T.R.Thomas vs State Of Kerala
2021 Latest Caselaw 278 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

           THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

   WEDNESDAY, THE 06TH DAY OF JANUARY 2021 / 16TH POUSHA, 1942

                      W.P.(C) No.28515 OF 2020(L)


PETITIONER/S:

                T.R.THOMAS,
                AGED 75 YEARS,
                S/O. RAFFEL,
                THOTTIYIL HOUSE,
                KALOOR P. O.,
                ERNAKULAM - 682 017.

                BY ADVS.
                SRI.THOMAS JOHN AMBOOKEN
                SRI.B.SAJEEV KUMAR
                SMT.BLOSSOM MATHEW
                SRI.RENJIT JOHN

RESPONDENT/S:

      1         STATE OF KERALA
                REPRESENTED BY PRINCIPAL SECRETARY,
                DEPARTMENT OF REVENUE, GOVT. SECRETARIAT,
                THIRUVANANTHAPURAM - 695 001.

      2         THE DISTRICT COLLECTOR, ERNAKULAM
                CIVIL STATION, KAKKANAD, ERNAKULAM - 682030.

      3         THE TAHSILDAR (LAND ACQUISITION)
                KOCHI CORPORATION OFFICE, VYTTILA - 682 019.

      4         CORPORATION OF COCHIN
                REPRESENTED BY ITS SECRETARY, MARINE DRIVE,
                KOCHI - 682 011.


                R4 BY ADV. SRI.S.SUDHISH KUMAR
                R1-R3 BY SMT K.AMMINIKUTTY - SR. GOVERNMENT PLEADER




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
06.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.28515 OF 2020(L)

                                 2

                              JUDGMENT

The petitioner is the owner in possession of 16 cents of

property comprised in Survey No.168/1 of Elamkulam Village

covered by Will bearing No.08/73-3 executed by his father, which

was registered in the Sub Registrar Office, Ernakulam. Out of the

said property, an extent of 2 ares (4.94210 cents) in Survey

No.168/1-12 of Elamkulam Village was acquired for the purpose of

development of Pulleppady Thammanam Road. The document

marked as Ext.P1 is an agreement dated 09.03.2016 entered into

between the petitioner and 2nd respondent District Collector. The

petitioner has filed Ext.P3 application dated 21.11.2020, before the

2nd respondent District Collector, which is one filed invoking the

provisions under Section 64 of the Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation and Resettlement

Act, 2013. The petitioner has filed this writ petition under Article

226 of the Constitution of India, seeking a writ of mandamus

commanding the 2nd respondent to consider Ext.P3 application and

to refer the question of adequacy of compensation of the acquired

land, under Section 64 of the Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation and Resettlement

Act, 2013, to the authority constituted under Section 51 of the said

Act.

W.P.(C) No.28515 OF 2020(L)

2. On 21.12.2020, when this writ petition came up for

admission, notice before admission was ordered to the

respondents. The learned Government Pleader took notice for

respondents 1 to 3 and the learned Standing Counsel took notice

for the 4th respondent.

3. Heard the learned counsel for the petitioner, the learned

Senior Government Pleader appearing for respondents 1 to 3 and

also the learned Standing Counsel for the 4 th respondent

Corporation.

4. Section 64 of the Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation and Resettlement

Act deals with reference to Authority. As per subsection (1) of

Section 64, 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 Authority,

as the case may be, whether his objection be to the measurement

of the land, the amount of the compensation, the person to whom

it is payable, the rights of Rehabilitation and Resettlement under

Chapters V and VI or the apportionment of the compensation

among the persons interested. As per the first proviso to sub-

section (1) of Section 64, the Collector shall, within a period of W.P.(C) No.28515 OF 2020(L)

thirty days from the date of receipt of application, make a

reference to the appropriate Authority. As per the second proviso

to sub-section (1), where the Collector fails to make such

reference within the period so specified, the applicant may apply to

the Authority, as the case may be, requesting it to direct the

Collector to make the reference to it within a period of thirty days.

5. As per sub-section (2) of Section 64 of the Act, the

application shall state the grounds on which objection to the award

is taken. As per the first proviso to sub-section (2), 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 21, or within six months from the date

of the Collector's award, whichever period shall first expire. As per

the second proviso to sub-section (2) of Section 64, the Collector

may entertain an application after the expiry of the said period,

within a further period of one year, if he is satisfied that there was

sufficient cause for not filing it within the period specified in the

first proviso.

6. In Sreedharan and others v. District Collector, W.P.(C) No.28515 OF 2020(L)

Malappuram and another [2020 (5) KHC 424], this Court held

that when the very object of the Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation and Resettlement

Act is to ensure just and reasonable compensation to the affected

families, while dealing with an application for condonation of delay

under the second proviso to sub-section (2) of Section 64, the

competent Authority should take a liberal, pragmatic and non-

pedantic approach. The term 'sufficient cause' in the second

proviso to sub-section (2) of Section 64 should be understood in

its proper spirit, philosophy and purpose, regard being had to the

fact that that term has to be applied in proper perspective to the

obtaining fact-situation. The conduct and attitude of a petitioner

relating to his inaction or negligence are relevant factors to be

taken into consideration. An application for condonation of delay

under the second proviso to sub-section (2) of Section 64 should

be drafted with careful concern and not in a casual manner

harbouring the notion that the competent Authority is required to

condone delay as a matter of course.

7. Having considered the submissions made by learned

counsel for the petitioner, the learned Senior Government Pleader

for respondents 1 to 3 and also the learned Standing Counsel for W.P.(C) No.28515 OF 2020(L)

the 4th respondent, this writ petition is disposed of with the

following directions;

(i) In case, Ext.P3 application made by the petitioner under Section 64 of the said Act is in order and filed within the time limit specified, the 2nd respondent District Collector shall consider the same and take an appropriate decision on that application with notice to the petitioner and after affording him an opportunity of being heard, within the statutory time limit of 30 days.

(ii) In case, that application is belated, the petitioner shall file an application for condonation of delay, within one week from the date of receipt of a certified copy of this judgment. Thereafter, the 2nd respondent shall consider and pass appropriate orders on that application, with notice to the petitioner and after taking note of the law laid down by this Court in Sreedharan [2020 (5) KHC 424].

8. In State of U.P. v. Harish Chandra [(1996) 9 SCC

309] the Apex Court held that no mandamus can be issued to

direct the Government to refrain from enforcing the provisions of

law or to do something which is contrary to law. In Bhaskara Rao

A.B. v. CBI [(2011) 10 SCC 259] the Apex Court reiterated that,

generally, no Court has competence to issue a direction contrary to

law nor can the Court direct an authority to act in contravention of

the statutory provisions. The courts are meant to enforce the rule

of law and not to pass the orders or directions which are contrary

to what has been injected by law.

W.P.(C) No.28515 OF 2020(L)

9. Therefore, pursuant to the direction contained in this

judgment, the 2nd respondent District Collector shall consider

Ext.P3 application and take an appropriate decision on the matter,

strictly in accordance with law, taking note of the relevant

statutory provisions and also the law on the point.

No order as to costs.

Sd/-

ANIL K. NARENDRAN JUDGE

MIN W.P.(C) No.28515 OF 2020(L)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1                TRUE COPY OF THE AGREEMENT DATED
                          09.03.2016.

EXHIBIT P2                TRUE COPY OF THE JUDGMENT IN W.P.(C)
                          NO.744 OF 2016.

EXHIBIT P3                TRUE COPY OF THE APPLICATION DATED
                          21.11.2020 ALONG WITH THE POSTAL
                          RECEIPT.