PUSHPAJA M Vs. STATE OF KERALA

JUDGEMENT

(1.) It is stated that the properties of the petitioners herein have been acquired for the purpose of the establishment of the Kannur International Airport Phase-II and for construction of a drainage on the side of the road, in terms of the provisions contained in the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred as the "new 2013 Act", for short). Sec. 11(1) notification under the said Act was published on 30.12.2017 and thereafter, the 3rd respondent-Land Acquisition Officer(LAO)/Special Tahsildar (Land Acquisition), has issued Exts.P-1 to P-9(a) series of notices issued on 05.09.2018 under Sec. 37(2) of the Act, informing that awards have been passed in respect of each of these land acquisition cases on the issues of compensation, etc. It is a common ground that the 3rd respondent-LAO has passed the awards not in the presence of the petitioners. Hence, Exts.P-1 to P-9(a) series of notices are notices informing the matter regarding the rendering of the award as envisaged in Sec. 37(2) of the said Act.

(2.) It is stated that Sec. 64(2)(b) of the new Act is broadly in pari materia to the provision in section 18(2) of the Land Acquisition Act, 1894 (hereinafter referred to short as the "old Act"), which is the notice informing the matter of the passing of the award. The petitioners would point out that the 6 weeks' limitation period in filing reference application seeking enhanced compensation is to be ordinarily reckoned from the date of the award, but that in cases, where the award is passed not in the presence of the claimant, than the said period is to be counted from the date of receipt of the notice intimating the passing of the award. The petitioners have submitted application for reference seeking enhanced compensation, as per Exts.P-10 to P-16 applications dated 08.10.2018. The said application for reference has now been rejected by the 3rd respondent-LAO, as per the impugned Exts.P-17 to P-23 proceedings on the ground that in view of the provision in Sec. 64(2)(b) of the new Act, the period of limitation for submission of reference application in cases where the parties are not present before the Collector at the time of passing of the award, shall be within 6 weeks from the date of receipt of the notice from the Collector under Sec. 21 of the new Act or within 6 months from the date of the Collector's award, whichever period shall expire first. It is stated in the impugned rejection orders by the 3rd respondent-LAO that in the instant case, Sec. 21 notice was issued on 20.11.2017 and has been received by the petitioners on 28.11.2017 and that the award has been rendered on 16.08.2018 and that therefore, the period of limitation, as per Sec. 64(2)(b) of the new Act, will be 6 weeks from 28.11.2018 (date of receipt of Sec. 21 notice) or 6 months from the award dated 16.08.2018, whichever is earlier and that the said period of limitation has expired on 08.01.2018 (6 weeks from 28.11.2017, which is the date of receipt of Sec. 21 notice). If the provision contained in Sec. 64(2)(b) of the new Act is literally adhered to, then the view of the 3rd respondent-LAO in the impugned rejection orders, though hyper technical, cannot be branded as illegal. However, the essence and substance of the main contentions of the petitioners is that going by the provisions contained in Sec. 64(2) (b) of the new Act in comparison with the provisions contained in Sec. 18(2) of the old Act and on a proper understanding of the legislative scheme, and on a proper understanding of the scheme and purpose, it can only be held that the provision expressly engrafted in the first limb of clause (b) of Sec. 64(2)(b) that the period is to be counted from 6 weeks of the receipt of notice under Sec. 21, is an error committed in the legislative draftsmanship and that the word "Sec.21" appearing in the first limb of clause (b) of Sec. 64 (2) could only be understood as "Sec.37(2)" of the new Act, as otherwise in vast majority of cases, where the award would be rendered only the long after the expiry of the period of 6 weeks from the date of receipt of Sec. 21 notice, no reference application could ever been entertained from any aggrieved claimants. Further Sri.Joby Jacob Pulickekudy, learned counsel appearing for the petitioners would submit that the abovesaid aspects which warrants a proper purposive interpretation of the first limb of Sec. 64(2)(b) of the new Act would be all the more clear like the blue sky, when the legislative scheme and the purpose of the legislation in the provisions as in Sec. 64(2)(b) is understood from the provision contained in Sec. 18(2) of the old Act, which is broadly in para materia to the one in Sec. 64(2)(b) for the new Act, etc. It is in the light of these factual averments and contentions, that the petitioners have filed the instant Writ Petition with the following prayers:

(3.) Heard Sri.Joby Jacob Pulickekudy, learned counsel appearing for the petitioners, Sri.Saigi Jacob Palatty, learned Sr.Government Pleader appearing for respondents 1 to 3, Smt.Latha Anand, learned Standing Counsel appearing for R-4 and Smt. C.G. Preetha, learned Central Government Counsel (CGC) appearing for R5-Union Government.