HAJI A. ABDUL RASHID and others v. SPECIAL TAHSILDAR (LA GENERAL), TRICHUR; DISTRICT COLLECTOR, TRICHUR; GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI; EXECUTIVE ENGINEER, SOUTHERN RAILWAY, ERNAKULAM

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR THURSDAY, THE 14TH FEBRUARY 2008 / 25TH MAGHA 1929 WP(C).No. 31996 of 2006(H) -------------------------- PETITIONERS: - ------------ 1. HAJI A. ABDUL RASHID, S/O. HAJI A. ABDUL KHADER SAHIB, ERACHAMVEEDU, MUTHUVATTOOR, CHAVAKKAD. 2. HAJI A. ABDUL SALAM, S/O. HAJI A. ABDUL KHADER SAHIB, ERACHAMVEEDU, THRITHAMPALLY P.O. 3. HAJI A. ABDUL RAHMAN, S/O. HAJI A. ABDUL KHADER SAHIB, ERACHAMVEEDU, MAMMIYOOR, GURUVAYUR P.O. 4. A.HAJIRABI, D/O. HAJI A. ABDUL KHADER SAHIB, PUTHANPALLY, GURUVAYOOR. 5. A.RAMLATH, D/O. HAJI A. ABDUL KHADER SAHIB, PUTHANPALLY, GURUVAYOOR. 6. A.SUBAIDA, D/O. HAJI A. ABDUL KHADER SAHIB, PUTHANPALLY, GURUVAYOOR. 7. A.ABDUL RAUF, S/O. HAJI A. ABDUL KHADER SAHIB, ERACHAMVEEDU, MAMMIYOOR, GURUVAYOOR. 8. A.ABDUL RAFEEQ, S/O. HAJI A. ABDUL KHADER SAHIB, ERACHAMVEEDU, MAMMIYOOR, GURUVAYOOR. BY ADV. SRI.V.V.ASOKAN SMT.S.AMINA RESPONDENTS: ------------- 1. THE SPECIAL TAHSILDAR (L.A. GENERAL), TRICHUR. 2. DISTRICT COLLECTOR, TRICHUR. WP(C) NO.31996/2006 2 3. GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI. 4. EXECUTIVE ENGINEER, SOUTHERN RAILWAY, ERNAKULAM. R3 BY ADV. SMT.A.RAJESWARI, SC, RAILWAYS R1 & R2 BY GOVERNMENT PLEADER SHRI BASANT BALAJI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF THE AWARD PASSED BY THE SUB COURT, TRICHUR IN LAR 2/94 AND CONNECTED CASES DATED 31.10.2001. EXT.P2 TRUE COPY OF THE APPLICATION FILED BY THE FIRST PETITIONER BEFORE THE SECOND RESPONDENT DATED 20.12.2002 EXT.P2(a) -DO- BY SECOND PETITIONER EXT.P2(b) -DO- BY THIRD PETITIONER EXT.P2(c) -DO- BY 4 TO 6 PETITIONERS EXT.P2(d) -DO- BY 7TH PETITIONER EXT.P2(e) -DO- BY 8TH PETITIONER EXT.P3 TRUE COPY OF THE JUDGMENT IN LAA NO.1401/2002 AND CONNECTED MATTERS OF THIS COURT DATED 12.12.2005 EXT.P4 TRUE COPY OF THE ORDER NO.D-1914/04 OF THE 2ND RESPONDENT DATED 9.10.2006 EXT.P4(a) -DO- NO.D-1916/04 -DO- EXT.P4(b) -DO- NO.D-1917/04 -DO- EXT.P4(c) -DO- NO.D-1913/04 -DO- EXT.P4(d) -DO- NO.1915/04 -DO- EXT.P4(e) -DO- NO.1912/04 -DO- EXT.P5 TRUE COPY OF THE APPLICATION FILED BY THE FIRST PETITIONER BEFORE THE 2ND RESPONDENT //TRUE COPY// ## **K. PADMANABHAN NAIR ,J.** ## **------------------------------------------------W.P.(C)No.31996 of 2006 H** ## **------------------------------------------------Dated, this the 14[th] day of February, 2008 JUDGMENT** The petitioners are owners of properties situated in Mammiyoor Village. Lands owned by the petitioners were acquired for a public purpose. They did not file petition under Section 18 of the Kerala Land Acquisition Act(for short 'the Act') for referring the matter to the Land Acquisition Court for determining enhancement in the compensation. But some of the owners of properties lying adjacent to the properties owned by the petitioners filed applications under Section 18 of the Act claiming enhancement. Those cases were referred to Sub Court, Thrissur by the Land Acquisition Officer and the Sub Judge, Thrissur enhanced the compensation awarded by the Land Acquisition Officer. On 20.12.2002 petitioners had filed Ext.P2 series applications under Section 28A of the Act claiming benefit under that Section. Those applications were dismissed by the Land Acquisition Officer vide Ext.P4 series orders dated 9.10.2006, 11.10.2006 and 28.10.2006. Thereafter petitioners have filed applications under Section 28A(3) of the Act. Challenging Ext.P1 judgment the requisitioning authority filed L.A.A.No.1401/2002 and connected cases before this Court. This Court by judgment dated 12.12.2005 dismissed all the appeals. The main contention raised by the petitioners is that since they have filed application before the judgment of this Court, those applications must be deemed to be within the time. It is argued WP(C) No.31996/2006 2 that a person who claims benefit under Section 28A of the Act is entitled to get the value fixed by the reference court which is modified or enhanced by the appellate or revisional court. According to the respondents even though the claimant under Section 28A is entitled to get the value fixed by the appellate court the time for filing the application is three months from the date of order of the Land Acquisition Court and not from the date of order of appellate or revisional court. Section 28A reads as follows: ## **28A. Re-determination of the amount of compensation on the basis of the award of the Court.-** (1) Where in an award under this Part, the Court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under Section 11, the persons interested in all the other land covered by the same notification under Section 4, sub-section (1) and who are also aggrieved by the award of the Collector may, notwithstanding that they had not made an application to the Collector under Section 18, by written application to the Collector within three months from the date of the award of the Court require that the amount of compensation payable to them may be redetermined on the basis of the amount of compensation awarded by the Court: Provided that in computing the period of three months within which an application to the Collector shall be made under this sub-section, the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be excluded. 2. The Collector shall, on receipt of an application under sub-section (1), conduct an inquiry after giving notice to all the persons interested and giving them a reasonable opportunity of being heard WP(C) No.31996/2006 3 and make an award determining the amount of compensation payable to the applicants. 3. Any person who has not accepted the award under sub-section (2) may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court and the provisions of Sections 18 to 28 shall, so far as may be, apply to such reference as they apply to a reference under Section 18. 2. Learned counsel appearing for the petitioners relied on a decision reported in **Union of India v. Munshi Ram (2006(2) KLT 992)** in which it was held as follows: “........the amount payable under S.28-A of the Act is the amount which is finally payable by way of compensation to the owners of the land who challenged the award of the Collector and claimed reference under S.18 of the Act. The said provision seeks to confer the benefit of enhanced compensation even on those owners who did not seek a reference under S.18. It cannot be that those who secure a certain benefit by reason of others getting such benefit should retain that benefit, even though the others on the basis of whose claim compensation was enhanced are deprived of the enhanced compensation to an extent. This would be rather inequitable and unfair. Moreover, even if it be that the compensation payable to claimants who have applied under S.28-A of the Act, is the enhanced compensation decreed by the Reference Court, we must understand the decree to mean the decree of the Reference Court as modified in appeal by the higher courts. Otherwise, an incongruous position may emerge that a person who did not challenge the award of the Collector and did not claim a reference under S.18 of the Act would get a higher compensation than one who challenged the award of the Collector and claimed a reference, but in whose case a higher compensation determined by the WP(C) No.31996/2006 4 Reference Court was subsequently reduced by the superior court. There can be no dispute that those claiming higher compensation and claiming reference under S.18 of the Act are bound by the decree as modified by the superior court in appeal. The principle of restitution must apply to them. For the same reason, the same consequence must visit others who have been given the benefit of enhanced compensation pursuant to the decree passed in reference proceeding on the application of others.” It was also held as follows: “We hold that under S.28-A of the Act, the compensation payable to the applicants is the same which is finally payable to those claimants who sought reference under S.18 of the Act. In case of reduction of compensation by the superior courts, the applicants under S.28-A may be directed to refund the excess amount received by them in the light of reduced compensation finally awarded.” Counsel also relied on a decision rendered by this Court in **Abdul Rahim v.Special Tahsildar (2007(2) KLT 197)** in which it was held that an application under Section 28A of the Act cannot be rejected on the ground that appeal is pending against decision of reference court. In **Nani v. District Collector (1998 (1) KLT 705)** a learned Single Judge of this Court held that during pendency of appeal a petition under Section 28A of the Act should not be disposed of and should be kept pending for the result of the appeal. Learned Government Pleader relied on a decision reported in **Louis Joyi v. State of Kerala (1997 (1) KLT 762)** in which it was held that the date of passing of award by reference court is important. Government Pleader also relied on the decisions of the Supreme Court WP(C) No.31996/2006 5 in **Tota Ram v. State of U.P. (1997 (2) KLT (Short Notes) Case No.26, Page 24), Jose Antonio Cruz Dos R.Rodriguese v. Land Acquisition Collector ((1996) 6 SCC 746)** and **Bhagti v. State of Haryana (AIR 1997 SC 1793)** . In Jose Antonio Cruz Dos R.Rodriguese's case (supra) it was held that the date of limitation must be computed from the date of award of reference court on the basis of which redetermination is sought and not the order of the appellate court dealing with the appeal against the award of the reference court. 3. Advocate Shri V.V.Asokan, learned counsel for the petitioners argued that a reading of paragraph 7 of Munshi Ram's case (supra) makes it very clear that the time limit for filing an application claiming benefit under Section 28A will begin to run only on the date of judgment of the appellate court and not from the date of order of the reference court. It is also argued that if such a view is not taken there is absolutely no meaning in holding that the application cannot be considered while appeal is pending. It is argued that the Land Acquisition Officer may redetermine the compensation while an appeal from the judgment and decree of the trial court in L.A.R. and in such cases the party will be left without any remedy at all. In Bhagti's case (supra) it was specifically held that an application for redetermination of compensation can be made only on the basis of judgment of reference court under Section 18 of the Act. Since that point directly arose for consideration and answered, I respectfully follow the principle laid down in Bhagti's case (supra). So the prayer of the petitioners cannot be allowed. WP(C) No.31996/2006 6 In the result, Writ Petition is dismissed. **K.PADMANABHAN NAIR, JUDGE.** cks