IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 3RD OCTOBER 2011 / 11TH ASWINA 1933 OP(C).No. 2337 of 2011(O) ----------------------------------- LAR.207/2009 of SUB COURT, PAYYANNUR ................................................................................. PETITIONER(S): ----------------------- THIDIL KUNHIRAMAN, S/O. KUNHIRAMAN, POST ETTIKULAM, TALIPARAMBA TALUK, KANNUR DISTRICT. BY ADV. SRI.SERGI JOSEPH THOMAS SRI.K.M.AUGUSTINE RESPONDENT(S): ------------------------- 1. THE DISTRICT COLLECTOR, KANNUR - 670 002. 2. THE SPECIAL TAHSILDAR (LAND ACQUISITION) EZHIMALA NAVAL ACADEMY, PAYYANNUR - 670 101. 3. THE SPECIAL TAHSILDAR (LA GENERAL), THALASSERY - 670 301. R1 TO R3 BY GOVT. PLEADER SRI. T. K. SAJEEV THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DS OP(C).No. 2337 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE 28 A APPLICATION DATED 07-08-2000 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P1 (A): COPY OF THE JUDGMENT DATED 31-03-2000 PASSED BY THE SUB COURT, PAYYANNUR. P2: COPY OF THE ORDER IN PROCEEDINGS NO. REF. C. 1353/05 DATED 26-11-2008 ISSUED BY THE 2ND RESPONDENT. P3: COPY OF THE REFERENCE APPLICATION DATED 1.1.09 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P4: COPY OF THE REFERENCE NOTE DATED 31.7.2009 ISSUED BY THE 2ND RESPONDENT. P5: COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER BEFORE THE REFERENCE COURT IN L.A.R. 207/09. P6: COPY OF THE COUNTER STATEMENT DATED 24-01-2011 FILED BY THE 2ND RESPONDENT. P7: COPY OF THE ADDITIONAL COUNTER STATEMENT DATED 21-03-2011 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P8: COPY OF THE ORDER DATED 18-03-2009 IN PROCEEDINGS NO. D. DIS. 1352/08/C ISSUED BY THE 2ND RESPONDENT. P9: COPY OF THE REFERENCE APPLICATION DATED 08-04-2009 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P10: COPY OF THE JUDGMENT DATED 11-04-2011 PASSED BY THE SUB COURT, PAYYANNUR L.A.R. 207/09. P11: COPY OF THE DECREE DATED 11-04-2011 PASSED BY THE SUB COURT, PAYYANNUR, L.A.R. 207/09. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ PA TO JUDGE DS THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2337 of 2011 ==================================== Dated this the 03rd day of October, 2011 J U D G M E N T Exhibits P10 and P11, judgment and decree in L.A.R. No.207 of 2009 are under challenge in this Original Petition as the reference has been closed by the learned Sub Judge, Payyannur on a finding that the application under Section 28A of the Kerala Land Acquisition Act, 1894 (for short, “the Act”) was not preferred within the time specified therein. Though the judgment and decree are amenable to an appeal under Sec.54 of the Act, since the finding of learned Sub Judge appeared to be prima facie unsustainable the Original Petition was entertained since otherwise on account of a prima facie illegal finding based on incorrect facts if the party is directed to prefer an appeal he may have to pay huge court fee on the appeal. 2. It is not disputed that the land belonging to the petitioner was acquired and under the same Notification certain other lands belonging to other persons were also acquired. In respect of those lands the land owners made request before the Land Acquisition Officer for reference of the application to the civil O.P(C) No.2337 of 2011 -: 2 :- court and accordingly reference was made and taken on file as L.A.R. No.213 of 1987. That reference was answered on 20.03.1990. There was an appeal to this Court – L.A.A. No.52 of 1992, this Court set aside judgment and decree of the reference court and the matter was remitted to the trial court for fresh decision on the reference. Thereafter learned Sub Judge passed Ext.P1(a), revised judgment dated 31.03.2000. In view of that revised judgment, petitioner made a claim to the Land Acquisition Officer under Sec.28A of the Act requesting that compensation awarded in the revised judgment referred above may be allowed in the matter of acquisition of his land as well. Since the decision of the Land Acquisition Officer was not favourable to the petitioner, he requested for a reference, that was allowed and learned Sub Judge took the reference on file as L.A.R. No.207 of 2009. Learned Sub Judge in Ext.P10, judgment found that the request for reference was made beyond three months from the date of the (original) judgment in L.A.R. No.213 of 1987 (20.03.1990), the reference is beyond the prescribed time and that it is not subject to Section 5 of the Limitation Act. Accordingly the reference was answered against the petitioner. That judgment and decree are under challenge. O.P(C) No.2337 of 2011 -: 3 :- 3. Learned counsel for petitioner contends that learned Sub Judge failed to note that judgment and decree dated 20.03.1990 in L.A.R. No.213 of 198 are no more in existence as the same were set aside in L.A.A. No.52 of 1992 which fact is referred to in paragraph 3 of Ext.P1(a), revised judgment itself. According to the leaned counsel in the circumstances the relevant day for computing the period of limitation under Sec.28A of the Act is 31.03.2000 on which day the revised judgment and decree were passed in L.A.R. No.213 of 1987 and excluding the date of that judgment and the time taken for obtaining the certified copy of that judgment and decree, Ext.P1, application preferred to the Land Acquisition Officer on 07.08.2000 is within time. It is also the contention of learned counsel that judgment of the appellate court cannot be basis for a reference under Sec.28A of the Act since the said judgment comes in part V of the Act while judgment of the trail court comes in Part III as referred to in Sec.28A of the Act. 4. Learned Government Pleader appearing for respondents contended that if the relevant date for computing the period of limitation referred to in Sec.28A of the Act is reckoned as 20.03.1990 on which date learned Sub Judge passed the O.P(C) No.2337 of 2011 -: 4 :- original award in L.A.R. No.213 of 1987 Ext.P1, application is hopelessly barred by limitation and in that view of the matter, Exts.P10 and P11 are justified. 5. It is not disputed by either side that if the relevant date to be reckoned for computation of limitation is the date of revised judgment (31.03.2000) in view of the proviso to Sec.28A of the Act, Ext.P1, application preferred on 07.08.2000 is within time. 6. Section 28A of the Act reads: “28A. Re-determination of the amount of compensation on the basis of the award of the court.- (1) Where in an award under this Part, the Court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under Section 11, the persons interested in all the other land covered by the same notification under Section 4, sub-section (1) and who are also aggrieved by the award of the Collector may, notwithstanding that they had not made application to the Collector under Section O.P(C) No.2337 of 2011 -: 5 :- 18, by written application to the Collector within three three months from the date of the award of the Court require that the amount of compensation payable to them may be re- determined on the basis of the amount of compensation awarded by the Court. Provided that in computing the period of three months within which an application to the Collector shall be made under this sub-section, the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be excluded. (2) ....... (3) ......” It is clear from sub-sec.(1) that for the purpose of reckoning the period of limitation the relevant day is the date of the award passed by the trial court. True that in L.A.R. No.213 of 1987 the original judgment and decree were passed on 20.03.1990. But that judgment and decree are no more in existence since the same were set aside by this Court in L.A.A. No.52 of 1992 (by O.P(C) No.2337 of 2011 -: 6 :- judgment dated 28.09.1999) as revealed from the observations in paragraph 3 of Ext.P1(a). In other words, the judgment and decree dated 20.03.1990 are no more in existence. What remains is only the revised judgment and decree which come in part III of the Act and squarely comes within Sec.28A of the Act. If that be so, learned Sub Judge is wrong in reckoning 20.03.1990 as relevant date for computation of period of limitation. That is the date of the non-existent judgment and decree. If relevant date is taken as the date of the revised judgment (31.03.2000), it is not disputed before me that Ext.P1, application dated 07.08.2000 is within time. 7. On other claims made in Ext.P1, application learned Sub Judge has not entered any finding. Those matters are to be decided by the learned Sub Judge. In the view I have taken, Exts.P10 and P11 cannot be sustained and are liable to be set aside. Resultantly, Original Petition is allowed. Exhibits P10 and P11, judgment and decree passed by the learned Sub Judge, Payyannur in L.A.R. No.207 of 2009 are set aside holding that reference is made within the time prescribed. Learned Sub Judge is directed to consider the claim made in Ext.P1, application O.P(C) No.2337 of 2011 -: 7 :- dated 07.08.2000 after giving both sides opportunity to adduce evidence and decide the matter in accordance with law. Parties are directed to appear in the court below on 28.10.2011. THOMAS P. JOSEPH, JUDGE. vsv