IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 7TH FEBRUARY 2008 / 18TH MAGHA 1929 WP(C).No. 4437 of 2008(C) ------------------------- LAR.46/2006 of ADDL.SUB COURT,PARAVUR .................... PETITIONERS: ---------------------- 1. RAMAKRISHNAN, S/O. NARAYANAN, ILLATHUPARAMBIL, CHAKKATHARAYIL, KEDAMANGALAM, PARAVUR VILLAGE. 2. MOHANAN, S/O. NARAYANAN, ILLATHUPARAMBIL, NOW RESIDING AT PATTARIPARAMBIL, PERUMPADANNA, PARAVUR VILLAGE. 3. AMMALU, W/O. KUTTAN, KOODATHINGAL, KANTHIATTUKUNNAM, PARAVUR VILLAGE. 4. AMBUJAM, W/O. APPU, PERAMPODATH, NANTHIATTUKUNNAM, PARAVUR VILLAGE. 5. OMANA, W/O. GOVINDAN, LAKSHAMVEETTIL, PERAMBRA KARA, PARAVUR VILLAGE. BY ADV. SRI.C.CHANDRASEKHARAN SRI.P.VISWANATHA MENON RESPONDENT: ---------------------- STATE OF KERALA, REP. BY (LA) SPECIAL TAHSILDAR, ALUVA. BY GOVERNMENT PLEADER SMT. R. BINDU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 4437 OF 2008 --------------------- Dated this the 7thday of February, 2008 JUDGMENT This writ petition is preferred to quash Ext.P1 order and to direct the reference court to dispose of LAR 46/02 on merits. The Land Acquisition Reference Court was considering reference under Section 28A(3) of the Land Acquisition Act. Section 28A(3) reads as follows: “ Any person who has not accepted the award under sub-section (2) may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the court and the provisions of sections 18 to 28 shall, so far as may be, apply to such reference as they apply to a reference under Section 18.” 2. The Apex court in the decision reported in Jose Antonio Cruz Doa R. Rodriguese v. Land Acquisition Collector [AIR 1997 SC 1915] held that “Section 28A/ Redetermination of compensation- Application for-Period of limitation of three month-should be reckoned from date of award by Court disposing of reference under Section 18 and not appellate Court dealing with appeal against award of reference court.” So it is crystal clear that the period of limitation WPC NO 4437/08 2 has to be reckoned with reference to the original award and it has nothing to do with a matter pending in appeal. So far as the present case is concerned, the judgment was passed on 11.2.03. The present writ petitioners applied for a copy only on 17.9.04. That is, one year and seven months after the pronouncement of the judgment. It was received on 29.9.04. If an application is made immediately and there is delay in obtaining a copy of the judgment certainly, the law permits exemption of that time for computing three months. Here, application for issuance of a copy was filed after one year and seven months. Therefore, on the decision relied upon and as referred to above, the court below held that the reference is totally barred by limitation and therefore it cannot be entertained. 3. Learned counsel for the petitioner has strongly contended for the position that when a reference is made by the Collector to the court, the court is only expected to answer the reference. It cannot look into the question of the maintainability or otherwise of the case. In other words, it is duty bound to answer the reference on merits and is not entitled to enter into the merits on the question of limitation or non maintainability. 4. Learned counsel had relied on the decision of this court WPC NO 4437/08 3 reported in Georgekutty v. State of Kerala [2001 (3) KLT 623] and a later decision in Krishna Pillai v. State of Kerala [2007 (2) KLT 588] and also the decision of the Apex court reported in Chimanlal v. Spl. Land Acquisition Officer, Poona [AIR 1988 SC 1652]. So far as decisions of this court are concerned, this court had taken the view in those two decisions that when a reference is made, the court is under an obligation to answer the reference and cannot look into the question of limitation. The entire matter came up for consideration before a Division Bench of this court as LAA 228/04 and the Division Bench of this court had surveyed the entire case law on the point right from Mohammed Hasnuddin v. State of Maharashtra [AIR 1979 SC 404] and held that the court is duty bound to consider the question and therefore held that the decision rendered by this court does not lay down the correct proposition of law and they are referred per incurium and therefore they were over ruled. In Mohammed Hasnuddin v. State of Maharashtra [AIR 1979 SC 404] the Apex court held that “that is a basic and preliminary duty which no Tribunal can possibly avoid. The court has, therefore, jurisdiction to decide whether the reference was made beyond the period prescribed to sub-section (2) of S.18 of the Act, WPC NO 4437/08 4 and if it finds that it was so made, declined to answer reference”. Then in para 28 of the said judgment, the Apex court again held that “Even if a reference is wrongly made by the Collector the court will still have to determine the validity of the reference because the very jurisdiction of the court to hear a reference depends on a proper reference being made under S.18, and if the reference is not proper, there is no jurisdiction in the court to hear the reference. Again referring to the decision in Ambey Devi v. State of Bihar [AIR 1996 SC 1513] wherein it is held that “Valid reference is a pre-condition for the Civil Court to adjudicate the objections raised in the reference application.” The Division Bench also referred to the decision reported in Sharada Devi v. State of Bihar [AIR 2003 SC 942] wherein it was held that ”the reference made by the Collector to the Court was wholly without jurisdiction and the Civil Court ought to have refused to entertain the reference and ought to have rejected the same.” On the basis of these two decisions, this court in the Division Bench judgment referred to above summarised as follows: “Thus, there is no room for any doubt, in view of the above direct decisions which is a complete answer to the question, that the reference court under Section 18 is well within its jurisdiction and is bound to exercise such jurisdiction to examine whether there is WPC NO 4437/08 5 a valid reference made in time. Same is also the position as far as reference under Section 28A(3) is concerned. From the discussions made above and as it is crystal clear from the evidence available before this Court that no claim has been made within the statutory period of three months, as contemplated under Section 28A(3) of the Land Acquisition Act. Therefore, I do not find any ground to interfere with the decision rendered by the learned Subordinate Judge. Therefore the writ petition lacks merit and it is accordingly dismissed. M.N.KRISHNAN, JUDGE vps WPC NO 4437/08 6