Kandiyil Abdul Nazer v State of Kerala & The Special Tahsildar Land Acquisition (W.P.(C.) Nos. 19758/2015 & 11902/2016)

**WP(C) NOS.19758/15 & 11902/2016** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 12[TH] DAY OF FEBRUARY 2024 / 23RD MAGHA, 1945 WP(C) NO. 19758 OF 2015** ## **PETITIONER/S:** KANDIYIL ABDUL NAZER AGED 53 YEARS S/O.(LATE), K. IBRAHIM HAJI, NO.13/1216, KANDIYIL (HOUSE), THRIKKOVIL LANE, KUTTICHURA, KOZHIKODE BY ADV SRI.JESWIN P.VARGHESE ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE SECRETARIAT, THRIUVANANTHAPURAM PIN-695001 2 THE SPECIAL TAHSILDAR LAND ACQUISITION CIVIL STATION,KOZHIKODE PIN-673 020 BY ADVS. GOVERNMENT PLEADER ## **OTHER PRESENT:** SRI BS SYAMANTAK, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.02.2024, ALONG WITH WP(C).11902/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NOS.19758/15 & 11902/2016** **2** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 12[TH] DAY OF FEBRUARY 2024 / 23RD MAGHA, 1945** ## **WP(C) NO. 11902 OF 2016** ## **PETITIONER/S:** P.K.SHAKEEB AGED 41 YEARS AGED 41 YEARS, S/O.P.K. HUSSAIN, KATTIL PARAMBIL HOUSE, VENGERI P.O., KOZHIKODE DISTRICT. BY ADV SRI.JESWIN P.VARGHESE ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE SPECIAL TAHSILDAR (LAND ACQUISITION), CIVIL STATION, KOZHIKODE673020. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.02.2024, ALONG WITH WP(C).19758/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NOS.19758/15 & 11902/2016** **3** **P.V.KUNHIKRISHNAN, J --------------------------------------W.P.(C.) Nos. 19758 of 2015 & 11902 of 2016 ------------------------------------------------------Dated this the 12[th] day of February, 2024** ## **JUDGMENT** These two writ petitions are connected and therefore, I am disposing of these writ petitions by a common judgment. I will narrate the facts in W.P.(C.) No. 11902/2016 first. 2. The respondents acquired 0.0276 hectares of land belonged to the petitioner in the year 2004 as per the Land Acquisition Act, 1894. The father of the petitioner approached the 2[nd] respondent and produced copy of the title deed executed in favour of the petitioner. But, it is submitted that the 2[nd] respondent passed Ext.P1 award and deposited the amount in the court and referred the matter under Sec.30 of the Land Acquisition Act, 1894. The Sub Court subsequently **WP(C) NOS.19758/15 & 11902/2016** **4** found in Ext.P2 award in LAR No. 399/2014 that the petitioner is the only claimant entitled for the award amount. Thereafter, the petitioner applied for the certified copy of the judgment on 17.08.2015 and the copy is received on 28.10.2015. Thereafter, Ext.P3 application is submitted to the 2[nd] respondent seeking reference under Sec. 18 of the Act for adjudication of the claim for enhanced compensation by the Sub Court. But the 2[nd] respondent passed Ext.P4 order rejecting Ext.P3 application holding that the same is hopelessly time barred. According to the petitioner, the Land Acquisition Officer has made reference to the Sub Court under Sec. 30 of the Land Acquisition Act. In such situation, the right to receive the compensation under the award would crystallise after the order is made by the Sub Court in favour of the said claimant. According to the petitioner, only thereafter, a reference under Sec. 18 for the enhanced compensation can be legitimately sought by the claimant in whose favour the order of apportionment is passed by the Sub Court in the reference **WP(C) NOS.19758/15 & 11902/2016** **5** ## under Sec. 30 of the Act. Therefore, it is submitted that Ext.P3 application is within time. Hence, this writ petition is filed with following prayers : _i) “Issue a writ of certiorari or any other appropriate writ or order quashing Ext.P4 Order passed by the 2[nd] respondent. ii) Issue a writ of mandamus or any other appropriate writ or order directing the 2[nd] respondent to refer Ext. P3 application to the Sub Court for adjudication u/s 18 of The Land Acquisition Act, 1894._ _iii) Any other appropriate writ, order or direction as this Hon'ble Court may please to grant in the circumstances of the case.” [sic]_ ## **W.P.(C.) 19758/2015** ## W.P.(C.) 19758/2015 is filed with following prayers : _ii) “Issue a writ of certiorari or any other appropriate writ or order quashing Ext.P3 Order passed by the 2[nd] respondent. ii) Issue a writ of mandamus or any other appropriate writ or order directing the 2[nd] respondent to refer Ext. P2 application to the Sub Court for adjudication u/s 18 of The Land Acquisition Act, 1894._ _iii) Any other appropriate writ, order or direction as this Hon'ble Court may please to grant in the circumstances of the case.” [sic]_ **WP(C) NOS.19758/15 & 11902/2016** **6** 3. As far as this case is concerned, 0.0204 hectares (5.10 cents) of land from the petitioner and others were notified under Sec.4(1) of the Land Acquisition Act on 23.02.2006. But the compensation fixed by the 2[nd] respondent is deposited in the court because of the rival claimants and it has been referred to sub court. The sub court found that claimants A to G and L to N are the legitimate claimants and passed Ext.P2 award on 31.10.2014 fixing apportionment of shares. The writ petitioner is A claimant before the Sub Court. It is submitted that the petitioner applied for certified copy of the judgment on 4.11.2014 and copy is received on 15.12.2015. Thereafter, Ext.P2 application is filed to the 2[nd] respondent seeking reference under Sec.18 of the Act for adjudication of the claim for enhanced compensation by sub court. But the 2[nd] respondent passed Ext.P3 order rejecting Ext.P2 application holding that the same is hopelessly time barred. According to the petitioner, the Land Acquisition Officer has made apportionment of the compensation on account of **WP(C) NOS.19758/15 & 11902/2016** **7** conflicting claims and hence the matter was referred to the Sub Court. In such situation, the right to receive compensation under the award would crystallize after the apportionment is made in favour of the claimant. It is only thereafter a reference under Section 18 of the Land Acquisition Act for enhanced compensation can be legitimately sought by the claimant in whose favour the order apportionment is passed by the Sub Court is the submission. Ext.P3 is the impugned order. 4. Heard the learned counsel for the petitioners and the learned Government Pleader. 5. The counsel for the petitioners relied on the judgment of the Apex Court in **Madan v. State of Maharashtra** [2014 (1) KLT 22 (SC)] and submitted that it is only after an order of apportionment is passed, either by the Court in the reference under Section 30 or in the civil suit, that **WP(C) NOS.19758/15 & 11902/2016** **8** a claimant can legitimately seek a reference under Section 18 for enhancement of compensation. 6. This Court perused the facts in these cases and also the dictum laid down by the Apex Court in **Madan’s case** (supra). It will be better to extract the relevant portion of the judgment in **Madan’s case** (supra): “12. A cursory glance of the provisions of Sections 18 and 30 of the Act, extracted above, may suggest that there is some overlapping between the provisions inasmuch as both contemplate reference of the issue of apportionment of compensation to the Court. But, a closer scrutiny would indicate that the two Sections of the Act operate in entirely different circumstances. While Section 18 applies to situations where the apportionment made in the Award is objected to by a beneficiary thereunder, Section 30 applies when no apportionment whatsoever is made by the Collector on account of conflicting claims. In such a situation one of the options open to the Collector is to make a reference of the question of apportionment to the Court under Section 30 of the Act. The other is to relegate the parties to the remedy of a suit. In either situation, the right to receive compensation under the Award would crystallize after **WP(C) NOS.19758/15 & 11902/2016** **9** apportionment is made in favour of a claimant. It is only thereafter that a reference under Section 18 for enhanced compensation can be legitimately sought by the claimant in whose favour the order of apportionment is passed either by the Court in the reference under Section 30 or in the civil suit, as may be.” 7. Admittedly in these two cases the petitioners filed the application under Section 18 of the Land Acquisition Act for reference to the Court after the award passed by the Sub Court as far as the apportionment is concerned. In W.P.(C). No.19758/2015, Ext.P1 is the award dated 31.10.2014. In W.P.(C). No.11902/2016, Ext.P2 is the award of the Principal Sub Court, Kozhikode in L.A.R. No.399/2014, which is dated 12.08.2015. If the application under Section 18 of the Land Acquisition Act is filed by the petitioners based on the award passed as far as the apportionment is concerned in these two cases, there is no dispute to the fact that the applications are within time. In the light of the dictum laid down by the Apex Court in **Madan’s case** (supra), I think there is force in the argument of the petitioners that only after **WP(C) NOS.19758/15 & 11902/2016** **10** an order of apportionment is passed, the claimant can legitimately seek a reference under Section 18 of the Land Acquisition Act for enhancement. Therefore the impugned orders in these cases are to be set aside. Therefore, these writ petitions are allowed with following directions: 1. Ext.P3 in W.P.(C). No.19758/2015 is set aside and the 2[nd] respondent is directed to refer the matter to the Court under Section 18 of the Land Acquisition Act, as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment. 2. Ext.P4 in W.P.(C). No.11902/2016 is set aside and the 2[nd] respondent is directed to refer the matter to the Court under Section 18 of the Land Acquisition Act, as expeditiously as **WP(C) NOS.19758/15 & 11902/2016** **11** possible, at any rate, within one month from the date of receipt of a copy of this judgment. **sd/P.V.KUNHIKRISHNAN JUDGE** SKS JV **WP(C) NOS.19758/15 & 11902/2016** **12** ## **APPENDIX OF WP(C) 11902/2016** PETITIONER EXHIBITS P1TRUE COPY OF THE RELEVANT PORTION OF AWARD NO. 5/2005 PASSED BY 2ND RESPONDENT DATED 13/03/2005 P2 TRUE COPY OF THE JUDGMENT IN L.A.R 399/2014 PASSED BY SUB COURT, KOZHIKODE DATED 12/06/2015 P3 TRUE COPY OF THE APPLICATION U/S 18 OF THE LAND ACQUISITION ACT, 1894 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT P4 TRUE COPY OF THE ORDER NO. A/764/2005 PASSED BY THE 2ND RESPONDENT DATED 28/12/2015 **WP(C) NOS.19758/15 & 11902/2016** **13** ## **APPENDIX OF WP(C) 19758/2015** PETITIONER EXHIBITS EXHIBIT P1: A TRUE COPY OF THE JUDGMENT IN LAR NO. 11/2010 PASSED BY SUB COURT, KOZIKODE DATED 31.10.2014 EXHIBIT P2: A TRUE COPY OF THE APPLICATION FOR REFERENCE U/S.18 OF THE LAND ACQUISITION ACT, 1894 SUBMITTED TO 2ND RESPONDENT DATED 13.1.2015 EXHIBIT P3: A TRUE COPY OF ORDER NO.A/2604/2014 ISSUED BY THE 2ND RESPONDENT DATED 20.1.2015