Kerala High Court
Sebastian Chokkattu vs The District Collector on 19 September, 2008
Author: K.M.Joseph
Bench: K.M.Joseph
CR
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.M.JOSEPH
&
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
WEDNESDAY, THE 21ST DAY OF AUGUST 2013/30TH SRAVANA, 1935
WA.No. 1436 of 2009
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(AGAINST THE JUDGMENT IN WP(C) 6144/2007 of HIGH COURT OF KERALA
DATED 19-09-2008)
.............................
APPELLANT(S):PETITIONERS:
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1. SEBASTIAN CHOKKATTU,
SUMMER CASTLE APARTMENTS, DESOM P.O., ALUVA
ERNAKULAM.
2. PHILOMINA CHOKKATTU,
SUMMER CASTLE APARTMENTS, DESOM P.O., ALUVA
ERNAKULAM, REP.BY ITS POWER OF,ATTORNEY HOLDER
MR. SUNIL KUMAR, SOUBHAGYA, PIPE LINE ROAD
CHANGAMPUZHA NAGAR P.O., COCHIN-33.
BY ADV. SRI.M.P.ASHOK KUMAR
RESPONDENT(S): RESPONDENTS:
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1. THE DISTRICT COLLECTOR,
CIVIL STATION, KAKKANAD, ERNAKULAM.
2. THE SPECIAL TAHSILDAR, LAND ACQUSITION (GENERAL),
COCHIN REFINERIS LTD., VYTTILA AT THRIPPUNITHURA.
3. THE TAHSILDAR, REVENUE RECOVERY,
KANAYANNOOR TALUK, ERNAKULAM DISTRICT.
4. THE KERALA STATE INDUSTRIAL DEVELOPMENT
CORPORATION, SECOND FLOOR, CHOICE TOWERS
MANORAMA JUNCTION, COCHIN -16,
REP.BY ITS MANAGING DIRECTOR.
R1 TO R3 BY SR. GOVERNMENT PLEADER SRI.C.R.SYAMKUMAR.
R4 BY ADV. SRI.M.PATHROSE MATTHAI (SR.)
ADV. SRI.K.JAJU BABU, SC, KERALA STATE INDUSTRIAL
DEVELOPMENT CORPORATION.
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21-08-2013,ALONG
WITH W.A.NO.1777/2009 & W.A.NO.1012/2013 THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
CR
K.M.JOSEPH & A.HARIPRASAD, JJ.
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W.A.No.1436 of 2009
W.A.No.1777 of 2009 &
W.A.No.1012 of 2013 &
C.M.Appln.No.525 of 2013 in
W.A.No.1012 of 2013
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Dated, this the 21th day of August , 2013
J U D G M E N T
K.M.Joseph, J.
These three appeals being connected we are disposing of the same by this common judgment.
W.A.No.1436/2009 is filed against the common judgment of the learned Single Judge in W.P.C No.6144/2007 whereas W.P.C No.1777/2009 is filed against the common judgment in W.P.C.5128/2008. The aforesaid appeals have been filed by the respective petitioners in the said writ petitions. W.A.No.1012/2013 is filed with an application to condone delay of 1627 days by the respondents State and its Officers in W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 2 W.P.C.6144/2007.
2. Petitioners in W.P.C.No.6144/2007 from which W.A No.1436/2009 arises are husband and wife (hereinafter referred to as the parents). Appellants in W.A.No.1777/2009 are none other than the daughters of the appellants in W.A.No.1436/2009(hereinafter referred to as the daughters).
3. According to the parents, they together owned 7.8 acres of land in Kakkanad village in Kanayannur Taluk. Their complaint in the writ petition was that, their lands came to be acquired under the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') in violation of the mandatory provisions of the Act. According to them, no notice was received by them under Section 9 of the Act. Still further, it is contended that, there is violation of Section 10 of the Act. When W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 3 the writ petition was pending, they came to know that, actually the award itself has been passed under the Act. They have amended the writ petition and sought to challenge the awards passed. According to them, there is infraction of Section 12 (2) of the Act inasmuch as no notice has been issued to them of passing of the award. Accordingly, they have sought the following reliefs:
"a). Declare that the land acquisition proceedings initiated against the petitioner pursuant to Ext.P3 notification has lapsed under section 11A of the Land Acquisition Act.
b). Issue a writ of prohibition restraining the revenue officials from acquiring the property owned by the petitioners as the notification was lapsed.
c). Declare that the petitioner is entitled and eligible to current market W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 4 rate for their land as compensation amount in case the govt. acquires their landed property situated in R.Sy.Nos.712/3, 705/4, 712/6, 750/4, 712/4, 711/1, 712/5 in Block No.9 of Kakkanad Village, Kanayannoor Taluk.
d). Declare that the petitioners' property cannot be acquired without issuing notice under Land Acquisition Act to them.
e). Call for the records/files from the office of the 2nd respondent with regard to the passing of the award in LAC 99/05 and LAC 139/05.
f). Issue a writ of certiorari or other appropriate writ or order quashing Exts.P8 and P9 award in LAC 99/05 and in LAC 139/05.
g). Declare that Ext.P8 and P9 award passed by the land acquisition authorities in LAC 99/05 and in LAC W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 5 139/05 is not an award under the Land Acquisition Act, as no enquiry was conducted before passing award and no notice were issued to the petitioners and as such the entire land acquisition proceedings has lapsed.
h). Declare that the entire acquisition proceedings initiated by the govt. as per Ext.P1 notification is lapsed as the purpose of the acquisition was not for the benefit of general public.
i). Declare that the utilization of the land acquired under the Land Acquisition Act cannot be used for private, commercial purposes.
j). Declare that the utilization of land acquired under the Land Acquisition Act cannot be treated as public purpose under the Land Acquisition Act."
4. Counter affidavit has been filed to which W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 6 reply affidavit is also filed to which we will refer to wherever necessary.
5. The daughters have approached this Court in the year 2009 seeking the following reliefs:
"1) Call for all records in the case and peruse the same.
ii). Issue a writ in the nature of certiorari or such other appropriate writ order or directions quashing Ext.P12 and P13 and all proceedings which lead to the passing of Ext.P12 and 13 including Ext.P1 notification after calling for the same.
Iii). To declare by the issuance of an appropriate writ, order or direction that the 3rd respondent has no power or authority to get executed any loan agreement or guarantee agreement on the basis W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 7 of Ext.P6 power of attorney.
iv). To declare by the issuance of an appropriate writ, order or direction that the entire proceedings taken by the Ist respondent for acquisition of the petitioners' property from Ext.P1 notification is illegal and unsustainable for non-compliance of the mandatory statutory provisions contained in the Land Acquisition Act.
v). To declare by the issuance of an appropriate writ, order or direction that the payment of the compensation amount as per Ext.P12 and P13 either to the 4th respondent and or to the 3rd respondent is illegal.
vi). To declare by the issuance of an appropriate writ, order or W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 8 direction that the entire acquisition proceedings on the basis of Ext.P1 notification is lapsed prior to Ext.P12 and P13 in view of the provision contained in Section 11A of the Land Acquisition Act. Vii). To declare by the issuance of an appropriate writ, order or direction that the property belonging to the petitioners and covered by Ext.P3 to P5 settlement deeds are not liable to be attached for the alleged dues towards 3rd respondent either by initiating Revenue Recovery proceedings or by recourse to any other proceedings.
Viii). To declare by the issuance of appropriate writ, order or direction that the deduction of Rs.2781594/-
as TDS and deduction of W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 9 Rs.1671225/- as collection charges are illegal and bad in law. "
They would also contend that, no notice was given as required in law under various provisions. According to them, they became owners of 1.56 acres of land by virtue of Settlement Deed executed in the year 2000 (3.4.2000) by their mother who is none other than the second appellant in W.A.No.1436/2009.
6. The learned Single Judge disposed of the writ petitions with the following directions.
"1). The petitioners in WP (C ) No.6144 of 2007 are directed to make applications for a reference under section 18 of the question of determination of the correct compensation payable for the properties under acquisition to the L.A. Officer within two weeks of receiving W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 10 copy of this judgment. If applications are so submitted by them, the L.A. Officer will entertain the applications as though they are filed on time and make a reference under section 18 to the competent court of the question of determination of the correct compensation payable for the acquired properties.
2). The petitioners in that writ petition are also permitted to submit a representation before the Land Revenue Commissioner voicing their grievance regarding levy of collection charges by the revenue authority from out of the compensation awarded to them by the L.A. Officer. If such a representation is received by the Land Revenue Commissioner, the same will be disposed of by the Land Revenue Commissioner after affording hearing W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 11 opportunity to the petitioner in accordance with law, at the earliest and at any rate within one month of receiving copy of this judgment. The Registrar will communicate a copy of this judgment to the Land Revenue Commissioner who will be bound by the terms of this judgment.
3) The petitioners in WP(C) No.6144 of 2007 are also directed to pursue the statutory remedies available to them under the Income-tax Act and Rules so as to seek redressal of the grievance voiced by them regarding deduction of income-tax from out of the compensation amount. The time during which this writ petition was pending before this Court after the deductions were made and a further period of one month of receiving copy of this judgment by the petitioners will W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 12 be excluded from the reckoning of limitation by the appropriate authority under the Income-tax Act and Rules."
7. It is feeling aggrieved by the above order, appellants in W.A No.1436/2009 and W.A.No.1777/2009 are before us.
8. As far as W.A.No.1012/2013 is concerned, the same is sought to be maintained by the State and other Officers feeling aggrieved by the directions to the writ petitioners to file application under Section 18 of the Act beyond the period fixed under Section 18 of the Act. The appeal is filed with a delay petition to condone delay of 1627 days.
Contentions of the Appellants (parents) in W.A.No.1436/2009:
9. Learned counsel for the appellants would contend that, this is a case where the appellants have W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 13 been deprived of their valuable properties which are located in Kakkanad and having a large extent of more than 7 acres as aforesaid in violation of the procedure prescribed by law, thereby occasioning breach of Article 300-A of the Constitution of India. It is pointed out before us that, appellants have not received any notice under Section 9 of the Act. This disabled the appellants from putting forth their claims as permitted in law and that this is sufficient to vitiate the proceedings. Next, it is contended that, there is breach of Section 10 of the Act. Still further more, breach of Section 12 (2) is enlisted in support of the case of the appellants. It is submitted that contrary to the mandatory provisions in Section 12 (2) of the Act no notice was issued to the appellants. This disabled them from exercising the invaluable rights available to them under Section 18. W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 14 It is pointed out that, in fact, a pittance has been awarded for very valuable property. Our attention is drawn in particular in this regard to the award of a sum of .100/- per Are for a small extent out of the entire total extent acquired. It is pointed out by the learned counsel for the appellants Sri.M.P.Ashok Kumar that by Ext.P4 dated 15.3.2004 notice was sent by the Power of Attorney appointed by the second appellant referring to the fact that a Power of Attorney has been appointed and intimations regarding the acquisition be given to the Power of Attorney. It is pointed out that the same was acknowledged vide Ext.P6. Likewise, it is pointed out that vide Ext.P5 dated 12.1.2006 the first appellant had intimated the District Collector about his owning lands along with his wife and in short requesting that the properties may be excluded from the acquisition W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 15 proceedings if already included. The District Collector was informed that they intend to start an industry in the said place. It is also informed that they were not interested in selling the properties at the rate offered as it is very low than the prevailing market rate. It is submitted that, Ext.P7 evidences acknowledgment of Ext.P5 by the District Collector. It is, despite all this, it is complained that, the authorities have not complied with Section 9 of the Act and issued notice to the appellants. It is pointed out that, there is violation of Rules 11, 13 and 16 of the Land Acquisition (Kerala) Rules, 1990 (hereinafter referred to as 'the Rules'). Learned counsel for the appellants also sought to draw support from Section 45 of the Act.
10. It is further submitted that, after the writ petition was admitted, as directed, records were W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 16 produced and they show that actually notice has not even been despatched. In this connection, our attention is drawn to page No.96 of the Paper Book. It is the Despatch-Cum-Stamp Account Register. It is pointed out that, a perusal of the contents would show that the name of the first appellant has been added subsequently to make it appear that notice has been sent. Discrepancies are sought to be made out with reference to the amount which is carried over from the previous page in an attempt to contend that actually notice was not even despatched.
11. It is further complained that, Ext.P15 (see page 168 of the Paper Book) would show under Award No.140/2006 an amount of Rs.16,71,225/- has been remitted in the Additional Sub Treasury as collection charges and the balance amount of Rs.2,22,82,992/- W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 17 has been sent to the Assistant Secretary, KSIDC. As far as Award No.128/2006 is concerned, an amount of Rs.66,754/- was remitted as collection charges and an amount of Rs.8,90,053/- was sent to the Assistant Secretary, KSIDC.
12. He would submit that, the action of the authorities in not depositing the award amount in the civil court as is the mandate of law is insupportable. It may be true that, there were recovery proceedings initiated by the KSIDC for recovering the amount due in respect of which the property of the appellants have been mortgaged. In fact, it is pointed out that, O.P.No.18343/2001 has been filed and therein the correct address was given. It is, despite the same, and ignoring the same, it is sought to be despatched at the address in Kannur. Thus, ignoring all information W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 18 relating to the correct address of the appellants, the authorities purported to complete the service of notice at the address which has no relevance and significance which is patently illegal.
13. It is still further contended that, while it may be true that, KSIDC made a claim, the District Collector was obliged under law to refer the dispute as between the appellants and KSIDC to the Court under Section 30 of the Act. Even this was not done. His further complaint is that, without any notice to the appellants, the authorities deducted income tax. This is contrary to the decision of the learned Single Judge of this Court reported in Nalini v. Deputy Collector (2006 (4) KLT 87), it is contended.
14. Per contra, Sri.C.R.Sri.Syamkumar, learned Government Pleader would submit that, it is W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 19 settled in a catena of decisions that absence of any notice under Section 9 of the Act would not vitiate the proceedings. Issuance of notice under Section 9 of the Act or service of notice under Section 9 is not mandatory. He relied on the following decisions. Francis V. State of Kerala & Others (1966 KLT 123), State of T.N. And another v. Mahalakshmi Ammal and Others (1996 (7) SCC 269) Nasik Municipal Corporation v. Harbanslal Laikwant Rajpal and Others (1997 (4) SCC
199) and May George v. Special Tahsildar {2010 (2) KLT 866 (SC)}. According to him, no doubt, attempt was made to serve notice.
15. As far as W.P.C No.18343/2001 is concerned, it is submitted that, it was filed making the Revenue Recovery Officer as a party and to blame the Officer for not looking into the said address may not be W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 20 justified and notice was sent at the address at which the parties lastly resided. It is contended that, the Apex Court has taken the view that when there is an acquisition it will become the talk of the town. It is submitted that, it is too much to think that the appellants were not aware of the proceedings being taken from time to time. In this regard reliance is placed on the judgment reported in Sawaran Lata and Others v. State of Hayana and Others (2010 (4) SCC
532) wherein the Apex Court inter alia held as follows:
"in the instant case, it is not the case of the petitioners that they had not been aware of the acquisition proceedings as the only ground taken in the writ petition has been that substance of the notification under Section 4 and declaration under Section 6 of the W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 21 1894 Act had been published in the newspapers having no wide circulation. Even if the submission made by the petitioners is accepted, it cannot be presumed that they could not be aware of the acquisition proceedings for the reason that a very huge chunk of land belonging to a large number of tenure-holders had been notified for acquisition. Therefore, it should have been the talk of the town. Thus, it cannot be presumed that the petitioners could not have knowledge of the acquisition proceedings."
16. As far as non-service of notice under Section 12 (2) of the Act is concerned, learned Government Pleader would submit that, it is not mandatory. He drew our attention to Section 18 of the W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 22 Act and contended that the consequence of non-service of notice under Section 12 (2) of the Act is provided for by the law giver in Section 18 of the Act and that is this. The interested party can file an application seeking reference to the civil court within the extended period of 6 months from the date of the award. The said provision goes to show that non-service of notice under Section 12 (2) of the Act is not fatal, it is contended. He further drew our attention to the decision of the Apex Court reported in Parsottambhai M.Patel v. State of Gujarat (2005 (4) KLT SN 53) in support of the said contention.
17. As far as the action of the District Collector in not making the reference under Section 30 of the Act it is pointed out that no such claim was made by the appellants. On the other hand, the KSIDC participated W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 23 in the award proceedings. It raised claims on the basis of the loan transaction. It pointed out that it had assumed possession of the property. As far as the illegality in not making available the awarded sum to the civil court as mandated in law, the learned Government Pleader drew our attention to the reasons which have found acceptance of the learned Single Judge in para 6 of the judgment which reads as under:
"The Special Tahsildar (LA) was directed to explain as to why contrary to what was stated in the award the amount was not deposited before the Sub Court but was paid directly to KSIDC. Accordingly she has filed a statement on 9-4-2008 and she has stated that the opinion of the District Government Pleader was sought and the District Government Pleader opined that in view of the order of the W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 24 District Collector pursuant to the judgment of this Court Ext.R4(a), the amount be made over to the Special Tahsildar (RR). Since the amount was made over to Tahsildar (RR), the then Tahsildar (LA) by proceedings dated 6-11-2006 and 17-11-2006 recorded the factum of deposit and it was stated in the proceedings that the proceedings may be treated as part of the award. True copies of the proceedings dated 6-11-2006 and 17- 11-2006 are produced as Annexures 1 and 2."
18. Faced with this line of argument, the learned counsel for the appellants would point out that in regard to the decision of the Apex Court laying down the law that notice under Section 9 of the Act is not mandatory that the decision of the Apex Court proceeds W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 25 without taking into consideration sub section (4) of Section 9 of the Act. Still it is contended that, the Apex Court has not considered the effect of Section 45 of the Act which also provides for service of notice by registered post. It is contended that, Writ Court under Article 226 of the Constitution of India can take into consideration those aspects which were not considered by the Apex Court and taking into consideration also the mandate of Article 300-A of the Constitution come to the rescue of the appellants and reach justice to them by restoring to them the properties which have been taken away from them in brazen breach of the mandate of Section 9 of the Act.
19. As far as the appellants in W.A.No.1777/2009 is concerned, Sri.Mohana Kannan, learned counsel for the appellants would submit that, W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 26 the case of the appellants is that, no notice has been given as is argued by the learned counsel for their parents.
As far as the case of the daughters is concerned, the learned Government Pleader would point out that, it is, while there was a mortgage effected in respect of the properties that their mother executed Settlement Deeds. It is to defeat the interest of KSIDC. He drew our attention to the fact that originally they filed an application to implead themselves in W.P.(C) No.6144/2007, the writ petition filed by the parents. The said application was not pressed. In this case, they filed writ petition in the year 2008. In doing so they suppressed the fact that they have filed application for impleading in the other writ petition. More importantly, it is pointed out that, though Settlement Deeds were W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 27 executed, no mutation was done. This clearly disabled the State at any rate from issuing notice to them.
20. Learned counsel for the KSIDC would draw our attention to the fact that in both cases memos have been filed by the appellants during the pendency of the appeals to the effect that they are not pressing for any reliefs as against KSIDC.
Memo filed in W.A.No.1436 of 2009 read as under:
"I am the counsel for the appellants in the above writ appeal. All the liabilities towards the 4th respondent, Kerala State Industrial Development Corporation Pvt.Ltd (KSIDC) have been settled under the One Time Settlement Scheme. Therefore, without prejudice to the contentions in the above writ appeal, the claim W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 28 against the 4th respondent KSIDC is hereby relinquished without prejudice to the rights of the appellants to pursue the appeal as against the other respondents."
Memo submitted in W.A.No.1777 of 2009 reads as under:
"I am the Counsel appearing for the appellants in the above appeal. All the liabilities towards the 3rd respondent, Kerala State Industrial Development Corporation Pvt.Ltd. (KSIDC) has been settled under the One Time Settlement Scheme. Therefore without prejudice to the contentions in the above appeal, the claims as against the 3rd respondent KSIDC is hereby relinquished and the appellants will not make any claims as W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 29 against the 3rd respondent. This is without prejudice the right of the appellants to pursue the appeal as against other respondents."
It is pointed out that, this was pursuant to the One Time Settlement Scheme arrived at between the appellants and KSIDC after the disposal of the writ petition by which the entire liability including the collection charges were settled for about a sum of about .350/- lakhs on 22.05.2013.
21. We have already noticed the reliefs. The notification was issued under Section 4 (1) of the Act on 18.11.2003. The declaration under Section 6 was made on 25.10.2004. No argument was addressed before us that there is lapsing of the land acquisition proceedings and therefore we can safely proceed on the basis that land acquisition proceedings did not lapse. W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 30 The next stage is notice under Section 9 of the Act. Much is sought to be made of the non-issuance of notice under Section 9 of the Act.
Section 9 of the Act reads as follows:
"9. Notice to persons interested.--(1) The Collector shall then cause public notice to be given at convenient places on or near the land to be taken, stating that the Government intends to take possession of the land, and that claims to compensation for all interests in such land may be made to him.
2. Such notice shall state the particulars of the land so needed, and shall require all persons interested in the land to appear personally or by agent before the Collector at a time and place W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 31 therein mentioned (such time not being earlier than fifteen days after the date of publication of the notice), and to state the nature of their respective interests in the land and the amount and particulars of their claims to compensation for such interests, and their objections (if any) to the measurements made under section
8. The Collector may in any case require such statement to be made in writing and signed by the party or his agent.
3. The Collector shall also serve notice to the same effect on the occupier (if any) of such land and on all such persons known or believed to be interested therein, or to be entitled to act for persons so interested, as reside or have W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 32 agents authorized to receive service on their behalf, within the revenue district in which the land is situate.
4. In case any person so interested resides elsewhere, and has no such agent the notice shall be sent to him by post in a letter addressed to him 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)}. Section 45 of the Act is invoked in conjunction with Section 9. Therefore, we deem it necessary to extract Section 45. Section 45 reads as follows:
"45. Service of notices.-(1) Service of any notice under this Act shall be made by delivering or tendering a copy thereof signed in W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 33 the case of a notice under section 4, by the officer therein mentioned, and in the case of any other notice, by an order of the Collector or the Judge.
2. Whenever it may be practicable, the service of the notice shall be made on the person therein named.
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 person 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 W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 34 the court-house, and also in some conspicuous part of the land to be acquired:
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."
22. The substance of the contention of the learned counsel for the appellants is that in regard to interested persons in which category the appellants fall notice must be given by registered post. It is also contended that in the decision of the Apex Court wherein W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 35 the Court took the view that notice under Section 9 of the Act is not mandatory, neither Section 9 (4) nor Section 45 (3) were considered and that is sufficient for this Court in Article 226 of the Constitution of India to take a different view than the view propounded by the Apex Court. In State of Tamil Nadu and another v. Mahalakshmi Ammal and Others (1996 (7) SCC 269) the Apex Court inter alia held as follows:
"9................Equally, even if there is an irregularity in service of notice under Sections 9 and 10, it would be a curable irregularity and on account thereof, award made under Section 11 does not become invalid.............."
Thereafter, in Nasik Municipal Corporation v. Harbanslal Laikwant Rajpal and Others (1997 (4) SCC
199) the Apex Court inter alia held as follows: W.A.No.1436 of 2009
W.A.No.1777 of 2009 & W.A.No.1012 of 2013 36 "5. It is then contended by Mr.U.R.Lalit, that the respondents had not been given the information of the notification under Section 9 of the Land Acquisition Act. Therefore, the award is bad in law. We find no force in the contention. In the absence of notice or failure to serve notice, the award does not become invalid. Due to the fact that immediately after the award and before the publication of the award, the writ petition came to be filed on 25-9-1980, we direct the appellants to make an application within six weeks under Section 18(1) of the Land Acquisition Act seeking reference. The Land Acquisition Officer is directed to refer the matter to the competent civil court for disposal within two months according W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 37 to law."
Still further, we notice in May George v. Special Tahsildar {2010 (2) KLT 866 (SC)} the Supreme Court inter alia held as follows:
"25. The instant case is required to be examined in the light of the aforesaid settled legal provision. In fact, failure of issuance of notice under S.9 (3) would not adversely affect the subsequent proceedings including the Award and title of the Government in the acquired land. So far as the person interested is concerned, he is entitled only to receive the compensation and therefore, there may be a large number of disputes regarding the apportionment of the compensation. In such an eventuality, he may approach the W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 38 Collector to make a reference to the Court under S.30 of the Act.
27. In fact, the land vests in the State free from all encumbrances when possession is taken under S.16 of the Act. Once land is vested in the State, it cannot be divested even if there has been some irregularity in the acquisition proceedings. In spite of the fact that S.9 Notice had not been served upon the person-interested, he could still claim the compensation and ask for making the reference under S.18 of the Act. There is nothing in the Act to show that non-compliance thereof will be fatal or visit any penalty."
28. The view taken by us herein above stands fortified by large number of judgments of this Court W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 39 wherein it has been held that if there is an irregularity in service of notice under Ss.9 and 10, it could be a curable irregularity and on account thereof, Award under S.11 would not become invalid.
(see: State of Tamil Nadu v.
Mahalakshmi Ammal & Ors (1996) 7 SCC 269; and Nasik Municipal Corporation v. Harbanslal Laikwant Rajpal & Ors. (1997) 4 SCC 199)."
23. We are afraid that the contention of the learned counsel for the appellants can only be discountenanced. When the Apex Court rules on a point of law which can be treated as ratio decidendi as distinguished from decision on merits, it becomes law under Article 141 of the Constitution of India. The efficacy of the declaration of law under Article 141 cannot be made to depend on the question as to W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 40 whether all arguments which could have been addressed in the circumstances were actually addressed or considered by the Apex Court. See the judgment of the Apex Court in Suganthi v. Jagadeeshan {2002 (1) KLT 581 (SC) } wherein the Apex Court inter alia held as follows:
"It is impermissible for the High Court to overrule the decision of the Apex Court on the ground that the Supreme Court laid down the legal position without considering any other point. It is only a matter of discipline for the High Courts in India, it is the mandate of the Constitution as provided in Article 141 that the law declared by the Supreme Court shall be binding on all courts within the territory of India. It was pointed out by this Court in Anil W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 41 Kumar Neotia v. Union of India , AIR 1988 SC 1353 that the High Court cannot question the correctness of the decision of the Supreme Court even though the point sought before the High court was not considered by the Supreme Court."
If that is so, the pronouncement of the Apex Court in the case law cited to the effect that notice under Section 9 of the Act is not mandatory and if there is no notice served it will not invalidate the proceedings will be binding on us. Neither the absence of reference to Section 9 (4) or Section 45(3) of the Act in the judgments is sufficient in our view to improve the case of the appellants so as to persuade us to hold that the acquisition proceedings are afflicted with incurable illegality. We, however, make it clear that it is not our understanding of the law that officers are not to take all W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 42 possible steps and efforts in accordance with law to issue notice both under Section 9 and 12 of the Act. It is one thing to say that non service of notice or non issuance of notice will not vitiate the award. But, it remains the duty of the officers to issue notice as per law so that service in fact is effected.
24. Passing on to Section 12 (2) of the Act, undoubtedly, it is true that the provision contemplates issuance of notice. The purpose of giving notice of the award is to enable the person interested to decide upon his future course of action. When award is passed it may be accepted or may not be accepted. If the person concerned does not accept the award then it is open to him if he is not satisfied with the compensation to present an application seeking reference of the matter to the civil court, but, within the time limit provided in the W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 43 Act. There may also arise a situation where there may be disputes as to apportionment of the amount awarded. The Act provides for the mechanism for resolution of the disputes and Section 30 is the provision under which the Collector is to refer the matter to the civil court and it is for the civil court to take evidence and decide the matter as between the contesting parties. As far as the award passed under Section 11 is concerned, it is to be passed within a period of 2 years failing which it will be invalid. (See Section 11A of the Act). Could it be said that if notice is not issued after the award is passed the award becomes illegal? This question is not res integra. The said question came to be considered by this Court in Kaliyappan v. State of Kerala (1988 (1) KLT 284). There in the Court took the following view.
"If the procedure and the formalities W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 44 prescribed by S.11 are followed, the award stands made. It is an award that is made under S.11 that is required to be filed under S.12 in the office of the Collector. It presupposes that an award will have been made before it is filed under sub-s (1) of S.12. Making of such an award has obviously reference to making of an award as provided in S.11. Sub-s. (2) of S.12 requires the Collector to give immediate notice of the award to such of the persons who are not personally present or their representatives when the award is made. This provision again requires the giving of a notice of an award already made. If the contention of the appellant is correct, namely, that the award stands made only when it is served it W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 45 would lead to absurd situation viz., that it will be impossible to serve a copy of the award to all the persons concerned if the award gets made,only when it is served. In this case the award was made on 23-9-
1986. As the amendment Act came into force on 24-9-1984 and the award was made within the period of two years from that date, it follows that the acquisition proceedings impugned in this case did not lapse."
The said view expressed by this Court was affirmed by the Apex Court in Kaliyappan v. State of Kerala (AIR 1989 SC 239). Therein the Apex Court inter alia held as follows:
"5. Under S.11-A of the Act the Collector is empowered to make an award before the expiry of the period of two years from the W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 46 date of the publication of the declaration under S.6 of the Act and in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984 before the expiry of the period of two years from the date of its commencement. If an award is not made within the prescribed period of two years in either case, it is open to the person interested in the land to approach the Collector and tell him that the acquisition proceeding should be dropped unless the Collector is able to produce before him an award made by him within the period of two years. He may also in such a case question the continuance W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 47 of the acquisition proceeding in court. Thus no prejudice will be caused to the person interested in the land. At the same time it would not be open to a person interested in the land to get rid of the acquisition of proceeding by avoiding service of notice issued by the Collector within the prescribed period. We are of the view that under S.11-A of the Act the words "the Collector shall make an award......within a period of two years from the date of the publication of the declaration" mean that the Collector is empowered to make an award till the expiry of the last date of the period of two years irrespective of the date on which the notice of the award is served W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 48 upon the persons interested in the land, 'to make an award' in this section means 'sign the award'. That is the ordinary meaning to be ascribed to the words 'to make an award'. An extended or a different meaning assigned to the words 'the date of the award' by this court in Raja Harish Chandra's case (AIR 1961 SC 1500) (supra) cannot be applied in this case since such an extended or different meaning is neither warranted by equity nor will it advance the object of the statute. Similarly under the proviso to S.11-A of the Act the Collector is empowered to make an award within two years from the date of commencement of the Land Acquisition W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 49 (Amendment) Act, 1984 irrespective of the date on which the notice of award is served on the person concerned. We do not find any analogy between S.11-A and section 18 of the Act insofar as the above question is concerned. The High Court was therefore, right in rejecting the above contention of the petitioner. "
Following the said judgment, the Full Bench of the Delhi High Court in Roshanara Begum v. Union of India and Others {AIR 1996 Delhi 206 (FB) } has taken the following view.
"However, the Supreme Court has already spoken on this point in case of Kaliyappan (AIR 1989 SC 239) (supra) that date of signing of the award is the date of making of the W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 50 award and we have expressed our view that purpose of serving a notice under Section 12 is only to enable the aggrieved interested person to decide whether the compensation given in the award is to be accepted or reference is to be made to the Court concerned for enhancement of the compensation and non-issuance of a notice soon after making of the award does not vitiate the award in any manner which is only an offer of payment of compensation for the land sought to be acquired."
25. We cannot also overlook the words used in Section 18 of the Act. Section 18 of the Act provides as follows:
"18.Reference to Court.--(1) Any person interested who has not W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 51 accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested.
(2) The application shall state the grounds on which objection to the award is taken:
Provided that every such application shall be made,-
(a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 52 from the date of the Collector's award;
(b) in other cases, within six weeks of the receipt of the notice from the Collector under section 12, sub-section (2), or within six months from the date of the Collector's award, whichever period shall first expire."
It is clear that the law giver intended that if the person was present or represented before the Collector at the time when he made the award application can be made within 6 weeks from the date of award. In other cases application seeking reference must be made within 6 weeks of the receipt of notice under Section 12 (2) of the Act. Section 12 (2) (b) contemplates an extended period for making the application, namely, six months from the date of Collector's award. No doubt, it is W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 53 provided that whichever period shall first expire.
26. The provision of Section 18 (2) (b) has been the subject matter of discussion and decision by the highest Court on a number of occasions. The question engaged the attention of the Apex Court in Raja Harish Chandra Raj Singh v. The Deputy Land Acquisition Officer and another (AIR 1961 SC 1500). Subsequently, we notice that the matter also engaged the attention of the Court in State of Panjab v. Mst.Qaisar Jehan Begum and another (AIR 1963 SC 1604), Parsottambhai Maganbhai Patel and Others v State of Gujarat (2005 (7) SCC 431) and Steel Authority of India Limited v. Sutni Sangam and Others (2009 (16) SCC 1). We finally notice that the Supreme Court considered the entire case law on the point in the decision reported in Bhagwan Das & Ors. v. State of W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 54 U.P and Ors. (AIR 2010 SC 1532) and held as follows:
"11. When a land is acquired and an award is made under section 11 of the Act, the Collector becomes entitled to take possession of the acquired land. The award being only an offer on behalf of the Government, there is always a tendency on the part of the Collector to be conservative in making the award, which results in less than the market value being offered. Invariably the land loser is required to make an application under section 18 of the Act to get the market value as compensation. The land loser does not get a right to seek reference to the civil court unless the award is made. This means that he can make an application seeking reference only W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 55 when he knows that an award has been made. If the words six months from the 'date of the Collector's award' should be literally interpreted as referring to the date of the award and not the date of knowledge of the award, it will lead to unjust and absurd results. For example, the Collector may choose to make an award but not to issue any notice under section 12 (2) of the Act, either due to negligence or oversight or due to any ulterior reasons. Or he may send a notice but may not bother to ensure that it is served on the land-owner as required under section 45 of the Act. If the words 'date of the Collector's award' are literally interpreted, the effect would be that on the expiry of six months from W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 56 the date of award, even though the claimant had no notice of the award, he would lose the right to seek a reference. That will lead to arbitrary and unreasonable discrimination between those who are notified of the award and those who are not notified of the award. Unless the procedure under the Act is fair, reasonable and non- discriminatory, it will run the risk of being branded as being violative of Article 14 as also Article 300-A of the Constitution of India. To avoid such consequences, the words 'date of the Collector's award' occurring in proviso (b) to section 18 requires to be read as referring to the date of knowledge of the essential contents of the award, and not the actual date of the W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 57 Collector's award.
12. The following position, therefore, emerges from the interpretation of the proviso to section 18 of the Act:
(i) If the award is made in the presence of the person interested (or his authorized representative), he has to make the application within six weeks from the date of the Collector's award itself.
(ii) If the award is not made in the presence of the person interested (or his authorized representative), he has to make the application seeking reference within six weeks of the receipt of the notice from the Collector under section 12 (2).
(iii) If the person interested (or his representative) was not present when the award is made, and if he W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 58 does not receive the notice under Section 12 (2) from the Collector, he has to make the application within six months of the date on which he actually or constructively came to know about the contents of the award.
(iv) If a person interested receives a notice under section 12 (2) of the Act, after the expiry of six weeks from the date of receipt of such notice, he cannot claim the benefit of the provision for six months for making the application on the ground that the date of receipt of notice under section 12 (2) of the Act was the date of knowledge of the contents of the award.
A person who fails to make an application for reference within the time prescribed is not without W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 59 remedy. It is open to him to make an application under section 28-A of the Act, on the basis of an award of the court in respect of the other lands covered by the same acquisition notification, if there is an increase. Be that as it may.
13. 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 filing the application for reference. This onus is discharged W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 60 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. 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 W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 61 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 interested that he did not have knowledge earlier will be accepted, unless there are compelling circumstances to not to do so."
W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 62
27. It become clear beyond the pale of any doubt therefore that under Section 18 of the Act there are three contingencies. An application for reference can be made within six weeks from the date of the Collector's award itself in a case where the award is made in the presence of the person or his representative. If the person interested or his representative is not so present but is in receipt of notice under Section 12 (2) then he must make reference within six weeks from the date of receipt of notice. But, if no notice has been issued under Section 12 (2) or neither the person interested nor the representative received notice under Section 12 (2) then a period of 6 months will become available to him with reference to the point of time when he actually or constructively became aware of the contents of the W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 63 award. Still further more, the person concerned has remedy made available under Section 28A of the Act also. This being the position, we are of the clear view that the contention of the appellants that non giving of notice under Section 12 (2) or non service of notice will in any way vitiate the award cannot be accepted. We cannot hold that giving of notice as such is mandatory, in that, if notice has not been given or not served, it will invalidate the award. Non giving of notice or non service of notice under Section 12 (2) of the Act really does not adversely affect the person concerned as the whole purpose of giving notice is to enable the person interested to seek further redress in regard to the award as provided under Section 18 or under Section 30 of the Act. In view of the interpretation placed by the Apex Court that as far as the person who is not issued with W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 64 notice or not served with notice is concerned, he gets a period of 6 months with reference to the date of either actual or constructive knowledge of the contents of the award, he is not to be prejudiced. The consequences of non giving of notice is taken care of by the provisions of Section 18 (2) (b) of the Act and in view of the interpretation placed by the Apex Court we also see that no injustice as such would follow in the sense that the purpose of giving notice under Section 12 (2) of the Act is achieved even in a case where no notice is given as the party concerned can seek redress with reference to the date of knowledge of the contents of the award be it actual or constructive. Since the Legislature has provided the consequences of non issuance of notice or non service of notice as aforesaid we are of the view that by no stretch of imagination we can intervene and W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 65 interfere with the judgment of the learned Single Judge or the acquisition proceedings including the award on the ground that no notice was issued under Section 12 (2) to the appellants. We have already noticed that the award becomes complete with reference to Section 11A of the Act on the date on which the award is made and signed by the Collector. Subsequent issue of notice under Section 12 (2) is only intended to enable the party concerned to pursue further remedies available under law in regard to the award. It does not in any manner mean non service of notice take away the efficacy or validity of the award which is to be decided with reference to whether it has been made within the time limit prescribed under Section 11A of the Act, that is, with reference to the date on which the award is actually made and signed by the Collector. Therefore, we repel W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 66 the contention of the appellants in this regard.
28. Another contention which is raised by the appellants is that there is violation of certain Rules. Rule 11 of the Land Acquisition (Kerala) Rules, 1990 (hereinafter called 'the Rule') is relatable to Section 9 of the Act. As far as Rule 12 is concerned it reads as follows:
"12.Awards for compensation.-
(1) As soon as the claims of the persons interested in the land are enquired into as contemplated in Rule 11 the Land Acquisition Officer shall prepare a draft award (in Form No.10) and submit the same with all connected records.
(a) to the District Collector where the award does not exceed Rs.One crore.
(b) to the Commissioner of Land W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 67 Revenue where the award exceeds Rs.One crore but does not exceed Rs.Two crore.
) to the Government in the concerned Department, where the award exceeds Rs.Two crores.
(2) As soon as previous approval is received the Land Acquisition Officer shall make an award in Form No.10 and send one copy of such award to the District Collector for effecting necessary changes in the revenue records and one copy to the requisitioning authority. A copy of the award statement shall thereupon be sent to the Accountant General in Form 'A' in duplicate.
xx xx
xx xx
W.A.No.1436 of 2009
W.A.No.1777 of 2009 &
W.A.No.1012 of 2013 68
29. We are at a loss to comprehend the basis for the appellants' complaint with reference to the said Rule. The said Rule essentially contemplates approval by higher authorities with reference to the quantum of the amount involved. If the amount involves Rs.2 crores a draft award must be submitted to the Government in the concerned department. Approval is contemplated. We would think that submission of the draft award and approval are contemplated to safeguard the interest of the Government. No doubt, learned counsel for the appellants Sri.M.P.Ashok Kumar would contend that, in the process of granting approval the concerned authority would also look into the question as to whether the award has been made after complying with all statutory provisions. We have already taken the view that non giving of notice under Section 9 and non service of W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 69 notice under Section 12 (2) of the Act will not vitiate the proceedings. At any rate, we would think that the real purport of the Rule contemplating approval sought is to see that the interest of the Government is protected so that excessive amounts are not granted by the authorities making the awards.
30. Rule 7(2) of the Rule relates to the issue of public notice. We have already considered the effect of non service of notice under Section 9 of the Act.
31. As far as Rule 13 of the Rule which is relied on by the appellants is concerned, it also relates to notice under Section 12 (2) of the Act. It provides essentially for service of notice in the manner provided under Section 45. Neither the provisions in the Parent Enactment nor the Rules made by the State of Kerala under the Act will advance the case of the appellants in W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 70 view of the decisions of the Apex Court interpreting Section 9, Section 12 and Section 18 of the Act throwing light on the effect of non service of notice under Sections 9 and 12 (2) of the Act.
32. We cannot also overlook the subsequent developments which have taken place in the form of the appellants entering into One Time Settlement with the KSIDC. In both the writ appeals filed by the private parties they have entered into One Time Settlement with KSIDC. They filed memos to the effect that they do not seek relief against KSIDC. We are fortified in the view that no relief need be granted to the appellants by drawing on of the conduct of the appellants in entering into agreements with the KSIDC and giving up of reliefs against KSIDC. We may incidentally also note that the appellants in W.A.No.1777/2009 (daughter's W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 71 appeal) do have a case that the entire property of their parents were not mortgaged (it is submitted only 4.4. acres out of the total extent of 7.8 acres was mortgaged). But, we need not be detained by the said circumstances as the daughters have entered into One Time Settlement with KSIDC. At any rate, the destiny of their case hangs on our decision regarding their contention based on the mandatory nature of the notice under Section 9 and Section 12 (2) of the Act which we have already found against them.
33. As regards the case of the appellants that tax was deducted by the authority without notice to them, we are not impressed by the said contention either. It is true that, the learned Single Judge of this Court has in the decision reported in Nalini v. Deputy Collector (2006 (4) KLT 87) has held as follows: W.A.No.1436 of 2009
W.A.No.1777 of 2009 & W.A.No.1012 of 2013 72 " It is only just and proper that the parties are given advance notice regarding the liability to pay income tax. The Land Acquisition Officer can note this fact also, in the notice issued to the claimant under S.9 of the Land Acquisition Act. The claimant shall be informed about this fact during award inquiry stage. In the award, the income tax deducted shall be separately shown. It is only just and proper that the State Government issues necessary directions to the Land Acquisition Officer to give notices regarding the liability of the claimant to pay income tax even before passing the award. ........"
34. Essentially, the learned Single Judge has only held that it is just and proper that the parties are W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 73 given advance notice. It is brought to our notice that deduction was actually done on December, 2006. We notice that the judgment of the learned Single Judge was on 25th August, 2006. The Officers may not have aware of the said judgment. Whatever that be, we would think that deduction at source cannot be the basis for the appellants laying claim to the said amount. Learned Single Judge has left it open to the parties to seek relief from the income tax department. We do not think that any further relief can be claimed by the appellants in the said regard.
35. Section 10 of the Act relied on by the appellants is only an enabling provision for seeking information regarding persons having interests in the property. Having regard to the interpretation to Section 9 of the Act by the Apex Court also we see no warrant W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 74 for invalidating the proceedings on the basis of Section 10 of the Act.
36. A contention of the learned counsel for the appellants is that it is admitted by the respondent that notice under Section 9(2) of the Act was sent by oversight at the address at Kannur. But, we have already held that non-service of notice is not fatal.
37. All these apart we cannot overlook another significant dimension of this case. Award is passed in 2006. Possession was handed over to the Requisitioning Authority on 18-10-2006. The public purpose apparently which was touted in the notification was changed and the property now is made available to the INFO PARK (as per G.O.(MS) No.46/2005/ID dated 10-05-05). In fact, learned Government Pleader points out that the purpose for which the land is made available to INFO W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 75 PARK is also a public purpose which is permissible in law.
38. Still further, we may notice that, this is a case where the learned Single Judge taking note of the circumstances proceeded to direct the appellants to prefer application under Section 18 by granting extension of time. The appellants did not avail of the said benefit. Instead, they proceeded to file this appeal. Decisions as to the effect of Section 9, namely, that non-service of notice under Section 9 of the Act does not have fatal consequences have been laid down by the Apex Court prior to the judgment of the learned Single Judge. So, also, there were judgments of the Apex Court interpreting the scope of Section 18 (2) (b) which would clearly show that non-service of notice under Section 12 (2) cannot have fatal consequences. W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 76 Whatever that be, the appellants did not avail the benefit of the said direction. Still further more, we notice that the appellants could have taken the benefit of provisions of Section 28A of the Act. It is brought to our notice by the learned Government Pleader that time was available till 2010. We are only mentioning this to point out that apart from the fact that there is no merit in the appellants' contentions these developments also do persuade us to take the view that no interference is called for by the appellate Court.
39. We have our reservations, in fact, about the directions issued by the learned Single Judge granting extension of time to file application seeking reference under Section 18 of the Act. It is quite clear that the provisions of Section 5 of the Limitation Act is not available to assist a belated application under W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 77 Section 18 of the Act as the Officer is not a Court under the Limitation Act. We would have thought that the learned Single Judge ought not have given such a direction. The High Court cannot even claim to be clothed with the powers which are available to the Apex Court under Article 142 of the Constitution of India. If that be so, while the power of the Writ Court under Article 226 of the Constitution of India is wide, extra ordinary as it is discretionary there can be no manner of doubt that it does not and cannot extend to asking the authority to entertain an application which is clearly barred. Unless there is power for the authority to entertain the application beyond time it may not be appropriate or even legal for the High Court to give a direction to act contrary to the law. The very basic postulate of the supervisory jurisdiction under Article W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 78 226 is to keep the authorities within the bounds of law and when the Writ Court permits an application to be made beyond the statutory period it does just the opposite, that is, it directs the authority to act contrary to law. Whatever that be, if the appellants had availed of the benefit of the direction it could have got the benefit which they did not do. We further make these observations as we notice the extended period is already over. Of course, we cannot set aside the direction as such.
40. Learned Government Pleader further points out that this is a case where acquisition proceedings are sought to be put in issue without the junction of the Requisitioning Authority.
41. The upshot of the above discussion is that the appellants have not made out any ground to W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 79 interfere with the judgment of the learned Single Judge. The appeals fail and they are dismissed. No order as to costs.
W.A.No.1012 of 2013:
42. Then there remains the appeal filed by the Government, but with huge delay of 1627 days. We are not impressed by the reasons given by the appellants in the said case for condoning the delay. Even if it is an appeal filed by the Government and even entertaining the widest latitude and adopting a most liberal view in the facts of this case we are not impressed by the reasons given to condone the delay of 1627 days. The application to condone the delay in filing the appeal is W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 80 dismissed. Consequently, the Writ Appeal is also dismissed.
(K.M.JOSEPH) JUDGE.
( A.HARIPRASAD) JUDGE.
MS W.A.No.1436 of 2009 W.A.No.1777 of 2009 & W.A.No.1012 of 2013 81 K.M.JOSEPH & A.HARIPRASAD, JJ.
--------------------------------- W.A.No.1436 of 2009
W.A.No.1777 of 2009 & W.A.No.1012 of 2013 & C.M.Appln.No.525 of 2013 in W.A.No.1012 of 2013
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Dated 21-08-2013 J U D G M E N T
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