W.P.(C).No. 25562 of 2015 (U) – Thayath Parakke Mariyam and others v. District Collector, Kannur

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 28TH DAY OF OCTOBER 2016/6TH KARTHIKA, 1938** **WP(C).No. 25562 of 2015 (U) ----------------------------** ## **PETITIONER(S): -------------** **1. THAYATH PARAKKE MARIYAM, W/O.LATE MUHAMMED SALI HAJI @ M.P.MUHAMMED KUNHI HAJI, ETTIKKULAM POST, TALIPARAMBA TALUK, KANNUR DISTRICT - 670308.** **2. MADATH PARAKKE MOIDEEN HAJI, S/O.IBRAHIM, ETTIKKULAM POST, TALIPARAMBA TALUK, KANNUR DISTRICT - 670308.** **3. THAYATH PARAKKE ASSIYA UMMA, W/O.MOIDEEN HAJI, ETTIKKULAM POST, TALIPARAMBA TALUK, KANNUR DISTRICT - 670308.** **BY ADVS.SRI.K.M.AUGUSTINE SRI.SERGI JOSEPH THOMAS** - **RESPONDENT(S): --------------** **1. THE DISTRICT COLLECTOR, KANNUR 670002.** **2. THE SPECIAL TAHASILDAR (L.A.) EZHIMALA NAVAL ACADEMY, PAYYANNUR - 670301.** **3. THE SPECIAL TAHSILDAR (L.A.GENERAL) THALASSERY, KANNUR DISTRICT - 670101.** **BY SENIOR GOVERNMENT PLEADER SRI.SAIGI JACOB PAETTY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** ## **WP(C).No. 25562 of 2015 (U)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** - **P1: SEC.28A APPLICATION DATED 22.05.1998 SUBMITTED BY PETITIONERS HUSBAND LATE M.P.MUHAMMED KUNHI HAJI BEFORE THE 2ND RESPONDENT.** - **P2: SEC.28A APPLICATION DATED 22.05.1998 SUBMITTED BY PETITIONER'S HUSBAND LATE MP.MUHAMMED KUNHI HAJI BEFORE THE 2ND RESPONDENT.** - **P3: SEC.28A APPLICATION DATED 22.05.1998 SUBMITTED BY PETITIONER'S HUSBAND LATE M.P.MUHAMMED KUNHI HAJI BEFORE THE 2ND RESPONDENT.** - **P4: SEC.28A APPLICATION DATED 22.05.1998 SUBMITTED BY PETITIONER'S HUSBAND LATE M.P.MUHAMMED KUNHI HAJI BEFORE THE 2ND RESPONDENT.** - **P5: SEC.28A APPLICATION DATED 22.05.1998 SUBMITTED BY PETITIONER'S HUSBAND LATE M.P.MUHAMMED KUNHI HAJI BEFORE THE 2ND RESPONDENT.** - **P6: SEC.28A APPLICATION DATED 22.12.2004 SUBMITTED BY THE POWER OF ATTORNEY HOLDER OF THE SECOND PETITIONER BEFORE THE 2ND RESPONDENT.** - **P7: SEC.28A APPLICATION DATED 27/10/1995 FILED BY THE POWER OF ATTORNEY HOLDER OF THE THIRD PETITIONER BEFORE THE 2ND RESPONDENT.** - **P8: PROCEEDINGS NO.D.DIS 1160/05/C(1) DATED 25.4.09 OF THE 2ND RESPONDENT.** - **P8(A): PROCEEDINGS NO.C.1160/05 DATED 25.4.09 OF THE 2ND RESPONDENT.** - **P9: SEC.28A(3) APPLICATION DATED 28.05.2009 SUBMITTED BEFORE THE 2ND RESPONDENT.** - **P10: PROCEEDINGS NO.D.DIS.1757/05 DATED 30.3.2009 OF THE 2ND RESPONDENT.** - **P11: SEC.28A(3) APPLICATION DATED 14.5.2009 SUBMITTED BEFORE THE SECOND RESPONDENT.** - **P12: PROCEEDINGS NO.D.DIS.1401/05 DATED 20.4.2009 OF THE 2ND RESPONDENT.** - **P13: SECTION 28A(3) APPLICATION DATED 5.5.2009 SUBMITTED BEFORE THE 2ND RESPONDENT.** - **P14: NOTICE NO.372/09 DATED 06.11.2009 ISSUED BY THE 2ND RESPONDENT.** - **P15: STATEMENT DATED 16.11.2009 SUBMITTED BEFORE THE 2ND RESPONDENT.** - **P16: STATEMENT DATED 20.11.2009 SUBMITTED BEFORE THE 2ND RESPONDENT.** - **P17: STATEMENT DATED 20.11.2009 SUBMITTED BEFORE THE 2ND RESPONDENT.** **....2/-** **PJ** **..2..** **WP(C).No. 25562 of 2015 (U)** **----------------------------** - **P18: PROCEEDINGS NO.D.DIS.1372/09 DATED 23.2.2010 OF THE 2ND RESPONDENT.** - **P19: PROCEEDINGS NO.D.DIS 1274/09 DATED 13.1.2010 OF THE 2ND RESPONDENT.** - **P20: JUDGMENT IN W.P.(C) NO.33985/2010 DATED 18.11.2011.** - **P21: PROCEEDINGS NO.REF: 223/12/G.DATED 10.7.2012 OF THE THIRD RESPONDENT.** - **P22: JUDGMENT DATED 25/07/2014 IN CONTEMPT CASE NO.837/2012.** - **P23: ORDER DATED 06/03/2015 IN I.A.243/14 IN CONTEMPLT CASE NO.837/2012.** ## **RESPONDENT(S)' EXHIBITS** **-----------------------** **NIL.** **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** ## ALEXANDER THOMAS, J. ================== ## W.P.(C).No. 25562 of 2015 ================== ## Dated this the 28[th] day of October, 2016 ## J U D G M E N T The prayers in the aforecaptioned Writ Petition (Civil) are as follows: - “i) issue a writ of certiorari or such other appropriate order or direction calling for the records and proceedings leading up to the issuance of Ext.P-21 and quash Ext.P8, P10, P12, P18, P19 and P21. - ii) issue a writ of mandamus or such other appropriate writ order or direction commanding the third respondent to re-determine the compensation amount payable to the petitioners on the basis of Exts.P1 to P7 applications filed u/s 28A of the Land Acquisition Act expeditiously. - iii) or in the alternative issue a writ of mandamus or such other appropriate writ order or direction commanding the third respondent to refer Exts.P9, P11 and P13 applications filed u/s 28A(3) of Land Acquisition Act to the Sub Court, Payyannur for adjudication.” 2. Heard Sri.Sergi Joseph Thomas, learned counsel appearing for the petitioners and Sri.Saigi Jacob Palatty, learned Senior Govt. Pleader appearing for the respondents. 3. The 1[st] petitioner is the widow of late Muhammed Kunhi Haji, who was in possession of various items of properties as in 0.6120 hectares of land in R.S.No.81/5, 10 cents in R.S.No.31/26, 55 cents W.P.(C).25562/15 - : 2 :- in R.S No.11/1, 3 acres and 25 cents in R.S.No.82/1, 0.1821 hectares of land in R.S.No.8/6 and 2 acres and 50 cents of land in R.S.No.347/pt. in Ramanthali village, Taliparamba Taluk, Kannur district. The 2[nd] petitioner was stated to be in ownership and possession of 0.4720 hectares of land in R.S.No.342/2 of the above village and the 3[rd] petitioner is in ownership and possession of 21 cents of land in R.S.No.11/1 and 42 ½ cents in R.S.No.15/1A1A of the abovesaid village. The notification under Sec. 4(1) of the Land Acquisition Act, 1894, was published on 22.2.1983 by the land acquisition authorities concerned for acquisition of various properties including the properties mentioned above for establishment and development of Naval Academy. The awards were duly passed in those land acquisitions proceedings and the present claimants had not filed any application under Sec.18 of the Land Acquisition Act, for enhancement of the compensation. Subsequently, the Sub Court, Payyannur, (which is the Land Acquisition Reference [L.A.R.] Court) had passed judgment/award under Sec.18 of the Act granting enhancement of the compensation in respect of certain properties covered by the very same notification. The abovesaid Muhammed Kunhi Haji (husband of the 1[st] petitioner) had filed Exts.P-1 to P-5 applications under Sec.28A W.P.(C).25562/15 - : 3 :- (1) seeking redetermination of the compensation based on the abovesaid award passed by the L.A.R. Court and these applications were stated to be in respect of the abovesaid 5 items of properties. The power of attorney holder of the 2[nd] petitioner had filed Ext.P-6 application dated 22.12.2004 under Sec.28A(1) seeking redetermination of compensation in respect of the aforementioned properties owned by the 2[nd] petitioner. The 3[rd] petitioner had filed Ext.P-7 application in respect of the abovesaid properties owned by her. By Ext.P-8 order 25.4.2009, the 2[nd] respondent LAO (Land Acquisition Officer) had rejected Exts.P-1 to P-5 applications filed by the husband of the 1[st] petitioner on the ground that the relied on judgment in L.A.R.No.120/1987 was originally rendered by the L.A.R. Court on 20.3.1990 and that though the said judgment was set aside and remitted, the period of limitation of 3 months envisaged in Sec.28A(1) is to be computed with reference to the original judgment in the L.A.R. and not the revised judgment/award in the L.A.R., even if there is a remit, etc. Aggrieved by Ext.P-8 rejection, the husband of the 1[st] petitioner had filed Ext.P-9 application under Sec. 28A(3) of the Act, praying to refer the matter to the competent L.A.R. Court (Sub Court, Payyannur) for redetermination of the compensation as envisaged in that provision. W.P.(C).25562/15 - : 4 :- 4. Similarly, Ext.P-6 application submitted by the 2[nd] petitioner under Sec. 28A(1) was also rejected by the 2[nd] respondent by the issuance of Ext.P-10. Similarly, the 2[nd] respondent had also rejected Ext.P-7 application submitted by the 3[rd] petitioner as per Ext.P-12. Aggrieved by Exts.P-10 and P-12 rejection orders, the power of attorney holder of the 2[nd] and 3[rd] petitioner had filed Exts.P11 and P-13 application under Sec. 28A(3) for reference to L.A.R. Court for redetermination. 5. Subsequently the 2[nd] respondent had issued Ext.P-14 notice to the petitioners instructing them to file applications (covered by Exts.P-11 and P-13) under Sec.28A(3) in the statutorily prescribed format in Form 22A as prescribed in Rule 16A of the Kerala Land Acquisition Rules, framed under the Land Acquisition Act, 1894, etc. In response to Ext.P-14 notice, the petitioners had submitted Exts.P-15, P-16 and P-17 responses pointing out that there is no legal necessity to file application under Sec. 28A(3) in form 22A, in view of the ruling of this Court in Jameson v. State of Kerala reported in 2006(3) KLT 186, wherein it has been held that the impugned prescription in the said rule is ultra vires the provisions of the Central Act. Ext.P-9 application of the 1[st] petitioner was rejected by the 2[nd] respondent as per Ext.P-18 on the W.P.(C).25562/15 - : 5 :- ground that the requisite application has not been submitted in the prescribed form 22A format. Similarly, Exts.P-11 and P-13 were also rejected by P-19, citing the same ground, regarding the non- submission of the application in the prescribed form 22A format. Those rejection orders as per Ext.P-18 and P-19 herein were challenged by the petitioners before this Court by instituting W.P.(C).No.33985/2010. By Ext.P-20 judgment rendered by this Court on 18.11.2011, the said Writ Petition, W.P.(C).No.33985/ 2010, was allowed by quashing those impugned rejection orders at Exts.P-18 and P-19 herein, with the further direction to the respondents to reconsider the matter in the light of the Division Bench ruling of this Court in Aboobacker v. District Collector, reported in 2011 (3) KLT 822. Incidentally, it may be noted that a learned Single Judge of this Court in the above referred case in Jameson's case supra reported in 2006(3) KLT 186, has held that the impugned prescription in Rule 16A of the State rules is ultra vires the Act to the extent it insists that every application for reference to the courts both under Sec.18(1) as well as 28A(3) should necessarily be made in form 22A. A contrary view was taken by another learned Single Judge in the ruling in Narayaniamma v. Special Tahsildar, reported in 2008(2) KLT 206, wherein it was held W.P.(C).25562/15 - : 6 :- that it is mandatory to submit such application under Sec.18(1) as well as Sec.28A(3) in the prescribed form 22A format. Divergence in opinion in this regard was resolved later by the above referred Division Bench ruling in Aboobacker v. District Collector, reported in 2011 (3) KLT 822, wherein this Court held that the view taken in Jameson's case supra is the correct one and had overruled the contra view taken in Narayaniamma's case supra and it was held by the Division Bench that the impugned prescription in Rule 16A of the State Rules to the extent it insists that very application under Sec.18(1) as well as Sec. 28A(3) should necessarily be filed in the prescribed format in form No.22A is ultra vires, etc. So the net result is that so long as the substance of the claim of the petitioners for redetermination of compensation as envisaged in Sec.28A(3) is submitted before the competent authority within the stipulated time limit, the same should necessarily be entertained, even if it is not submitted in Form 22A format. 6. In spite of the abovesaid directions issued by the Division Bench of this Court in Ext.P-20 judgment, no action for compliance of the said directions was made by the respondents. Accordingly, the petitioners were constrained to institute a Contempt of Court (Civil) as C.O.C.No.837/2012 before the Division W.P.(C).25562/15 - : 7 :- Bench of this Court. During the consideration of the said contempt petition, it was submitted on behalf of the respondents that necessary orders have been passed in compliance with the directions issued by this Court in Ext.P-20 judgment and that the directions in the judgment have been complied with. Therefore, the said contempt of court case was closed as per Ext.P-22 judgment dated 25.7.2014. However, since the orders said to have been passed in compliance of Ext.P-20 judgment were not communicated to the petitioners, they were again constrained to approach this Court by filing an application to reopen the contempt of court proceedings. At that stage, the respondents had filed a counter affidavit and had submitted that necessary orders have already been passed in compliance with Ext.P-20 judgment and copy of the said order stated to have been passed in compliance of the said judgment was produced therein and in the light of the said stand taken by the respondents, the contempt of court case was closed as per Ext.P-23 order dated 6.3.2015, wherein liberty was grated to the petitioners to take appropriate action for challenging the said order passed by the respondents, etc. Ext.P-21 dated 10.7.2012 is stated to be the order of rejection passed by the 2[nd] respondent in compliance with the directions in Ext.P-20 judgment W.P.(C).25562/15 - : 8 :- rendered by the Division Bench. By Ext.P-21, a composite order has been passed, thereby rejecting the claims separately made by each of the petitioners as per Exts.P-9, P-11 and P-13 seeking reference of the matter to the L.A.R. Court under Sec.28A(3). It is this order at Ext.P-21 that is essentially under challenge in the present writ proceedings. Since the impugned rejection order has been passed in exercise of the statutory powers conferred under Sec.28A(2) of the Land Acquisition Act, 1894, the respondents can succeed or fail only on the basis of the validity of the grounds of rejection disclosed in the impugned rejection order. Though Ext.P-21 consists of five paragraphs, only the last paragraph (Para 5) gives the ground of rejection and the same reads as follows: “As per L.A. Act and rules Section 28A(3) refer to those who had not accepted the award u/s 28A in this case. In this case Sec. 28A applications themselves were rejected by the LAO. Therefore, in this case 28A application is not sustainable. Hence the application u/s 28A(3) of the land acquisition Act filed by Sri.Madath Parakka Muhammed Sali Haji and others is hereby rejected.” On a bare perusal of the grounds for rejection stated in the impugned Ext.P-21 rejection order, it is only to be noted that the said grounds do not disclose any relevant, germane or tenable considerations for rejecting the request of the petitioners as per Ext.P-9, P-11 and P-13. A claimant will get competence to make a request under Sec.28A(3) of the L.A.Act, 1894, only if his W.P.(C).25562/15 - : 9 :- application under Sec. 28A(1) is rejected by the LAO. True that Sec. 28A is available only to those who had not chosen to prefer Sec.18 (1) reference for enhancement at the relevant time and they seek redetermination of compensation on the basis of L.A.R. judgments that may be passed subsequently by the L.A.R. Court in the case of other claimants whose lands are covered by the very same notification. Therefore, the first sentence of para 5 of Ext.P-21 does not disclose any tenable ground of rejection except to state the legal position in the matter, about which there is no dispute. The second sentence of para 5 of the rejection order says that Sec.28A applications submitted by the petitioners herein were rejected in the LAO. Presumably it refers to Sec.28A(1) applications submitted by the petitioners and there is no dispute whatsoever for the petitioners that those applications have been rejected. It is only on rejection of such Sec.28A(1) application that the petitioners will get competence to prefer a request for referring the matter for redetermination of compensation to the L.A.R. Court as envisaged in Sec.28A(3). Therefore, the abovesaid second sentence also will not take us anywhere. It is only on this basis that it is further stated therein that “Therefore, in this case the Sec.28A application is not sustainable”. Hence ex facie, none of the grounds stated in Ext.P-21 are W.P.(C).25562/15 - : 10 :- tenable or relevant for upholding the rejection of the request of the petitioners as per Ext.P-21. However, the learned Senior Govt. Pleader has urged that what is meant to be conveyed by the LAO in the last paragraph of Ext.P-21 is that Sri.Muhammed Sali Haji (husband of the 1[st] petitioner) had earlier submitted an application under Sec. 28A(1), prior to the submission of Exts.P-1 to P-5 applications for the properties covered by Ext.P-1 to P-5 and that the said application was rejected and that therefore a second application cannot be entertained. But it is to be noted that assuming that even if such a factual plea is actually available to the 2[nd] respondent, then he should have cogently and precisely stated so in the impugned rejection order. It is by now too well established that when a statutory authority passes an order based on certain grounds, its validity or otherwise must be judged by the grounds so mentioned and the same cannot be supplemented by fresh grounds in the shape of affidavit or otherwise, as otherwise, an order which is bad in the beginning may, by the time it comes to judicial forum on account of a challenge, will get validated by additional grounds later brought out. It was so clearly held in one of the earlier decisions of the Apex Court in the celebrated case in Commissioner of Police v. Gordhandas BhanJi, reported in AIR 1952 SC 16 (para 9) W.P.(C).25562/15 - : 11 :- ## = 1952 SCR 16 = 1951 SCJ 803, as follows: "9....... Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in Ms mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself." Later, in the yet another celebrated decision in Mohinder Singh Gill ## v. Chief Election Commissioner, Justice V.R.Krishna Iyer, speaking on behalf of the Bench, reported in (1978) 1 SCC 405, para 8, held as follows: '8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought ,out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji [AIR 1952 SC 16] _"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in Ms mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."_ Orders are not like old wine becoming better as they grow older'. ## True that it is stated in para 5 of the counter affidavit dated ## 5.4.2016 filed by the respondents in this matter as follows: “5. The application u/s.28A of the LA Act filed by the petitioner, dt.21.07.95 was rejected by the then Land Acquisition Officer through proceedings No.Ref.F-858/99, dt.31.02.01, stating W.P.(C).25562/15 - : 12 :- that the land in question and the land in L.A.R.96/92 are not similar and similarly situated.” However, it is further stated therein as follows: “Aggrieved by this, the petitioner had filed an application u/s 28A(3) of the LA Act and the matter was referred to the Sub Court, Payyanur as L.A.R.76/07. In the above reference the Sub Court, Payyanur as per Judgment, dt.31.10.08 enhanced the compensation amount as Rs. 1500/- per cent.” Therefore, the latter part of para 5 of the counter affidavit clearly shows that the former part of the said pleading is in relation to a matter which has already been referred under Sec.28A(3) to the L.A.R. Court concerned and it has also resulted in the enhancement of compensation. Therefore, it is only to be held that the said averments in para 5 of the counter affidavit are not in relation to any of the items of properties covered by Ext.P-1 to P-5 applications and presumably it can only be in relation to some other properties of late Muhammed Sali Haji. Therefore, even otherwise the abovesaid pleadings will not be of any aid to the respondents in justifying the impugned order. Moreover, as already found herein above, such a ground of rejection, which does not find a place in the impugned order, cannot be pressed into service by urging such supplemental grounds by taking recourse to subsequent pleadings as held in Gordhandas BhanJi's case supra. Therefore, it is only to be held that there are no valid and proper grounds for rejecting the request of the W.P.(C).25562/15 - : 13 :- petitioners as sought to be made in Ext.P-21. 7. It is also to be noted that the impugned rejection as per Sec.28A(1) has been made in the instant case as per Exts.P-8, P-10 and P-12 respectively in the case of the 3 petitioners. In Ext.P-8 it was stated that the relied on judgment/award in L.A.R.No. 120/ 1987 was originally pronounced on 20.3.1990 and that the period of limitation of 3 months as envisaged Sec. 28A(1) is to be reckoned with reference to the original judgment. It is common ground that the said judgment of the L.A.R. court was set aside by this Court in Land Acquisition Appeal No.229/1992 and the matter was remitted to the L.A.R. court for disposal afresh, which resulted in a revised judgment/award dated 3.9.1997 in L.A.R.No.120/1987. It has been categorically held by the Division Bench of this Court in para 20 of the ruling in District Collector v. Muhammed Kunji, reported in 2012(4) KLT 360, that if an award is passed by the Reference Court after remand of the matter by the appellate court, it is also an award under Sec. 28A. Therefore, in a case where relief for enhancement is pressed on the basis of the revised award/judgment, then the period of limitation of 3 months as envisaged in Sec. 28A(1) is to be counted with reference to revised judgment/award and not the original judgment/award. Therefore, the 2[nd] respondent has no case W.P.(C).25562/15 - : 14 :- whatsoever that Sec. 28A(1) application of the 1[st] petitioner was time barred vis-a-vis the revised judgment/award of the L.A.R. Court and the only ground of rejection stated therein is that it was time barred vis-a-vis the original judgment/award. So also the impugned Exts.P-10 and P-12 do not make out any case whatsoever that the Sec.28A(1) applications from 2[nd] and 3[rd] petitioners were in any manner time barred vis-a-vis the revised judgment/award of the L.A.R. Court. These aspects are examined by the court only to ensure whether the 2[nd] respondent has got any such case as regards the time bar of Sec. 28A(1) application. 8. In the result, it is only to be held that the impugned rejection order at Ext.P-21 is clearly illegal and ultra vires and the same is quashed. Exts.P-9, P-11 and P-13 applications will stand restored before the 3[rd] respondent. The 3[rd] respondent is directed to refer those applications to the L.A.R. Court concerned (Sub Court, Payyannur) as envisaged in Sec. 28A(3). The 3[rd] respondent shall refer the abovesaid applications of the petitioners to the L.A.R. Court within a period of 6 weeks from the from the date of production of a certified copy of this judgment. It is made clear that all factual and legal issues are left open to be considered and decided by the L.A.R. Court after granting a reasonable opportunity W.P.(C).25562/15 - : 15 :- of being heard to both sides. In view of the long pendency of the matter it is ordered that the L.A.R. Court shall dispose of this matter within a period of six months from the date of receipt of the records from the Land Acquisition Officer. With these observations and directions, the aforecaptioned Writ Petition (Civil) stands finally disposed of. sdk+ Sd/ALEXANDER THOMAS, JUDGE ///True Copy/// P.S. to Judge