K.V. Devadasan v. District Collector, Kozhikode

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 30TH DAY OF JANUARY 2017/10TH MAGHA, 1938 ## WP(C).No. 2204 of 2010 (A) --------------------------- PETITIONER : - ----------- K.V.DEVADASAN, S/O.CHERUKUNJAN @ APPU, RESIDING AT KATTIL VEETTIL, P.O.MALAPRAMBA, CALICUT. BY ADVS.SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENTS : - -------------- 1. THE DISTRICT COLLECTOR, KOZHIKODE. 2. THE SPECIAL TAHSILDAR (LA) NH, CIVIL STATION, KOZHIKODE. BY GOVERNMENT PLEADER SMT.RAJI T.BHASKER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 2204 of 2010 (A) ## APPENDIX PETITIONER'S EXHIBITS :- EXT.P1 : COPY OF THE AWARD. EXT.P2 : COPY OF THE APPLICATION. EXT.P3 : COPY OF THE COMMUNICATION. True copy P.A to Judge ## **ANIL K.NARENDRAN, J. -----------------------------------W.P.(C)No.2204 of 2010 ---------------------------------------Dated this the 30[th] day of January, 2017** ## **JUDGMENT** The petitioner has filed this writ petition seeking a writ of certiorari to quash Ext.P3 communication dated 25.8.2009 issued by the 2nd respondent by which Ext.P2 application submitted by the petitioner and others dated 29.6.2009 under Section 28A(3) of the Land Acquisition Act, 1894 seeking an order requiring the District Collector, the 1st respondent herein, to refer Ext.P1 award passed by the 2nd respondent dated 17.1.2009 to the reference court was turned down. 2. The reliefs sought for in the writ petition are opposed by the 1st respondent by filing a counter affidavit. 3. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondents. 4. The pleadings and materials on record would show that an extent of 0.0490 hectares of garden land equivalent to 12.103 cents situated in Re.Sy.No.19/32 of Nedungottur desom in Vengeri W.P.(C).No.2204 of 2010 2 Village belonging to the petitioner, his brother and sister was acquired by the 2nd respondent for the formation of bypass road leading to National Highway-17. After enquiry, the 2nd respondent passed an award bearing No.5/97 awarding compensation for the acquired land. According to the petitioner, though the award amount was received under protest the petitioner and other co-owners could not seek reference under Section 18 of the Land Acquisition Act, within the specified time. 5. In the very same land acquisition proceedings, the properties situated adjacent to the petitioner's property were acquired. Some of those claimants sought reference under Section 18 of the Act and the reference court, namely, the Sub Court, Kozhikode in L.A.R.Nos.303 of 1999 and 304 of 1999 passed a common award dated 22.10.2001 granting enhanced market value at the rate of ₹25,000/- per cent for the property involved in those reference. On coming to know about the award passed by the reference court in connected cases, arising out of the very same notification, the petitioner and other co-owners filed a joint W.P.(C).No.2204 of 2010 3 application before the 1st respondent for re-determination of compensation as provided under Section 28A of the Act. 6. Based on the application made under Section 28A of the Act, the 2nd respondent by Ext.P1 award dated 17.1.2009 redetermined the compensation payable by re-fixing the land value of the acquired land at the rate of ₹25,000/- per cent, in tune with the land value fixed in the common judgment in L.A.R.Nos.303 and 304 of 1999. 7. According to the petitioner, Ext.P1 award passed by the 2nd respondent is not in accordance with law, inasmuch as the compensation amount calculated is not in tune with Section 23(1A) and 23(2) of the Land Acquisition Act and the principles laid down by the Apex Court in various decisions on the subject. 8. The petitioner and other co-owners were unaware of their entitlement of these statutory benefits and without noticing the said right they accepted the amount offered by the 2nd respondent in Ext.P1 award, pursuant to their communication dated 13.5.2009. On coming to know about their entitlement for these statutory W.P.(C).No.2204 of 2010 4 benefits, they moved Ext.P2 application before the 1st respondent, seeking reference under Section 28A(3) of the Act, which was turned down by Ext.P3 communication dated 25.8.2009 of the 2nd respondent, by which they were informed that such an application cannot be considered, since they have received the amount awarded under section 28A of the Act without protest. Feeling aggrieved by Ext.P3, the petitioner is before this Court in this writ petition. 9. A counter affidavit has been filed on behalf of the 1[st] respondent contending that, as per the judgment in L.A.R.No.304 of 1999, on the basis of which the compensation payable to the petitioner and other co-owners were redetermined, interest has to be paid only on the enhanced compensation and solatium. In the said judgment the reference court had not ordered for payment of 12% interest as additional compensation. Relying on the judgment of the Apex Court in **Gurpreet Singh v. Union of India (2006 (8) SCC 457)** it is contended that, solatium has to be paid only from the date of the Apex Court judgment in **Sunder v. Union of India, (2001 (7) SCC 211)** i.e., only from 19.9.2001. Accordingly, while W.P.(C).No.2204 of 2010 5 re-determining the compensation due to the petitioner and others, interest has also been paid for solatium from 19.9.2001 onwards and as such, they are not entitled for any further interest on the redetermined compensation. Regarding claim for statutory benefits, the 1[st] respondent would contend that, since the application under Section 28A of the Act was filed through lawyer the plea of the petitioner that he and other co-owners were ignorant of the statutory right under the Act cannot be taken as a valid defence. The 1[st] respondent would also contend that the eligible benefits as laid down by the Apex Court in **Gurpreet Singh's case (supra)** has already been given to the claimants. Since the claimants had already received the re-determined compensation under Section 28A(2) of the Act they are not eligible for filing reference under Section 28A(3) against such re-determination. Since there is no provision for considering an application like Ext.P1, the same was rightly rejected by Ext.P3. 10. Re-determination of the amount of compensation on the basis of the award of the court is dealt with under Section 28A of the W.P.(C).No.2204 of 2010 6 Land Acquisition Act, inserted by Act 68 of 1984. As per Section 28A (1), where, in an award passed under Part III of the Act, 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(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 a period of three months from the date of the award of the Court, require that the amount of compensation payable to them may be re-determined on the basis of the amount of compensation awarded by the Court. Going by the proviso to sub-section (1), in computing the period of three months within which an application to the Collector shall be made under Section 28A(1), the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be excluded. 11. Section 28A(2) provides that, the Collector shall, on receipt of an application under Section 28A(1), conduct an inquiry W.P.(C).No.2204 of 2010 7 after giving notice to all the persons interested and giving them a reasonable opportunity of being heard, make an award determining the amount of compensation payable to the applicants. As per Section 28A(3), any person who has not accepted the award under Section 28A(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 of the Act shall, so far as may be, apply to such reference as they apply to a reference under Section 18 of the Act. 12. In the case on hand, admittedly, based on an application made by the petitioner and other co-owners under Section 28A(2) of the Act, the 2nd respondent passed Ext.P1 award, re-determining the compensation in terms of the judgment of the reference court in L.A.R.Nos.303 and 304 of 1999, arising out of the very same notification, in respect of the similarly situated land. After Ext.P1 award, Ext.P2 application was made before the 1st respondent, under Section 28A(3) of the Act seeking reference contending that while awarding compensation the petitioner and other co-owners are W.P.(C).No.2204 of 2010 8 denied statutory benefits. Ext.P2 application is now rejected by Ext.P3 communication dated 25.8.2009 of the 2nd respondent, stating that, since the petitioner and other co-owners have accepted the compensation awarded in terms of Section 28A(2), no application under Section 28A(3) can be entertained. According to the 1st respondent, once the claimants have accepted the redetermined compensation no application under Section 28A(3) can be entertained. 13. As I have already noticed, as per Section 28A(3) of the Act any person who has 'not accepted' the award under Section 28A(2) may, by written application require that the matter may be referred for the determination of the court. The said sub-section provides further that, the provisions of Sections 18 to 28 of the Act shall, so far as may be, apply to such reference as they apply to a reference under Section 18 of the Act. Therefore, a reading of Section 28A(3) would make it explicitly clear that, a prohibition similar to that under the second proviso to Section 31(2) of the Act that, no person who has received the amount otherwise than under W.P.(C).No.2204 of 2010 9 protest shall be entitled to make any application under Section 18, has no application in the case of an application seeking reference under Section 28A(3). What is provided under Section 28A(3) is that, a written request for reference under that sub-section can be made by any person who has 'not accepted' the award under Section 28A(2). That only means that, a person who is not satisfied with the award under Section 28A(2) can make such a written request for reference within the time limit prescribed under the Act. Therefore, a 'mere receipt' of the amount in terms of the award passed under Section 28A(2) would not dis-entitle such person from making a written application under Section 28A(3) seeking reference. In that view of the matter the reasoning of the 2[nd] respondent in Ext.P3 for not entertaining Ext.P2 application filed by the petitioner seeking reference under Section 28A(3) cannot be sustained. 14. In the result, this writ petition is disposed of setting aside Ext.P3 communication issued by the 2[nd] respondent dated 25.8.2009 and the said respondent is directed to refer Ext.P2 application made by the petitioner and other co-owners under Section 28A(3) of the W.P.(C).No.2204 of 2010 10 Act to the reference court without any further delay. 15. Necessary steps in this regard shall be taken as expeditiously as possible at any rate within a period of one month from the date of receipt of a certified copy of this judgment. On receipt of such reference, the reference court shall consider the same and pass appropriate orders after issuing notice to the petitioner and other co-owners of the property. It is made clear that it is for the reference court to consider the entitlement of the petitioner and other co-owners for the statutory benefits as claimed in Ext.P2 application, strictly in accordance with law. Sd/- **ANIL K.NARENDRAN, JUDGE** skj True copy P.A to Judge