Fertilizers and Chemicals Travancore Limited v. Prasad and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 16TH MARCH 2011 / 25TH PHALGUNA 1932 LA.App..No. 1575 of 2009() -------------------------LAR.241/2007 of ADDL.SUB COURT,PARAVUR .................... APPELLANT(S): 2ND RESPONDENT ---------------------------- FERTILIZERS AND CHEMICALS, TRAVANCORE LIMITED, UDYOGAMANDAL, REPRESENTED BY DY.GENERAL MANAGER (LS). BY ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SMT.THUSHARA JAMES RESPONDENT(S): CLAIMANT & IST RESPONDENT ---------------------------------------- 1. PRASAD, S/O.SARADAKUMARAN, KOCHUPARAMBIL, SOUTH CHITTOOR. 2. STATE OF KERALA, REPRESENTED BY THE SPECIAL TAHSILDAR (LA), GENERAL, ERNAKULAM. ADV. SRI.ANIL KUMAR SREEDHARAN FOR R1 R2 BY SR. GOVT. PLEADER SMT. LATHAT THANKAPPAN & GOVT. PLEADER SMT. T.T.JOSEPHINA THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 22/03/2011, ALONG WITH LAA. 1576/09 ETC. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ.** ----------------------------------------------- LAA. Nos. 1575, 1576 & 1580 of 2009 & 35, 55, 56, 77, 80, 142, 183 & 219 of 2010 -----------------------------------------------------------------Dated this the 16th day of March, 2011 ## **J U D G M E N T** ## **Pius C.Kuriakose, J.** The requisitioning authority FACT Ltd. challenges in all these appeals the award of the reference court answering a reference under Section 28A(3) favourably to the claimants and redetermining the market value of the lands under acquisition. The lands were in Eloor Village and the acquisition was pursuant to a section 4(1) notification published on 14-8-1983. The purpose of the acquisition was for dumping gypsum which is an important raw material for FACT Ltd. The Land Acquisition Officer awarded land value at the rate of Rs.2220/- per Are. None of the party respondents made applications for reference under Section 18, with the result that there were no references under section 18 in the case of any of the respondents. However, LAA.1575/09 etc. -2- later on coming to know that the reference court had refixed market value considering references initiated by other persons whose lands have also been acquired for the same purpose, the respondents filed applications under section 28A. In fact, the respondents relied on various court awards. All these applications were rejected by the Land Acquisition Officer on the ground of limitation. The respondents applied to the Land Acquisition Officer for reference under Section 28A(3). Considering the applications, the L.A.Officer in all the cases made references to the court under Section 28A(3). The court would concur with the Land Acquisition Officer and answer the references against the respondents. The respondents would then filed fresh applications under Section 28A, relying on various fresh awards including the award in LAA. No. 42 of 2000. The Land Acquisition Officer would hold that these applications under section 28A are not maintainable in view LAA.1575/09 etc. -3- of the rejection of the earlier applications on the ground of limitation. The claimant respondents did not leave it there. They filed applications for reference under Section 28A(3) in respect of the dismissal of the subsequent applications filed by them under Section 28A. The L.A. Officer would dismiss these applications taking the obvious view that a party is not entitled to seek successive references under Section28A (3). Some of the claimants would then file interlocutory applications before the L.A. Officer requesting for reconsideration and for treating the applications dismissed, as valid applications under Section 28A. These applications were also dismissed by the L.A. Officer. But claimant respondents would again file applications under Section 28A (3) seeking a reference. This time, the L.A. Officer was persuaded and he would make references under Section 28A (3) to the Subordinate Judge's Court, North Parur. The impugned awards have been passed by the reference court LAA.1575/09 etc. -4- under Section 28A(3) considering those references. Under the impugned awards, except the award which is made in LAA. No. 35 of 2010 the learned Subordinate Judge would re-fix the market value of lands under acquisition on the basis of the awards which had been relied on in the applications under Section 28A. In the award which is impugned in LAA. 35 of 2010 the court did not fully rely on the judgment which had been relied on by the party. Instead, the court would do guess work and award lesser rate. 2. Even though grounds have been raised in these appeals touching the correctness of the market value of the land redetermined by the reference court, it was mainly on two legal questions that the learned counsel for the appellant Smt. Thushara James addressed arguments before us. The questions were the following: (i) Whether once an application under section 28A is filed and rejected and the reference court also on LAA.1575/09 etc. -5- considering a reference under section 28A(3) approves such rejection, it is open to a land owner to file a fresh application under section 28A and to facilitate a fresh reference under Section 28A(3) based on the dismissal of the subsequent application under Section 28A? (ii) Whether the reference court was justified in relying on the various awards relied on by the claimants in their respective applications under Section 28A as they were not original awards passed by the reference court in a reference under Section 18, but were actually awards passed by the reference court under section 28A(3)? 3. According to Smt. Thushara James, the subsequent applications under section 28-A resulting in the awards which are impugned in these appeals could not have been entertained at all. She would draw our attention to the statutory provisions, viz., sub-sections (1), (2) and (3) of Section 28A and argue that those provisions contemplate only one application and determination of the market value only once by the L.A.O. According to Smt. Thushara, the award which is to be relied on for the purpose of an application under Section 18 is an award under section 18 LAA.1575/09 etc. -6- and not an award under Section 28A(3). When her attention was drawn to the judgment of this Court in Joseph v. District Collector, 2004(2) KLT 1029 taking the view that the expression “award of the court” employed in section 28A(1) can include award passed by the court in a reference registered under section 28A(3), Smt. Thushara would argue that the above decision does not lay down the law correctly and require reconsideration. Smt. Thushara would fortify her submissions by citing a number of decisions including that of the Honourable Supreme Court in Union of India v. Pradeep Kumari, 1996 (1) KLT 93, the judgment of a learned single Judge of this Court in Mohammed Kunhi v. Spl. Tahsildar, 2007(1) KLT 716, the judgment of the Supreme Court in State of A.P. and another v. Marri Venkaiah and others, (2003) 7 SCC 280 the judgment of the Supreme Court in State of Tripura v. Roopchand Das, (2003) 1 SCC 421, the judgment of a single Judge of this LAA.1575/09 etc. -7- Court in Haji A.Abdul Rashid v. Spl. Tahsildar, 2008(1) KLT 974, the judgment of the Supreme Court in Smt. Bhagti v. State of Haryana, AIR 1997 SC 1793, the judgment of this Court in Madhavi v. Special Tahsildar, 2003 (1) KLT 813. 4. The judgments in Joseph v. District Collector, 2004 (2) KLT 1029 and in Simon v. State of Kerala, 2008 (1) KLT 658 were relied on by Mr. Anilkumar Sreedharan, learned counsel for the claimant respondent. Mr. Anilkumar Sreedharan placed strong reliance on the judgment of this Court in Joseph v. District Collector, 2004(2) KLT 1029 authored by one among us (Pius C.Kuriakose, J.) to answer the argument of Smt. Thushara that award of court to be relied on in an application under Section 28A shall be an award in a reference under Section 18. Apart from citing the judgments in Madhavi v. Special Tahsildar, 2003 (1) KLT 813 and in Simon v. State of Kerala, 2008(1) KLT 658 very strong reliance was placed by Sri.Anilkumar Sreedharan on LAA.1575/09 etc. -8- the judgment of the Constitution Bench of the Supreme Court in Union of India v. Hansoli Devi, AIR 2002 SC 3240. 5. Smt. Latha T.Thankappan, learned senior Govt. Pleader would submit that the judgment of the Supreme Court in Hansoli Devi's case rendered as it was by a Constitution Bench should be conceded more probative value than other judgments of the Supreme Court rendered by Benches of lesser strength. The learned Senior Govt. Pleader also submitted that the judgment of this Court in Joseph v. District Collector, 2004 (2) KLT 1029 has attained finality. She agreed that the judgment of the Supreme Court in Smt. Bhagti's case, AIR 1997 SC 1793 which was relied on by Smt. Thushara in support of her argument that an award which can be relied on under Section 28A is an award passed under Section 18, does not discuss or decide the issue decided by this Court in Joseph v. District Collector, 2004(2) KLT 1029. LAA.1575/09 etc. -9- 6. We have very anxiously considered the rival submissions addressed at the Bar. We have scanned the various judgments cited before us by the learned counsel on either side for the purpose of appreciating the ratio laid down therein. We shall proceed first to consider the argument of Smt. Thushara that it is only an award passed by the reference court in a reference under Section 18 and not an award passed in a reference under Section 28A(3) which can be relied on in a proceeding under Section 28A. Joseph v. District Collector 2004(2) KLT 1029 was a case where this very issue was considered elaborately by this Court. The judgment of this Court in that case authored by one among us, after making a survey of the statutory provisions and various judgments including the judgment of the Supreme Court in Union of India and another v. Pradeep Kumari, (1995) 2 SCC 736, and that of the Constitution Bench of the Supreme Court in Union of India v. Hansoli LAA.1575/09 etc. -10- Devi, (2002) 7 SCC 273 and other judgments of the Supreme Court in Babu Ram v. State of U.P. (1995) 2 SCC 689, Union of India v. Karnail Singh (1995) 2 SCC 728 and the judgment of the Supreme Court in Jose Antonio Cruz Dos R.Rodriguese v. Land Acquisition Collector, (1996) 6 SCC 746. This court held under that judgment, that the expression “award of court” employed in section 28A(1) includes all awards of the court under which excess compensation has been awarded by the court over and above original compensation awarded by the LAO and are passed under Part III of the Land Acquisition Act. It was noticed that the award of the reference court whether it be on a reference under Section 18 or on a reference under Section 28A(3) is passed in terms of Section 26. It was also noticed the provisions of Sections 18 to 28 have been made applicable to references under Section 28A(3) as they apply to reference under Section 18 “so far as may be”. This LAA.1575/09 etc. -11- court found that the distinction can lie only in that, the court considering a reference under Section 28A(3) will be concerned with enhanced compensation by way of land value and incidental statutory benefits alone, while the court dealing with a reference under Section 18 will also be concerned with the claims of the owner for enhanced value for buildings and other improvements. This Court observed that considerations under Section 23 which do not have anything to do with claim for land value may not be relevant on reference under Section 28A(3). This Court held that as claims under Section 28A are always for equal land value for similar lands covered by the very same Section 4 (1) notification, there cannot be any difference between the awards passed on a reference made under Sections 18 and 28A(3) to the extent they pertain to land value. This court reasoned that if the legislature wanted to include only awards passed in a reference under Section 18, the LAA.1575/09 etc. -12- legislature would certainly have specifically referred to such awards. The legislature by clearly referring to awards passed under Part III of the statute did contemplate awards passed under Section28A(3) also as awards both under Section 18 and under Section 28A(3) are expected to be passed in terms of Section 26 and to the extent of land value is concerned both the awards are expected to have the same characteristics. We are not persuaded on the submissions of Smt.Thushara to think that the view taken by this Court in Joseph v. District Collector, 2004(2) KLT 1029, a judgment which has attained finality, is wrong. In fact, in that judgment itself this court had referred to the judgment of the Supreme Court in Jose Antonio Cruz Dos R.Rodriguese v. Land Acquisition Collector, (1996) 6 SCC 746 where their Lordships of the Supreme Court while dealing with the question whether the expression “award of the court” employed under Section 28A refers to the award LAA.1575/09 etc. -13- of the reference court or that of the appellate Court, inter alia observed as follows: “The first part of the section begins with the words “wherein an award under this Part, Court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under S. 11 which clearly indicates that the legislature was talking of an award made under the provisions of Part III, i.e., an award under S. 11 and therefore, in that context, reference to 'Court' can only mean the Court to which a reference is made by the Collector under S. 18” This Court had also referred to the judgment of the Supreme Court in Babu Ram v. State of U.P. (1995) 2 SCC 689 wherein, dealing with the question when the period of limitation of three months begins to run under Section 28A whether from the passage of the first award or whether separate causes of action arises with the passage of successive awards – incidentally observed as follows: “Hence the award of the Court referred to in sub-s.(1) of S. 28-A is only the award of the Civil Court of original jurisdiction or of judicial officer performing the functions of such court under the Act on reference received by it under S. 18 and an award and decree pronounced under S. 26 of the Act.” LAA.1575/09 etc. -14- This Court noticed that neither in Babu Ram's case nor in Jose Antonio Cruz Dos R. Rodrigues's case, the question specifically arose for decision as to whether an award passed by the reference Court under Section 28A(3) can also be relied on by a person who applies under Section 28A. This Court took the view that the observations of the Supreme Court in Babu Ram's case as well as in Jose Antonio Cruz Dos R.Rodrigues's case were made incidentally only and the question as to whether an award under Section 28A(3) can be relied on for maintaining an application under Section 28A was never a matter for decision in those two cases. It was the judgment of the Supreme Court in Bhagti v. State of Haryana, AIR 1997 SC 1793 which was relied on before us by Smt. Thushara to support her argument. That judgment also, we must say, does not consider or decide the issue which was decided by this Court specifically in Joseph's case. Hence, we hold that LAA.1575/09 etc. -15- an award passed by a Court under Section 28A(3) can also be relied on in a proceeding for redetermination of land value under section 28A. 7. We shall now consider whether the argument of the learned counsel for the appellant that the applications under Section 28A leading to the awards which are impugned in these appeals were not maintainable in law and hence should have been rejected. It is true that the applications resulting in the impugned awards of the reference Court passed under Section 28A(3) were not the first applications filed by the concerned respondents. All the party respondents had filed earlier applications which were rejected. Even applications for reference under Section 28A (3) made by them to the Land Acquisition Officer were turned down. The submission of Smt. Thushara that the statute does not contemplate filing of successive applications is also not without any force. However, we are LAA.1575/09 etc. -16- not in a position to accept the argument and hold that the subsequent applications filed by the concerned respondents were not maintainable. The issue in our opinion is covered very clearly in favour of the claimant respondents by the judgment of the Constitution Bench of the Supreme Court in Union of India v. Hansoli Devi, AIR 2002 SC 3240 and also by the judgment of this Court in Madhavi v. Special Tahsildar, 2003(1) KLT 813. It has been very clearly laid down by the Constitution Bench that a land owner can be stated to have made an application under Section 18 for the purpose of Section 28A only if the above application was valid and effective and could have been entertained by the reference Court. In other words, the ratio of the judgment of the Constitution Bench is also to the effect that in order that an application under section 28A filed by a land owner is held to be not maintainable on the reason that the same is not the first application, the earlier application filed by the LAA.1575/09 etc. -17- land owner should have been valid, effective and maintainable one. The question which Mr.Hari Haran Nair, J. was called upon to decided in Madhavi v. Special Tahsildar, 2003(1) KLT 813 was the implication of the following statutory pre-condition laid down by the Supreme Court in Union of India & another v. Prdeep Kumari & others, AIR 1995 SC 2259 for maintaining an application under Section 28A: “(vi) Only one application can be moved under S.28A for redetermination of compensation by an applicant.” His Lordship held that condition No. (vi) laid down by the Supreme Court in Pradeep Kumari's case quoted herein before refers only to one valid application. His Lordship went on further to hold that time barred applications cannot be treated as valid applications as consideration of such applications on merits is not possible. We are in agreement with the above view and hold that time barred applications and other applications which are not liable to be entertained LAA.1575/09 etc. -18- cannot stand in the way of the authorities under the Land Acquisition Act entertaining and adjudicating subsequent valid applications filed by aggrieved claimants seeking redetermination of the correct compensation payable for their acquired properties. In the above view of the matter, we don't find merit in any of these appeals and dismiss all these appeals, however, without any order as to costs. ## **(PIUS C.KURIAKOSE, JUDGE)** ## **(N.K. BALAKRISHNAN, JUDGE)** ksv/- L L