Yasoda v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 26TH DAY OF FEBRUARY 2019 / 7TH PHALGUNA, 1940** **WP(C).No. 5728 of 2019** ## **PETITIONER:** **YASODA, AGED 52 YEARS, W/O LATE VIVEKANANDAN, THEKKEVEENASSERIL VEEDU, MANGADU P.O.MANGADU VILLAGE, KOLLAM DISTRICT.** **BY ADVS. SRI.BINU GEORGE SMT.HEMALATHA** ## **RESPONDENTS:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY SECRETARY TO REVENUE DEPARTMENT,**| ||**SECRETARIAT, THIRUVANANTHAPURAM PIN 695 001.**| |**2**|**THE SPECIAL TAHSILDAR,**| ||**.LAND ACQUISITION, (NATIONAL HIGHWAYS), CIVIL**| ||**STATION, KOLLAM PIN 691 013.**| |**3**|**THE EXECUTIVE ENGINEER,**| ||**N.H.DIVISION, KOLLAM PIN 691 001.**| |**4**|**DISTRICT COLLECTOR,**| ||**CIVIL STATION, KOLLAM PIN 691 013**| ||**SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## ALEXANDER THOMAS, J. ---------------------------------- ## W.P.(C)No. 5728 of 2019 ---------------------------------Dated this the 26[th] day of February, 2019 ## J U D G M E N T The petitioner is aggrieved by the impugned Ext.P-3 order dated 26.3.2009 issued by the 2[nd] respondent Land Acquisition Officer whereby her Ext.P-2 application dated February, 2009 filed u/s 28A of the Land Acquisition Act, 1894 has been rejected on the ground that the same is barred by limitation. The prayers in the above Writ Petition (Civil) are as follows: “ - A) Call for the entire records leading to Exhibit P8 and P9 and quash the same by issuing a writ of certiorari or any other appropriate writ order or direction. - B) Issue a writ of mandamus or any other appropriate writ, order or direction thereby direct the respondents to permit the petitioner to complete the construction of the house in Exhibit P2 property and further direct them not to interfere with the petitioner's possession over the said property. - C) Grant such other reliefs which are just and necessary in the interest of justice.” 2. Smt.Hemalatha, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents. 3. The matter in issue is covered in favour of the petitioner by judgments in cases as in _**Thankappan v.**_ W.P.(C).No.5728 /2019 **==> picture [19 x 9] intentionally omitted <==** _**Raghavan [1993 (2) KLT 456],**_ Ext.P-4 judgment dated 28.11.2018 rendered by this Court in WP(C).No.37316/2018, etc. In the instant case, after the rendering of the order by the LAO in the Land Acquisition Case of the petitioner, she had not filed any application for reference seeking enhanced compensatory benefits u/s 18 of the Land Acquisition Act, 1894. According to the petitioner, Ext.P-1 common judgment/award dated 30.9.2008 by the LAR Court concerned (Court of Additional Sub Judge, Kollam) on LAR No.12/1997 and LAR No.152/1996m, which according to the petitioner is a better award in respect of claims under similarly situated lands covered by the very same notification, in which the petitioner's land was also acquired. Claiming the higher compensatory benefits on the basis of Ext.P-1 award, the petitioner has filed Ext.P-2 application dated 12.3.2009 u/s 28A(1) of the Land Acquisition Act, 1894 requesting the 2[nd] respondent LAO to grant such higher compensatory benefits to her also on the basis of the better award as per Ext.P-1.The said request as per Ext.P-2 was rejected by impugned Ext.P-3 order dated 26.3.2009 issued by the W.P.(C).No.5728 /2019 ..4.. 2[nd] respondent LAO on the ground that the same is barred by limitation. In the instant case, Ext.P-1 award was passed by the LAR Court on 30.9.2008. The petitioner had submitted application for grant of certified copy of the said judgment before the said Court on 6.10.2008 and the same was rejected initially due to non production of the stamp by the petitioner within the called for time. Immediately thereafter the petitioner had filed application for restoring her abovesaid copy application No.2656 dated 6.10.2008 and the same was allowed and the said copy application was restored by the LAR Court on 21.1.2009 and the stamp was called on 28.1.2009 and the same was produced by the petitioner on 31.1.2009 and certified copy of Ext.P-1 judgment/award was ready on 7.2.2009 and the petitioner was notified to be received on 11.2.2009 and thereafter the petitioner's counsel received and certified copy of the judgment was delivered to the petitioner on 11.2.2009 and immediately thereafter the petitioner has filed Ext.P-2 application in 12.3.2009 itself. 4. This Court in the case in _**Thankappan v. Raghavan**_ W.P.(C).No.5728 /2019 **==> picture [18 x 9] intentionally omitted <==** _**[1993 (2) KLT 456],**_ has held in para No.9 thereof that the period before the dismissal of the copy application and its restoration can be considered as time requisite for getting a copy within the meaning of Sec.12 of the Limitation Act and when the Court grants the request for restoration of copy application, the original application gets revived and for all purposes, the period of limitation has to be computed on the basis of the copies obtained on that application with reference to the date of that copy application. Further this Court has also held in para No.10 of the said judgment in _**Thankappan v. Raghavan [1993 (2) KLT**_ _**456],**_ that this does not mean that any request for restoration of copy application should necessarily be allowed by the Court, certified copies and printed copies being granted on the basis of such application and if a request of restoration is made within the time allowed for filing an appeal, then there may not be any difficulty and the party concerned will not be deprived of any right. The position is different in a case where time to file an appeal has run out by the date of filing of the application for restoration. In W.P.(C).No.5728 /2019 ..6.. such cases, jurisdiction to restore to file an application which was dismissed for default should be exercised only after notice to opposite party and the gist of condonation to be dealt with on the principles analogous to those on which the application u/s 5 of the Limitation Act will be dealt with. Paragraph 9 & 10 of _**' Thankappan s**_ case supra reads as follows: “ _9. I am in respectful agreement with the views of the Madras High Court and the High Court of Andhra Pradesh in the decisions cited above. I am therefore of the view that the period between the dismissal of a copy application and its restoration can be considered as time requisite for getting a copy within the meaning of S.12 of the Limitation Act. When the court grants the request for restoration of the copy application the original application gets revived and for all purposes the period of limitation has to be computed on the basis of the copies obtained on that application with reference to the date of that copy application._ _10. This does not mean that every request for restoration of a copy application should be allowed by the court and certified copies and printed copies be granted on the basis of such applicants. The Madras High Court in Hari Prasad's case (supra) has pointed out that one of the factors that has to be taken note of is whether the restoration will affect the rights of the opporite party. If a request for restoration is made within the time limit allowed for filing an appeal there may not be any difficulty and the opposite party will not be deprived of any rights. But the position is different in a case where the time to file an appeal has run out by the date of filing the application for restoration. In such cases, as observed by the Madras High Court in Hari Prasad's case the jurisdiction to restore to file an application dismissed for default should be exercised only after notice to the opposite side and the question of condonation has to be dealt with on the application of principles analogous to those on which the application under S.5 of the Limitation Act will be dealt with. ”_ W.P.(C).No.5728 /2019 **==> picture [18 x 9] intentionally omitted <==** 5. So going by the facts of this case, it can be seen that though the copy application dated 6.10.2008 was initially rejected for non production of stamps the same has been restored on 21.1.2009 and so it is evidently clear that the request of restoration has been made well within the period of limitation of 3 months prescribed in Sec.28A(1) and hence the period of limitation in the instant case has to be computed on the basis of certified copy obtained on such application with reference to the date of such copy application dated 6.10.2008. It is beyond dispute that the certified copy of Ext.P-1 judgment was received on 11.2.2009 and immediately thereafter, Ext.P-2 application as is acknowledged in Ext.P-3 order dated 26.3.2009. Hence it is only to be held that Ext.P-2 application u/s 28A(1) is well within the prescribed period of 3 months and the rejection order as per Ext.P-3 is illegal and ultra vires. Accordingly the impugned Ext.P-3 rejection order dated 26.3.2009 will stand set aside. Ext.P-2 application dated 12.3.2009 filed by the petitioner u/s 28A(1) will stand remitted to the 2[nd] respondent LAO/Special Tahsildar (LA) who will afford a W.P.(C).No.5728 /2019 ..8.. reasonable opportunity of being heard to the petitioner and then will take a considered decision thereon in accordance with law, taking into consideration Ext.P-1 judgment, without much delay preferably within a period of 3 months from the date of production of a certified copy of this judgment. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG W.P.(C).No.5728 /2019 ..9.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **A TRUE COPY JUDGMENT DATED 30.9.2008 IN AS LAR 12/1997 AND LAR 152/1996 BEFORE THE ADDITIONAL SUBORDINATE JUDGE, KOLLAM** **EXHIBIT P2** **A TRUE COPY OF APPLICATION UNDER SECTION 28A OF THE LAND ACQUISITION ACT FILED BY THE PETITIONER ALONG WITH OTHER LEGAL HEIRS.** **EXHIBIT P3 A TRUE COPY OF PROCEEDINGS IN EXT P2 APPLICATION** **EXHIBIT P4 A TRUE COPY OF JUDGMENT DATED 28.11.2018 IN WPC NO 37316/2018**