Allowed

Manoli Nafeesa, v. the Deputy Chief Engineer

Kerala HC23 Nov 2018WP(C)/30948/2018

Case brief

AI extract

What is this about?

The court held that the petitioner received notice of the award on the date she received the cheque under protest. Since the Section 18 application was filed within six weeks of this date, the limitation was not expired. The court quashed the rejection order and directed the Land Acquisition Officer to refer the application to the Court.

What did the court decide?

Impugned order Ext.P15 set aside; petitioners request for reference under Section 18 remitted to Land Acquisition Officer to be done without delay.

Manoli Nafeesa, Vs the Deputy Chief Engineer — Land Acquisition | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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FRIDAY ,THE 23RD DAY OF NOVEMBER 2018 / 2ND AGRAHAYANA, 1940

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WP(C).No. 30948 of 2018

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PETITIONER/S:

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MANOLI NAFEESA, AGED 89 YEARS W/O. C.K. ABOOTY, ZABEEL, KEERTHY NAGAR, NEAR KANAKALAYA BANK, WEST HILL, CALICUT, PIN - 673 025.

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BY ADVS. SRI.P.J.MATHEW SRI.EBIN MATHEW

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RESPONDENT/S:

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1 THE DEPUTY CHIEF ENGINEER (CONSTRUCTION), SOUTHERN RAILWAYS, KOZHIKODE, PIN - 673 021

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2 THE DISTRICT COLLECTOR, KOZHIKODE, CIVIL STATION P.O., KOZHIKODE, PIN- 673 020.

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3 THE LAND ACQUISITION OFFICER AND REVENUE DIVISIONAL OFFICER KOZHIKODE CIVIL STATION P.O., KOZHIKODE, PIN- 673 020.

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4 THE SPECIAL TAHSILDAR (LA), KOZHIKODE, CIVIL STATION P.O., KOZHIKODE, PIN- 673 020.

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BY ADV. SIR. SAIGI JACOB PALATTY, SR.GOVERNMENT PLEADER

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OTHER PRESENT:

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SRI.C.S.DIAS,SC FOR R1, SRI.SAIGI JACOB PALATTY,SR.GOVT.PLEADER FOR R2 TO R4

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C)No.30948/2018

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ALEXANDER THOMAS, J.

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W.P.(C)No.30948 of 2018

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JUDGMENT

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The prayers in this Writ Petition (Civil)are

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as follows:

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“i. To call for the entire records that lead to the passing exhibit P-15 order and quash the same by issuance of a writ in the nature of Certiorari or by any other appropriate writ or order.

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ii. To declare that exhibit P-6 Sec 18(1) application for reference filed by the petitioner was within the time limit prescribed by the Land Acquisition Act. iii. To issue a writ of mandamus or any other appropriate writ or direction referring exhibit P-6 application to the Sub Court, Kozhikode for adjudication under the Land Acquisition Act.”

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2. Heard Sri.P.J.Mathew, the learned counsel

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appearing for the petitioner, Sri.Saigi Jacob

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Palatty, the learned Senior Government Pleader

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appearing for respondents 2 to 4 and Sri.C.S. Dias,the learned Standing Counsel for the

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Railways appearing for R1.

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3. The grievance of the petitioner is that

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the refusal on the part of the 3^rd respondent in

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referring his request for enhancement of

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W.P.(C)No.30948/2018

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compensation in terms of Section 18(1) of the Land Acquisition Act, 1984. This Court, by Ext.P13 judgment dated 24.1.2018 in W.P.(C)No.10626/2017 had directed the respondent Land Acquisition Officer (LAO) to examine all the relevant aspects of the matter and then take a considered decision on the request made by the petitioner for making

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reference of his request for enhancing compensation as envisaged in Section 18 of the Land Acquisition Act, 1894. In pursuance thereof, the respondent LAO has passed the impugned Ext.P15 order dated 19.7.2018 refusing the above said request for reference made by the petitioner under Section 10 of the Land Acquisition Act, 1894. The

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operative portion of Ext.P15 containing the reasonings and conclusions thereon are contained in paragraphs 5 and 6 of Ext.P15 order dated 19.7.2018 which reads as follows:

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“5. The land with structures and improvements had been taken in advance possession on 16.04.05 and 80% of the market value was sanctioned. Out of it Rs.706581/- was paid to the Union Bank of India, Feroke on 31.03.05 towards the bank dues as argued by the petitioner. The balance amount of Rs.623397/- &

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W.P.(C)No.30948/2018

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Rs.635913/- were paid on 13.04.2005 and 24.05.2005 respectively. Section 12(2) notice dt. 16.05.05 was affixed on the site in the presence of two witnesses on 20.05.05. The petitioner appeared and received the cheque on 24.05.2005 with protest. As the entire fact was made aware to the petitioner, section 18 reference application was filed on 04.07.2005. As the party was aware of this and the notice was served as contemplated under the provisions of the act, the contention that she was unaware of the Award is not acceptable and as there was no sufficient believable reasons to support the delay in filing the Section 18 application, it cannot be accepted.

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6. On perusing the file, it is evident that there is no inordinate delay of 6 weeks in filing the section 18 application. As there is not genuine reason in causing the delay, the application filed is dismissed as it is filed beyond the prescribed time limit.”

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4. In the counter statement dated 15.10.2018, filed by the 3^rd respondent LAO, it is stated more particularly in paragraph 6 thereof that Section 12 (2) notice dated 16.5.2005 directing the petitioner to receive the balance amount was affixed on the site in the presence of two witnesses on 20.5.2005. Thereafter, the petitioner had appeared on 24.5.2005 and cheque for the balance amount of Rs.6,35,913/- was received by him on 24.5.2005 under protest. That

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Section 18 application filed by the petitioner was received in the office of the 3^rd respondent LAO only on 4.7.2005. Accordingly, it is also contended that as the petitioner was aware of the above said factual aspects and the notice was served as statutorily contemplated under the provisions of the Land Acquisition Act, 1894, more particularly Section 45 thereof, the contention of the petitioner that she was unaware of the award is not acceptable and that the reference application submitted by the petitioner has been received after the expiry of the period of limitation stipulated and therefore, the same cannot be acted upon.

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5. The petitioner has now filed a reply

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affidavit dated 14.11.2018 wherein the following submissions are made in paragraph 4 thereof, which reads as follows:

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“4. The affixing of Section 12(2) notice is a concocted story to justify the illegalities committed by the respondents. To the knowledge of the petitioner no such notice was affixed. Even if affixed it is in gross violation of the procedure contemplated in S.45 of the Land

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Acquisition Act. No attempt was made to serve on the person named in the notice. No attempt was made to serve on the male member of the family who was residing nearby. The affixing of the notice was on 20/5/2005. It was affixed in the house from where the respondents evicted the petitoiner and his family on 16/4/2005. So it is not the place where the addressee ordinarily resides. So there was no service of Section 12(2) notice. The passing of the award and contents of the award was made known to the petitioner on 24/5/2005 hence she received the amount with protest and she filed reference application dated 1/7/2005 and admittedly the same was received in the office on 4/7/2005 so the 3^rd respondent received the application for reference on the 40^th day from 24/5/2005. In that case also the application was within the time prescribed in S.18 of the L.A. Act.”

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6. It is common ground that the affixture of

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notice was made on 20.5.2005 and the same was affixed in the house. But, it cannot be seriously disputed that by that time, the affixture was made, the petitioner was already evicted from the house in question, as he was constrained to vacate the premises on 16.4.2005. That aspect of the matter is admitted in paragraph 5 of Ext.P15 order, wherein it is stated that the land with structures and improvements had been taken in advance possession on 16.4.2005. Therefore, the

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place where the affixture of notice was served on 20.5.2005 was not the place where the petitioner was ordinarily residing as contemplated in the Statute. Hence, the petitioner’s contention that there was no due service of notice under Section 12(2) is tenable. The petitioner would contend that the passing of the award and its contents was

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made known to him only on 24.5.2005. It is admitted in paragraph 6 of the said counter statement of the 3^rd respondent that the petitioner had appeared on 24.5.2005 to receive the cheque amount and that it was received under protest. Therefore, in the absence of due service of notice, knowledge of the award could be legally imputed on the petitioner as on 24.5.2005. It is also admitted by the 3^rd respondent that Section 18 reference application was received by that office

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on 4.7.2005. Counting the period of six weeks from 24.5.2005, the said reference application was received within the period of limitation, as it is

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seen received on the 40^th day from the date of deemed notice of the award on the petitioner as

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aforestated. Hence, the petitioner is entitled to succeed and the stand taken by the 3^rd respondent

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in the impugned Ext.P15 rejection order is liable to be interdicted. Accordingly, Ext.P15 order will stand set aside and the 3^rd respondent LAO is directed to refer the request made by the petitioner for reference to the LAR Court concerned as conceived in Section 18 of the Land Acquisition Act without any further delay. Needful in this regard should be done by the 3^rd respondent LAO within one month from the date production of a certified copy of this judgment.

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With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.

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Sd/-

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ALEXANDER THOMAS, JUDGE.

acd

W.P.(C)No.30948/2018

APPENDIX

PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 A TRUE COPY OF THE SECTION 6 DECLARATION DATED 03.12.2004.

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EXHIBIT P2 A TRUE COPY OF THE NOTICE DATED 14.12.2004.

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EXHIBIT P3 A TRUE COPY OF THE INTERIM ORDER DATED 20.12.2004 IN W.P.(C)NO.36978/2004 OF THIS HON'BLE COURT.

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EXHIBIT P4 A TRUE COPY OF REPRESENTATION DATED 24.02.2003.

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EXHIBIT P5 TRUE COPY OF THE JUDGEMENT DATED 31.03.2005 IN W.P(C) 36978/2004 OF THIS HON'BLE COURT.

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EXHIBIT P6 TRUE COPY OF THE LETTER DATED 01.07.2005 BY THE PETITIONER BEFORE THE 3RD RESPONDENT.

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EXHIBIT P7 TRUE COPY OF THE COMMISSION REPORT DATED 25.07.2005 IN O.S.NO.837/2004 BEFORE THE MUNSIFF COURT, KOZHIKODE.

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EXHIBIT P8 A TRUE COPY OF THE VALUATION REPORT OF THE BUILDING NO.20/1027 IN PANNYANKARA.

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EXHIBIT P9 THE PLAN OF THE GROUND FLOOR SUBMITTED ALONG WITH EXHIBIT P8 VALUATION REPORT. EXHIBIT P10 THE PLAN OF THE 1ST FLOOR SUBMITTED ALONG WITH EXHIBIT P8 VALUATION REPORT.

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EXHIBIT P11 AN UNNUMBERED COPY OF THE AWARD SINGED BY THE 3RD RESPONDENT ON 29.04.2005 OBTAINED UNDER THE RIGHT TO INFORMATION ACT ON 17.02.2017.

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EXHIBIT P12 TRUE COPY OF THE PROCEEDINGS ISSUED ON 13.03.2017. EXHIBIT P13 TRUE COPY OF THE JUDGEMENT DATED 24.01.2018 IN W.P(c)NO.10626/2017 OF THIS HON'BLE COURT.

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EXHIBIT P14 TRUE COPY OF THE AFFIDAVIT DATED 18.07.2018 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.

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EXHIBIT P15 TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT DATED 19.07.2018.

Manoli Nafeesa, v. the Deputy Chief Engineer

Case brief

What is this about?

What did the court decide?

Manoli Nafeesa, v. the Deputy Chief Engineer

Case brief

What is this about?

What did the court decide?

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