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2019 DIGILAW 76 (KER)

Abdul Khader v. District Collector Civil Station

2019-01-23

ALEXANDER THOMAS

body2019
JUDGMENT : 1. The prayers in the above Writ Petition (Civil) are as follows: “(i) Issue a writ of certiorari or any other writ quashing the Ext.P-6 order of the 2nd respondent and direct the 2nd respondent to consider the Ext.P-5 and to refer the petitioner claim to Sub Court, Perumbavoor for reference under Section 18 of the Land Acquisition Act. (ii) Pass such other writs, orders or directions as this Hon'ble Court may deems just, fit and necessary in the facts and circumstances of this case. And (iii) Allow this Writ petition with cost.” 2. Heard Sri. S. Renjith, learned counsel appearing for the petitioner and Sri. Saigi Jacob Palatty, learned Senior Govt. Pleader appearing for the respondents. 3. It is stated that the petitioner was the owner of 0.1850 Hector (18.50 Ares) of land comprised in Puthencruz Village, Kunnathunadu Taluk in Ernakulam district. That the 2nd respondent issued Sec. 4(1) notification in the Kerala Gazette Extra Ordinary dated 30.8.2007. It is further stated that when the land acquisition proceedings have been commenced, the petitioner had filed a claim statement before the 2nd respondent claiming that the property value is more than Rs.5 lakhs per cent on 30.9.2010. That subsequently, 6.47 Ares of property was acquired on 4.3.2010 and award was passed on 31.8.2010. On the basis of the petitioner's objection, the same was forwarded to the Sub Court, Perumbavoor under Sec. 18 of the Kerala Land Acquisition Act and the said court has enhanced the land value from Rs. 3,48,000/- per Are to Rs. 5,56,934/- as per judgment dated 31.3.2015, it is averred. That the acquisition proceedings for balance of property initiated in LAC No.341/2008 by the 2nd respondent on the same 4(1) notification dated 30.8.2007 was challenged before this Court by filing W.P.(C).No. 26525/2015, which was dismissed as per Ext.P-2 judgment dated 17.11.2016. It is further stated that the writ appeal filed against the judgment of the learned Single Judge was also dismissed. It is further stated that challenging the judgment of the Division Bench in the said W.A., the petitioner approached the Supreme Court by filing SLP No.31359/2017, which was disposed of as per Ext.P-3 judgment dated 24.11.2017 by the Supreme Court. 4. It is further stated that challenging the judgment of the Division Bench in the said W.A., the petitioner approached the Supreme Court by filing SLP No.31359/2017, which was disposed of as per Ext.P-3 judgment dated 24.11.2017 by the Supreme Court. 4. On the basis of award No.136/2010 dated 11.11.2010, the 2nd respondent had taken possession of the property on 13.12.2016 and the 2nd respondent had issued notice on 13.2.2017 stating that the amount in the LAC is deposited before the Sub Court under Sec. 31(2) of the Land Acquisition Act, 1894. After the rendering of Ext.P-3 SLP order dated 24.11.2017 by the Apex Court, the petitioner had filed his statement before the Sub Court in Sec. 31(2) proceedings. The said Sec. 31(2) petition before the LAR concerned was allowed by that court as per order dated 31.8.2018, it is averred. Thereafter, the petitioner has preferred Ext.P-5 application dated 29.9.2018 before the 2nd respondent Land Acquisition Officer to refer the matter under Sec. 18 to the Sub Court, Perumbavoor, for considering the claim for enhancement of the compensation. That even though the petitioner had submitted said application as per Ext.P-5 on 29.9.2018, the petitioner's application to refer the matter to the LAR Court concerned (Sub Court, Perumbavoor) was not acceded to by the 2nd respondent and the same has been rejected by the impugned Ext.P-6 order dated 10.10.2018. According to the petitioner, since the entitlement of the petitioner for the claim amount was pending adjudication of the disputes in the apportionment proceedings under Sec.31(2), his right to seek a reference under Sec.18 would get crystallized only after rendering of the order by the LAR Court concerned regarding the said apportionment disputes under Sec. 31(2) of the Act and that the decision in that regard under Sec. 31(2) of the Land Acquisition Act, 1894, was rendered by the LAR Court concerned (Sub Court, Perumbavoor) only as per order dated 31.8.2018. That immediately thereafter, the petitioner had preferred Ext.P-5 application dated 29.9.2018 seeking reference of the claim for enhanced compensation under Sec.18 of the Act to the LAR Court concerned. That immediately thereafter, the petitioner had preferred Ext.P-5 application dated 29.9.2018 seeking reference of the claim for enhanced compensation under Sec.18 of the Act to the LAR Court concerned. It is stated that in such cases, the time limit for reckoning as to whether Sec. 18 reference application is within the prescribed time is to be counted with reference to the date from which the right for entitlement is crystallized by the decision of the LAR Court concerned under Sec. 31(2), which in the instant case, is only on 31.8.2018 and if that is the position, the reference application submitted by the petitioner under Sec.18 as per Ext.P-5 on 29.9.2018, is within the period of six weeks conceived in that provision and that therefore the finding in the impugned Ext.P-6 proceedings dated 10.10.2018 that Ext.P-5 application under Sec. 18 is time barred is clearly illegal and untenable and that this Court may set aside the impugned Ext.P-6 order and may direct the 2nd respondent Land Acquisition Officer to refer the matter under Sec. 18 to the LAR Court for adjudication of the claim for enhanced compensation, etc. 5. The relevant potion of the impugned Ext.P-6 rejection order dated 10.10.2018 reads as follows: xxx xxx xxx 6. The Apex Court in the judgment in Madan v. State of Maharasthtra reported in (2014) 2 SCC 720 , has held that limitation period for submission of reference application under Sec.18(2) will run from the date of knowledge of the award under Sec.30 of the Land Acquisition Act, 1894, where disputes of apportionment are pending in such Sec.30 proceedings and it was held therein that the expression, “the date of Collector's award” used in proviso (b) of Sec.18(2) must be understood to be the date of the award is either communicated to the party or is known by him either actually or constructively and that it will be highly unreasonable to construe the words, “from the date of the Collector's award” used in the proviso to Sec. 18 in a literal or mechanical way, etc. Further it has been specifically held by the Apex Court in para 11 of the judgment in Madan's case supra that a cursory glance of the provisions of Secs. Further it has been specifically held by the Apex Court in para 11 of the judgment in Madan's case supra that a cursory glance of the provisions of Secs. 18 and 30 of the Land Acquisition Act, 1894, would suggest that Sec.18 applies to situations where the apportionment made in the award is objected to by a beneficiary there under and Sec. 30 applies when no apportionment whatsoever is made by the Collector on account of conflicting claims and in such a situation one of the options open to the Collector is to make a reference of the question of apportionment to the court under Sec. 30 of the Act and the other is to relegate the parties to the remedy of a suit and that in either situation, the right to receive compensation under the award would crystallize only after apportionment is made in favour of a claimant under Sec.30 of the Act and it is only thereafter that a reference under Section 18 for enhanced compensation can be legitimately sought for by the claimant in whose favour the order of apportionment is passed either by the court in the reference under Sec. 30 or in the civil suit, as may be. It will be profitable to refer to para 11 of the above said judgment of the Apex Court in Madan's case supra [ (2014) 2 SCC 720 , p.724], which reads as follows: “11. A cursory glance at the provisions of Sections 18 and 30 of the Act, extracted above, may suggest that there is some overlapping between the provisions inasmuch as both contemplate reference of the issue of apportionment of compensation to the court. But, a closer scrutiny would indicate that the two sections of the Act operate in entirely different circumstances. While Section 18 applies to situations where the apportionment made in the award is objected to by a beneficiary there under, Section 30 applies when no apportionment whatsoever is made by the Collector on account of conflicting claims. In such a situation one of the options open to the Collector is to make a reference of the question of apportionment to the court under Section 30 of the Act. The other is to relegate the parties to the remedy of a suit. In either situation, the right to receive compensation under the award would crystallise after apportionment is made in favour of a claimant. The other is to relegate the parties to the remedy of a suit. In either situation, the right to receive compensation under the award would crystallise after apportionment is made in favour of a claimant. It is only thereafter that a reference under Section 18 for enhanced compensation can be legitimately sought by the claimant in whose favour the order of apportionment is passed either by the court in the reference under Section 30 or in the civil suit, as may be.” 7. This Court in the judgment in Vadakkeveettil Ahammed Rasheed & Ors. v. District Collector, Malappuram & Anr. reported in 2015 (1) KLT 505 = ILR 2015 (1) Ker.538 = 2015 (1) KLJ 615 = 2015 KHC 99 , has held that a person who applied for a reference under Section 30 of the Act and has obtained a right to receive the compensation or any part thereof pursuant thereto, is not debarred from applying for a reference under Section 28A for re-determination of compensation on the ground that he had not applied for enhancement of compensation under Section 18 of the Act. This Court held in the said judgment that the right to receive compensation or part thereof under an award would crystallize only after apportionment is made in favour of the party under Sec. 30 of the Act and it is only thereafter that a reference under Sec.18 of the Act for enhanced compensation could be legitimately sought by the claimant in whose favour the order of apportionment is passed either by the court in the reference or in the civil court, as the case may be. 8. Dealing with similar issue of apportionment under Sec. 31 of the Land Acquisition act, 1894, this Court has held in paras 5 and 6 on pages 9 to 11 of the judgment dated 11.6.2008 in W.P.(C).No. 10336/2007 as follows: “5.......The statutory provisions regarding awards under the Land Acquisition Act give support to the argument of the petitioners that awards under the statute are expected to be passed in favour of named persons whether individuals or institutions and notice of the awards are expected to be given to the awardees, i.e., persons identified as persons interested in the acquired properties. Rule 13 of the Land Acquisition Kerala Rules, 1990 dealing with issuance of notice of award also provides that award notices contemplated by section 12 (2) of the Land Acquisition Act are to be served on the awardees and interested persons in the manner prescribed by section 45. Subsection 2 of section 45 provides that service of notice shall be made on the person named therein. Concededly in the original award No.19/99 dated 20-7-1999 regarding which notice was given to the petitioners they had not been named as the awardees or persons interested over the subject property. On the contrary the definite stand of the land acquisition officer was that nobody has claimed ownership over the properties and that the owner of the properties has not been identified so far. Under these circumstances I am unable to accept the case of the respondents that the award notice which had been earlier issued to the petitioners regarding award No.19/99 dated 20-7-1999 should also be construed as an award notice in respect of the subject properties. The awarding officer has recognised the petitioners are the awardees of the compensation for the subject properties only when he issued Ext.P7. Ext.P7 as already stated has been issued on the basis of the representation which the petitioners had submitted within the statutory period of six weeks from the date of award No.19/99 itself. Taking due notice of the legislative intendment which underlies section 18 which in my opinion is to ensure that a person who has been deprived of his properties against his wishes by exercise of powers of eminent domain by the Government should be provided with an opportunity to have his grievance regarding the correct compensation payable for the acquired property adjudicated at the level of a competent civil court. I find that there is considerable merit in the contention of the petitioners that their rights to seek a reference under section 18 in respect of the compensation payable for the subject property became crystalised only when Ext.P7 was issued. Ext.P8 application seeking a reference has been filed well within the statutory period of six weeks of Ext.P7. 6. The result of the above discussion is that the writ petition will stand allowed. I direct the first respondent to refer the question of determination of the correct compensation payable for the subject properties having total extent of 0.2186 hectares in RS. 6. The result of the above discussion is that the writ petition will stand allowed. I direct the first respondent to refer the question of determination of the correct compensation payable for the subject properties having total extent of 0.2186 hectares in RS. No.151/1 and 151/2 of Kalanad Village to Subordinate Judge's Court, Kasaragode treating the same as valid application seeking reference under section 18 submitted by the petitioners. Needful in this regard shall be done by the first respondent at the earliest, at any rate, within six weeks of receiving copy of this judgment.” 9. After hearing both sides and taking into account the various factual aspects of the matter, this Court is of the considered opinion that the view taken by the Apex Court and by this Court in the context of Sec.30 could also be contextually applied or imported in a scenario where Sec.30 appointment proceedings could also be contextually applied and imported in a scenario covered by Sec. 31 apportionment proceedings. It has been categorically held by Apex Court and this Court that the right to seek compensation or part thereof under the award would get crystallized only after apportionment is made by the party under Sec. 30 of the Act and it is only thereafter that reference under Sec.18 for enhanced compensation could be legitimately sought for by the claimant in whose favour the order of apportionment is passed, etc. Hence it is only to be held that the right to receive compensation or part thereof under the award would get crystallized in a case like this only after apportionment under Sec. 31 proceedings is duly completed and it is only thereafter that reference under Sec.18 of the Act for enhanced compensation could be legitimately sought for by the claimant in whose favour the order of apportionment is passed, etc. In the instant case, there is no dispute that the LAR Court concerned had rendered its judgment in LAR No.17/2017 in respect of Sec. 31 proceedings in this case is only on 31.8.2018. Further it is also clearly admitted in the impugned Ext.P-6 rejection order dated 10.10.2018 that the petitioner had in fact submitted Ext.P-5 application for reference under Sec.18 is on 29.9.2018. Further it is also clearly admitted in the impugned Ext.P-6 rejection order dated 10.10.2018 that the petitioner had in fact submitted Ext.P-5 application for reference under Sec.18 is on 29.9.2018. Hence the period of limitation for submission of Sec. 18 reference application in cases like this should be reckoned from the date decision of the LAR Court on Sec.31 apportionment proceedings and if that is the position, Ext.P-5 application for reference is submitted well within the period of limitation envisaged in Sec. 18(2)of the Act. In that view of the matter, it is only to be held that Ext.P-6 rejection order is illegal and ultra vires. Accordingly, the impugned Ext.P-6 rejection order will stand set aside. Correspondingly, it is ordered that the 2nd respondent Special Tahsildar (Land Acquisition) will take up the request made by the petitioner in Ext.P-5 application dated 29.9.2018 and will refer the matter under Sec.18(2) to the LAR Court concerned for adjudication of the claim for enhanced compensation. Necessary orders in this regard should be passed by the 2nd respondent without much delay, preferably within a period of 2 weeks from the date of production of a certified copy of this judgment. With these observations and directions, the Writ Petition (Civil) stands finally disposed of.