V.J. Varghese v. District Collector, Kottayam and Special Tahsildar, Land Acquisition - National Highway, Ponkunnam, Kottayam District

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **WEDNESDAY, THE 16TH JUNE 2010 / 26TH JYAISTHA 1932** **WP(C).No. 10892 of 2009(F)** **------------------------------------** **PETITIONER(S):** **--------------------------** **V.J.VARGHESE,S/O.JOSEPH, VECHOOR KIZHAKKETHIL HOUSE, KARIKKATTOOR P.O.,MANIMALA, KOTTAYAM DISTRICT.** **BY ADV. SRI.SERGI JOSEPH THOMAS** ## **RESPONDENT(S):** **-------------------------** ## **1. THE DISTRICT COLLECTOR,KOTTAYAM.** **2. THE SPECIAL TAHSILDAR, LAND ACQUISITION-NATIONAL HIGHWAY, PONKUNNAM,KOTTAYAM DISTRICT.** **R2 BY GOVERNMENT PLEADER SMT.N.SUDHA DEVI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C) NO.10892/2009** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** ## **P1:- COPY OF THE APPLICATION FOR REFERENCE DTD. 12.12.2008 SUBMITTED BY THE PETITIONER UNDER SECTION 18 OF THE L.A.ACT BEFORE THE 2ND RESPONDENT.** **P2:- COPY OF THE SECTION 18 APPLICATION FOR REFERENCE DTD. 12.12.2008 SUBMITTED BY THE PETITIONER UNDER SECTION 18 OF THE L.A.ACT BEFORE THE 2ND RESPONDENT.** **P3:- COPY OF THE ORDER DTD. 3.2.2009 PASSED BY THE 2ND RESPONDENT.** **P4:- COPY OF THE FORM 10(B) NOTICE IN LAC 100/07 DTD. 19.7.2008.** **P5:- COPY OF THE FORM 10 (B) NOTICE IN LAC 101/07 DTD. 19.7.2008.** **P6:_ COPY OF THE FORM NO.12 NOTICE TAKING POSSESSION OF THE LAND IN LAC 100/07 DTD. 19.7.2008.** **P7:- COPY OF THE FORM NO.12 NOTICE TAKING POSSESSION OF THE LAND IN LAC 101/07 DTD. 19.7.2008.** ## **P8:- COPY OF THE RATION CARD PRODUCED AND MARKED.** ## **TRUE COPY** ## **P.A. TO JUDGE** ## **tss** ## **T.R. RAMACHANDRAN NAIR, J.** **~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.10892/2009-F ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 16[th] day of June, 2010** ## **J U D G M E N T** This writ petition is filed by the petitioner aggrieved by Ext.P3 communication whereby the application for reference under Section 18 of the Land Acquisition Act was rejected on the ground that it is belated. 2. The petitioner's property was acquired for the purpose of widening the Punalur-Muvattupuzha road. Notification under Section 4(1) of the Land Acquisition Act to that effect was published on 01/12/2004. He had to appear on 15/11/2007. It is the case of the petitioner that even though he was present on that day, nothing was heard for a long time. Only on 15/10/2008 he came to know from the neighbouring owners of his property that they have received compensation. Thereafter, he approached the second respondent and, then he was given information that award was passed on 10/05/2008 in respect of his properties also. After producing the title deeds, he was issued D.Form Cheque dated 14/11/2008 for Rs.2,31,087/- and, later on 09/12/2008 another D.Form Cheque dated 09/12/2008, for Rs.3,60,992/- has also been issued to him. He received the cheques under protest and, protest was endorsed in the counter foil and the D.Form issuing register. Thereafter, ## W.P.(C). No.10892/2009 -:2:- he filed Exts.P1 and P2 applications dated 12/12/2008 respectively, seeking for reference under Section 18 of the Land Acquisition Act which was rejected as per Ext.P3. 3. After the application was rejected, the petitioner sought for details of service of notices and, accordingly, he was issued Exts.P4 to P7 which shows that the notices under Section 12(2) of the Land Acquisition Act were served on the wife of his brother. It is the case of the petitioner that there is no proper service of notice to the petitioner and, therefore, the period has to be reckoned from the date of knowledge of the award. 4. The second respondent has filed a counter affidavit opposing the prayers of the petitioner. 5. It is revealed from the counter affidavit that the petitioner's brother was representing him during the award enquiry. It is further contended by the second respondent that the service of notices on the brother's wife under Section 12(2) is perfectly justified. It is also mentioned that the Form 9(3) notice was received by the petitioner's wife. 6. The question is whether in the light of the above, it can be held that the action taken by the second respondent in passing Ext.P3 is correct or not. ## W.P.(C). No.10892/2009 -:3:- 7. It is a case where the award was passed not in the presence of the petitioner. Under Section 12(2) of the Land Acquisition Act, the Collector shall give immediate notice on his award to such of the persons interested as are not present personally or by their representatives when the award is made. Section 18(2) provides the periods within which the application shall be made. Under Sub Section (a), if the person making it was present or represented before the Collector at the time when he made his award, the application has to be submitted within six weeks from the date of Collector's award. In other cases, the application has to be submitted within six weeks of the receipt of the notice from the Collector under Section 12, sub-section (2) or within six months from the date of the Collector's award, whichever period shall first expire. 8. The question therefore arises whether the service of notice herein is proper or not. Admittedly, it was served on the petitioner's brother's wife. There is no case that the petitioner could not be found or he had refused to receive the notice. She was not his representative also. If at all the petitioner's brother was present in the award enquiry, even then notice could have been served on him to take proper recourse. The provisions of Section 12(2) and 18(2) are really mandatory. The provisions have to be ## W.P.(C). No.10892/2009 -:4:- strictly interpreted as otherwise it will result in prejudice to the parties concerned. In that view of the matter, it can be safely concluded that the notices served on the brother's wife cannot be said to be a proper service of notice as envisaged under Section 12(2) of the Land Acquisition Act. Therefore, the reasons stated in Ext.P3 that the application for reference is highly belated cannot be supported. The learned counsel for the petitioner submitted that in the light of the decisions of this Court in **Vasu Salian v. Special Tahsildar [1999 (3) KLT 92]** , **Reeta George v. Special Tahsildar [2005 (1) KLT 79]** and that of the Apex Court in **Parsottambhai Maganbhai Patel and others v. State of Gujarat [(2005) 7 SCC 431],** if the application is filed within the period provided under Section 18(2) reckoned from the date of knowledge of the award, then the same can be accepted. 9. In **Vasu Salian's case (** _**supra**_ **)** , it was held that “if notice of award is not served and one is absent in the award enquiry, he can apply for reference under S.18 within six months from the date of knowledge of the award and S.18 (2)(b) is differently worded. Limitation of six months under second part of clause (b) of S.18(2) runs from knowledge of the contents of award.” W.P.(C). No.10892/2009 -:5:- 10. In **Reeta George's case (** _**supra**_ **)** it was held that “when the claimant has not been served under S.12(2) and when the award is not passed in the presence of the claimant for the purpose of S.18(2)(b) the expression 'six months from the date of the award' means six months from the date of knowledge of the award by the party.” 11. Of course, these two are cases where notices were not served on the parties concerned. But, herein as held by me earlier, the service of notice on the petitioner's brother's wife may not improve the case of the respondents since that cannot be taken as proper service of notice to the petitioner in the absence of any evidence to show that she was appointed as a representative on behalf of the petitioner. The Apex Court also in **Parsottambhai Maganbhai Patel' case (** _**supra**_ **)** held that “the limitation under the latter part of Section 18(2)(b) of the Act has to be computed having regard to the date on which the claimants got knowledge of the declaration of the award either actual or constructive.” Therefore, the case of the claimant that they became aware of the passing of the award only in July 1988 was accepted and it was held further that “the application under Section 18 of the Act on 22/09/1988 was well within the period of limitation.” W.P.(C). No.10892/2009 -:6:- 12. In the light of the above, herein as the applications were filed within the period provided under Section 18 reckoned from the date of knowledge of the award i.e.15/10/2008, it can be safely concluded that the applications are filed within time. In that view of the matter, Ext.P3 is quashed. 13. There will be a direction to the respondents to refer Exts.P1 and P2 to the Civil Court for adjudication expeditiously. The writ petition is allowed as above. No costs. **(T.R. Ramachandran Nair, Judge.)** ms