Augusthy s/o Devassy v. State of Kerala and Kochi International Airport Society

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH** **MONDAY, THE 25TH DAY OF FEBRUARY 2013/6TH PHALGUNA 1934** **LA.App..No. 330 of 2012 (B)** **-------------------------AGAINST THE JUDGMENT IN LAR.157/2009 of ADDL.SUB COURT,NORTH PARAVUR DATED 22-10-2011** **APPELLANT(S)/CLAIMANT :** **---------------------------** **AUGUSTHY S/O. DEVASSY, PLACKAL HOUSE, THURUTHUSSERY NEDUMBASSERY VILLAGE.** **BY ADVS.SRI.MATHEWS K.PHILIP SMT.T.MANASY** **RESPONDENT(S)/RESPONDENTS :** **-------------------------------** ## **1. STATE OF KERALA** ## **2. KOCHI INTERNATIONAL AIRPORT SOCIETY** **R2 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR R2 BY ADV. SMT.THUSHARA JAMES GOVT. PLEADER SMT. P.A. RAZIYA** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 25-02-2013, ALONG WITH L.A.A. NOS. 297 & 338 OF 2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** S. Siri Jagan & Babu Mathew P. Joseph, JJ. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= L.A.A. Nos. 297, 330 & 338 of 2012 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 25[th] day of February, 2013. ## J U D G M E N T ## Siri Jagan, J. These three appeals are filed by the common claimant in L.A.R.Nos. 156, 257 and 158 of 2009 before the Additional Sub Judge, North Paravur. Certain lands belonging the the appellant were acquired as per a notification dated 29.5.1998 issued under Section 4(1) of the Land Acquisition Act. The appellant did not seek any reference under Section 18 of the Act and he accepted the compensation fixed by the Land Acquisition Officer without any protest. Subsequently, another person, whose land was acquired under the very same notification, got enhancement of land value in L.R.A.No. 121/2001. Thereafter, the appellant filed applications under Section 28A of the Land Acquisition Act, seeking similar enhancement as in L.A.R.No. 121/2001. The Land Acquisition Officer rejected the same on the ground that the land in L.A.R.No. 121/2001 is not comparable to the lands acquired from the appellant. The appellant sought reference under Section 28A of the Land Acquisition Act, consequent to which the land acquisition references in which the common judgment under appeal in these appeals were passed, came to be referred to the Sub Judge. The Sub Judge, after considering the contentions of the appellant and after referring to the Supreme Court decisions and the decisions of this Court on the subject, came to the conclusion that comparability of the land, award in respect of which land is relied upon, and the land in respect of L.A.A. Nos. 297, 330 & 338 of 2012 -: 2 :- which the application under Section 28A is filed, is a relevant factor in deciding the application under Section 28A of the Act and merely because the land is acquired under the very same notification, unless comparability is also proved, the land value cannot be enhanced. The Sub Court, after considering the evidence adduced before him, came to the conclusion that the properties are not comparable and therefore the appellant is not entitled to enhancement in land value and rejected the three LARs by a common judgment. It is challenging the said common judgment, the appellant has filed these appeals. 2. The primary contention of the appellant is based on a Single Bench decision and a Division Bench decision of this Court. In **Raghava Poduval v. Special Tahsildar** , 2004 (3) KLT 261, a learned Single Judge held that for claiming enhancement of land value under Section 28A, the only relevant factor is whether the two lands have been acquired under the very same notification. Subsequently, after considering the said decision of the Single Bench, a Division Bench of this Court in **Sushama v. District Collector** , 2010 (3) KLT 605, held that an application for redetermination of compensation for paddy land under Section 28A cannot be dismissed for the mere reason that the award relied on in support of the application was in respect of a garden land. The contention of the appellant in these cases is that the Sub Court has rejected the claim of the appellant merely for the reason that the lands acquired L.A.A. Nos. 297, 330 & 338 of 2012 -: 3 :- from the appellant are wet lands, whereas the land involved in L.A.R.No. 121/2001 is dry land. According to appellant, this is contrary to the above decisions of this Court. 3. The learned Government Pleader, on the other hand, would contend that no decision lays down a law that comparability is not a relevant factor for deciding a claim under Section 28A of the Land Acquisition Act. It is submitted that the Supreme Court has, in the decisions in **Babua Ram and others v. State of U.P. and another** , (1995) 2 SCC 689 and **Union of India v. Pradeep Kumari** , 1996 (1) KLT 83, laid down the law that comparability of the two lands is a relevant factor for deciding the claim under Section 28A of the Land Acquisition Act. The learned Government Pleader would further submit that although in **Raghava Poduval's case** (supra), at first blush, the learned Single Judge seems to have taken the view that for maintaining a claim under Section 28A, all what is necessary is that the two lands are covered by the very same notification under Section 4(1), that has been explained by the Division Bench in **Sushama's case** (supra) by stating that **Raghva Poduval's case** (supra) does not lay down such a law for general application, but the same has to be read in the light of the facts of that case. The submission made is that in **Sushama's case** also, relying on the Supreme Court decisions referred to above, the Division Bench held that comparability is a relevant factor to decide the issue and L.A.A. Nos. 297, 330 & 338 of 2012 -: 4 :- explained that **Raghava Poduval's case** had not laid down any different law. All what the Division Bench held is that merely because the award relied on in support of the application under Section 28A is in respect of a garden land, the application for redetermination of compensation for paddy land cannot be dismissed. The contention is that the learned Single Judge had considered all the decisions on the subject including the Supreme Court decision referred to above, the Division Bench decision in **Sushama's case** (supra) and also the judgment of the learned Single Judge in **Raghava Poduval's case** (supra) before coming to the conclusion that the land covered by L.A.R.No. 121/2001 is not comparable to the land acquired from the appellant. Therefore, there is no merit in the contentions of the appellant, is the contention. 4. We have considered the rival contentions in detail. 5. We are also of opinion that the Division Bench decision does not lay down any law to the effect that comparability is not a relevant factor for deciding a claim under Section 28A of the Act. The Division Bench has held that the earlier Supreme Court decisions on the subject, which are referred to above, lay down the law that comparability is a relevant factor to decide the issue. But the Division Bench only held that merely for the reason that an award relied upon in support of the application under Section 28A is garden land and the land covered by the claim is paddy land, the application cannot be dismissed. L.A.A. Nos. 297, 330 & 338 of 2012 -: 5 :- In **Babua Ram's case** (supra), a two Judge Bench of the Supreme Court held that for becoming eligible to claim the benefit of Section 28A, the claimant must be a person interested in lands covered by the same notification under Section 4(1) and the amount of compensation determined by the Court must relate to similarly situated possessed of the same value or potentialities etc. Although a three Judge Bench of the Supreme Court in **Pradeep Kumari's case** (supra) overruled **Babua Ram's case** (supra) on the question of limitation, after referring to the statement of Objects & Reasons for enacting Section 28A, held that 'the object underlying the enactment of Section 28A is to remove inequality in the payment of compensation for same or similar quality of land arising on account of inarticulate and poor people not being able to take advantage of the right of reference to the civil court under Section 18 of the Act '. In paragraph 5 of the **Sushama's case** (supra) the Division Bench has, after adverting to **Babua Ram's case** (supra) and **Pradeep Kumari's case** (supra) along with **Reghava Poduval's case** (supra) and the decision of another Single Judge in **Somasundaram v. Spl. Tahsildar** , L.A., 2002(2) KLT 569, held thus: “5. As noticed by the learned Single Judge in the reference order, in Babu Ram, the Apex Court held that the amount of compensation to be determined under S.28A of the Land Acquisition Act, 1894, hereinafter referred to as the “Act” is relatable to land “similarly situated, possessed of the same value of potentialities etc.” In Pradeep Kumari, the Apex Court after referring to the Statement of Objects and Reasons for the introduction of S.28A into the Act, pointed out that the said provision was intended to remove -: 6 :- L.A.A. Nos. 297, 330 & 338 of 2012 inequality in the payment of compensation for same or similar quality of land arising on account of inarticulate and poor people not being able to take advantage of the right of reference to the Civil Court under S.18 of the Act. In Raghava Poduval, this Court held that the use of the word “redetermination” in S.28A prompts the requirement to consider the materials and come to a proper conclusion as to whether the compensation already granted by the Collector is to be enhanced in exercise of power under S.28A(1). Raghava Poduval was rendered in a land acquisition appeal under S.54 and the quality of adjudication of that appeal would have led the Court to lay down law as it did, on the basis of the facts of that case. There is no algebraic straight jacket formula on the basis of which the comparative evaluation can be done. A survey of the plethora of precedents laid down by the Apex Court, this Court and different other High Courts would show that it is inadvisable to decide all cases for compensation on the same yardstick. Appreciation of evidence relating to comparable nature of properties and other attendant matters are to be considered on a case to case basis. We are not persuaded to think that there is any striking cleavage of judicial opinion between Raghava Poduval, Babu Ram, Pradeep Kumari and Somasundaran. In fact, all those decisions operate in a manner advising the courts regarding appreciation of evidence in such matters. The ratio of Raghava Poduval rests on the facts of that case and, therefore, does not require reconsideration on any issue of law. The reference will stand answered accordingly.” The Division Bench also noted that as per the Supreme Court decisions, for claiming benefit under Section 28A, the land should be similarly situated, possessed of the same value or potentialities. All what the Division Bench has held is that comparability has to be decided on a case to case basis depending on the evidence available in each case and there is no strait-jacketed formula for deciding the same. Therefore, comparability is certainly a factor to be decided while considering the claim under Section 28A. L.A.A. Nos. 297, 330 & 338 of 2012 -: 7 :- 6. On going through the judgment of the Sub Court, we find that the Sub Court has considered all the decisions on the subject including the judgment of the learned Single Judge in **Raghava Poduval's case** (supra) as explained by the Division Bench in **Sushama's case** (supra) and after considering the evidence available, has come to the conclusion that the lands are not comparable. The Sub Court has given cogent reasons for coming to that conclusion also. The same is contained in paragraph 15 of the judgment of the Sub Court, which reads thus: “15. Bearing in mind the above principle court has analyzed comparable nature of the properties under reference and that in Ext.A1 judgment. Properties in LAR.156/09, 157/09 and 158/09 are paddy fields. On the other hand, property covered by Ext.A1 judgment is dry land. Therefore the comparable nature of both the lands are further considered. There is no material in record to show that even though claimant's land are wet lands, they have same or similar or equal importance in the locality or having equal or similar potentiality as that of the acquired land. Even there is no material to show the nearness of both the properties. In the absence of materials, court cannot come to a finding that wet land and dry land are comparable. Thus the similarity, comparability and sameness in potentiality of both the properties stands not proved. In the absence of proof of any of the above factors court is not in a position to base Ext. A1 & A2 judgment to redetermine the compensation awarded to the claimant for the wet lands in LAR 156/09, 157/09 & 158/09. Thus claimant in the above three cases is found not entitled to get enhanced compensation on redetermination u/s 28A(3) of the Act.” It is clear from the same that the Sub Court did not reject the claim of the appellant not merely on the ground that the land in L.A.R.No. 121/2001 is dry land and the lands in the L.A.A. Nos. 297, 330 & 338 of 2012 -: 8 :- L.A.Rs involved are paddy lands. After noting that difference, the Sub Court went on to consider the comparability further notwithstanding that difference and found that no evidence has been adduced to show that the two properties are comparable. Therefore, there is no merit in the contention of the appellant that the Sub Court rejected the claim only on the ground that the land involved in the judgment relied upon in support of the claim is dry land and the land involved in the claim are paddy lands. We do not, therefore, find any infirmity whatsoever in the reasoning of the Sub Court in rejecting the claim of the appellant for re-determination of land value under Section 28A of the Land Acquisition Act. Accordingly, these appeals are dismissed. Sd/- Babu Mathew P. Joseph, Judge. Tds/ [True copy] P.S to Judge.