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1998 DIGILAW 458 (KER)

Kamalakshy v. District Collector

1998-09-23

A.R.LAKSHMANAN, K.NARAYANA KURUP

body1998
Judgment :- AR. Lakshmanan, J. Heard Mr. V. Chitambaresh for the petitioners and Mr. P.K. Ravikrishnan, learned Government Pleader, for the respondents. 2. Lands belonging to petitioners 1 and 2 and the predecessor-in-interest of petitioners 3 and 4 were acquired by the respondents. Petitioners filed their objections to the notices received under S.9(3) of the Land Acquisition Act, 1894 (for short'the Act'). True copies of the objections filed in this regard dated 1.12.1995,20.12.1995 and 22.3.1996 are marked as Exts. P1, P2 and P3 respectively. It is specifically stated in the said Exhibits that the matter may be referred to the Land Acquisition Court in case the compensation claimed by the land owners at the rate of Rs. 3,000/- per cent is not awarded. The third petitioner, as the power-of-attorney-holder of the land owners, subsequently received notice of awards under S.12(2) of the Act specifying the amount awarded as compensation for acquisition. The said notices issued by the second respondent are marked as Exts. P4 and P5 and P6 respectively. It is seen from the notices that compensation has been awarded below the rate of Rs. 3.000/- per cent claimed. According to the petitioners, the request for reference is already embodied in the objections filed by the land owners through their power-of-attorney-holder and moreover, the third petitioner, as the power-of-attorney¬holder of the land owners, appeared in person on the date specified in the notices and received the compensation by cheque under protest. Thus, petitioners say that the compensation amount was received only under protest indicating the insufficiency of the amount awarded. According to Mr. Chitambaresh, receipt of money under protest in the circumstances itself is sufficient and more to have the matter referred under S.18 of the Act. The objections as well as the conduct of receiving money under protest were made long before the period fixed for reference under S.18(2) of the Act. The third petitioner sent a reminder reiterating the request for a reference under S.18 of the Act. Exts. P7, P8 and P9 dated 16.12.1996 are the reminders sent by the third respondent. They refer to the objections already filed for reference and also the compensation amount received under protest. However, the second respondent seems to have thought that the reminders are the requests for reference and it is filed out of time. Exts. P7, P8 and P9 dated 16.12.1996 are the reminders sent by the third respondent. They refer to the objections already filed for reference and also the compensation amount received under protest. However, the second respondent seems to have thought that the reminders are the requests for reference and it is filed out of time. Such a stand taken by the second respondent, according to the petitioners, would defeat the very object of the Act causing injury to the land owners. Therefore, they have filed the present Original Petition to issue a writ of mandamus directing the Special Tahsildar, Land Acquisition, Palakkad to refer the matter covered by Exts. P4 to P6 notices to the Land Acquisition Court under S.18 of the Act and call for the records relating to land acquisition of the land belonging to them to verify the receipt of compensation amount under protest warranting a reference. 3. In the Original Petition, a ground has been taken by the petitioner in the following terms: "It is submitted that the time limit prescribed for seeking reference to the land acquisition court is six weeks within the date of receipt of the notice under S.12(2) of the Act. The request for reference as embodied in Exts. P1 to P3 objections have been made well within the time prescribed. The compensation amount has also been received under protest within six weeks of the receipt of Exts. P4 to P6 notices. The conduct of the land owners clearly disclosed their eagerness to have the matter referred for enhanced compensation under S.20 of the Act. (vide Mathew Ouseph v. District Collector (RR 1976(1) Kerala 2 &) and State of Kerala v.C.R. Viran (1984 KLT 837). The failure to refer the matter as sought is clearly vitiated by arbitrariness and violative of Art.14 of the Constitution of India." 4. A statement was filed in the Original Petition on behalf of the second respondent. Lands belonging to the petitioners were acquired as per different awards of different Land Acquisition Officers as shown below: It is submitted by the second respondent that as per S.18 of the Act, the person who has not accepted the award may, by written application to the Land Acquisition Officer, require that the matter may be referred by the Land Acquisition Officer for determination of the Court. The said application should contain the grounds on which objection to the award is made, the amount of compensation the person to whom it is payable and the apportionment among the persons. The written application should be made within six weeks from the date of award of the Land Acquisition Officer, if the person or his representative is present at the time of making award and in other cases, the time limit for filing written application is within six weeks from the date of receipt of S.12(2) notice or within six months from the date of award; whichever is earlier. In the case on hand, the petitioners were not present while making the award. 5. S.12(2) notices were received by the petitioners on 6.3.1996, 26.3.1996 and 29.7.1996 as detailed in the schedule above. So it is submitted on behalf of the respondents that the time limit of six weeks from the date of receipt of S.12(2) notices expired on 17.4.1996 in the first case; on 7.5.1996 in the second case and on 8.9.1996 in the third case. But the petitioners have filed separate written representations in all the three cases only on 17.12.1996, that is long after the expiry of six weeks from the date of service of S.12(2) notices. As six months from the date of award expired after the expiry of six weeks period from the date of receipt of S.12(2) notices, the provision relating to six months period from the date of award did not press into service in this case. Thus, it is submitted that the written application contemplated in S.18 of the Act has been filed after the stipulated period only and hence the request for reference under S.18 cannot be adopted. Under annexure- i dated 23.12.1996, the application dated 17.12.1996 was rejected as time barred. It is also stated in the statement that filing claim statement under S.18 which is before the land acquisition award and the noting in the cheque leaf that the amount awarded is accepted under protest, is sufficient for referring the matter to the civil court is contrary to S.18 which provides for written application and that too specifying the grounds of objections and again within the time limit specified. The reference court is competent only to adjudicate only those matters which are stated in the written application 'under S.18 of the Act and that the Court has no jurisdiction to adjudicate other matters which are in S.9 claim statement or those which the awardee raises afresh in the Court after the written application under S.18 of the Act. 6. When the question came up for consideration before K.S. Radhakrishnan, J., the learned judge thought it fit to refer the matter to a Division Bench for its authoritative pronouncement as the question involved in this case is an important question of general interest. Before the learned judge, a Division Bench decision of the Madras High Court in Venkataswami Naidu v. The State of Madras ((1964) 1 MLJ 262) and another decision of a learned single judge of the Madras High Court in Narayanaswamy v. The Special Tahsildar for LA. ((1994) 1 MLJ 393) and 1963 KLJ 193 Trichur Dt. Cooperative Bank v. District Collector were cited. 7. Before us also, the learned counsel for the petitioners cited the above two decisions apart from other decisions. The earliest decision on this point is a very short judgment of a Division Bench of the Madras High Court reported in Venkataswami Naidu v. The State of Madras ((1964) 1 MLJ 262). In that case, a writ of mandamus to direct the Tahsildar and Land Acquisition Officer, Krishnagiri to make a reference under S.18 of the Act was filed. The award in that case was delivered on 22.9.1957. Within six weeks therefrom, ie., on 7.10.1957 the appellants therein addressed a letter to the Tahsildar and Land Acquisition Officer expressing their displeasure on the amount fixed as compensation and stating that the amount of compensation which included the value of site as well as standing trees was very low. In other words, appellants wanted the Tahsildar to take appropriate steps to secure that end as otherwise there will be no meaning for that letter at all. After referring to a similar situation in WA 150 of 1963, their Lordships held that the implication of that letter was that the appellants did not accept the estimate and that they sought for a reference to Court. The Bench held that they have no hesitation in holding that the implication of the letter was that they have asked for a reference under S.18 of the Act. The Bench held that they have no hesitation in holding that the implication of the letter was that they have asked for a reference under S.18 of the Act. In that view of the matter, the appeal was allowed and a writ was issued in terms prayed for. 8. Narayanaswamy v. The Special Tahsildar for Land Acquisition ((1994) 1 MLJ 393) was rendered by K.M. Natarajan, J. of the Madras High Court. The learned judge has also followed the ruling reported in Venkataswami Naidu's case (supra) which, according to him, squarely applies to the facts and circumstances of the case before him and applying the said ratio, the leaned judge held that the writ petition has to be allowed and the matter has to be referred to the Civil Court for adjudication. In that case, a writ of mandamus directing the Special Tahsildar to refer the matter to the civil court for determining the amount of compensation payable to the writ petitioner was filed. The petitioner appeared before the Tahsildar and he was informed that a sum of Rs. 5,390.65 was being awarded as compensation to him towards his share. Immediately the petitioner told the Tahsildar that the amount as determined by him was very low and that the petitioner was not prepared to accept the said sum for which the Tahsildar replied that if the petitioner was disputing the correctness of the amount awarded, he could receive the said sum under protest and ultimately the civil court, on a reference under S.18 of the Act, would decide the correct amount of compensation payable to his share. Therefore, the petitioner received the sum under protest. He had also sent a receipt stating "received under protest". Subsequently, the petitioner was expecting the Tahsildar to refer the matter relating to determination of amount towards compensation to the civil court. But, he came to know that the Tahsildar had referred the matter for enhanced compensation in respect of other land owners. It was contended by the State that notices under S.9(3) and 10 of the Act were issued on 13.3.1984 and after the receipt of the said notices, petitioners also appeared for enquiry and that compensation amount was also received by him under protest. However, no application was received from the petitioner within six weeks for referring the matter to the Civil Court as contemplated under S.18 of the Act. However, no application was received from the petitioner within six weeks for referring the matter to the Civil Court as contemplated under S.18 of the Act. The learned judge, after referring to two earlier decisions, held that the ratio laid down by the Division Bench in Venkatasami Naidu's case (supra) squarely applies to the facts and circumstances of the case and applying the said ratio, the writ petition was allowed and the matter was referred to the civil court for adjudication. 9. However, the very recent judgment of the Supreme Court in Land Acquisition Officer v. Shivabai (1997) 9 SCC 710) will set at rest the point now raised by the petitioners in this case. In that case, notification was issued under S.4(1) of the Act on 19.8.1965. After completion of the enquiry under S.11, the award came to be made on the same date. A writ petition was filed in 1986 by two persons claiming that they had filed an application under protest, but reference under S.18 was not made. The learned single judge directed an enquiry whether notice under S.12(2) and the award was served on the claimants as per the law then existing; if notice was not served, to take necessary action of reference. In Writ Appeal, it was confirmed. Thereafter, reference was made in O.P. 198 of 1990. An application was filed seeking remission of the reference on the ground that it was obtained fraudulently with the connivance of the Land Acquisition Officer and was barred by limitation. The Additional District Judge dismissed the said application. Another application filed for impleading other persons was allowed by the District Judge. On the basis thereof, the reference was answered by enhancing the compensation ranging between Rs. 3000 to Rs. 2000 per acre. On appeal, the Division Bench has confirmed the enhanced compensation. Thus, an appeal was filed before the Supreme Court by Special Leave. 10. Before the Supreme Court, the acquaintance register was produced which established that on the day when the award came to be passed, the claimants were present and the amounts were received by them without protest on 25.11.1965 and two of them who were not present, received the compensation two days thereafter, namely, on 27.11.1965. 10. Before the Supreme Court, the acquaintance register was produced which established that on the day when the award came to be passed, the claimants were present and the amounts were received by them without protest on 25.11.1965 and two of them who were not present, received the compensation two days thereafter, namely, on 27.11.1965. While considering the question whether the reference application has to be made within two months from the date of award, the Supreme Court held that when the parties were present at the time when the award came to be made, the notice under clause (b) of the proviso to sub-s.(2) of S.18 was not necessary and as a consequence, within six weeks from the date of the award an application is required to be made for reference under S.18. If the amount is received without protest, by operation of second proviso to sub-s.(2) of S.31, such person who has received the amount without protest is not entitled to seek a reference under S.18 of the Act. In paragraph 8, the Supreme Court has observed as follows: "Sri. C. Sitaramaiali, learned Senior Counsel appearing for the respondents, contends that on the Division Bench's directing to make an enquiry into the matter, the Land Acquisition Officer himself has referred the matter. Unless there is a proof of service of the notice of the award under sub-s.(2) of S.12, the limitation does not start. We are unable to agree with the leaned counsel. It is now settled law that H is not necessary that the award or its copy should be served on the claimant along with notice under S.12(2) of the Act. If the parties are not present on the date the award came to be passed, then Collector/ Land Acquisition Officer shall give inundate notice of his award. The limitation begins to run from the date of the not ke asper the proviso to S.18(2). The date of the award and the date of the receipt of the compensation were incidentally the same. Under these circumstances, it must be presumed that they were present on the date when the award was made and the compensation was received without any protest. Under these circumstances, they are not entitled to seek any reference". The date of the award and the date of the receipt of the compensation were incidentally the same. Under these circumstances, it must be presumed that they were present on the date when the award was made and the compensation was received without any protest. Under these circumstances, they are not entitled to seek any reference". In conclusion, the Supreme Court held that the claimants who receive compensation under protest and who make application under S.18(1) alone are entitled to seek a reference; third parties, who have been impleaded. have no right to claim higher compensation by circumventing the process of reference under S.18. Under these circumstances, the Supreme Court held that the reference itself is without any jurisdiction and barred by limitation and, therefore, the award of the reference court is clearly illegal. The appeal was allowed and the judgment of the reference court as well as that of the High Court were set aside. 11. It is thus clear from the judgment of the Supreme Court that the claimants who receive compensation under protest and who make application under S.18(1) of the Act alone are entitled to seek a reference. In view of the judgment of the Supreme Court in Land Acquisition Officer v. Shivabai ((1997) 9 SCC 710), the judgments of the Madras High Court cited by learned counsel for the petitioners, in Venkataswami Naidu v. The State of Madras (1964) 1 MLJ 262) and Narayanaswamy v. The. Special Tahsildarfor Land Acquisition ((1994) 1 MLJ 393), referred to above, are no longer good law. 12. This Bench, (AR. Lakshmanan, J. & K. Narayana Kurup, J.) in a very recent judgment in WA 1872 of 1998 dated 17.9.1998 has taken the following view: "To demand a reference under S.18 of the Act, a written application is mandatory and the demand for a reference in such application should be clear. The existence of an award is an essential first requisite to confer the jurisdiction on the Collector to make a reference. There is no provision in the Act authorising the aggrieved claimant to approach directly the civil court of original jurisdiction for a reference under S.18 of the Act. The aggrieved party is to apply to the Land Acquisition Officer or the Collector inviting him to make a reference. There is no provision in the Act authorising the aggrieved claimant to approach directly the civil court of original jurisdiction for a reference under S.18 of the Act. The aggrieved party is to apply to the Land Acquisition Officer or the Collector inviting him to make a reference. But, before the collector can make a reference, he must be satisfied that the application is by a person interested, that such person has not accepted the award and that the dispute raised by the person is with regard to the amount of compensation. In the instant case, the Collector has refused to make a reference on the ground that the applicant has not applied in writing, but has applied through his lawyer and, therefore, the said application for reference is not competent. As already stated, a reference can be invited only by a person interested. A person interested is one who is directly or indirectly interested in the title of the land or in the amount of compensation, the person to whom it is payable or the apportionment of compensation. In our opinion,' any person interested' appearing in S.18 has to be given a plain and natural meaning, namely, a person who had an interest in the land. In this case, a person interested has invited the reference through his attorney and, therefore, the said attorney, on instructions from his client, is competent to invite a reference under S.18 of the Act and the act done by the said attorney shall be construed as an act of the person interested himself." "In our opinion, if the conditions stipulated under S.18 are fulfilled, the Land Acquisition Officer/ Collector is bound to make a reference. He cannot come to his own conclusion that the person seeking reference is not a person interested and refuse to make the reference. When there is a proper application under S.18(1), it is obligatory on the Land Acquisition Officer to make a reference and any refusal by him will be illegal". "Thus, it is seen that the action taken by the counsel and assented to by his client person interested" is binding upon/ the client interested person" since it is expressly authorised and ratified by the client. "Thus, it is seen that the action taken by the counsel and assented to by his client person interested" is binding upon/ the client interested person" since it is expressly authorised and ratified by the client. Hence we are of the opinion, that the notice sent through the lawyer on behalf of the person interested is valid in law." In the concluding portion, the Division Bench said that the action of the appellants therein in not entertaining the claim made by the respondent through Ext. P2 was illegal and arbitrary and against the provisions of the Act. In that view of the mailer, the Bench directed the Land Acquisition Officer to refer the matter under S.18 of the Act. 13. As already noticed, S.18(1) has two limbs. The first limb of the Section deals with a situation of a person interested who has not accepted the award and the second limb deals with a written application to the Collector by the party who accepted the award under protest requiring the Collector to refer the matter for determination of the Court with reference to trie amount of compensation etc. Therefore, two conditions have to be fulfilled under S.18 of the Act. A mere receipt of amount under protest is not sufficient to satisfy the requirement of S.18. 14. Following the decision of the Supreme Court in Land Acquisition Officer v. Shivabi ((1997) 9 SCC 710) and the judgment in WA 1872 of 1998 rendered by this Bench, the present Original Petition has necessarily to fail. We also hold that filing of claim statement under S.9 by the petitioners, which is before the land acquisition award, and noting in cheque leaf that the amount awarded is accepted under protest are not sufficient for referring the matter to the civil court under S.18 of the Act.' The reference is "answered accordingly. The Original Petition is dismissed. No costs.