Kerala High Court
Vinod Kumar vs The District Collector on 4 June, 2010
Author: Antony Dominic
Bench: Antony Dominic
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
FRIDAY, THE 10TH DAY OF AUGUST 2012/19TH SRAVANA 1934
WP(C).No. 22342 of 2011 (P)
---------------------------
PETITIONER(S):
-------------
VINOD KUMAR, AGED 37 YEARS,
S/O.LATE P.K.NARAYANAN, THIRUVAKOLI HOUSE, P.O.BEKAL,
PALLIKKERE II VILLAGE, KASARAGOD, DISTRICT.
BY ADVS.SRI.JAWAHAR JOSE
SMT.CISSY MATHEWS
RESPONDENT(S):
--------------
1. THE DISTRICT COLLECTOR,
CIVIL STATION, VIDYANAGAR, KASARAGODE,
PIN - 671 123.
2. THE SPECIAL TAHSILDAR (LAND ACQUISITION),
CIVIL STATION, VIDYANAGAR, KASARAGODE,
PIN - 671 123.
BY GOVERNMENT PLEADER SMT SEREENA GEORGE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-08-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
LSN
WP(C).No. 22342 of 2011 (P)
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1: COPY OF THE APPLICATION UNDER SECTION 18(1) OF THE LAND
ACQUSISITON ACT DATED 04-06-2010.
EXT.P2: COPY OF THE ORDER DATED 19-10-2010 ISSUED BY THE 2ND
RESPONDENT.
EXT.P3: COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER UNDER
THE RIGHT TO INFORMATION ACT DATED 14-12-2010.
EXT.P5: COPY OF THE REVIEW PETITION DATED 28-10-2010.
EXT.P6: COPY OF THE ORDER PASSED TO EXT.P5 REVIEW PETITION DATED
20-07-2011.
RESPONDENT'S EXHIBITS: NIL
//TRUE COPY//
P.A. TO JUDGE
LSN
ANTONY DOMINIC,J
----------------------------------
W.P.(C)No.22342 of 2011
-------------------------------------
Dated this the 10th day of August, 2012
JUDGMENT
Heard the counsel for the petitioner and the learned Government Pleader appearing for respondents.
2. The petitioner's father was having an extent of 30 cents land in re-survey No.104/3A of Pallikkere-II Village in Kasaragode District. Out of this, 0.0230 hectors of land was acquired by the respondents for widening a road. The petitioner was not satisfied with the compensation awarded. The award was made on 27.02.2010. Thereafter, the petitioner made Ext.P1 application for reference under Section 18 of the Act. That application made by the petitioner was on the basis that he came to know of the award only on 04.05.2010 and according to him, notice under Section 12(2) was not served on. However, the application was rejected as belated by Ext.P2 order. That was again re-iterated in Ext.P6. It is in these circumstances, the writ petition has been filed.
W.P.(C).No.22342/2011 : 2 :
3. Counter affidavit filed by the second respondent shows that notice under Section 12(2) was served on 25.03.2010, but however, there is no assertion anywhere in the affidavit that such notice was served on the petitioner. In other words, there is no effective rebuttal of the case pleaded by the petitioner that notice under Section 12(2) was not served on him. If that be so, the period specified in Section 18(4) seeking reference can only run from the date of knowledge of the award.
4. In this context, it is also relevant, to refer to the Apex Court judgment in Bhagwan Das and others v. State of Uttar Pradesh and others with Nayantara Gupta and others v. State of Uttar Pradesh and others (2010(3) SCC
545), where it has been held thus:
"30. When a person interested makes an application for reference seeking the benefit of six months' period from the date of knowledge, the initial onus is on him to prove that he (or his representative) was not present when the award was made, that he did not receive any notice under Section 12(2) of the Act, and that he did not have the knowledge of the contents of the award during a period of six months prior to the W.P.(C).No.22342/2011 : 3 : filing the application for reference. This onus is discharged by asserting these facts on oath. He is not expected to prove the negative. Once the initial onus is discharged by the claimant/person interested, it is for the Land Acquisition Collector to establish that the person interested was present either in person or through his representative when the award was made, or that he had received a notice under Section 12(2) of the Act, or that he had knowledge of the contents of the award.
31. Actual or constructive knowledge of the contents of the award can be established by the Collector by proving that the person interested had received or drawn the compensation amount for the acquired land, or had attested the mahazar/panchnama/proceedings delivering possession of the acquired land in pursuance of the acquisition, or had filed a case challenging the award or had acknowledged the making of the award in any document or in statement on oath or evidence. The person interested, not being in possession of the acquired land and the name of the State or its transferee being entered in the revenue municipal records coupled with delay, can also lead to an inference of constructive knowledge. In the absence of any such evidence by the Collector, the claim of the person W.P.(C).No.22342/2011 : 4 : interested that he did not have knowledge earlier will be accepted, unless there are compelling circumstances not to do so."
For the aforesaid reasons, I set aside Exts.2 and P6 and direct the second respondent to make reference under Section 18 of the Act acting upon Ext.P1 application made by the petitioner. This shall be done within six weeks of production of a copy of this judgment along with the copy of the writ petition.
Writ Petition is disposed of as above.
ANTONY DOMINIC, JUDGE ln