K.N. Vasumathi and others v. District Collector, Kannur and The Special Tahsildar (LA), Naval Academy, Payyannur

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 2[ND] DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943** **WP(C) NO. 12876 OF 2016** ## **PETITIONERS:** 1 K.N.VASUMATHI AGED 62 YEARS D/O.K.N. SREEDEVI AMMA (LATE),AGED 62 YEARS,KOTTARATHIL NADUVILE VEETIL,RAMANTHALI VILLAGE, TALIPARAMBA TALUK, KANNUR DISTRICT. 2 K.N.JAYALAKSHMI D/O. K.N. SREEDEVI AMMA (LATE), AGED 57 YEARS, KOTTARATHIL NADUVILE VEETIL, RAMANTHALI VILLAGE, TALIPARAMBA TALUK, KANNUR DISTRICT. 3 K.N.BALAMANI D/O. K.N. SREEDEVI AMMA (LATE), AGED 53 YEARS, KOTTARATHIL NADUVILE VEETIL, RAMANTHALI VILLAGE, TALIPARAMBA TALUK, KANNUR DISTRICT. 4 K.N.MADHUSOODHANAN S/O. K.N.SREEDEVI AMMA (LATE), AGED 50 YEARS, KOTTARATHIL NADUVILE VEETIL, RAMANTHALI VILLAGE, TALIPARAMBA TALUK, KANNUR DISTRICT. 5 VEENA MENON D/O. K.N.SREEDEVI AMMA (LATE), AGED 53 YEARS, KOTTARATHIL NADUVILE VEETIL, RAMANTHALI VILLAGE, TALIPARAMBA TALUK, KANNUR DISTRICT. BY ADV SRI.V.N.RAMESAN NAMBISAN ## **RESPONDENTS:** 1 DISTRICT COLLECTOR KANNUR-670001. 2 THE SPECIAL TAHSILDAR (LA), NAVAL ACADEMY,PAYYANNUR,(NOW OFFICE AT THALASSERY),PIN-670141. SMT. SURYA BINOY- SR. G.P THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **WP(C) NO. 12876 OF 2016 2** ## **JUDGMENT** The petitioners say that they are the co-owners of a certain extent of property which was acquired by the respondents for a public purpose, and that when the value of one of the other properties covered by the same notification was enhanced by a competent Court, their mother Smt.K.N.Sreedevi Amma, who is now no more - who was also one of the co-owners - requested that she be given the benefit of the said enhancement, it was rejected trough Ext.P3; thus constraining her to seek a reference of the Award over the property in question, under the provisions of Section 28A(3) of the Land Acquisition Act, 1894 (hereafter referred to as the 'LA Act' for short), as is evident from Ext.P4. 2. The petitioners say that Ext.P4 was allowed by the Sub Court, Payyannur through Ext.P5 judgment, wherein, the value of the land has been admittedly enhanced, which thereafter led to the 1/7[th] share of the compensation, eligible to their mother, to be released to her. They say that, however, the balance ## **WP(C) NO. 12876 OF 2016 3** 6/7[th] shares, which are eligible to them, is retained by the respondents merely for the reason that they have not approached the Sub Court with an independent reference. 3. The petitioners say that the stand of the respondents, in refusing to release the enhanced value of compensation to them, is illegal; and therefore, prays that they be directed to do so, within a time frame to be fixed by this Court. 4. Shri.V.N.Ramesan Nambisan, learned counsel appearing for the petitioners, argued that since Ext.P5 judgment relates to the same property, the respondents cannot decline to release the enhanced value to the co-owners, when it has been already offered to their mother. He submitted that when a competent Sub Court had declared the value of the property to be a particular figure, enhancing it from the earlier determination, the said benefit should apply to the entire property; and axiomatically ,that every co-owner must be entitled to the same value. He submitted that in this case, however, only the 1/7[th] ## **WP(C) NO. 12876 OF 2016 4** share eligible to the mother was released by the respondents and therefore, that his clients are justified in now approaching this Court through this writ petition. 5. Shri.V.N.Ramesan Nambisan further argued that, for obtaining the reliefs as sought for by his clients in this writ petition, an application under Section 28A(1) of the LA Act is not necessary to be made because the same applies only in the case of a different property, but which is covered by the same notification, over which the order in the Land Acquisition Reference applies. He argued that, contrary to this, in the case at hand, it is the same property which is the subject matter of Ext.P5 judgment and the value of which has been enhanced. He, therefore, reiteratingly prayed that this writ petition be allowed and the respondents be directed to release to his clients the balance share of the value of the property, based on the determination made through Ext.P5 judgment. 6. The learned Senior Government Pleader, ## **WP(C) NO. 12876 OF 2016 5** Smt.Surya Binoy, in response, submitted that the afore request of the petitioners is not maintainable, because if they required a redetermination of the value eligible to them, they ought to have made an appropriate application before the competent Authority under Section 28A(1) of the LA Act and that too, within 3 months from the date of Ext.P5 judgment. She submitted that it is only because the petitioners did not do so, that they have now sought an indirect method of approaching this Court and seeking that the value determined through Ext.P5 be made eligible to them also. She thus prayed that this writ petition be dismissed. 7. In reply, Shri.V.N.Ramesan Nambisan submitted that the afore contentions of the learned Senior Government Pleader would have held water only had the property been different, though covered by the same notification. He submitted that, as has been declared by the Hon'ble Supreme Court in _**A.Viswanatha Pillai and Others v. The Special Tahsildar for Land Acquisition No.IV and Others [1991(4)SCC 17]**_ and ## **WP(C) NO. 12876 OF 2016 6** _**Jalandhar Improvement Trust v. State of Punjab &**_ _**Others [2003(1) SCC 526] “**_ when one of the co-owners become entitled to the benefit of an enhanced compensation in a reference made at his instance, the declarations in the judgment would apply to the entire property and all the other co-owners also”. He submitted that, in fact, this aspect has been reiteratingly declared by this Court in Ext.P8 judgment and thus prayed that this writ petition be allowed. 8. I have evaluated the afore rival contentions and have also examined the materials available on record. 9. It is uncontested by the respondents that Ext.P5 judgment was obtained by the mother of the petitioners, who was concededly a co-owner of the property until she was alive. In fact, it was also without doubt that she had been paid the enhanced value as per Ext.P5 judgment. 10. The relevant question therefore, is whether the other co-owners are also entitled to the same ## **WP(C) NO. 12876 OF 2016 7** benefit, as was offered to their mother; and certainly, there is great force in the submissions of Shri.V.N.Ramesan Nambisan in this regard. 11. I say as afore because Section 28A(1) of the LA Act mandates that when an owner of a property covered by a notification obtains an enhanced value through a Land Acquisition Reference, then the owners of the other properties involved in the same notification will be entitled to move the competent Authority within a period of three months from the date of Award to seek a similar benefit. 12. It is, therefore, apodictic that it is only in the case the owner of a different property obtains an order of enhancement in a Land Acquisition Reference, will it require the owner of another land covered by the same notification to make an application under Section 28A(1) of the LA Act. In the case at hand, the facts are completely different because the petitioners are the co-owners of the same property, which has already been declared by a competent Civil Court to be deserving a higher value. ## **WP(C) NO. 12876 OF 2016 8** 13. I am, therefore, certain in my mind that an application under Section 28A(1) of the LA Act would not be necessary, because the property involved is one and the same and the persons claiming enhanced compensation are co-owners. To add to this, the fact that the mother of the petitioners have been paid the enhanced compensation would be also a reason to justify them in approaching this Court through this writ petition. 14. I am, therefore, firm in my mind that the petitioners must be heard by the competent Authority and their plea properly considered, based on the afore cited precedents, without any further delay. Resultantly, I allow this writ petition and direct the petitioners to mark appearance before the competent Authority at 11.00 a.m. on 15.11.2021; on which day, or on a date to be fixed by the said Authority conveniently, they will be heard and their contentions assessed, adverting specifically to my observation above and to the precedents afore cited or any other to be cited by them at the time of **WP(C) NO. 12876 OF 2016 9** hearing; thus culminating in an appropriate order with respect to their request for payment of the withheld 6/7[th] value of the property in question, as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment. Sd/- **DEVAN RAMACHANDRAN JUDGE** **MC/2.11** ## **WP(C) NO. 12876 OF 2016 10** ## **APPENDIX OF WP(C) 12876/2016** |PETITIONER EXHIBITS|| |---|---| |EXHIBIT P1|TRUE COPY OF THE CERTIFICATE OF DEATH OF| ||K.N. SREEDEVI AMMA DATED 10/06/2013 ISSUED| ||BY THE REGISTRAR OF BIRTHS AND DEATHS| ||(SECRETARY, RAMANTHALI GRAMA PANCHAYATH)| |EXHIBIT P2|TRUE COPY OF THE LEGAL HEIR CERTIFICATE| ||NO. K.DIS/G/1/13563/13 DATED 01/10/2013| ||ISSUED BY THE TAHSILDAR, TALIPARAMBA| |EXHIBIT P3|TRUE COPY OF THE ORDER NO. C409/05 DATED| ||15/04/2008 OF THE 2ND RESPONDENT REJECTING| ||APPLICATION U/S 28A OF THE LAND| ||ACQUISITION ACT| |EXHIBIT P4|TRUE COPY OF THE APPLICATION DATED| ||18/11/2008 U/S 28A(3) PREFERRED BY LATER| ||K.N. SREEDEVI AMMA| |EXHIBIT P5|TRUE COPY OF THE JUDGMENT DATED 03/01/2011| ||IN L.A.R 84/2009 ON THE FILES OF SUB| ||COURT, PAYYANNUR| |EXHIBIT P6|TRUE COPY OF THE DECREE DATED 03/01/2011| ||OF SUB COURT, PAYYANNUR IN L.A.R 84/2009| |EXHIBIT P7|TRUE COPY OF THE STATEMENT REF. NO. 3| ||687/08 DATED 28/02/2009 FILED BY THE 2ND| ||RESPONDENT SPECIAL TAHSILDAR (LA), NAVAL| ||ACADEMY, PAYYANNUR IN L.A.R. 86 OF 2009| |EXHIBIT P8|TRUE COPY OF THE JUDGMENT DATED 05/06/2011| ||IN W.P(C) 29179/2011.|