri. Saigi Jacob Palatty, the learned Senior Government Pleader appearing for the respondents. W.P.(C)NO.32616/2017 3 4. The facts are not seriously in dispute. The petitioner’s lands were compulsorily acquired as per the proceedings initiated under the Land Acquisition Act, 1894 and the petitioner had not sought for Section 18(1) reference after rendering of the award pertaining to this property passed by the Land Acquisition Officer. However, later Ext.P8 award was rendered on 26.3.2015 by the LAR Court concerned (II Additional Subordinate Judge, Thiruvananthapuram) in LAR No.968/2009 granting enhanced compensation to the claimant therein. According to the petitioner, the said award as per Ext.P8 is in relation to a similarly situated land covered by the very same Section 4(1) notification as the one in relation to the petitioner’s property and that the petitioner had later submitted Ext.P5 application dated 17.10.2016 before the 4[th] respondent Land Acquisition Officer pointing out that the said request is one under Section 28A(1) of the Land Acquisition Act, 1894 in view of Ext.P8 award dated 26.3.2015 and that the 2[nd] respondent should re-determine the compensation on the basis of Ext.P8 award as far as the petitioner is concerned, by virtue of the provisions contained in Section 8(1) of the Land Acquisition Act etc. The said application as per Ext.P5 dated 17.10.2016 has been rejected W.P.(C)NO.32616/2017 4 by the 2[nd] respondent as per the impugned Ext.P7 order dated 21.3.2017 on the ground that the said application under Section 28A cannot be entertained and the same is time barred. It appears from Ext.P7 that copy of the application for grant of certified copy of Ext.P8 award dated 26.3.2015 was submitted by the petitioner before the LAR Court concerned as per application No.A-2512/16 on 16.8.2016. The learned counsel for the petitioner has made available a photocopy of the said certified copy of Ext.P8 award showing the endorsement of the court officials concerned that the stamp was called for in respect of that application on 30.9.2016 and the stamp was produced by the petitioner before that Court on 1.10.2016 and certified copy was ready on 3.10.2016 and the Court concerned had notified the petitioner to appear to receive the certified copy on 6.10.2016 and the certified copy of Ext.P8 award dated 26.3.2015 was actually delivered to the petitioner on 4.10.2016. Further it is seen from the impugned Ext.P7 order that the petitioner had made available the said certified copy of Ext.P8 award, which had received on 4.10.2016, only on 15.2.2017. Sub Section (1) of Section 28A of the Land Acquisition Act, 1894 stipulates that where in an award passed under Part III of the Land Acquisition Act, 1894, W.P.(C)NO.32616/2017 5 the Court (reference court) allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under Section 11, the persons interested in all the other land covered by the same notification under Section 4(1) notification and who are also aggrieved by the award of the Collector may, notwithstanding that they had not made an application to the Collector under Section 18, by written application to the Collector within three months from the date of the award of the Court require that the amount of compensation payable to them may be re-determined on the basis of the amount of compensation awarded by the said Court. Proviso to sub section (1) of Section 28A further stipulates that in computing the period of three months within which an application to the Collector shall be made under Section 28A (1), the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be excluded. Section 28A(1) and its proviso reads as follows: **“** _**28A. Re-determination of the amount of compensation on the basis of the award of the Court.- (** 1) Where in an award under this Part, the Court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under Section 11, the persons interested in all the other land covered by the same notification under Section 4, sub-section (1) and who are also aggrieved by the award of the Collector may, notwithstanding that they had not made an application to the Collector under Section 18, by written application to the Collector within three months from the date of the_ W.P.(C)NO.32616/2017 6 _award of the Court require that the amount of compensation payable to them may be re-determined on the basis of the amount of compensation awarded by the Court:_ _Provided that in computing the period of three months within which an application to the Collector shall be made under this sub-section, the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be excluded.”_ 5. It is now well established by a catena of Rulings of the Apex Court and various High Courts as in _**Ram Singh Bhai Jaeram bhai**_ v. _**State of Gujarat and another**_ reported in **AIR 2018 SC 2629** that in computing the period of three months under Section 28A(1), the day on which the award was pronounced and the time requisite for obtaining certified copy of the award shall be excluded as envisaged in proviso to Section 28A(1). It has been held by the Apex Court in various decisions as in _**Tota Ram**_ v. _**State of U.P. & others**_ reported in **1997 (6) SCC 280** , _**State of A.P.**_ v. _**Marri Venkaiah and others**_ reported in **AIR 2003 SC 2949** and _**State of Orissa and others**_ v. _**Chitrasen Bhoi**_ reported in **2009 (17) SCC 76]** that the application under Section 28A(1) should be submitted by the party concerned before the Land Acquisition Officer within three months and the date of knowledge about the award is immaterial. Further the Apex Court as held in _**Popat Bahiru**_ ## _**Govardhane and others**_ v. _**Special Land Acquisition Officer**_ _**and another**_ [2013(10) SCC 765] that it is not permissible to W.P.(C)NO.32616/2017 7 extend the period of limitation as conceived in Section 28A(1) on equitable grounds etc. 6. From the above said disputed facts, it can be seen that since Ext.P8 award has been passed as early as on 26.3.2015, Ext.P5 application dated 17.10.2016 is thus obviously barred by limitation as conceived in Section 28A(1). Further it is also to be borne in mind that though Ext.P8 was rendered on 26.3.2015, the petitioner had made application for grant of certified copy of the said award only on 16.8.2016 and the same was received by him on 4.10.2016 and even thereafter he did not submit certified copy of Ext.P8 award immediately and has submitted the same only on 15.2.2017 as is mentioned in Ext.P7. In the light of all these factual aspects, this Court is of the considered view that the application said to have been filed under Section 28A(1) by the petitioner herein is barred by limitation and it will not be right and proper for this Court to extend the period of limitation on any equitable or sympathetic grounds. Accordingly, this writ petition is bereft of any merit and the writ petition (civil) will stand dismissed. sd/- **ALEXANDER THOMAS, JUDGE.** acd W.P.(C)NO.32616/2017 8 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER IN W.P(C)NO.21875/2005 DATED 22-72005.** **EXHIBIT P2 TRUE COPY OF THE REPRESENTATION SUBMITTED BY PETITIONER TO THE 3RD RESPONDENT,DATED 30-9-2008.** **EXHIBIT P3 TRUE COPY OF THE STAY ORDER IN W.P(C) NO. 36120/2008 DATED 9-122008.** - **EXHIBIT P4 TRUE COPY OF THE ORDER IN W.P(C) NO.36120/2008 DATED 20-3-2009.** **EXHIBIT P5 TRUE COPY OF PETITION FILED BY PETITIONER TO THE 4TH RESPONDENT DATED 17-10-2016 EXHIBIT P6 TRUE COPY OF THE LETTER NO.A71700/16 DATED 28-1-2017 ISSUED BY THE 2ND REPSONDENT TO THE PETITIONER. EXHIBIT P7 TRUE COPY OF ORDER NO.A7-1700/16 DATED 21-3-2017. EXHIBIT P8 TRUE COPY OF THE JUDGMENT IN L.A.R.NO.968/2009 DATED 26.3.2015.** P.S. TO JUDGE.