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2021 DIGILAW 1148 (KER)

Anilkumar P, S/o. Chathu v. State Of Kerala

2021-12-15

DEVAN RAMACHANDRAN

body2021
JUDGMENT : The interpretational interplay of sub-sections 1 and 3 of Section 28A of the Land Acquisition Act, 1894, (hereinafter referred to as the “LA Act” for short), has been invited to my attention in this case because the petitioner says that even if his application under section 28A(1) of the said Act is rejected, he obtains a right to make further application for reference to the competent Reference Court under Section 28A(3) thereof. 2. The petitioner is stated to be the owner of a property which has been acquired by the Government for the purpose of establishment of an “IT Park” and concedes that an Award was also issued in his favour. He says that, however, certain other land owners of the properties covered by the same acquisition notification, took up their Awards before the Sub-Court, Kozhikkod, in LAR 90/2013 and connected matters, which culminated in Ext.P4 order dated 21/10/2014, enhancing the compensation. He says that he, thereupon, preferred an application under Section 28A(1) of the “LA Act” on 20/10/2015, which is within the statutory time limit, but that no action was taken by the competent Authority on it for the next five years. 3. The petitioners says that, in the meanwhile, Ext.P5 order was challenged before this Court, which ended in Ext.P3 judgment in LAA No.20/2015 and connected matters, delivered on 28/05/2018. He says that he came to be aware of this judgment only later and that immediately thereafter, on 27/11/2019, he applied for a certified copy of the same, which was delivered to him sometime on 05/12/2019 and that within two months hence, he preferred a fresh application under Section 28A(1) of the “LA Act” before the competent Authority on 29/01/2020. The petitioner says that it transpires the competent Authority, vide Ext.P5 order dated 18/01/2020, disposed of his first application dated 21/10/2014 and then pertinently issued Ext.P6 order on 07/05/2021, deciding his second application dated 29/01/2020. 4. The petitioner contends that both Exts.P5 and P6 are untenable because the land in question differs from the land covered by Ext.P3 judgment; while, his second application dated 29/01/2020, has been rejected merely saying that it has been filed beyond time. 5. The petitioner, therefore, prays that both Exts.P5 and P6 be set aside and that the competent Authority be directed to reconsider his application dated 29/01/2020 on its merits. 6. 5. The petitioner, therefore, prays that both Exts.P5 and P6 be set aside and that the competent Authority be directed to reconsider his application dated 29/01/2020 on its merits. 6. As an alternative and adscitious submission, the petitioner contends that, even assuming Exts.P5 and P6 can be found to be tenable, he has a further remedy under Section 28A(3) of the LA Act, whereby he can seek that the Award be referred to the competent Reference Court; and, thus prays that such liberty be reserved to him, since the above mentioned provision does not provide for any specific time limit for making such an application. 7. I have heard Sri.Nidheesh.T.P. - learned counsel appearing for the petitioner; Sri.Abdul Salam - learned 4th counsel appearing for the respondent; and Smt.Sudhadevi - learned Special Government Pleader appearing for the official respondents. 8. Smt.Sudhadevi, in answer to the afore submissions of Sri.Nidheesh T.P., submitted that the petitioner cannot challenge Exts.P5 and P6 because they have been issued after considering all relevant aspects; and that, in fact, the former clearly states the reasons why his request under Section 28A(1) of the “LA Act” cannot be acceded to. She pointed out that, as is specifically stated therein, the nature of the property of the petitioner is completely different from that of the one covered by Exts.P3 and P4 judgments; and consequently, that it was impossible to have made reference under Section 28A(3) of the “LA Act”, even though he had preferred objections to the same. She added that the petitioner has not done so until today and that is not possible for him to do so in future, because there is the rigour of limitation under Section 28A(1) of the “LA Act”. She, therefore, prayed that this writ petition be dismissed. 9. Pertinently, Sri.K.Abdul Salam - learned counsel appearing for respondent No.4, submitted that, though the petitioner cannot challenge Exts.P5 and P6 Awards before this Court, he certainly obtains a statutory remedy to seek a reference to the competent Reference Court under Section 28A(3) of the “LA Act”; and to a pointed question from this Court, he conceded that no period of limitation has been prescribed in the said provision. He added that, therefore, it is now up to the petitioner to make a proper application before the competent Authority, who will then have to consider his claim based on the provisions of Section 28A(3) of the “LA Act”, leading to a reference being made, as may be found warranted. 10. I have evaluated the afore submissions very carefully and it presents a matter of legal importance. 11. Before I proceed with the rival submissions of the parties, I must say that I am not inclined to consider the contentions of the petitioner against Exts.P5 and P6 on its merits at this stage since, as rightly stated by Sri.Abdul Salam, the petitioner obtains a statutory remedy under Section 28A of the “LA Act”, if he is dissatisfied by the same. Obviously, therefore, when there is an alternative statutory remedy provided by the “LA Act” itself, it would not be necessary or justified for this Court to enter into the merits of the contents of Exts.P5 and P6; and I am certain that petitioner must be Nidheesh T.P.directed to invoke his alternative remedies, as are available under the said Statute. 12. However, one predicament that the petitioner may face in this regard is as to whether the application to be made by him under Section 28A(3) of the “LA Act” could be construed to be within time. There is some importance with this issue because, though there is no specific provision of limitation in the said section, it mandates that the provisions of Sections 18 to 28 shall, so far as may be, apply to the reference to be made under it. Ineluctably, therefore, I will have to examine Section 18, as also Section 28A(1), to see if it, in any manner, impedes the opportunity of the petitioner to make a fresh application for reference under the provisions of Section 28A(3) of the “LA Act”. 13. There can be no doubt - it being admitted - that going by Section 18 of the “LA Act”, a reference will have to be made by the owner of a land within a period of six weeks from the date of receipt of a notice from the District Collector under Section 12, or within six months from the date of the Award, which is earlier. In this case, it is uncontested that the petitioner did not invoke the provisions of Section 18, but waited till Ext.P3 judgment in the LAA No.20/2015 and connected matters, which was issued on 28/05/2018. He had, by then, made his first application under Section 28A(1) of the “LA Act” on 28/01/2015, based on Ext.P4 Award of the Trial Court; and then followed up with a further application on 29/01/2020, based on Ext.P3 judgment of this Court. These applications have been rejected through Exts.P5 and P6 by the competent Authority on 18/01/2020 and 07/05/2021 respectively. 14. In the conspectus of the above, the real question is whether the petitioner has lost his right to make an application under Section 28A(3) of the “LA Act” to the competent Authority, for referring the Award to the Reference Court, solely on account of the prescriptions of limitation. 15. As I have already said above, there is no doubt that Section 18 provides for a particular period of limitation; while Section 28(1) also does so, by limiting it to three months from the date of the Award. However, pertinently, there is no such rigour provided under section 28A(3) of the “LA Act” though it says that the provisions of Section 18 to 28 shall, so far as may be, apply to the reference to be made under it. 16. Since the statutory scheme provides that the reference under Section 28A(3) will be governed, and guided by the provisions of Sections 18 and 28A(1), but does not specify a particular time limit for the petitioner to make a reference thereunder, it is clear that there are two types of periods of limitations provided in the afore two Sections, as seen above. The question whether which of these periods will apply to a reference under Section 28A (3) of the “LA Act” would be impossible for this Court, or for anyone else, to affirmatively state, since there is no clarity about it in the statutory compass. If this Court is to find that the provisions of Section 18 of the “LA Act” are to apply, then the petitioner would be still within time to seek the reference under Section 28A (3) of the “LA Act” because he had approached this Court on 15/11/2021, and within the period mentioned in Section 18, by filing this writ petition challenging Ext.P6 Award. Obviously, therefore, even if this Court is to hold that the said period of Limitation will apply to application under Section 28A(3) of the “LA Act” - though it is doubtful if it will apply at all - since this writ petition has been admitted and the petitioner allowed to prosecute it, the period thereafter will have to be excluded in computing the same. 17. That said, even though the provisions of the Section 28A (1) have been made mutatis mutandis applicable to Section 28A(3), there is great amount of doubt as to whether the stipulation of limitation therein would come into play, because the provisions of the latter section contain no such restriction. 18. I am, therefore, of the firm view that the petitioner is certainly entitled to seek a reference under Section 28A(3) of the “LA Act” before the competent Authority, who will, thereafter, be obliged to refer it to the competent Reference Court in terms of its provisions. Of course, it is upto the Reference Court to decide whether there any limitation is attracted in this case, and I leave full liberty to the said Court to take a final decision thereon as per law, however, adverting to my observations afore. Resultantly, I order this writ petition, without entering into the merits of Exts.P5 and P6 orders in any manner whatsoever; and leaving liberty to the petitioner to approach the competent Authority under Section 28A (3) of the “LA Act”; and if this is done within a period of one week from the date of receipt of a copy of this judgment, the said Authority will refer the Award issued in favour of the petitioner to a competent Reference Court under its terms, within a period of two weeks thereafter. Needless to say, once the reference reaches the competent Reference Court, it will consider the same, after affording necessary opportunity of being heard to both sides and after assessing every germane aspect, including on the question of limitation, if it is impelled.