Kerala High Court
Thomas Mathew vs Kerala State Industries Development ... on 16 December, 2016
Author: Sathish Ninan
Bench: V.Chitambaresh, Sathish Ninan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
&
THE HONOURABLE MR. JUSTICE SATHISH NINAN
FRIDAY, THE 5TH DAY OF JANUARY 2018 / 15TH POUSHA, 1939
RP.NO. 574 OF 2017 IN WA. 977/2016
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AGAINST THE ORDER/JUDGMENT IN WA 977/2016
OF HIGH COURT OF KERALA DATED 16-12-2016
REVIEW PETITIONER(S)/REVIEW PETITIONERS:
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1 THOMAS MATHEW
NELLUVELI HOUSE, NADACKAL P O,
ERATTUPETTA, PIN-686124
2 MARIAMMA MATHEW
NELLUVELI HOUSE, NADACKAL P O,
ERATTUPETTA, PIN-686124
3 PRADEEP JOSEPH
VADAKKEPUTHENPURAYIL,
(NADUTHOTTIYIL)HOUSE, NADACKAL P O,
ERATTUPETTA, PIN-686124.
BY ADVS.SRI.S.SREEKUMAR (SR.)
SRI. PHILIP T.VARGHESE
SRI.THOMAS T.VARGHESE
SMT.ACHU SUBHA ABRAHAM
SRI.P.PRIJITH
SRI.JUSTINE JACOB
SRI.P.MARTIN JOSE
SRI.THOMAS P.KURUVILLA
RESPONDENT(S)/RESPONDENTS:
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1. KERALA STATE INDUSTRIES DEVELOPMENT CORPORATION
REPRESENTED BY THEIR MANAGING DIRECTOR,
TC 11/266, KESTON ROAD, KAWDIAR,
THIRUVANANTHAPURAM,PIN-695003..
2. THE STATE OF KERALA
REPRESENTED BY THE SECRETARY,
REVENUE DEPARTMENT, GOVERNMENT OF KERALA,
THIRUVANANTHAPURAM-695001.
R.P. NO.574 OF 2017 IN
W.A. NO.977 OF 2016
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3. THE DISTRICT COLLECTOR,
KOZHIKODE 673001.
4. THE SPECIAL TAHSILDAR(LAND ACQUISITION)
KOYILANDI,KOZHIKODE 673305.
R2 - R4 BY ADV. SRI.K.V.SOHAN, STATE ATTORNEY
R1 BY SRI.P.U.SHAILAJAN, SC, KSIDC
THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 20.12.2017 ALONG
WITH R.P. NO.580 OF 2018, THE COURT ON 05.01.2018 PASSED THE FOLLOWING:
R.P. NO.574 OF 2017 IN
W.A. NO.977 OF 2016
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APPENDIX
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PETITIONERS' EXHIBITS:
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ANNEXURE-1 A TRUE COPY OF THE JUDGMENT IN W.A. NO.977 OF 2016 DATED
16.12.2016 OF THE HONOURABLE HIGH COURT OF KERALA, ERNAKULAM.
ANNEXURE-2 A TRUE COPY OF THE JUDGMENT AND FINAL ORDER DATED
04.05.2017 IN SLP (CIVIL) NOS.12459 OF 2017 AND 12460 OF 2017 OF THE
HONOURABLE SUPREME COURT OF INDIA.
RESPONDENTS' EXHIBITS: NIL
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/TRUE COPY/
P.S. TO JUDGE
V. CHITAMBARESH
&
SATHISH NINAN, JJ.
= = = = = = = = = = = = = = = = = =
R.P. No.574 of 2017
in
W.A. No.977 of 2016
&
R.P. No.580 of 2017
in
W.A. No.1327 of 2016
= = = = = = = = = = = = = = = = = =
Dated this the 05 th day of January, 2018
O R D E R
SATHISH NINAN, J.
The Review Petitions are at the instance of respondents 4 to 6 in W.A. No.977 of 2016 and respondents 1 to 3 in W.A. No.1327 of 2016 who were the original owners of the properties which were the subject matter of acquisition.
2. The judgment in the Writ Appeal is sought to be reviewed on two grounds: (1) The Gazette Notification (Ext P2 under Section 4(1) of the Land Acquisition Act, 1894 (for short, "the 1894 Act") was published on 21.09.2010 and the declaration under Section 6 of the 1894 Act was published in R.P. No.574 of 2017 in W.A. No.977 of 2016 & R.P. No.580 of 2017 in W.A. No.1327 of 2016
-: 2 :-
the Gazette on 16.01.2012 (Ext P3) which is beyond the period of one year as stipulated in the proviso to Section 6 of the 1894 Act. Hence the declaration is bad in law. (2) Pending Ext P13 series draft awards, the new Land Acquisition Act - The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 - came into force and hence the proceedings under the 1894 Act lapsed.
3. The acquisition in question was under
"negotiated purchase method", i.e., fixing the compensation amount on consensus with the land owners. As is revealed from the records, pursuant to the Notification under Section 4(1) of the 1894 Act, steps were in progress by way of discussions to arrive at a consensus regarding the compensation amount. Finally it was agreed that Rs.10,750/- per cent be fixed as the land value and the improvements on the land be valued in terms of G.O(Rt.) No.331/2004/RD dated 05.11.2004. Pursuant R.P. No.574 of 2017 in W.A. No.977 of 2016 & R.P. No.580 of 2017 in W.A. No.1327 of 2016
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thereto, the declaration under Section 6 was published in the Gazette on 16.01.2012. Eighty percent of the compensation amount was disbursed to the land owners in terms of their instructions and possession of the land was taken on 15.02.2012. The Writ Petition was filed on 18.12.2013.
4. In the writ petition, there was no plea to the effect that the declaration under Section 6 was made beyond the time stipulated. In the Writ Appeal also there was no such contention. Such a case was not projected even at the time of hearing of the Writ Appeal. As noticed, 80% of the compensation which is approximately Rs.10 crores was received by the land owners way back in 2012 and possession was taken in February, 2012. The contention regarding limitation with regard to the declaration under Section 6 is sought to be raised for the first time in this review petition. We have no hesitation to hold that the review petitioners are not entitled to raise the said question at this distance of time R.P. No.574 of 2017 in W.A. No.977 of 2016 & R.P. No.580 of 2017 in W.A. No.1327 of 2016
-: 4 :-
since the same is hit by the doctrine of laches and delay. So also, as noticed, much water has flown since the declaration under Section 6 was made.
5. Apart from the above, it is to be noticed that the period of one year for making the declaration under Section 6 does not commence from the date of the Gazette Notification. In terms of section 6 read with Section 4(1), the period commences from the last date of publication of Section 4(1) Notification, which could even be the last date of giving public notice in the locality. Therefore, the date of the last public notice is the relevant date for commencement of running of time (See Nanappan Konthi v. District Collector - 1989 [1] KLT 582, Padmadas v. State of Kerala - 1991 [2] KLT 636, Rosy Augustine v. State of Kerala - 1998 (1) KLT 679 and Syed Mohammed v. State of Kerala - 1995 (2) KLT 857 ). So also, the relevant date regarding Section 6 declaration is not the date of publication of the same in the R.P. No.574 of 2017 in W.A. No.977 of 2016 & R.P. No.580 of 2017 in W.A. No.1327 of 2016
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Gazette. What is relevant is the date of making of the declaration, that is the date on which the authorised officer subscribes his signature to the declaration. The Apex Court as well as this Court has held so. (See S.H. Rangappa v. State of Karnataka and Another - ([2002] 1 SCC 538 = Srinivasa Ramanath Khatod v. State of Maharashtra and Others - ([2002] 1 SCC 689, Urban Improvement Trust, Udaipur v. Bheru Lal and Others - ([2002] 7 SCC 712 and Raveendran v. State of Kerala (2015 (3) KLT 210, Bhaskaran Panicker v. State of Kerala - 1989 [2] KLT 71, Bhaskara Panicker v.
State of Kerala - 1991 [2] KLT 580 and Mohammed Kumhi v. Union of India - 1992 [2] KLT 336 ). The discussions as above are to point out that, these are factual aspects to be raised, pleaded, agitated and gone into at the relevant time. A plea of limitation is a mixed question of law and fact. Such a contention having never been urged either in the Writ Petition or in the Writ Appeal, the review petitioners are not entitled to raise such a R.P. No.574 of 2017 in W.A. No.977 of 2016 & R.P. No.580 of 2017 in W.A. No.1327 of 2016
-: 6 :-
contention for the first time at this stage.
6. The contention of the review petitioners could possibly be negatived for yet another reason. Section 17(4) of the 1894 Act provides thus:
b