Jayakumar, Ravikumar and Santhakumar v. State of Kerala (L.A.A. No. 408 of 2015)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **& THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU** **THURSDAY, THE 3RD DAY OF NOVEMBER 2016/12TH KARTHIKA, 1938** **LA.App..No. 408 of 2015 ()** **--------------------------AGAINST THE JUDGMENT IN LAR 8/2010 of PRINCIPAL SUB COURT,KOLLAM DATED 29-11-2014** **APPELLANTS/CLAIMANTS:** **----------------------** **1. JAYAKUMAR, S/O.SUKUMARAN NAIR, KOLLASSERY THARAYIL, ERAVICHIRA EAST, CHIRANADU SOUTH, KOLLAM** **2. RAVIKUMAR,** - **S/O.SUKUMARAN NAIR, KOLLASSERY THARAYIL, ERAVICHIRA EAST, CHIRANADU SOUTH, KOLLAM** **3. SANTHAKUMAR, S/O.SUKUMARAN NAIR, KOLLASSERY THARAYIL, ERAVICHIRA EAST, CHIRANADU SOUTH, KOLLAM** ## **BY ADV. SMT.ASHA ELIZABETH MATHEW** **RESPONDENT/RESPONDENT:** **--------------------------** **STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, KOLLAM** ## **BY GOVERNMENT PLEADER SMT.K.M.RASHMI** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 03-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **vpv** **“C.R.”** ## **P.N.RAVINDRAN & DAMA SESHADRI NAIDU, JJ. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= L.A.A.No.408 of 2015** **=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 3[rd] day of November, 2016** ## **JUDGMENT** ## _**P.N.Ravindran, J.**_ A parcel of land, 12.30 Ares in extent, belonging to the appellants and situate in Sy.No.387/11-5 of Sooranad South Village, Kunnathur Taluk, Kollam District, was acquired for the purpose of the Kallada Irrigation Project, pursuant to a notification dated 22.1.1980 issued under section 3(1) of the Kerala Land Acquisition Act, 1961. After advance possession of the land was taken on 21.11.1980, the Land Acquisition Officer passed an award on 1.12.1980 awarding land value at the rate of Rs.645/- per Are. Dissatisfied with the land value awarded by the Land Acquisition Officer, the land owners received the compensation awarded by him under protest and sought a reference of the dispute regarding land value to the competent civil court in terms of the provisions contained in section 20 of the Kerala Land Acquisition Act, 1961. This was as per an application dated 19.12.1980. No action was however taken on the said request. 2. As it was stated that the file relating to the application dated 19.12.1980 is missing, the first appellant filed an application dated ## **L.A.A.No.408 of 2015** ## **-:2:-** 20.10.2009 before the District Collector, Kollam. Thereupon, the file was traced out and a reference was made to the Court of the Principal Subordinate Judge of Kollam where it was taken on file and numbered as L.A.R.No.8 of 2010. Before the reference court, the land owners claimed land value at the rate of Rs.8,000/- per cent. They also claimed statutory benefits under sections 23(1A), 23(2) and 28 of the Land Acquisition Act, 1894 as amended by the Land Acquisition (Amendment) Act, 1984 (Central Act 68 of 1984). They contended that having regard to the stipulations contained in sub-section (2) of section 30 of the Land Acquisition (Amendment) Act, 1984, they are entitled to the statutory benefits flowing from sections 23(1A), 23(2) and 28 of the Land Acquisition Act, 1894, as amended. 3. The State of Kerala, the sole respondent before the reference court filed a written statement contending that reference is bad for non-joinder of the requisitioning authority. The State of Kerala also contended that just and fair compensation has been awarded by the Land Acquisition Officer. Before the reference court, the first appellant herein was examined as AW1. The appellants also produced and marked Ext.A1 judgment in L.A.R.No.70 of 1987 on the file of the Court of the Principal Subordinate Judge of Kollam. On application filed by the land owners, the files relating to the application for reference and the mahazar prepared by the Land Acquisition Officer were produced and marked as Exts.X1 and X1(a) respectively. After ## **L.A.A.No.408 of 2015** ## **-:3:-** considering the rival contentions, the reference court held that as the liability to pay compensation is on the State of Kerala and as the requisition was made by the Executive Engineer, Kallada Irrigation Project (an officer in the service of the State Government), there is no need to implead the requisitioning authority. The contention of the State of Kerala that the reference is bad for non-joinder of necessary parties was overruled. The reference court thereafter refixed the land value at Rs.2,964/- per Are and, after giving credit to the land value awarded by the Land Acquisition Officer namely Rs.645/- per Are, held that the land owners are entitled to enhanced land value at the rate of Rs.2,319/- per Are. The reference court however held that the land owners are not entitled to the statutory benefits flowing from sections 23(1A), 23(2) and 28 of the Land Acquisition Act, 1894. The land owners have, aggrieved by the land value awarded by the reference court as also the denial of benefits flowing from sections 23(1A), 23(2) and 28 of the Land Acquisition Act, 1894, filed this appeal. 4. We heard Smt.Asha Elizabeth Mathew, learned counsel appearing for the appellants and Smt.K.M.Rashmi, learned Government Pleader appearing for the State of Kerala. We have also gone through the pleadings and the materials on record. The main issue that arises for consideration in the instant appeal is whether the appellants/claimants are entitled to the benefits flowing from sections 23(1A), 23(2) and 28 of the Land Acquisition Act, 1894. Incidentally ## **L.A.A.No.408 of 2015** ## **-:4:-** their claim for enhancement or refixation of the land value, relying on Ext.A1 award in L.A.R.No.70 of 1987 also arises for consideration. The reference court declined to accept the land value fixed in Ext.A1 award in L.A.R.No.70 of 1987 having regard to the fact that in that case, the land value was fixed at Rs.4,940/- per Are taking into account the fact that the lands left out of the acquisition were injuriously affected. In other words, it was in lieu of awarding severance compensation separately that the reference court had in Ext.A1 award fixed the land value at Rs.4,940/- per Are. Though it was contended before us that there is nothing to show that 40% of the sum of Rs.4,940/- was the amount awarded as compensation for injurious affection, in the absence of any evidence to show that the lands involved in Ext.A1 award and the lands involved in the instant appeal have the same advantages and are similarly situate, we find no reason or justification to interfere with the land value fixed by the reference court. 5. That takes us to the question whether the appellants/ claimants are entitled to the benefits flowing from sections 23(1A), 23 (2) and 28 of the Land Acquisition Act, 1894. The issue raised is in our opinion no longer _res integra_ and is covered by the decisions of the Apex Court in **Union of India and Others v. Filip Tiago De Gama of Vedem Vasco De Gama** [1990 (1) SCC 277] and **K.S. Paripoornan v. State of Kerala** [1994 (2) KLT 763] and the decisions of this court in **Thankamany v. State of Kerala** [1991 (2) ## **L.A.A.No.408 of 2015** ## **-:5:-** KLT 574] and **Kochukutty Purushan v. State of Kerala** [2003 (2) KLT 742]. The principle emerging from the aforesaid decisions is that in order to claim the benefit flowing from section 23(1A) of the Land Acquisition Act, 1894, the proceeding for acquisition of land should have been pending on 30.4.1982 and the award should not have been passed by the Collector (Land Acquisition Officer) before that date. The benefit under section 23(1A) of the Land Acquisition Act, 1894, can be claimed also in respect of lands in respect of which the proceeding for acquisition commenced after 30.4.1982, irrespective of the question whether the Collector (Land Acquisition Officer) had made an award prior to 24.9.1984, the date on which the Land Acquisition (Amendment) Act, 1984, came into force. In the instant case, the land was acquired pursuant to a notification dated 22.1.1980. Possession of the land was taken on 21.11.1980 and the award was passed by the Land Acquisition Officer on 1.12.1980. Having regard to the provisions contained in section 30(1) of the Land Acquisition (Amendment) Act, 1984, as interpreted by the Apex Court and this court in the aforesaid decisions, the appellants cannot claim the benefit flowing from section 23(1A) of the Land Acquisition Act, 1894. 6. However, as regards the claim for benefits flowing from sections 23(2) and 28 of the Land Acquisition Act, 1894, as amended, the decisions referred to above are in favour of the appellants. It has been held that it is open to the reference court and this court and the ## **L.A.A.No.408 of 2015** ## **-:6:-** Apex Court in appeal, to extend the benefits flowing from the aforesaid provisions of law to land owners whose lands have been acquired even prior to 30.4.1982. In the instant case, for no fault of the appellants, the reference was not made in time. The reference was made only in the year 2009. It is not in dispute that the appellants had filed an application for reference on 19.12.1980, within six weeks from the date on which the award was passed. In such circumstances, as the reference in the instant case was made though belatedly on the original application after the files were traced out pursuant to the representation dated 20.10.2009, and as the reference was made and answered after the Act was amended, the appellants cannot in our opinion be denied the benefits flowing from sections 23(2) and 28 of the Land Acquisition Act, 1894. The view taken by the reference court in paragraph 13 of the impugned judgment that the land owners are not entitled to solatium in terms of section 23(2) of the Land Acquisition Act, 1894 as amended and interest in accordance with section 28 as amended, cannot in our opinion be sustained, in the light of the binding decisions referred to above. We accordingly allow the appeal in part and in modification of the decree and judgment passed by the reference court, hold that the appellants are entitled to the statutory benefits flowing from sections 23(2) and 28 of the Land Acquisition Act, 1894, as amended, in respect of the enhanced land value awarded by the reference court. In ## **L.A.A.No.408 of 2015** ## **-:7:-** other words, the appellants will be entitled to interest at 9% per annum for a period of one year commencing from the date of publication of the notification under section 3(1) of the Kerala Land Acquisition Act, 1961 and thereafter at 15% per annum till the date of payment, on the enhanced compensation awarded by the reference court. The appellants will also be entitled to solatium at 30% of the enhanced land value awarded by the reference court and interest on the solatium as well, at the above rates. The denial of benefit under section 23(1A) of the Land Acquisition Act, 1894, shall stand confirmed. Needless to say, the appellants will be entitled to proportionate costs in this court. We also place on record our appreciation of the enthusiasm and earnestness with which, learned counsel on both sides addressed arguments. Sd/- ## **P.N.RAVINDRAN JUDGE** Sd/- ## **DAMA SESHADRI NAIDU JUDGE** /true copy/ P.A. To Judge **vpv**