IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 7TH JULY 2010 / 16TH ASHADHA 1932 LA.App..No.1303 of 2009 (A) -------------------------------- LAR.103/2004 of SUB COURT, CHERTHALA .................... APPELLANT(S): CLAIMANTS ------------------------------- 1. JANCY KURIAN, VAZHATHARA, PALLIPPURAM VILLAGE. 2. KIRAN MARIA KURIAN (MINOR) OF -DO- -DO- 3. LIZ THERESA KURIAN (MINOR) OF -DO- -DO- REPRESENTED BY THEIR POWER OF ATTORNEY HOLDER SRI.JOSEPH JOSEPH, VAZHATHARA, PALLIPPURAM, CHERTHALA. BY ADV. SRI.A.K.JOHN RESPONDENT(S): RESPONDENTS ------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SPECIAL TAHSILDAR (L.A), INDUSTRIAL GROWTH CENTRE, CHERTHALA. 2. THE MANAGING DIRECTOR, K.S.I.D.C., THIRUVANANTHAPURAM. ADV. SRI.JOBY CYRIAC FOR R2 THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 07/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ L. A. A. No.1303 of 2009 ------------------------------------------------ Dated this the 7th day of July, 2010 JUDGMENT Pius C. Kuriakose, J The claimants, a widow and her two children are in appeal being aggrieved by the negative award passed by the Land Acquisition Reference Court taking the view that the reference was an invalid reference as the application for reference under Section 18 was made by the appellant beyond the period of limitation. The case pertains to acquisition of 66.84 Ares of wet land and 12.87 Ares of dry land in Pallippuram village for the purposes of Industrial Growth Centre of the Kerala State Industrial Development Corporation. The L. A. A. No.1303 of 2009 -2- relevant Section 4(1) notification was published on 24/01/97. The Land Acquisition Officer awarded land value at the rate of Rs.988/- per Are for wet lands and at the rate of Rs.7876/- per Are for dry lands. The cheque for the compensation awarded was received by the first appellant on her behalf and also on behalf of her children on 28/09/01. On the same day she filed an application for reference under Section 18 seeking to refer the issue to the court for determining the correct value. The Land Acquisition Officer did make a reference, however, observing that the application for reference was submitted by the appellants long after the expiry of the period of limitation set out in the proviso to sub Section 2 of L. A. A. No.1303 of 2009 -3- Section 18 of the Land Acquisition Act. Before the Reference Court, separate statements were filed on behalf of the Government as well as for the Requisitioning Authority. The Government did not raise the question of limitation. The Requisitioning Authority, however, contended specifically that as the award was passed on 02/12/2000 and since the reference application was filed only on 28/09/01, the reference is hopelessly time barred. The learned Subordinate Judge apart from formulating points as to whether the appellants are entitled for enhancement formulated the first point as to whether the reference is barred by limitation. Considering that point it was found that notice under Section 12(2) was served on L. A. A. No.1303 of 2009 -4- 28/07/01 and the application for reference was filed only on 28/09/01. Relying on the judgment of the Supreme Court in AIR 1979 SC 402, the learned Subordinate Judge concluded that the reference is barred by limitation. In that view of the matter, the learned Subordinate Judge did not decide the other questions which were formulated. 2. In this appeal preferred by the claimants they have raised various grounds assailing the judgment of the Reference Court. It is urged that the appellants are permanently stationed at Tirur in Malappuram District and they were never served with notice under Section 12(2). Sri.Abraham Mathew upon whom the Land Acquisition Officer claims to have served notice L. A. A. No.1303 of 2009 -5- had not been authorised by the appellants to receive notice under Section 12(2) on behalf of the appellants. The appellants had in fact duly constituted Sri.Joseph Joseph by registered Power of Attorney dated 24/10/2000 as their power of attorney holder for representing them before various authorities in respect of their various properties including the property under acquisition. Since there was a registered Power of Attorney Holder for the appellants to the knowledge of the Land Acquisition Officer, it was obligatory that the Land Acquisition Officer served notice under Section 12(2) on the holder of that power of attorney if not directly on the appellants. The moment the appellant did come to have L. A. A. No.1303 of 2009 -6- information regarding the award they approached the Land Acquisition Officer and received the cheque for the compensation amount. The cheque was received under protest. As soon as cheque was received reference application was made without causing any delay. The appeal memo contains grounds claiming enhanced land value also. It is pointed out that in identical matters this Court has approved re-fixation of value of dry lands at Rs.70,290/- per Are and that of identical wet lands at Rs.2,169/- per Are. 3. After service of notice was completed in the LAA on 21/06/10 we passed the following order:- “Counsel for the appellant will serve a copy of the appeal memo as well as a copy of the impugned judgment on Smt.Latha T. L. A. A. No.1303 of 2009 -7- Thankappan, the senior Government Pleader today itself. Smt.Latha is directed to seek specific instructions from the Land Acquisition Officer as to when and the manner in which the notice under Section 12 (2) was served in this case. If it is by actual service on Jancy, she will inform as to when it was so served. Necessary records also will be got down by the learned Government Pleader. Post on 29/06/10.” 4. Today Smt.Latha T. Thankappan, the learned Senior Government Pleader on instructions informed us that the service of notice under Section 12(2) was not upon the appellants or upon Sri.Joseph Joseph, the appellant's power of attorney holder but it was on Sri.Abraham Mathew who was the direct brother of the first appellant's deceased husband. Abraham Mathew is an adult member of the appellant's family and according to Smt.Latha, service on Abraham Mathew is sufficient service in terms of Section 45 L. A. A. No.1303 of 2009 -8- (3) of the Land Acquisition Act. Therefore, according to the learned Government Pleader, there is no warrant for interfering with the decision of the Reference Court that the reference is barred by limitation. 5. Sri.A.K.John, The learned counsel for the appellant does not agree. Sri.John referred to Rule 13(2) of the Land Acquisition Kerala Rules 1990 and submitted that the above statutory rule contemplates service of notice under Section 12 (2) on the awardees or their authorised agents. Referring to Section 45 Sri.John submitted that Rule 45(3) does not contemplate service of notices under the Land Acquisition Act on all adult male members of the family of the person L. A. A. No.1303 of 2009 -9- concerned but only on such adult male member of the concerned person's family residing along with him. In the instant case the appellants were permanently put up at Tirur in Malappuram District and hence, Sri.Abraham Mathew on whom the award notice is served cannot be an adult male member coming within the purview of Section 45(3). 6. We have very anxiously considered the rival submissions addressed at the Bar. The important question to be decided is whether the reference in question was barred by limitation. Reference will be barred by limitation if the application for reference is not filed within six weeks of the Collector's award if the person who L. A. A. No.1303 of 2009 -10- makes the reference application was present or represented before the Collector at the time when the Collector makes the award as per Section 18 (2)(a). In the instant case, it is nobody's case that Section 18(2)(a) applies. The applicable provision is Section 18(2) (b). Under Section 18(2)(b) unless the application for reference is submitted within six weeks of the receipt of the notice under Section 12(2) or within six months from the date of Collector's award the reference will be barred by limitation. In the instant case admittedly, the reference application is submitted within six months of the appellants coming to have knowledge of the Collector's award. The question is whether it is submitted within six weeks of L. A. A. No.1303 of 2009 -11- receipt of notice under Section 12(2). We find that the application for reference is filed beyond six weeks from the service of Section 12(2) notice on Sri.Abraham Mathew. The question now is whether the service on Abraham Mathew was proper service. We are inclined to answer that question in the negative. This is because in our opinion Sri.Abraham Mathew was not duly authorised to receive notices under Section 12(2) intended for the appellants. In fact, the only person who had been authorised by the appellants to receive notices under Section 12(2) or for that matter any notice under the Land Acquisition Act was Sri.Joseph Joseph in whose favour a registered power of attorney had been executed L. A. A. No.1303 of 2009 -12- by the appellants much prior to the award, to the knowledge of the Land Acquisition Officer. When the Land Acquisition Officer knew that the appellants had authorised Sri.Joseph Joseph to receive notices including notices under Section 12 (2) on their behalf it was not at all proper or legal for the Land Acquisition Officer to have served the notice under Section 12(2) on Sri.Abraham Mathew whatever may be the family relationship between Sri.Abraham Mathew and the appellants. We are therefore of the view that the application for reference filed by the appellants immediately on coming to know about the award and after receiving the compensation amount under protest was filed within the period of limitation as L. A. A. No.1303 of 2009 -13- envisaged by Section 18(2)(b). In that view of the matter, we set aside the impugned award and hold that the reference was a valid one. 7. It is fairly conceded before us by the Senior Government Pleader and Sri.Joby Cyriac, the counsel for the Requisitioning Authority that for identical dry lands this Court and Supreme Court has approved the re-fixation of land value at Rs.70,290/- per Are and as against identical wet lands land value has been re-fixed at Rs.2169/- per Are. We are therefore, inclined to decide the appeal finally. We allow the appeal re-fixing the market value of 12.87 Ares of dry lands acquired from the appellants' possession at Rs.70,290/- per Are and re-fix the market value of 66.84 Ares of L. A. A. No.1303 of 2009 -14- wet lands at Rs.2169/- per Are. 8. The appeal will stand allowed as above. The appellants will be entitled for all statutory benefits admissible under Sections 23(2), 23(1A) and under Section 28 of the Land Acquisition Act. Parties are directed to suffer their costs throughout. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/- THE AMOUNT SHOWN AS “RS.70,290/-” PER ARE IN THE 6TH AND 11TH LINES OF THE 7TH PARAGRAPH OF THE JUDGMENT DATED 07/07/2010 IN L.A.A.1303/2009 IS CORRECTED AS RS.17,297/- PER ARE VIDE ORDER DATED 15/10/2010 IN I.A.3243/2010. SD/- REGISTRAR (JUDICIAL)