Kerala High Court
Sarojini vs The Special Tahsildar on 1 August, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 1ST DAY OF AUGUST 2024 / 10TH SRAVANA, 1946
WP(C) NO. 29597 OF 2016
PETITIONERS:
1 SAROJINI
AGED 82 YEARS
AGED 82 YEARS, D/O ACHUTHAN, RESIDINGAT WEST KOLLERI
HOUSE, POST PUTHIYARA, KOZHIKODE
2 E.K.PADMAVATHY
D/O ACHUTHAN, RESIDING AT SREE PADMAM, MARIKUNNU,
KOZHIKODE
3 SUMITHRA ACHUTHAN
D/O ACHUTHAN,RESIDING AT 3508, ARTHUR DRIVE RUSTON
STATE LOUISINA, UNTIED STATE OF AMERICA REP. BY POWER
OF ATTORNEY HOLDER P.B.BIJU S/O P.K.BALAKRISHNAN,AGED
41 YEARS, RESIDING AT DWARAKA, CHERPU PO, TRICHUR
4 E.K.BHANUMATHI
D/O ACHUTHAN, RESIDING AT DWARAKA, CHERPU PO, TRICHUR
5 E.K.NALINI
D/O ACHUTHAN, RESIDING AT NO.18, 12TH CROSS, IIIRD MAIN
ROAD, VASANTH NAGAR, BANGALORE, KARNATAKA
BY ADVS.
SRI.V.V.SURENDRAN
SRI.P.A.HARISH
RESPONDENTS:
1 THE SPECIAL TAHSILDAR
KCRTP, KOZHIKODE
2 STATE OF KERALA
REP. BY CHIE SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM-1
3 THE DISTRICT COLLECOR
COLLECTORATE, KOZHIKODE, KOZHIKODE- 673 020
SMT. SUDHA DEVI- SPL.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.08.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 29597 OF 2016
2
EASWARAN S., J.
========================
W.P.(C) No. 29597 of 2016
========================
Dated this the 1st day of August, 2024
JUDGMENT
The petitioners are legal representatives of one Achuthan.
After filing the writ petition, petitioners 1 and 2 expired. Since,
the estate of the late Achuthan is substantially represented by
petitioners 3 to 5, this Court accepts the prayer of the learned
counsel for the petitioners to proceed with the consideration of
the writ petition on merits.
2. The challenge in the writ petition is against Ext.P6
order declining a reference under Section 18 of the Land
Acquisition Act, 1894 (hereinafter referred to as "the Act" for
short). The facts as disclosed in the writ petition reveal that
0.00928 hectors of land situated in T.S.No.17/14/606/2 of
Karyakunnu amsom in Kasaba Village in Kozhikode Taluk were
acquired for the purpose of widening the road. The petitioners
claim that no notice intimating the acquisition as contemplated
WP(C) NO. 29597 OF 2016
under the law was served on the petitioners. In view of the
dispute regarding title, the issue was referred by the Land
Acquisition Officer to the Land Acquisition Reference Court as
contemplated under Section 30 of the Act. The said reference
was numbered as LAR 6/2010 and was ordered by the
concerned Sub Court, a copy of which was received on
26.11.2013 by which the shares were determined. Based on the
said order, a cheque application was filed on 24.02.2014 and
the amounts were received on 19.03.2014. Thereafter, the
petitioners filed Ext.P1 application under Section 18 of the Act,
seeking reference to the concerned Court for enhancement of
the compensation. By Ext.P2 order dated 22.08.2015, the
Special Tahsildar (LA) declined to accept the request under
Ext.P1. Thereafter, the petitioners filed Ext.P3, which was also
rejected on 29.06.2015 by Ext.P4. Immediately on receipt of
Ext.P4, the petitioners again requested the District Collector by
Ext.P5 dated 29.07.2015 stating that they had received the
amount only on 19.03.2014 and thereafter within a period of
eight days, the application for reference under Section 18 of the
Act was preferred. It was also asserted that, no individual notice
WP(C) NO. 29597 OF 2016
under Section 12(2) of the Act was given by the District
Collector. However, by Ext.P6 order, the same was turned
down.
3. I have heard Sri.P.A.Harish - learned counsel
appearing for petitioners and Smt.Sudha Devi - Special
Government Pleader (LA) appearing for respondents.
4. Sri.P.A.Harish - learned counsel for the petitioners
pointed out that Ext.P6 order is completely erroneous in so far
as it does not take note of the scheme of the Act. With
reference to second proviso to Section 31(2) the Act, the
learned counsel for the petitioners pointed out that unless the
person who is interested to make a reference under Section 18,
receives the amounts under protest, he cannot prefer an
application under Section 18. It is also pointed out by the
learned counsel for the petitioners that as required under
Section 12(2), the District Collector had not issued any
individual notices to the petitioners. The right of the petitioners
to receive the compensation amount got crystallized by the
order of the Sub Court in LAR No.6/2010 only on 26.11.2013. It
is thereafter, on 19.03.2014 that the petitioners received the
WP(C) NO. 29597 OF 2016
compensation amount under protest and thereafter within a
period of eight days, the application under Section 18 was
preferred. Therefore, according to the learned counsel for the
petitioners, the order passed under Ext.P6 is per se
unsustainable and required to be interfered by this Court in
exercise of the powers under Article 226 of the Constitution of
the India.
5. On the other hand, the learned Government Pleader
appearing for the respondents, justified the passing of Ext.P6
order and pointed out that the application under Section 18 was
clearly time barred.
6. I have considered the rival submissions raised across
the bar.
7. Sub Section (2) to Section 12 of the Act reads as
follows:-
12.Award of Collector when to be final.
"(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."
WP(C) NO. 29597 OF 2016
8. Reading of Section 12(2) reveals that the District
Collector is required to issue an immediate notice of this award
to such persons interested as are not present personally or by
the representatives when the award was passed. No doubt,
Section 18 prescribes a time limit for making a reference after
the award has been passed by the Collector. Proviso to Section
18(2) reads as follows:-
"Reference to Court:-
(2) The application shall state the grounds on
which the 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."
WP(C) NO. 29597 OF 2016
9. Proviso to Section 18(2) takes care of two situations.
Either a person who was present or represented before the
Collector at the time of the Award can make an application
under Section 18 within a period of six weeks or in other cases
within six weeks from the date of receipt of the notice from the
Collector under Section 12(2).
10. It is pertinent to note that Section 31 of the Act
provides for the payment of compensation or deposit of the
same in the Court. Section 31(2) provides that the District
Collector can deposit the amount of compensation in the Court
to which the reference under the Section 18 would be
submitted. However, it is pertinent to note that under the
second proviso to Section 31(2) no person who has received the
amount otherwise than under protest shall be entitled to make
an application under Section 18.
11. In the facts of the present case, it is evident that there
was a dispute with regard to the entitlement of the petitioners
to receive the shares in the compensation amount. In view of
the dispute, the Special Tahsildar (LA) had referred the matter
to the Sub Court under Section 13 of the Act. When such
WP(C) NO. 29597 OF 2016
reference is made, it is incumbent upon the Authority to wait till
the reference is answered by the Court in which the shares of
the respective parties are clearly determined. Therefore, the
petitioners are justified in asserting their rights by pointing out
that only on crystallization of their share by order dated
26.11.2013 and on receipt of the amount under protest on
19.03.2014 they became entitled to make an application under
Section 18 for reference before the competent Court.
12. Viewed from the above perspective, this Court cannot
uphold Ext.P6 order. Admittedly, the petitioners received the
compensation only on 19.03.2014. They had preferred the
application on 27.03.2014. On a harmonious construction of the
provisions contained in Section 12(2) read with Section 18 and
Second proviso to 31(2), it becomes evident that the petitioners'
application was not time-barred as on 27.03.2014. Hence, it is
declared so. Consequently, Exts.P2, P4 and P6 orders are
quashed. The 1st respondent - Special Tahsildar (LAA) is
directed to take up Ext.P1 application and refer the same
before the Sub Court, Kozhikode in terms of provisions
contained under Section 18 of the Act as expeditiously as
WP(C) NO. 29597 OF 2016
possible.
Writ petition accordingly is allowed. No order as to costs.
Sd/-
EASWARAN S.
JUDGE
Raj.
WP(C) NO. 29597 OF 2016
APPENDIX OF WP(C) 29597/2016
PETITIONER EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE APPLICATION DATED 27-3-
EXHIBIT P2 A TRUE COPY OF THE COMMUNICATION DATED 22-
8-2015
EXHIBIT P3 A TRUE COPY OF THE COERING LETTER DATED
28-9-2015
EXHIBIT P4 A TRUE COPY OF THE NOTICE DATED 29-6-2015
EXHIBITP5 A TRUE COPY OF THE REPLY DATED 29-7-2015
EXHIBIT P6 A TRUE COPY OF THE COMMUNICATION DATED 1-
1-2016
// True Copy // PA To Judge
