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K.D.PETER, S/O.DEVASSY versus SPECIAL TAHSILDAR (LAND ACQUISITION)

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K.D.PETER, S/O.DEVASSY v. SPECIAL TAHSILDAR (LAND ACQUISITION) - WP(C) No. 25135 of 2006(P) [2007] RD-KL 169 (3 January 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 25135 of 2006(P)

1. K.D.PETER, S/O.DEVASSY,
... Petitioner

2. MARY PAILY, W/O.PAILY,

3. PAULOSE, S/O.PAILY,

4. JOSE.T.J., S/O.JOSEPH,

5. JAMES, S/O.VAREETH,

6. KORATHU VAREETH, S/O.KORATHU,

7. AMBIKA, W/O.GEORGE A.V.,

8. PAULOSE KORATHU, S/O.KORATHU,

9. JOY, S/O.CHACKO,

10. ELSEE, W/O.AUGUSTHY,

11. GEORGE, S/O.PATHROSE,

Vs

1. SPECIAL TAHSILDAR (LAND ACQUISITION),
... Respondent

2. DISTRICT COLLECTOR, ERNAKULAM.

3. STATE OF KERALA, REPRESENTED BY

For Petitioner :SRI.GEORGE ABRAHAM

For Respondent :GOVERNMENT PLEADER

The Hon'ble MR. Justice K.T.SANKARAN

Dated :03/01/2007

O R D E R

K.T. SANKARAN, J.

W.P.(C).NO. 25135 OF 2006

Dated this the 3rd day of January,2007



JUDGMENT

This is the third round of litigation by the petitioners whose lands were acquired. After passing the award, the amount of compensation was not paid to them. They had to approach this Court in W.P.(C)No.13744 of 2005. The objection for not paying the compensation amount was that the petitioners did not produce the title deed. This Court in Ext.P7 judgment in W.P.(C) No.13744 of 2005 directed the petitioners to produce the documents before the Land Acquisition Officer. The Land Acquisition Officer was directed to disburse the amount to the petitioners on being convinced of their title to the properties. W.P.(C) No.13744 of 2005 was instituted because the compensation amount was not paid to the petitioners directly, which the Land Acquisition Officer was bound to do as per law. Ext.P3 series notices were issued purportedly W.P.(C) NO.25135 of 2006 under Section 12(2) of the Land Acquisition Act, wherein in the last paragraph it is stated that the amount has been deposited before the Sub Court, Paravur under Section 31(2) of the Act. It is admitted that the amount was not deposited. It is also admitted that the amount was not paid to the claimants as well.

2. On receipt of Ext.P3 series notices, the first petitioner submitted Ext.P5 representation dated 5.4.2005 to the Land Acquisition Officer stating that Ext.P3 series notices are illegal and that the petitioners were not afforded an opportunity of being heard before the award was passed. It is also stated in Ext.P5 that the first petitioner intends to file an application for reference under Section 18 of the Act and that by depositing the amount in court, his right to apply under Section 18 is also illegally taken away. W.P.(C) NO.25135 of 2006 Various other objections have been raised in Ext.P5. It is stated in the Writ Petition, which is not controverted in the counter affidavit, that similar representations were submitted by the other petitioners as well.

3. Ext.P8 series applications were filed by the petitioners on 16.6.2005, seeking reference under Section 18 of the Act. Reference was not made and, therefore, the petitioners approached this Court in W.P.(C) No.6905 of 2006. The respondents in that Writ Petition raised a contention that the reference applications are time barred. This Court disposed of W.P.(C) No.6905 of 2006 as per Ext.P9 judgment dated 20.3.2006, directing the Land Acquisition Officer to consider all the contentions raised by the petitioners and to dispose of Ext.P8 to P8(j) applications dated 16.6.2005. It was also noticed in Ext.P9 judgment W.P.(C) NO.25135 of 2006 that an oral protest was made by the petitioners and also noticed the contention of the petitioners that such an oral protest is sufficient to satisfy the requirements of the proviso to Section 31 of the Act. As directed in Ext.P9 judgment, the Land Acquisition Officer disposed of the applications as per Ext.P10 order dated 31.8.2006, which is under challenge in this Writ Petition. In Ext.P10 order it is stated that notices under Section 12(2) were issued to the petitioners and since the applications for reference were not made within six weeks from the date of receipt of such notices, the prayer for reference is time barred. It is also stated therein that the reference applications under Form 22A were received by registered post by the Land Acquisition Officer on 27.5.2005.

4. It is not stated either in the Writ Petition or in the counter affidavit as to when the W.P.(C) NO.25135 of 2006 award was passed. In the notice issued under Section 12(2) of the Act, the date of award is not mentioned. In the counter affidavit, the dates on which the notices of award were received by the petitioners are stated as 1-4-2005, 1-4-2005, 31-3- 2005, 16-3-2005, 1-4-2005 and 2-4-2005. If Ext.P3 series notices are proper notices, the application for reference under Section 18 should be filed within six weeks from the date of receipt of the notices, as provided under clause (b) of the proviso to Section 18(2). Notice under Section 12 (2) is to be given in Form 10(b). Rule 13 of the Land Acquisition Rules provides for issuing notice of award in Form 10(b). The concluding portion of Form 10(b) reads as follows:

"You are hereby informed that you should appear either in person or by an authorised agent before the undersigned on ... at ... and receive the amount specified above, failing which the said sum of money will be kept in Revenue Deposit and will bear no interest." W.P.(C) NO.25135 of 2006 In Ext.P3 series notices under Section 12(2), this portion which mandatorily must be there in the notice has been struck out. Instead, it is stated in the notices that the amounts mentioned in the notices have been deposited before the Sub Court, Paravur. It is also admitted by the learned Government Pleader and the Special Tahsildar (Land Acquisition) who appeared before Court that no deposit as mentioned in Ext.P3 series notices was ever made. Deposit under Section 31(2) can be made only in the contingencies mentioned in that Section. There is no case for the respondents that any of the contingencies mentioned in Section 31 were available justifying such a statement in Ext.P3 series of notices. A notice under Section 12(2) does not contemplate such a statement in the notice. If deposit is to be made under Section 31 (2), a reference is to be made under Section 30. A reference under Section 30 is to be made in Form W.P.(C) NO.25135 of 2006 No.15 as provided in Rule 16 of the Land Acquisition (Kerala) Rules. There is no case for the respondents that such a reference was made. Therefore, it is clear from the records that the whole procedure adopted by the Land Acquisition Officer is clearly illegal. Neither the amount was paid directly to the petitioners nor it was deposited in Court as mentioned in Ext.P3 series notices. Ext.P3 series notices are not legal and proper. Time to file an application under Section 18 starts from the receipt of notice under Section 12(2). Since Ext.P3 series notices are invalid and not in the form prescribed and since it does not contain the ingredients which are necessarily be there as provided in Form 10(b), it is to be taken that Ext.P8 series applications submitted on 16.6.2005 should be treated as applications filed within time. Clause (b) of the proviso to sub- section (2) of Section 18 provides for six months' W.P.(C) NO.25135 of 2006 time from the date of award or within six weeks from the date of receipt of notice, whichever is earlier, to enable the parties to file an application for reference. Since the notices under Section 12(2) are illegal, the only other alternative which can be thought of is to consider whether the applications have been submitted within six months from the date of award. What the date of award is not mentioned anywhere; either in the counter affidavit or in the Writ Petition or in Section 12(2) notices issued in the case. There is also another circumstance to be taken note of, namely, on 5.4.2005, the first petitioner submitted a representation to the Land Acquisition Officer making it clear his intention to challenge the correctness of the quantum of award and to file an application under Section 18 of the Land Acquisition Act. It is also stated therein that his right to file an application under Section 18 W.P.(C) NO.25135 of 2006 has been curtailed by Ext.P3 series notices. The intention to have a reference under Section 18 is manifested in Ext.P5 representation. Therefore, it is clear that the petitioners very much wanted the matter to be referred to the Land Acquisition Court and they made their intention clear on 5.4.2005 itself. If 5.4.2005 is taken as the relevant date, it is within the period of six weeks from the date of Ext.P3 series of notices.

5. In the peculiar facts and circumstances of the case, I am inclined to take the view that Ext.P5 application submitted by the first petitioner and similar applications submitted by other petitioners are to be taken as applications for reference. If so, the applications were submitted within time.

6. For the foregoing reasons, Ext.P10 order is W.P.(C) NO.25135 of 2006 set aside. The first respondent shall make a reference under Section 18 of the Land Acquisition Act expeditiously and at any rate, within a period of one month from today. The Writ Petition is allowed as above. (K.T.SANKARAN) Judge ahz/

K.T.SANKARAN, J.

W.P.(C) NO.25135 OF 2006

Dated this the 3rd day of January, 2007

O R D E R

On 29.11.2006, this Court passed an order directing the Land Acquisition Officer to appear in person and to explain why Ext.P10 order was passed in violation of the directions contained in Ext.P9 judgment. The Land Acquisition Officer appeared in person and stated that he passed Ext.P10 order with all bonafides on the basis of the materials placed before him. He also submitted that the award was passed not by him, but by his predecessor. Notices under Section 12(2) were also issued by his predecessor in office. Since the Writ Petition is allowed not upon the grounds mentioned in the order dated 29.11.2006, but on other grounds, I am inclined to take the view that the explanation is satisfactory. All further proceedings are dropped. (K.T.SANKARAN) Judge ahz/


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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