IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE WEDNESDAY, THE 30TH JULY 2008 / 8TH SRAVANA 1930 WP(C).No. 3486 of 2007(M) ------------------------- PETITIONER: ------------ U.GOPALAKRISHNAN, S/O.UNNIKRISHNAN, CHELLENGAVU KALAM, KANJIKODE. BY ADV. SRI.T.R.RAJAN RESPONDENTS: ------------- 1. THE DISTRICT COLLECTOR, PALAKKAD. 2. THE SPECIAL TAHSILDAR, L.A.(GENERAL) NO.1, PALAKKAD. BY G.P. SRI.BASANTH BALAJI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.3486/2007 APPENDIX PETITIONER'S EXHIBITS; EXT.P1; COPY OF THE COMMUNICATION BEARING NO.A.983/81 DATED 25.3.1987 ISSUED BY THE SPECIAL TAHSILDAR L.A. (G) PALAKKAD TO THE PETITIONER. EXT.P2; COPY OF THE REFERENCE APPLICATION DATED 6.4.1987 SUBMITTED BY THE PETITIONER BEFORE THE SPECIAL TAHSILDAR L.A. (G) PALAKKAD. EXT.P3; COPY OF THE POSTAL RECEIPT ISSUED BY THE POST OFFICE AND ACKNOWLEDGMENT CARD. EXT.P4; COPY OF THE PETITION DATED 13.10.1987 SUBMITTED BY THE PETITIONER BEFORE SPECIAL TAHSILDAR L.A. (G) PALAKKAD. EXT.P5; COPY OF THE PETITION DATED 13.10.1987 SUBMITTED BY THE PETITIONER BEFORE SPECIAL TAHSILDAR L.A. (G) PALAKKAD. EXT.P6; COPY OF THE PETITION DATED 13.3.1996 SUBMITTED BY THE PETITIONER BEFORE THE SPECIAL TAHSILDR L.A. (G) NO.1) PALAKKAD WITH POSTAL RECEIPT. EXT.P7; COPY OF THE PETITION DATED 13.3.1996 SUBMITED BY THE PETITIONER BEFORE THE SPECIAL TAHSILDAR L.A. (G NO.1) PALAKKAD WITH POSTAL RECEIPT. EXT.P8; COPY OF THE ORDER BEARING NO.65998/B2/96/REVENUE DATED 10.12.1997 ISSUED BY THE SECRETARY, REVENUE (B) DEPARTMENT GOVERNMENT OF KERALA TO THE PETITIONER. EXT.P9; COPY OF THE ORDER BEARING NO.40939/B2/98/REVENUE DATED 10.11.1999 ISSUED BY THE SPECIAL SECRETARY, REVENUE (B) DEPARTMENT GOVERNMENT OF KERALA TO THE DIST. COLLECTOR, PALAKKAD. EXT.P10: COPY OF THE ORDER BEEARING NO.C5/44381/91 DATED 20.12.1999 ISSUED BY THE DIST. COLLECTOR, PALAKKAD TO THE SPECIAL TAHSILDAR L.A. (G) NO.1, PALAKKAD. EXT.P11: COPY OF THE ORDER BEARING NO.4855/B2/2002/ REVENUE DATED 22.4.2005 ISSUED BY THE SECRETARY, REVENUE (B) DEPARTMENT GOVERNMENT OF KERALA TO THE PETITIONER. EXT.P12; COPY OF THE PETITION DATED 8.5.2006 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P13; COPY OF THE ORDER BEARING NO.A 680/2005 DATED 12.10.2006 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P14: COPY OF THE REFERENCE APPLICATION DATED 6.4.1987 SUBMITTED BY THE PETITIONER BEFORE THE SPECIAL TAHSILDR L.A. (G), PALAKKAD (OBTAINED UNDER THE R.I. ACT). EXT.P15; COPY OF THE REFERENCE APPLICATION DATED 6.4.1987 SUBMITED BY THE PETITIONER BEFORE THE SPECIAL TAHSILDAR L.A. (G) PALAKKAD IN HIS CAPACITY AS THE POWER OF ATTORNEY HOLDER OF HIS WIFE RUGMANI (OBTAINED UNDER THE R.I. ACT). EXT.P16; COPY OF THE LETTER DATED 18.3.1987 OF THE SPECIAL TAHSILDR L.A. (GEN.) PALGHAT TO THE DY. COLLECTOR (L.A.), PALAKKAD ALONG WITH NOTE SHOWING THE DETAILS OF ACQUISTIION OF LAND FOR PALAGHAT MUNICIPAL STADIUM. PIUS C. KURIAKOSE, J. ---------------------------------- W.P.(C) NO. 3486 of 2007 ---------------------------------- Dated this the 30th day of July , 2008 JUDGMENT The property belonging to the petitioner Sri.Gopalakrishnan and his mother in law Smt.Thankamma were acquired at the instance of the Palakkad Municipality by the 2nd respondent for the construction of the municipal stadium and awards were passed. According to the petitioner, he and his mother in law came to have information regarding the passage of the award only when Ext.P1 letter dated 25.3.1987 was served on them by the Land Acquisition Officer. Ext.P1 is to the effect that the compensation amount is being transferred to revenue deposits since the awardees have not presented themselves for collecting the compensation. On receiving Ext.P1, the petitioner filed Ext.P14 reference application on his own behalf. Ext.P15 reference application was filed by the petitioner in his capacity as the power of attorney holder of his wife, who had become entitled to the estate of his mother in law, who has passed away WPC No.3486/2007 2 in the meanwhile. Noticing that Exts.P14 and P15 were not being considered favourably, the petitioner submitted Ext.P12 representation requesting that the question of determination of the correct compensation payable for the properties acquired from himself and his mother in law be referred to the court. The Land Acquisition Officer would construe Ext.P12 as an application for reference and would reject the same vide Ext.P13 on the ground of limitation. In this writ petition, the petitioner seeks the following reliefs; a). call for records leading to Ext.P13 and quash the same by issuing a writ in the nature of certiorari or any other appropriate writ order or direction . b). issue a writ in the nature of mandamus commanding the 2nd respondent to refer the question of enhancement of compensation to the civil court as sought for in Ext.P2 reference application and the reference application dated 6.4.1987 WPC No.3486/2007 3 submitted by the petitioner in his capacity as the power of attorney holder of his wife Rugmini referred to in para 2 of the writ petition within a time limit to be fixed by this Hon'ble court. “ 2. No Counter affidavit has been filed by the respondents. Thus the averments in the writ petition stands virtually established by non traverse. 3. I have heard the submissions of Sri.T.R.Rajan, the learned counsel for the petitioner and Sri.Basanth Balaji the learned Government Pleader. Sri.Rajan would draw my attention to the judgments of the Supreme Court in Raja Harish Chandra Raj Singh v. Deputy Land Acquisition Officer and another (AIR 1961 Supreme Court 1500) and the judgment in Parsottambhai Maganbhai Patel and Others v. State of Gujarat and another ( 2005) 7 Supreme Court Cases 431) and it was argued that the period of limitation for applications under Section 18(2)(b) is to be calculated with reference to the date of knowledge of the award in cases where the claimants were not present before the awarding officer when the award was WPC No.3486/2007 4 passed. It was submitted by Sri.Rajan that the petitioner and his mother in law were never served with any notice under Section 12 (2). Resisting the submissions of Sri.Rajan, the learned Government Pleader would draw my attention to the land Acquisition file which was placed before me for my perusal. The file at page 123 contains an endorsement that the petitioner and his mother in law have refused to accept the notice under Section 12(2) which had been sent to them. When the attention of Sri.Rajan was drawn to the above aspect of the file, he drew my attention to Ext.P16 note which was prepared by the Land Acquisition Officer himself for being forwarded to the Deputy Collector. Paragraph 2 of Ext.P16 note is quoted as follows; “ The High Court of Kerala by order CMP 21132/86 in O.P. 5382/83 dated 9.9.86 has stayed acquisition proceedings in respect of the holdings of (1) Kandankutty (2) Kandan (3) Rajan (4) Kesavan. As per order in CMP 21354/86 in O.P. 6498/86 dated 5.9.86 the High Court has stayed acquisition proceedings in WPC No.3486/2007 5 respect of holdings occupied by (1) K.Sundaram (2) P.A. Jayaraman. Due to the stay orders issued by the Hon'ble High Court, the extent occupied by the above persons were excluded from award and therefore award in respect of 1.3185 hectares was passed on 23.9.86. Immediately on passing the award the following persons have also obtained orders of stay of L.A. Proceedings from the High Court of Kerala (1) Gopalakrishna (0.0121 hect.) (2) Thanka W/o. Aru (0.7130) 3. Krishnan ( 0.1460). The service of 12 (2) notice eviction has not been done in this case. Notice for eviction has been issued to the remaining awardees on 9.2.1987 and served on them on or before 13.2.1987.” Thus it appears to me that there is conflict between the notings in the file and Ext.P16 note. Under the above circumstances, for verifying the correct position regarding the various orders of stay passed in respect of the proceedings for acquisition for the WPC No.3486/2007 6 purpose of Palakkad Municipal stadium, I directed the registry to incorporate the judges paper relating to the various writ petitions which had been filed before this court challenging proceedings for Acquisition for the Palakkad municipal stadium. The registry has reported that judges papers are not traceable since the original petitions were disposed of more than 12 years ago. 4. The learned Government Pleader would submit that there appears to be some conflict between the opinion of this court and the Supreme Court in the matter of entertaining reference applications under Section 18 (2) (b) . It was submitted that in the two decisions cited by Sri.Rajan, the Supreme Court has taken the view that date of knowledge regarding the passage of the award can be of some significance at least in those cases where the claimant was not present or represented when the award was made or when no notice under Section 12(2) was served on him. In the present case, there is no dispute that neither the petitioner nor his mother in law were present when the award was passed. The dispute is on the question as to whether notice under Section 12(2) was served on them. The file kept by the Land Acquisition Officer indicates WPC No.3486/2007 7 that the petitioner and his mother in law evaded the notice under Section 12 (2). But at the same time, Ext.P16 authored by the land Acquisition officer himself is to the effect that the notice was not served on them in view of the stay orders which had been issued by this court in other writ petitions. Since judges paper relating to the other writ petitions are not available, it is not possible to verify the correct position. At the same time when this issue is examined in the realm of probabilities, I feel that in this case where the claimants had been appearing before the land Acquisition officer through an advocate and promptly filing claim statements,etc. and pursuing the matter seriously, it is unlikely that they would have refused to accept notice under Section 12 (2) if the same had been take to them. In other words, I feel that there is justification for extending benefit of doubt to the petitioner while answering the question in dispute. The petitioner's version that he came to have notice and knowledge about the award only when he was served with Ext.P1 is highly probable. On going through the rejection order, it is seen that the Land Acquisition Officer has treated Ext.P12 as the application under Section 18 filed by the petitioner and his WPC No.3486/2007 8 mother in law. Ext. P12 is not an original application for reference on the contrary it is a representation referring to Ext.P14 and P15 and seeking early orders on Exts.P14 and P15. Exts.P14 and P15 were submitted by the petitioner and is borne out by the records. Under these circumstances, I am inclined to grant relief to the petitioner. The result is that the writ petition will stand allowed. Ext.P13 is quashed and the land Acquisition officer is directed to take up Exts.P14 and P15 to treat them as applications filed by the petitioner and his wife (through the power of attorney holder) under Section 18 (2) for reference to the court on time, consider those application favourably and make the references applied for at the earliest and at any rate within six weeks of receiving copy of this judgment. PIUS C. KURIAKOSE JUDGE dpk