Kerala High Court

The Special Tahsildar vs The Special Tahsildar on 18 February, 2021

W.A. No. 1822/2010                      : 1:


                     IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT

            THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                       &

                 THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

       THURSDAY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942

                            WP(C).No.1822 OF 2010(C)

PETITIONER/RESPONDENT:

               THE SPECIAL TAHSILDAR, LAND ACQUISITION,
               INTERNATIONAL AIRPORT, PALLIMUKKU,, PETTAH P.O.,
               THIRUVANANTHAPURAM.

               SRI. ARAVIND KUMAR BABU SR. GOVERNMENT PLEADER

RESPONDENTS/COMPLAINANTS:

       1       CHANDRAMATHY, T.C.31/1537, KSEB JUNCTION,
               PETTAH P.O., THIRUVANANTHAPURAM.

       2       A.SARASWATHY T.C.31/1537,
               KSRB JUNCTION, PETTAH P.O., THIRUVANANTHAPURAM.

       3       A.SUBHADRA T.C.31/1537, KSRB JUNCTION
               PETTAH P.O., THIRUVANANTHAPURAM.

       4       THE LOK AYUKTA THIRUVANANTHAPURAM.

               R1    BY ADV. SRI.M.AJAY IRUMPANAM
               R1    TO R4 BY ADV. SRI.HARISH GOPINATH
               R1    BY ADV. SMT.KVP.JAYALEKSHMY
               R1    BY ADV. SRI.R.S.KALKURA
               R1    BY ADV. SRI.M.S.KALESH
               R1    BY ADV. SMT.A.V.PRIYA
               R1    BY ADV. SRI.V.VINAY MENON




      THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-02-2021,
      THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A. No. 1822/2010                  : 2:



                                                            'CR'
             Dated this the 18th day of February, 2021.

                                JUDGMENT

SHAJI P. CHALY, J.

This writ petition is filed by the Special Tahsildar, Land

Acquisition, International Airport, Thiruvananthapuram, challenging

the order dated 05.08.2009 passed by the Lokayukta in Complaint No.

599 of 2008. The subject issue raised by respondent Nos. 1 to 3 in the

writ petition before the Lokayukta was that the property having an

extent of 7.5 cents belonging to the respondents was acquired by the

writ petitioner as per proceedings bearing LAC No. 114/99 on the files

of the petitioner-Tahasildar.

2. The case projected by the respondents was that award notice

was served on them on 23.06.2003 and they have filed a reference

application under Section 18 of the Land Acquisition Act, 1894 ('Act,

1894' for short) on 17.07.2003 before the writ petitioner. However, in

spite of that, no steps were taken to refer the matter to the Reference

Court in terms of the provisions of Act, 1894 and thus, sought

appropriate orders. The writ petitioner objected to the relief sought for

by the respondents contending that though a reference application was

filed under Section 18 of the Act, 1894, the same was not in time

prescribed under law and hence, the reference was not made to the

competent court.

3. Therefore, the question that arose for consideration before

the Lokayukta was whether the reference application given by the

respondents was in time as is provided under Section 18 of Act, 1894.

Along with the complaint, respondents have filed Ext. P2 dated 17-07-

2003, which is alleged to be the objection filed by them on receiving

notice under Section 12(2) of the Act 1894 stating that the award

amount was received under protest and that the respondents are

entitled to get the land value at the rate of Rs.3,00,000/- per cent and

accordingly, requested that reference may be made to the Sub Court

for adjudication in accordance with the provisions of the Act, 1894.

4. The Lokayukta apparently has also gone through the files

pertaining to the acquisition in question and found at page 39 of the

files, the objection given by the respondents to the notice under

Section 12(2), but it did not contain the signatures of the respondents,

however it bears the date 24.06.2004. Therefore, the LokAyukta,

arrived at the finding that on the basis of the data available in the

objection dated 24.06.2004, the application for reference can only be

said to be beyond time and it was also seen that the application for

reference given by the complainants in form No. 22A bears signature

of the complainants, but there is no date in that application for

reference. Therefore, it also arrived at the conclusion that there is no

possibility to see from the application for reference given under form

No.22A of Land Acquisition (Kerala) Rules, 1990, the date on which

that application was given.

5. However, bearing in mind those facts, the Lokayukta entered

a finding that since the applications available in the file produced by

the Government are not in terms of law, the only course open to it is

to accept the date given in Ext. P2 objection dated 17.07.2003 filed by

the respondents along with the complaint as the date on which the

objection to Section 12(2) notice requesting to refer the matter to the

Sub Court was given and accordingly, held that the said reference

application can be said to be within the time and thereupon, the writ

petitioner--Tahsildar was directed to make a reference to court under

Section 18 of Act, 1894. It is, thus, challenging the legality and

correctness of the order passed by the Lokayukta, the writ petition is

filed raising the contentions as hereunder.

6. That the Lokayukta has no jurisdiction to pass the impugned

order; that in a number of judgments, it was held by this Court that

the Lokayukta has no power to adjudicate the matters involving factual

issues and pass unreasonable orders; that the LokAyukta has no

power to pass executable orders; but rather it has only power to direct

the Government to redress the grievance of an aggrieved person. It

was also significantly contended that even though the Lokayukta

accepted the date mentioned in Ext.P2 objection filed by respondents,

it has no evidentiary value and therefore sought to quash Ext.P1 order.

7. A detailed counter affidavit is filed by the party respondents

reiterating the statements contained in Ext. P2 objection produced

before the Lokayukta, which is also produced as Ext.R1(f) before this

Court. Ext.R1(f) bears the date 17.07.2003. Since the issue involved

was apparently found to have some complex circumstances, in order

to identify whether there is evidence with respect to any valid

objection filed by the respondents against the award passed by the

writ petitioner--Tahsildar under Section 12(2) of the Act, 1894, we

have directed the learned Government Pleader to produce the original

files of the acquisition proceedings in question before this Court.

Accordingly, the file relating to LAC No. 114/99 were produced before

us and we have gone through the file, and we could see an objection

dated 24.06.2004, which is not signed by the respondents, which is

substantially a copy similar to Ext.R1(f). Two Copies of the said

objection are also seen in the file. However, we could not find any

objection in the Original files dated 17.07.2003 relied upon by the

Lokayukta to arrive at the conclusion that the objection was filed

within time as is contemplated under Section 18 of the Act, 1894.

8. It is an admitted fact that if the date 24.06.2004 is reckoned

as the date of objection submitted by the respondents, there can be

no doubt that the said objection is not within the time prescribed

under Section 18 of the Act, 1894. In fact, on going through the order

of the Lokayukta, it is clear that the Lokayukta also realized the said

situation, however, without any elaborate discussion on the aspect as

to whether the objection dated 17.07.2003 was forwarded by the

respondents and received by the competent authority, it has arrived at

an abrupt conclusion that, it is the only way out to protect the interest

of the respondents. The said approach made by Lokayukta, according

to us, was not a legal approach to the issue, since in our considered

opinion, the issue is guided by Sections 12 and 18 of the Act, 1894

and they read thus:

"12. Award of Collector when to be final. - (1) Such award shall be filed

in the Collector's office and shall, except as hereinafter provided, be final and conclusive evidence, as between the Collector and the persons interested, whether they have respectively appeared before the Collector or not, of the true area and value of the land, and the appointment of the compensation among the persons interested.

(2) The Collector shall give immediate notice of his award to such of the persons interested as are not present personally or by their representatives when the award is made.

18. Reference to Court. - (1) 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 Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested.

(2) The application shall state the grounds on which objection to the award is taken:

Provided that 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 12, sub-section (2), or within six months from the date of the Collector's award, whichever period shall first expire."

9. A reading of Section 12(1) of Act, 1894 would clearly show

that the award passed by the Collector under Section 11 shall be filed

in the Collector's office and it will be final and conclusive evidence as

between the the Collector and the persons interested, whether they

have respectively appeared before the Collector or not, in regard to

the true area and value of the land, and the apportionment of the

compensation among the persons interested. However, sub-section (2)

thereto makes it clear that the Collector has to give immediate notice

of his award to such of the persons interested and who are not present

personally or to their representatives when the award was made by

the Collector.

10. The question really arises in this regard is as to whether the

provisions contained under Section 18 of Act, 1894 dealing with

'reference to court and the procedure thereof' is mandatory and

imperative in nature. Sub-section (1) of Section 18 specifies that any

person interested and who has not accepted the award passed by the

Collector by written application to the Collector, require that the matter

be referred by the Collector for the determination of the Court,

whether his objection is as to the measurement of the land, the

compensation awarded, the person to whom it is payable, or the

apportionment of the same among the persons interested.

11. On an analysis of the proviso extracted above, it is clear

that if and when a person who makes the application was present or

represented before the Collector at the time when the award was

made, it shall be made within 6 weeks from the date of the Collector's

award and in other cases within six weeks of the receipt of the notice

from the Collector in contemplation of sub-Section (2) of Section 12,

or within six months from the date of the Collector's award, whichever

period shall first expire.

12. Therefore, it is clear that there are 3 methods prescribed in

regard to making of the application objecting to the award passed by

the Collector as specified above. Now, on appreciation of the order

passed by the Lokayukta, it is clear that Lokayukta was also of the

opinion that there was no proper application in accordance with law in

the files of the Collector which could be referable as an objection filed

by the respondents. It is also relevant to note in the context that, the

Lokayukta, has clearly found that the objection said to be filed by the

respondents is dated 24.06.2004, which is undoubtedly a period

outside the scope of the provisos to Section 18(2) of the Act, 1894,

since the award notice was admittedly served on the respondents on

23.06.2003. It was, accordingly, that the Lokayukta relied upon the

objection said to be filed by the respondents before the Collector,

evident from Ext. R1(f) dated 17.07.2003 without ascertaining and

inquiring as to whether such an application/objection was made by the

respondents before the Collector. In fact, there was no evidence at all

before the Lokayukta for the making of the said application before the

competent authority, objecting to the award passed by the Collector.

13. Even though the respondents have filed a detailed counter

affidavit in the writ petition, no documents are produced to show that

the application/objection dated 17.07.2003 was made by the

respondents before the Collector. As pointed out above, we have

verified the original files in question and we also could not locate any

such objection in the original files. However, it is true, we could also

see an application for making reference to the court submitted under

Form 22A of Rule 16A of the Kerala Rules; but, it does not contain any

date though seen signed by the respondents which also contains the

date of award as 25.06.2003, which in fact, is a composite standard

form provided for seeking a reference under Sections 18 and 28A of

the Act, 1894. In this context, it is profitable to extract form No. 22A,

which reads thus:

FORM No. 22A

[See Rule 16A]

Application for reference to Courts under sub-section (1) of Section 18 and sub- section(3) of Section 28A of the Land Acquisition Act, 1894.

(To be filled in triplicate)

1. Name and address of Applicant/s.

2. Land Acquisition Case No.

3. Award No. and date of award under Section 11.

4. Amount of compensation awarded.

5. Date of receipt of notice of award in Form No. 10(b) by the Applicant/s

6 Date of receipt of compensation by the Applicant/s.

7.Whether the compensation amount was received under protest or not

8. Ground on which objection to the award is filed. (Use additional sheets, if necessary)

9. If the application is under sub-section (3) of Section 28A give the following details also--

1. No. and date of Award under sub-section (2) of Section 28A of the Act.

2. Whether the compensation was redetermined.

3. Whether protest was recorded on the decision of the Collector.

4. Grounds on which the objection to the Award is filed.

Place:

Date:                                             Signature of the Applicant

                     Acknowledgement

I, hereby acknowledge the receipt of application filed by Shri/Smt...............The same has been entered in the register of reference applications as Serial No........

Signature of the Land Acquisition Officer with date

(Office Seal)]"

14. Having admitted the date of receipt of the award as

25.06.2003, at any stretch of imagination, it can only be concluded

that the applications seen in the files are outside the period of

limitation prescribed under the proviso to Section 18(2) of the Act,

1894.Therefore, in our considered opinion, the Lokayukta absolutely

overlooked the imperative conditions contained under Section 18 of

Act, 1894, and without any evidence to the objection dated

17.07.2003 made to the Collector, merely to save the respondents

from the harsh requirements of law, accepted the contention of the

respondents that such an objection was submitted by the respondents

before the Collector. We also have no doubt in our mind to say that the

burden of proof of making the objection was on the respondents which

was not discharged even prima facie .

15. As we have pointed out above, the proviso to Section 18(2)

is mandatory in all respects. A reference to a few of the decisions

would make the situation very clear. The relevance and importance of

the proviso to Section 18(2) of Act, 1894 is very well reflected in the

judgment of a learned single Judge of this Court in Mahalekshmi

Jayanthi v. State of Kerala [1989(1) KLT 875]. Paragraph 8 of the

said decision reads thus:

"8 . As per S.18 of Act 1 of 1894, any person interested who has not accepted the award may, by a written application to the Collector, require that the matter be referred by the Collector for determination of the Court. It contemplates a written application to the Collector. Clause (2) of that section together with the proviso makes it clear that the said application to the Collector should be within six weeks from the date of receipt of the notice under S.12. A reading of the above

provisions proves beyond doubt that the written application should be to the Collector and it must be within the period prescribed in the section. This means that the application should reach the Collector within the period fixed therein. Can an application entrusted with the postal authorities for being delivered to the Collector within the period prescribed by the Act 1 of 1894 but delivered to the Collector after the expiry of the period be taken as a reference application contemplated by the section? Learned counsel appearing for the petitioner brought to my notice the decision in Achuthan v. State of Kerala (1982 KLT

466) in support of his argument that the reference application posted before the expiry of the period is a valid reference application even if it reaches the Collector beyond the said period. Since a different view has been taken by a Division Bench of this Court in State of Kerala v. C.R.Viran (1984 KLT 837), the above decision cannot help the petitioner. The Division Bench after analysing the provisions of S.20 of the Kerala Land Acquisition Act which is on identical terms as S.18 of Act 1 of 1894, laid down the following requirements to satisfy a valid reference application: (1) a person interested in the award, but who has not accepted it; (2) a written application by such a person to the Collector; (3) a prayer in that application that the matter be referred to court; (4) specification in the application of the grounds of objection and (5) making of it within the time prescribed. As regards requirements (1), (2), (4) and (5) their Lordships took the view that the law is practically settled that no reference at all could be made to civil court in their absence. It means that the person interested in the award should file a written application to the Collector, specifying his ground of objection, within the time prescribed by the Statute. From this it is clear that the reference application should be to the Collector within the time prescribed by the statute. It cannot be to the post office, as contended by the petitioner. This aspect can be examined in another angle. Take a case where the petition is lost in transit. Can that petition be treated as a proper petition?

The applicant has done whatever is possible by him. Can he be made to suffer for the laches of the postal authorities? The answer is quite

evident. Such an application is not one coming under the purview of S.18. If the application is not made to the Collector there cannot be a reference to court. For a valid reference the application to Collector must be within the period prescribed. In these circumstances I have no hesitation in holding that the reference application under S.18 of Act 1 of 1894 should be to the Collector, within the period prescribed by the provisos to clause (2) of that Section. Since the reference application, Ext.P6 was received by the second respondent on 8-8-1984 only, it was beyond the period fixed by the Section. Consequently, the second respondent was justified in refusing to refer the matter to the civil court. Ext.P7 order of the second respondent calls for no interference."

16. Likewise, the Hon'ble Supreme Court had occasion to

consider the question of limitation prescribed under Section 28A of the

Act, 1894, which is almost typical to the proviso to Section 18(2) of

the Act, 1894 in regard to the redetermination of the compensation, a

statutory benefit available to an aggrieved person who has not filed an

application under Section 18 of the Act, 1894, in the decision in Popat

Bahiru Govardhane and ors. V. Special Land Acquisition Officer

& Ors. [(2013) 10 SCC 765]. Paragraphs 13 to 16 are relevant to the

context, which read thus:

"13. This Court in Union of India v. Mangatu Ram [(1997) 6 SCC 59 : AIR 1997 SC 2704] and Tota Ram v. State of U.P. [(1997) 6 SCC 280] dealt with the issue involved herein and held that as the Land Acquisition Collector is not a court and acts as a quasi-judicial authority while making the award, the provisions of the 1963 Act would not apply and, therefore, the application under Section 28-A of the Act, has to be filed within the period of limitation as prescribed under Section 28-A of the Act. The said provisions require that an application for

redetermination is to be filed within 3 months from the date of the award of the court. The proviso further provides that the period of limitation is to be calculated excluding the date on which the award is made and the time requisite for obtaining the copy of the award.

14. In State of A.P. v. Marri Venkaiah [(2003) 7 SCC 280 : AIR 2003 SC 2949] , this Court reconsidered the aforesaid judgments including the judgment in Harish Chandra Raj Singh [AIR 1961 SC 1500] and held that the statute provides limitation of 3 months from the date of award by the court excluding the time required for obtaining the copy from the date of award. It has no relevance so far as the date of acquisition of knowledge by the applicant is concerned. In view of the express language of the statute, the question of knowledge did not arise and, therefore, the plea of the applicants that limitation of 3 months would begin from the date of knowledge, was clearly unsustainable and could not be accepted. The Court also rejected the contention of the applicants that a beneficial legislation should be given a liberal interpretation observing that whosoever wants to take advantage of the beneficial legislation has to be vigilant and has to take appropriate action within the time-limit prescribed under the statute. Such an applicant must at least be vigilant in making efforts to find out whether the other landowners have filed any reference application and if so, what is the result thereof. If that is not done then the law cannot help him. The ratio of the judgment in Harish Chandra Raj Singh [AIR 1961 SC 1500] was held to be non-applicable in case of Section 28-A of the Act. The Court observed: (Marri Venkaiah case [(2003) 7 SCC 280 : AIR 2003 SC 2949] , SCC pp. 284-85, paras 11-12)

"11. ... In that case, the Court interpreted the proviso to Section 18 of the Act and held that clause (a) of the proviso was not applicable in the said case because the person making the application was not present or was not represented before the Collector at the time when he made his award. The Court also held that notice from the Collector under Section 12(2) was also not issued, therefore, that part of clause (b) of the proviso would not be applicable. The Court, therefore, referred to the second part of the proviso which provides that such application can be made within six months from the date of the Collector's award. In the context of the scheme of Section 18 of the Act, the Court held that the award by the Land Acquisition Officer is an offer of market price by the

State for purchase of the property. Hence, for the said offer, knowledge, actual or constructive, of the party affected by the award was an essential requirement of fair play and natural justice. Therefore, the second part of the proviso must mean the date when either the award was communicated to the party or was known by him either actually or constructively.

12. The aforesaid reasoning would not be applicable for interpretation of Section 28-A because there is no question of issuing notice to such an applicant as he is not a party to the reference proceeding before the court. The award passed by the court cannot be termed as an offer for market price for purchase of the land. There is no duty cast upon the court to issue notice to the landowners who have not initiated proceedings for enhancement of compensation by filing reference applications; maybe, that their lands are acquired by a common notification issued under Section 4 of the Act. As against this, under Section 18 it is the duty of the Collector to issue notice either under Section 12(2) of the Act at the time of passing of the award or in any case the date to be pronounced before passing of the award and if this is not done then the period prescribed for filing application under Section 18 is six months from the date of the Collector's award."

(emphasis added) A similar view has been reiterated by this Court in Des Raj [(2004) 7 SCC 753 : AIR 2004 SC 5003] and Chitrasen Bhoi [(2009) 17 SCC 74] .

15. In view of the above, there is no occasion for us to consider the judgments cited at the Bar on behalf of the appellants in support of its case. More so, the said judgments have been delivered by this Court while dealing with the applications under Section 18 of the Act. If there are directly applicable precedents on the issue, the same have to be followed rather than to search for a new interpretation unless it is established that the earlier judgments require reconsideration. The suggestion of reconsideration has specifically been rejected by this Court in Marri Venkaiah [(2003) 7 SCC 280 : AIR 2003 SC 2949] .

16. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The court has no power to extend the period of limitation on equitable grounds. The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a statute. "A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation."

(See Martin Burn Ltd. v. Corpn. of Calcutta [AIR 1966 SC 529] , AIR p. 535, para 14 and Rohitash Kumar v. Om Prakash Sharma [(2012) 13 SCC 792 : AIR 2013 SC 30] .)".

17. Therefore it can be seen that the law is trite and well

defined so far as the issue at hand is concerned and the land

acquisition authority not being a court, has no power to condone the

delay. Though a legal contention is also raised with respect to the

power of Lokayukta to entertain such aspects as that of the one at

hand, we have no hesitation to hold that if any valid application was

submitted and it was kept pending for several years without being

referred, it can only be seen and legally presumed that the act and the

conduct of the concerned official is nothing but maladministration,

which can be taken note of by the Lokayukta in terms of the provisions

of the Lokayukta Act. Whatever that be, taking into account the factual

and legal aspects discussed above, we have no hesitation to hold that