K.T. Janaki Amma v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 21ST OCTOBER 2008 / 29TH ASWINA 1930 W.A.No.1969 of 2008 ----------------------------------- ## AGAINST THE JUDGEMENT IN W.P.(C).NO.6618/2008-K, DATED 14/07/2008 .................... ## APPELLANT/PETITIONER:- --------------------------------------- K.T.JANAKI AMMA, W/O.LATE RAGHAVA PODUVAL, KODIYATHU VADAKKEL VEEDU, KANKOLE POST, KANNUR DISTRICT. BY ADV. SRI.O.RAMACHANDRAN NAMBIAR SRI.GEEN T.MATHEW ## RESPONDENTS/RESPONDENTS:- -------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, KANNUR. 3. THE SPECIAL TAHSILDAR (LA) EZHIMALA NAVAL ACADEMY, PAYYANNUR. R1 TO R3 BY SENIOR GOVERNMENT PLEADER SRI.P.K.BABU. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 21/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **H.L.DATTU, C.J. & A.K.BASHEER, J.** ------------------------------------------- ## **W.A.No.1969 of 2008** -----------------------------------------Dated, this the 21[st ] day of October, 2008 ## **JUDGMENT** ## **H.L.Dattu, C.J.** The learned Single Judge while disposing of W.P.(C) No.6618 of 2008 dated 14[th] July, 2008, has granted partial relief to the petitioner. He has denied interest under the provisions of the Land Acquisition Act ('the Act' for short), for the period from 30.10.1994 to 21.2.2007. (2) One late Kodiyathu Vadakke Veettil Raghava Poduval was the owner of a small extent of land in Ramanthali Village, Thaliparamba Taluk. It appears that the said land was acquired by the acquiring authority for the purpose of Ezhimala Naval Academy. After such acquisition, an award had been passed, awarding compensation for the acquired land. The owner of the land has taken the compensation so awarded by the Land Acquisition Officer. (3) Some time in the month of October, 1994 the late K.V.Raghava Poduval, when he was alive, had filed an application before the District Collector, Kannur to invoke the provisions of Section 28A of the Act and to redetermine the compensation, keeping in view the compensation awarded in L.A.R.No.98 of 1992. In the application filed, W.A.No.1969 of 2008 2 the owner of the land had stated that the land acquired was in Sy.No.380/4 of Ramanthali Village, and the extent of the land is 2 acres of land belonging to the applicant. (4) After receipt of the application filed by the applicant under Section 28A of the Act, a notice had been issued by the Special Tahsildar (Land Acquisition) Kannur some time in December, 1998 directing the applicant/Sri.K.V.Raghava Poduval to appear before him on 7.12.1998. Thereafter, nothing seems to have been done either by the applicant or by the respondents. (5) By order dated 4.1.2007, the Special Tahsildar (Land Acquisition) has rejected the application filed by the applicant solely on the ground that the survey number and the extent of the acquired land shown in the application are incorrect and, therefore, his application filed under Section 28A of the Act cannot be considered. The order passed by the Special Tahsildar (Ext.P3) is as under: _“Sri.Kodiyath Vadakke Veettil Raghava Poduval had filed an application for redetermination of compensation u/s 28A of L.A.Act in respect of the land measuring 0.8084 hectare comprised in R.S.No.380/1 of Ramanthali village. He has requested to enhance the compensation on the basis of award passed in LAR.98/92 of Sub Court, Payyannur._ _Verification of the office records shows that no such_ W.A.No.1969 of 2008 3 _land in R.S.380/1 of Ramanthali village is seen acquired from the applicant in R.S.No.380/1. So, the application is not entertainable._ _The applicant is informed accordingly.”_ (6) In between 1998 and 2007, Sri.K.V.Raghava Poduval had expired. (7) On receipt of Ext.P3 order passed by the Special Tahsildar (Land Acquisition), the petitioner who is none other than the wife of the applicant had filed an application dated 21.2.2007 before the Special Tahsildar, inter alia, requesting him to permit her to rectify the survey number and extent of the land acquired. (8) After receipt of the application so filed by the legal representative of the deceased Raghava Poduval, the Special Tahsildar, it appears, had passed a draft order redetermining the compensation payable under Section 28A of the Act and the same was submitted to the District Collector for his final approval. (9) The District Collector by his communication dated 28.11.2007 has taken exception to the draft order passed by the Special Tahsildar in redetermining the compensation payable to the petitioner under Section 28A of the Act. (10) Aggrieved by the said direction issued by the District Collector, the petitioner is before this Court, inter alia, requesting this W.A.No.1969 of 2008 4 Court to direct the respondents to allow Ext.P4 application filed by the petitioner and permit her to make appropriate corrections in Ext.P1 application filed by her late husband. The other prayer is to direct the respondents to redetermine the compensation payable and also to accept the draft award prepared by the Special Tahsildar (Land Acquisition). (11) The learned Single Judge has partly allowed the writ petition directing the authorities to permit the petitioner to rectify the application (Ext.P1) filed by her late husband and thereafter pass appropriate orders under Section 28A of the Act redetermining the compensation payable. However, the learned Judge in his order has observed that the petitioner is not entitled for any interest for the period from 30.10.1994 till 21.2.2007, i.e.from the date of Ext.P1 application till the date of filing of the application for the purpose of rectification. It is this portion of the order passed by the learned Single Judge that is called in question by the legal representative of deceased Raghava Poduval before us in this appeal. (12) Learned counsel appearing for the appellant would submit that while the learned Single Judge has specifically directed the respondents to permit the petitioner to rectify the application (Ext.P1), he ought not to have observed in his order that the petitioner is not entitled for any interest for the period from 30.10.1994 till 21.2.2007. In aid of his W.A.No.1969 of 2008 5 submission, learned counsel has brought to our notice the observations made by the apex Court in the case of _**Patel Joitaram Kalidas and others**_ v. _**Spl. Land Acquisition Officer and another**_ [(2007) 2 SCC 341]. Reliance is also placed on the observations made by a learned Single Judge of this Court in the case of _**Mohammed Kunhi**_ v. _**Spl. Tahsildar**_ (2007 (1) KLT 716). (13) The one and the only issue that requires to be considered is, whether the petitioner/appellant as a matter of right is entitled for interest from the date of the original application till the date of yet another application filed for rectification of the original application. (14) It is not in dispute that the land of the petitioner's husband had been acquired by the acquiring authority for the purpose of Ezhimala Naval Academy. The owner of the land had accepted the award and also received the compensation. He did not choose to make any application before the Land Acquisition Officer to refer the matter to the Sub Court for enhancement of the compensation. (15) Some time in the month of October, 1994 the husband of the appellant had filed an application before the Special Tahsildar (Land Acquisition) under Section 28A of the Act, inter alia, requesting him to redetermine the compensation and grant the compensation as has been done in the case of LAR No.98 of 1992. In the said application the W.A.No.1969 of 2008 6 applicant himself had stated that the property bearing R.S.No.380/4 of Ramanthali Village having an extent of two acres was acquired by the acquiring authority. (16) The applicant was asked to appear before the authority on 7.12.1998. We do not know what transpired on that date before the Special Tahsildar, at any rate, the applicant while he was alive, did not make any application for correction/rectification of Ext.P1 application filed in the month of October, 1994. It is only after his death that the appellant who is none other than the wife of the applicant has made an application before the Special Tahsildar requesting him to permit her to change the survey number and also the extent of the land. The Special Tahsildar has passed a draft order in her favour, but the District Collector has taken exception to the draft order passed by the Special Tahsildar. (17) The learned Single Judge is of the opinion that the one and the only land with the appellant's husband had been acquired by the acquiring authority and, therefore, she is entitled for redetermination of the compensation by permitting her to modify/rectify the application filed by her husband in the month of October, 1994. Since there was default committed by the applicant, the learned Single Judge has thought it fit not to award any interest for the period between 30[th] October, 1994 till the application came to be filed by the appellant for rectification of the W.A.No.1969 of 2008 7 original application. (18) The first decision cited by the learned counsel was a case where land had been acquired, but the claimant had not made any claim towards payment of interest. The apex Court is of the view that interest payable is automatic and, therefore, even if no claim is made, statutory interest requires to be paid by the acquiring authority or by the Court when enhancement of the compensation is granted to the land loser. (19) In the instant case, as we have already noticed, it is the applicant who had committed the mistake. He was called for an enquiry. Even after the enquiry he did not choose to make any application for rectification of the survey number and extent of the land. Therefore, by Ext.P3 order, the Special Tahsildar had rightly rejected the application filed by the applicant on the ground that the survey number and the extent of the land shown in the application are defective and therefore, his application under Section 28A cannot be entertained. (20) After receipt of this order passed by the Special Tahsildar, for the first time, the appellant makes an application for rectification of the survey number and also the extent of the land. As we have already said, this was only on 21.2.2007. (21) The learned Single Judge, keeping in view, that, since there was mistake on the part of the applicant, the State Government W.A.No.1969 of 2008 8 should not be directed to pay interest for the interregnum period. Secondly, it has to be presumed that the proper application for re-determination of the compensation is made only when the appellant is permitted to make correction in the original application. In our opinion, this reasoning of the learned Single Judge appears to be reasonable and meddling with that reasoned order may not be necessary in the facts and circumstances of the present case. (22) Therefore, while rejecting the writ appeal filed by the appellant, we confirm the orders passed by the learned Single Judge. Ordered accordingly. ( **H.L.DATTU) CHIEF JUSTICE** **(A.K.BASHEER)** **JUDGE** vns/dk.