Research › Search › Judgment

Kerala High Court · body

2020 DIGILAW 761 (KER)

Sreedharan v. District Collector, Malappuram

2020-09-11

ANIL K.NARENDRAN

body2020
JUDGMENT : The properties owned by the petitioners were acquired for the construction of Nilambur Bypass, based on Section 11(1) notification issued under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The 2nd respondent Land Acquisition Officer passed Exts.P1 to P1(e) awards dated 25.10.2016, awarding compensation to the petitioners. They received the amount of compensation under protest and sought reference under sub-section (1) of Section 64 of the Act, by submitting Exts.P2 to P2(c) applications dated 31.12.2016 and Exts.P2(d) and P2(e) applications dated 17.05.2017, which were accompanied by application for condonation of delay, as provided under the second proviso to sub-rule (2) of Rule 64. Based on an application dated 22.01.2010 filed under the Right to information Act, 2005, the petitioners were informed through their lawyer, vide Ext.P3 reply dated 30.01.2020 of the Public Information Officer in the office of the 2nd respondent that, after considering the statutory provisions, the 2nd respondent found that the applications made by the petitioners deserve no consideration and accordingly those applications have already been rejected, vide Exts.P4 to P4(e) orders dated 08.05.2019, which were communicated to the petitioners, on 08.05.2019/21.08.2019. By Exts.P4 to P4(e) orders, the 2nd respondent rejected Exts.P2 to P2(e) reference applications dated 31.12.2016/17.05.2017 made by the petitioners under sub-section (1) of Section 64 of the Act, since those applications were filed beyond the specified time limit. Feeling aggrieved, the petitioners are before this Court in this writ petition, under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Exts.P4 to P4(e) orders of the 2nd respondent. The petitioners have also sought for a writ of mandamus commanding the respondents to reconsider Exts.P2 to P2(e) reference applications and the accompanying application for condonation of delay. 2. On 16.07.2020, when this writ petition came up for admission, the learned Government Pleader took notice for respondents 1 and 2 and sought time to get instructions. 3. Heard the learned counsel for the petitioners and also the learned Senior Government Pleader appearing for the respondents. 4. Section 64 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act deals with reference to Authority. 3. Heard the learned counsel for the petitioners and also the learned Senior Government Pleader appearing for the respondents. 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 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. 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 the instant case, by Exts.P4 to P4(e) orders, the 2nd respondent rejected Exts.P2 to P2(c) reference applications made by petitioners 2 to 4 dated 31.12.2016 and Exts.P2(d) and P2(e) reference applications made by petitioners 5 and 6 dated 17.05.2017, under sub-section (1) of Section 64 of the Act, since those applications were filed beyond the specified time limit, i.e., the time limit specified in the first proviso to sub-section (2) of Section 64. However, those applications were accompanied by application for condonation of delay, as provided under the second proviso to sub-rule (2) of Rule 64. Therefore, before rejecting Exts.P2 to P2(e) reference applications, the 2nd respondent ought to have passed orders on those applications for condonation of delay. Admittedly, Exts.P2 to P2(e) reference applications were filed after the expiry of the period specified in the first proviso to sub-section (2), within a further period of one year. Therefore, before rejecting Ext.P2 to P2(e) reference applications, the 2nd respondent has to consider whether the petitioners have shown sufficient cause in the application for condonation of delay, for not filing those reference applications within the period specified in the first proviso. In order to condone the delay, the 2nd respondent has to record his satisfaction that the petitioners have shown sufficient cause for not filing the reference applications within the period specified in the first proviso to sub-section (2). 7. In order to condone the delay, the 2nd respondent has to record his satisfaction that the petitioners have shown sufficient cause for not filing the reference applications within the period specified in the first proviso to sub-section (2). 7. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act was enacted by the Parliament to ensure, in consultation with institutions of local self-government and Gram Sabhas established under the Constitution, a humane, participative, informed and transparent process for land acquisition for industrialisation, development of essential infrastructural facilities and urbanisation with the least disturbance to the owners of the land and other affected families and provide just and fair compensation to the affected families whose land has been acquired or proposed to be acquired or are affected by such acquisition and make adequate provisions for such affected persons for their rehabilitation and resettlement and for ensuring that the cumulative outcome of compulsory acquisition should be that affected persons become partners in development leading to an improvement in their post acquisition social and economic status and for matters connected therewith or incidental thereto. 8. 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. 9. 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. 9. The learned Senior Government pleader would contend that, since the petitioners have not offered sufficient cause for not filing Exts.P2 to P2(e) reference applications within the period specified in the first proviso to sub-section (2) of Section 64, no interference is warranted on Exts.P4 to P4(e) orders of the 2nd respondent, whereby Exts.P2 to P2(e) reference applications made by the petitioners stand rejected. 10. In Exts.P4 to P4(e) orders, the 2nd respondent has no case that the petitioners have not offered sufficient cause for not filing Exts.P2 to P2(e) reference applications within the period specified in the first proviso to sub-section (2) of Section 64 of the Act. On the other hand, by those orders, the 2nd respondent rejected Exts.P2 to P2(e) reference applications filed under sub-section (1) of Section 64 of the Act, since those applications were filed beyond the specified time limit, i.e., the time limit specified in first proviso to sub-section (2) of Section 64. In Exts.P4 to P4(e) orders, the 2nd respondent has not recorded his satisfaction that the petitioners have not shown sufficient cause for not filing Exts.P2 to P2(e) reference applications within the period specified in the first proviso to sub-section (2) of Section 64. Therefore, Exts.P4 to P4(e) orders of the 2nd respondent cannot be sustained in law. 11. In the result, this writ petition is disposed of by setting aside Exts.P4 to P4(e) orders of the 2nd respondent and by directing the said respondent to reconsider the applications for condonation of delay filed along with Exts.P2 to P2(e) reference applications under the second proviso to sub-rule (2) of Rule 64 of the Act and pass appropriate orders taking note of the law laid down in this judgment, with notice to the petitioners and after affording them an opportunity of being heard, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a certified copy of this judgment. In case, the delay in filing Exts.P2 to P2(e) reference applications is condoned, the 2nd respondent shall consider those reference applications on merits, and appropriate orders shall be passed, within a further period of one month. No order as to costs.