Dismissed

Vasanthakumari v. District Collector

Kerala HC18 Dec 2018WP(C)/35986/2018

Case brief

AI extract

What is this about?

In this writ petition, the petitioner challenged an order rejecting her application for a reference under the Land Acquisition Act as barred by limitation. The Court held that valid service of the notice of award was established via registered post, making the application filed over two years later time-barred. The petition was dismissed.

What did the court decide?

Petitioner failed in her contention; the writ petition (civil) is dismissed.

Vasanthakumari Vs District Collector — 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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TUESDAY, THE 18TH DAY OF DECEMBER 2018 / 27TH AGRAHAYANA, 1940

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WP(C).No. 35986 of 2018

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PETITIONER/S:

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VASANTHAKUMARI, AGED 46 YEARS, W/O.AMRITHLAL ROY, RESIDING AT BABA NIVAS, SREEKARIYAM P.O., THIRUVANANTHAPURAM DISTRICT.

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BY ADV. SRI.T.V.JAYAKUMAR NAMBOODIRI

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RESPONDENT/S:

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1 DISTRICT COLLECTOR THIRUVANANTHAPURAM -695001.

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2 LAND ACQUISITION SPECIAL TAHSILDAR LAND ACQUISITION OFFICE (GENERAL), THIRUVANANTHAPURAM - 695001.

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BY GOVERNMENT PLEADER

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OTHER PRESENT:

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SMT.A.C.VIDHYA,GOVT.PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ALEXANDER THOMAS, J.

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W.P.(C).No.35986 of 2018

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Dated this the 18^th day of December, 2018

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J U D G M E N T

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The prayers in the above Writ Petition (Civil) are as follows:

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i. Call for the records connecting Exits P-13 and issue a writ of certiorari quashing Exits P-13 and declare the same is illega.

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ii. Issue a writ of mandamus or other appropriate writ order directing the respondents to refer the matter under section 18(1) of the Land Acquisition Act to the concerned court;

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iii. Issue any other writ, order or directions as this Hon'ble Court may deem fit and proper in the interest of justice and in the circumstances of the case; and

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iv. Allow the costs of these proceedings. "

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Heard Sri.T.V.Jayakumar Namboodiri, learned

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counsel appearing for the petitioner and Smt.A.C.Vidhya, learned Government Pleader appearing for the respondents 1 & 2.

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The issue raised in this case is as to whether the petitioner's application for reference under Section 18 of the Land Acquisition Act, 1894 has been filed within the time limit of 6 weeks as prescribed in said Section. Earlier the 2^nd respondent Land Acquisition Officer (LAO) had considered the said issued and passed Ext.P-11 order dated 26.2.2016 wherein it was stated

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that notice of intimation of the award was under Form 10(b) of the provisions of the Land Acquisition Act, and Rules framed thereunder was attempted to be served through the chain man in the residence of the petitioner and then to reported by her husband that the petitioner is not available in the residence and therefore the chain man wanted to serve the notice on the petitioner's husband and that the petitioner's husband had refused to accept that notice, etc. Therefore the requirement of service of such notice in terms of Section 45(2) of the Land Acquisition Act, 1894 has been duly fulfilled in this case on 2.3.2013. On this basis the application for reference submitted by the petitioner under Section 18 of the abovesaid Act was rejected by the 2^nd respondent LAO as per the impugned Ext.P-11 proceedings dated 26.2.2016, the said order was impugned by this Court in WP(C).No.13947/2016 filed by the petitioner. This Court in Ext.P-12 judgment dated 7.6.2018 had disposed of WP(C).No.13947/2016 with the observation that going by the pleadings of both sides, it appears that this is a case where notice

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W.P.(C).No.35986/2018

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was not actually served on the petitioner but attempted to be served on her and later on her husband which was refused and the question is whether this will amount of proper notice and whether the refusal of notice by the husband of the petitioner issued in the name of his wife could be considered as a refusal by the petitioner and thus amounting to valid completion of service of notice on the petitioner etc. This Court held that the said aspect of the matter be properly considered by the 2^nd respondent LAO and had remitted the matter to the said respondent for further consideration in that regard and had accordingly set aside the impugned Ext.P-11 order. Pursuant to the said remit, the 2^nd respondent LOA has now passed Ext.P-13 order dated 6.9.2018, which indicate that earlier the said notice was attempted to be served by the 2^nd respondent by deputing the chain man of that office to the residence of the petitioner and that it was reported by her husband that she is not available there and that the chain man had then attempted to serve notice on the petitioner's husband which was refused by him on 2.3.2013. Further it is also stated that apart from the said aspect,

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since the petitioner's husband had refused to accept the said notice which was endeavored to be served on 2.3.2013, the notice of intimation of award was again sent by registered post to the address of the petitioner on 7.3.3013. The application for reference under Section 18 was filed by the petitioner only as late as on 16.11.2015 which was held to be obviously barred by limitation. In as much as the prescribed time limit is only 6 weeks from the date of receipt of award notice or within 6 months from the date of award whichever is to expire first, etc. Accordingly it was held by the 2^nd respondent LAO in the impugned Ext.P-13 proceedings that the application of the petitioner is obviously barred in as much as proper service of notice has been duly effected as aforementioned etc. It is this order at Ext.P-13 that is under challenge in this writ petition.

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The 2^nd respondent has also filed a statement pursuant to the directions issued by this Court, the 2^nd respondent has filed a statement dated 29.11.2018. It is stated that under Section 12(2) of the Land Acquisition Act 1894, the Collector shall give immediate

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W.P.(C).No.35986/2018

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notice of his award to persons who are not personally present at the time of rendering of the award etc. and that Section 45 stipulates the procedure for service of notice. The 2^nd respondent may issue notice under Section 12(2) in Form 10(b) to the petitioner on 1.3.2013 and the notice was served personally be sending chain man from the office of the 2^nd respondent to the petitioner's residence on 2.3.2013 and that the petitioner was not present in the residence and hence the chain man had tried to serve notice to her husband the adult male member of the family but he refused to accept the same. Copy of the form 10(b) notice and receipt of chain man dated 2.3.2013 has been produced as Annexures R-2(a) and R-2(b). Further it is said that issuance the petitioner's husband had refused to accept notice, the said notice was again send through registered post by the 2^nd respondent to petitioner as evident from Annexure R-2(c) despatch cum stamp account register and Annexure R-2(d) postal receipt dated 7.3.2013. It is also pointed out that the above factual aspects will be fully established that due service of notice has been duly completed

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on the petitioner in respect of the said notice in terms of the requirement under Section 45(2) of the Land Acquisition Act, 1894.

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Section 45 of the Land Acquisition Act, 1894 provides

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as follows:

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“ (1) Service of any notice under this Act shall be made by delivering or tendering a copy thereof signed, in the case of a notice under Section 4, by the officer therein mentioned, and, in the case of any other notice, by or by order of the Collector or the Judge.

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(2) Whenever it may be practicable, the service of the notice shall be made on the person therein named,

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(3) When such person cannot be found, the service may be made on any adult male member of his family residing with him; and, if no such adult male member can be found, the notice may be served by fixing the copy on the outer door of the house in which the persons therein named ordinarily dwells or carries on business, or by fixing a copy thereof in some conspicuous place in the office of the officer aforesaid or of the Collector or in the court-house, and also in some conspicuous part of the land to be acquired:

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Provided that, if the Collector or Judge shall so direct, a notice may be sent by post, in a letter addressed to the person named therein at his last known residence, address or place of business and registered under Sections 28 and 29 of the Indian Post Office Act, 1898, (6 of 1898) and service of it may be proved by the production of the addressee's receipt. ”

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The contention raised by the petitioner's counsel is that subsection 3 of Section 45 could be pressed into service only if the jurisdictional parameters in that provision is fulfilled. That the condition precedent for the proper fulfillment of the requirements of Section 45 (3) will come into play only if the facts and circumstances would clearly point out that the noticee cannot be found in the address concerned and only in such a case service could be made on any adult male member of the family residing with the noticee etc. That the expression “when such person cannot be found” would unply that it should be a situation where it is found that the noticee is not only absent in the residence concerned on a day or two but that he or she is not likely to be found there for quiet some time more. And only if such factual situation is fulfilled, can the notice be served on the adult male member of the family of the noticee could be though of. Merely because the noticee is not found in the address concerned for a day or two will not amount to fulfillment of the requirement of “when such person cannot be found” as occurring in the first

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limb of sub section 2 of Section 45 etc. That in a case where the noticee like the petitioner is not available in the residential address on a given day or even on a subsequent day on account of various legitimate reasons, then there is no question of automatically holding the sub section 3 could be pressed into service so as to effect service of notice on the adult male member in the family of the noticee etc. However without examining the said contention of the petitioner it is seen that after the notice was attempted to be served on 2.3.2013 by the chain man concerned as per Annexures R-2 (a) & (b) where the 2^nd respondent LAO has taken the pains of ensuring that the notice is served on the petitioner through registered post on 7.3.2013 as evident from Annexures R-2(c) & (d). Annexure R-2(C) is the despatch register of the office of the respondent and Annexure R-2(d) is the postal registration receipt in respect of the said notice. The abovesaid facts stated in the counter statement of the 2^nd respondent and more particularly the aspects borne out by Annexures R-2(c) & (d) records are not in any manner seriously disputed by the petitioner. The Section 27 of the

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General Clauses Act provides as follows.

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“ Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either or the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. ”

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7. It has been held by earlier judgment of Apex Court in C.C.Alavi Haji v. Palapetty Muhammed & Another

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reported in 2007 (6) SCC 555 in paragraphs 13 & 14 that once the registered postal article is despatched in the correct address/last known address of the addressee/noticee then by the force of applicability of Section 27 of the General Clauses Act, it is deemed to have been duly served on the addressee/noticee concerned.

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The petitioner's counsel places reliance on the judgment of this Court in Harikumar v. Special Tahsildar (L.A.) in 2007(1) KLT 277 , inorder to fortify his contention

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that the requirement of the Section 12(2) and Section 45 of the

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Land acquisition Act, 1894 has not been fulfilled in the instant case.

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Per contra Smt.A.C.Vidhya, the learned Government Pleader appearing for the respondents would submit that it has been categorically held by the Division Bench of this Court in the judgment in WA.No.1436 of 2009 dated 21.08.2013 (Sebastian Chokkattu v. District Collector reported in 2013 (4) KLT 836 para 27) that issuance of notice under Section 12(2) is not mandatory and that the reference application in such cases should certainly be filed within the period of 6 months from the date of award as contemplated in clause (b) of the proviso to Section 18(2) of the Land Acquisition Act. In the nature of the view proposed to be taken by this Court in this matter is not necessary for this Court to deal with the aforesaid respective contentions of the petitioner and the respondent. As apart from Section 12(2) notice, the 2^nd respondent has also issued said notice by registered post as evident from Annexures R-2(c) & R-2(d). In the instant case notice of the award has been duly served on the

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petitioner in the manner known to law atleast after 7.3.2013 as evident from Annexures R-2(c) & R-2(d) documents. The case of the petitioner that the reference application was submitted by her only on 16.11.2015 which is obviously barred by time going by the prescription in Section 18(2) of the Land Acquisition Act 1894. Accordingly this court is of the considered view that the impugned Ext.P-13 proceedings is not vitiated by any illegality or unreasonableness. Hence the petitioner fails and the writ petition (civil) will stand dismissed.

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Sd/-

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ALEXANDER THOMAS, JUDGE

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MMG

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	NOTICE DATED	29/02/2012.
EXHIBIT P2	NOTIFICATION	DATED 07/05/2011.
EXHIBIT P3	ADVOCATE COMM 12/04/2012 IN COURT, THIRUV	ISSIONER'S REPORT DATED OS.503/12 OF MUNSIFF ANANTHAPURAM.
EXHIBIT P4	NOTICE DATED	03/11/12.
EXHIBIT P5	TRUE COPY OF 26735/2012 DA	THE JUDGMENT IN WP(C) TED 12/11/2012.
EXHIBIT P6	NOTICE UNDER	SECTION 10(B) OF L.A ACT.
EXHIBIT P6 A	NOTICE UNDER	SECTION 10(B) OF L.A.ACT.
EXHIBIT P7	TRUE COPY OF 16/02/2013.	THE AWARD DATED
EXHIBIT P8	TRUE COPY OF 6002/13.	THE JUDGMENT IN WP(C)
EXHIBIT P9	TRUE COPY OF 824/2015.	THE JUDGMENT IN R.P
EXHIBIT P10	TRUE COPY OF THE PETITIONE	THE APPLICATION FILED BY R FOR REFERENCE.
EXHIBIT P11	ORDER DATED 2	6/02/2016.
EXHIBIT P12	TRUE COPY OF 07/06/18 IN W	THE JUDGMENT DATED P(C) 13947/16.
EXHIBIT P13	TRUE COPY OF	THE ORDER DATED 6/09/18.

Vasanthakumari v. District Collector

Case brief

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Vasanthakumari v. District Collector

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