L.A.A. Nos. 198, 210 and 214 of 2019 (Indigent) - High Court of Kerala, Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **&** **THE HONOURABLE MR. JUSTICE JOHNSON JOHN THURSDAY, THE 30[TH] DAY OF NOVEMBER 2023 / 9TH AGRAHAYANA,** ## **1945** ## **LA.APP. NO. 198 OF 2019 (INDIGENT)** **AGAINST THE COMMON JUDGMENT AND DECREE DATED 28.06.2018 IN LAR 9/2016 OF THE ADDITIONAL SUB COURT, NORTH PARAVUR APPELLANTS/CLAIMANTS:** - **1 K.N.SUBRAMANIAN S/O.RAJAMMA, MANALIL HOUSE, MANJUMMAL, ELOOR, ERNAKULAM DISTRICT-683 501.** - **2 K.N.SANTHA,** - **D/O.RAJAMMA, MANALIL HOUSE, MANJUMMAL, ELOOR, ERNAKULAM DISTRICT-683 501.** - **3 K.N.SASI @ JOSE KONNAMKERIL,** - **S/O.RAJAMMA, MANALIL HOUSE, MANJUMMAL, ELOOR, ERNAKULAM DISTRICT-683 501.** - **4 K.N.VISWANATHAN, S/O.RAJAMMA, MANALIL HOUSE, MANJUMMAL, ELOOR, ERNAKULAM DISTRICT-683 501.** - **5 K.N.MOHANAN,** - **S/O.RAJAMMA, MANALIL HOUSE, MANJUMMAL, ELOOR, ERNAKULAM DISTRICT-683 501.** - **6 K.N.DAMAYANTHI, D/O.RAJAMMA, MANALIL HOUSE, MANJUMMAL, ELOOR, ERNAKULAM DISTRICT-683 501.** - **7 K.N.SUDHAKARAN, S/O.RAJAMMA, MANALIL HOUSE, MANJUMMAL, ELOOR, ERNAKULAM DISTRICT-683 501. BY ADV GIKKU JACOB** LAA No.198 of 2019 and con. cases -: 2 :- ## **RESPONDENTS/RESPONDENTS:** - **1 DISTRICT COLLECTOR ERNAKULAM, KAKKANAD P.O., ERNAKULAM -682 030.** - **2 PROJECT DIRECTOR, NHAI, KALAMASSERY, ERNAKULAM DISTRICT -683 104.** - **3 SPECIAL TAHASILDAR LA, GENERAL, KAKKANAD P.O., ERNAKULAM,PIN-682 030. M/S.M.V.KINI AND CO., SC, NHAI FOR R2 SMT.R.ASALATHA VARMA FOR R2** **SRI.B.G.BIDAN CHANDRAN FOR R2** **SRI.E.C.KURIAKOSE FOR R2 SMT.N.SUDHA DEVI SPL.GP FOR R1 AND R3** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 15.11.2023, ALONG WITH LA.App..210/2019, 214/2019, THE COURT ON 30.11.2023 DELIVERED THE FOLLOWING:** LAA No.198 of 2019 and con. cases -: 3 :- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **&** **THE HONOURABLE MR. JUSTICE JOHNSON JOHN** **THURSDAY, THE 30[TH] DAY OF NOVEMBER 2023 / 9TH AGRAHAYANA, 1945** ## **LA.APP. NO. 210 OF 2019 (INDIGENT)** **AGAINST THE COMMON JUDGMENT AND DECREE DATED 28.06.2018** **IN LAR 8/2016 OF ADDITIONAL SUB COURT, NORTH PARAVUR** ## **APPELLANTS/CLAIMANTS:** - **1 K.N.SUBRAMANIAN** - **S/O.RAJAMMA, MANALIL HOUSE, MANJUMMAL, ELOOR, ERNAKULAM DISTRICT-683 501.** - **2 K.N.SANTHA, D/O.RAJAMMA, MANALIL HOUSE, MANJUMMAL, ELOOR, ERNAKULAM DISTRICT-683 501.** - **3 K.N.SASI @ JOSE KONNAMKERIL,** - **S/O.RAJAMMA, MANALIL HOUSE, MANJUMMAL, ELOOR, ERNAKULAM DISTRICT-683 501.** - **4 K.N.VISWANATHAN, S/O.RAJAMMA, MANALIL HOUSE, MANJUMMAL, ELOOR, ERNAKULAM DISTRICT-683 501.** - **5 K.N.MOHANAN, S/O.RAJAMMA, MANALIL HOUSE, MANJUMMAL, ELOOR, ERNAKULAM DISTRICT-683 501.** - **6 K.N.DAMAYANTHI, D/O.RAJAMMA, MANALIL HOUSE, MANJUMMAL, ELOOR, ERNAKULAM DISTRICT-683 501.** - **7 K.N.SUDHAKARAN, S/O.RAJAMMA, MANALIL HOUSE, MANJUMMAL, ELOOR, ERNAKULAM DISTRICT-683 501. BY ADV GIKKU JACOB** LAA No.198 of 2019 and con. cases -: 4 :- ## **RESPONDENTS/RESPONDENTS:** - **1 DISTRICT COLLECTOR ERNAKULAM, KAKKANAD P.O., ERNAKULAM -682 030.** - **2 PROJECT DIRECTOR, NHAI, KALAMASSERY, ERNAKULAM DISTRICT -683 104.** - **3 SPECIAL TAHASILDAR LA, GENERAL, KAKKANAD P.O., ERNAKULAM,PIN-682 030. M/S.M.V.KINI AND CO., SC, NHAI FOR R2 SMT.N.SUDHA DEVI SPL.GP FOR R1 AND R3** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY** - **HEARD ON 15.11.2023, ALONG WITH LA.App..198/2019 AND CONNECTED CASE, THE COURT ON 30.11.2023 DELIVERED THE FOLLOWING:** LAA No.198 of 2019 and con. cases -: 5 :- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **&** **THE HONOURABLE MR. JUSTICE JOHNSON JOHN** **THURSDAY, THE 30[TH] DAY OF NOVEMBER 2023 / 9TH AGRAHAYANA, 1945** ## **LA.APP. NO. 214 OF 2019 (INDIGENT)** **AGAINST THE COMMON JUDGMENT AND DECREE DATED 28.06.2018 IN LAR 10/2016 OF ADDITIONAL SUB COURT, NORTH PARAVUR** ## **APPELLANTS/CLAIMANTS:** - **1 K.N.SUBRAMANIAN** - **S/O.RAJAMMA, MANALIL HOUSE, MANJUMMAL, ELOOR, ERNAKULAM DISTRICT-683 501.** - **2 K.N.SANTHA, D/O.RAJAMMA, MANALIL HOUSE, MANJUMMAL, ELOOR, ERNAKULAM DISTRICT-683 501.** - **3 K.N.SASI @ JOSE KONNAMKERIL, S/O.RAJAMMA, MANALIL HOUSE, MANJUMMAL, ELOOR, ERNAKULAM DISTRICT-683 501.** - **4 K.N.VISWANATHAN, S/O.RAJAMMA, MANALIL HOUSE, MANJUMMAL, ELOOR, ERNAKULAM DISTRICT-683 501.** - **5 K.N.MOHANAN,** - **S/O.RAJAMMA, MANALIL HOUSE, MANJUMMAL, ELOOR, ERNAKULAM DISTRICT-683 501.** - **6 K.N.DAMAYANTHI, D/O.RAJAMMA, MANALIL HOUSE, MANJUMMAL, ELOOR, ERNAKULAM DISTRICT-683 501.** - **7 K.N.SUDHAKARAN, S/O.RAJAMMA, MANALIL HOUSE, MANJUMMAL, ELOOR, ERNAKULAM DISTRICT-683 501. BY ADV GIKKU JACOB** LAA No.198 of 2019 and con. cases -: 6 :- ## **RESPONDENTS/RESPONDENTS:** - **1 DISTRICT COLLECTOR ERNAKULAM, KAKKANAD P.O., ERNAKULAM -682 030.** - **2 PROJECT DIRECTOR, NHAI, KALAMASSERY, ERNAKULAM DISTRICT -683 104.** - **3 SPECIAL TAHASILDAR LA, GENERAL, KAKKANAD P.O., ERNAKULAM,PIN-682 030. M/S.M.V.KINI AND CO., SC, NHAI SMT.R.ASALATHA VARMA SRI.B.G.BIDAN CHANDRAN SRI.E.C.KURIAKOSE SMT.N.SUDHA DEVI SPL.GP** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 15.11.2023, ALONG WITH LA.App..198/2019 AND CONNECTED CASE, THE COURT ON 30.11.2023 DELIVERED THE FOLLOWING:** LAA No.198 of 2019 and con. cases -: 7 :- ## **C.R.** ## P.B.SURESH KUMAR & JOHNSON JOHN, JJ. ----------------------------------------------- L.A.A. Nos.198, 210 and 214 of 2019 (Indigent) ----------------------------------------------Dated this the 30[th] day of November, 2023. ## J U D G M E N T ## P.B.Suresh Kumar, J. The above appeals arise from the common judgment in a few references made under Section 28A(3) of the Land Acquisition Act, 1894 (the Act). The claimants in the proceedings are the appellants. 2. Lands held by the claimants were acquired pursuant to a notification issued under Section 4(1) of the Act for development of the road connectivity to the International Container Transshipment Terminal at Vallarpadam and they have been paid compensation as fixed by the Land Acquisition Officer. The claimants have not made any references for LAA No.198 of 2019 and con. cases -: 8 :- enhanced compensation in terms of Section 18 of the Act. Later, when a few references made at the instance of similarly placed persons under Section 18 of the Act were answered in their favour, applications were filed by some others for redetermination of the compensation paid to them under Section 28A of the Act. Some of the said applications were rejected by the competent authority and consequently, there were a few references under Section 28A(3) of the Act. Three among the said references were answered in favour of the claimants in LAR Nos.6 of 2013, 2 of 2013 and 3 of 2013 on the files of the Sub Court, Ernakulam. The claimants in the proceedings from which these appeals arise, in the circumstances, preferred applications for re-determination of compensation under Section 28A(1) of the Act based on the judgments in LAR Nos.2 of 2013, 3 of 2013 and 6 of 2013. The said applications were rejected by the Land Acquisition Officer. The claimants, in the circumstances, sought references for adjudication of the issue under Section 28A(3) of the Act and the matters were accordingly referred to the court. The said references are LAA No.198 of 2019 and con. cases -: 9 :- answered against the claimants and these appeals are preferred by the claimants aggrieved by the said decision of the reference court. 3. Heard the learned counsel for the appellants as also the learned Government Pleader. 4. Since a doubt arose as to whether a request for re-determination of compensation under Section 28A(1) of the Act could be made based on an award under Section 28A(3) of the Act, the learned counsel for the parties on either side were requested to address arguments on that question before proceeding with the cases on merits. Accordingly, counsel on both sides addressed arguments. 5. It was asserted by the learned counsel for the claimants that an application could be preferred invoking Section 28A(1) of the Act for re-determination of compensation based on an award of the court passed under Section 28A(3) of the Act also. He placed reliance on the decision of this Court in Joseph v. District Collector, 2004 KHC 711, in support of the said proposition. The learned Government Pleader, on the other LAA No.198 of 2019 and con. cases -: 10 :- hand, pointed out that there are conflicting views on this question. It was pointed out that in Haji A. Abdul Rashid and Others v. Spl. Tahsildar (L.A.General), Trichur and Others , 2008 1 KHC 1026, a view diametrically opposite to the view taken by this Court in Joseph has been taken and though the divergent views on the question have been taken note of by this Court in Palakkel Chirukandan and Others v. Special Tahsildar (LA), Payyannur and Another, 2014 KHC 810, instead of referring the issue for decision to a Larger Bench, the learned Judge, endorsed the view taken by this Court in Joseph . According to the learned Government Pleader, the view taken by this Court in Joseph and Palakkel Chirukandan on the question is contrary to the scheme of the statute and it needs to be reconsidered. 6. As the question aforesaid is one which would affect the maintainability of the application preferred by the claimants, we have considered the same before proceeding to decide the appeals on merits. 7. We have perused the decisions cited by the learned counsel for the parties on either side and we find that LAA No.198 of 2019 and con. cases -: 11 :- the question had not arisen for consideration directly in Haji A. Abdul Rashid . True, the question fell for consideration directly in Joseph and Palakkel Chirukandan and in both cases, the question was answered in the affirmative. What remains to be considered is whether the view taken in the said cases is consistent with the scheme of the statute. ## 8. Section 28A reads thus: 28A. Re-determination of the amount of compensation on the basis of the award of the Court. - (1) where in an award under this Part, 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, sub-section (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 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: Provided that in computing the period of three months within which an application to the Collector shall be made under this sub-section, the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be excluded. - (2) The Collector shall, on receipt of an application LAA No.198 of 2019 and con. cases -: 12 :- under sub-section (1), conduct an inquiry after giving notice to all the persons interested and giving them a reasonable opportunity of being heard, and make an award determining the amount of compensation payable to the applicants. (3) Any person who has not accepted the award under sub-section (2) may, by written application to the Collector, required that the matter be referred by the Collector for the determination of the Court and the provisions of sections 18 to 28 shall, so far as may be, apply to such reference as they apply to a reference under section 18. Section 28A is a provision introduced in Part III of the Act dealing with “Reference to Court and Procedure thereon”. The said Part commences with Section 18 which confers right to any person who has not accepted the award of the Collector to require the Collector to refer his objection against the amount of compensation for determination by the court. Section 19 deals with the manner in which an application for reference under Section 18 has to be dealt with by the Collector. Section 20 deals with the procedure to be followed by the court on receipt of a reference under Section 18. Sections 21 to 25 deal with the powers and limitations of the court in the matter of dealing with the reference under Section 18. Section 26 deals with the form of awards to be passed by the court. Section 27 LAA No.198 of 2019 and con. cases -: 13 :- deals with the costs of the reference and Section 28 deals with the right of the land owner to claim interest on the excess amount awarded by the court. There were no other provisions in the said part and Section 28A was introduced as the last Section in Part III as per Act 68 of 1984. Section 28A confers a right on land owners who have not chosen to avail the benefit of Section 18 to prefer an application for re-determination of compensation granted by the Collector where, in an award under Part II, the court allows the applicant any amount of compensation in excess of the amount awarded by the Collector under Section 11. If the expression “an award under this part” contained in the opening sentence of Section 28A(1) is understood in the background of the provisions that existed in Part II at the time of introduction of the benefit, there is no scope for any doubt that the same refers to an award passed by the court in a reference under Section 18 of the Act. In other words, the cause of action for preferring an application for redetermination of compensation in terms of Section 28A(1) can only be an award under Section 18 of the Act in terms of which LAA No.198 of 2019 and con. cases -: 14 :- the court allowed to the applicant any amount of compensation in excess of the amount awarded by the Collector under Section 11 of the Act. The remaining provisions in Section 28A(1) deals with the procedure to be followed for preferring applications for redetermination of compensation under Section 28A(1). Section 28A(2) is the provision conferring authority on the Collector to make an award re-determining the amount of compensation, after a due inquiry in favour of the applicant in tune with the award passed by the court under Section 18 of the Act. It is so explained also by a Full Bench of this Court in Sarada v. Special Tahsildar , 2016 (2) KLT 120 (FB). Paragraph 14 of the said judgment reads thus : “14. The object of the Amendment Act 1984 as noted above is to extend the benefit of enhancement of amount of compensation by court on a reference filed by the land owners to those land owners also who could not approach the court for enhancement of compensation due to reason of poverty, financial constraint, ignorance or any other reason. S.28A and its various sub-sections have been designed to achieve the above object. Under S.28A(1), any person who has not earlier made a reference to the court for enhancement can make application within three months from the date of the award of the court for redetermination of his compensation on the basis of the LAA No.198 of 2019 and con. cases -: 15 :- compensation awarded by the court. Thus the cause of action for filing an application under S.28A(1) is the award by a court whereby compensation earlier determined by the Land Acquisition Collector has been enhanced. S.28A(2) is a mechanism for deciding such applications S.28A(3) gives right to the claimant who has not accepted the award determined by the Collector under S.28A(2) to make an application for reference to the court and the provisions of Sections 18 to 28 so far as applicable have been made applicable to such references as they applied to reference under S.18. While interpreting various sub-sections of S.28A the underlined object of the amendment has to be kept in mind.” If the cause of action for preferring an application for redetermination of compensation under Section 28A(1) of the Act is understood in the aforesaid manner, it can be found that Section 28A(3) is only a redressal mechanism provided to persons who have not accepted the award passed by the Collector under Section 28A(2) of the Act. There cannot be any doubt that if there is no award by the court under Section 18 of the Act in respect of a land covered by the same notification, there will not be any award by the court under Section 28A(3) of the Act. As such, in the absence of any other provision in the Section, according to us, at no stretch of imagination, it can LAA No.198 of 2019 and con. cases -: 16 :- be contended that an award passed by the court under Section 28A(3) would confer a cause of action for a person who has not chosen to apply for redetermination of compensation based on an award of the court under Section 18 of the Act, to prefer an application under Section 28A(1) for redetermination of compensation paid to him. If it is held that an award of the court under Section 28A(3) of the Act would confer a cause of action to a person who has not chosen to apply for redetermination of compensation to apply for re-determination of compensation in terms of Section 28A(1) of the Act, the process of re-determination of compensation in terms of the said provision would be a never ending process. Such an interpretation, according to us, would make the prescription made in Section 28A(1) as to the time limit within which applications for re-determination of compensation are to be preferred, redundant and meaningless and the same cannot, therefore, be the intention of the legislature at all. 9. It is seen that in essence, the view taken in Joseph and Palakkel Chirukandan is that on a literal LAA No.198 of 2019 and con. cases -: 17 :- interpretation of the expression “award of the court” employed in Section 28A, having regard to the very object of the legislation, takes within its scope all awards of the court under which excess compensation has been awarded under Part III of the Act, are to be treated as falling under Section 28A(1) of the Act. We respectfully disagree. No doubt, Section 28A is a provision introduced to the Act to remove the inequality in the payment of compensation for same or similar quality of land and give relief to inarticulate and poor people who were not able to take advantage of the right to reference to the civil court under Section 18 of the Act. This being a beneficial legislation, there cannot be any doubt that while interpreting the same, the courts have to adopt a liberal construction which advances the policy of the legislation to extend the benefit of the same to the applicants, rather than a strict construction which would deprive the benefit of the same to the applicants. But then, the cardinal principle of construction of a statute is that when the language used is plain and unambiguous, the court must give effect to the words used and it will not be LAA No.198 of 2019 and con. cases -: 18 :- necessary for the court to search for a construction more consistent with the object and the policy of the enactment. The Apex Court has quoted this rule with approval in Union of India v. Hansoli Devi , (2002) 7 SCC 273. The relevant passage in the said judgment reads thus: “The rule stated by Tindal, C.J. in Sussex Peerage case [(1844) 11 Cl & Fin 85 : 8 ER 1034] still holds the field. The aforesaid rule is to the effect: (ER p. 1057) “If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver.” It is a cardinal principle of construction of a statute that when the language of the statute is plain and unambiguous, then the court must give effect to the words used in the statute and it would not be open to the courts to adopt a hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act.” That apart, it is now settled that where the legislative intent is clear from the language, the Court should give effect to it [See B. Premanand v. Mohan Koikal , (2011) 4 SCC 266]. In the light of the discussion aforesaid, we hold that a request for redetermination of compensation under Section LAA No.198 of 2019 and con. cases -: 19 :- 28A(1) of the Act could be made only based on an award under Section 18 of the Act, and the opinion expressed in Joseph and Palakkel Chirukandan is overruled. Needless to say, the applications preferred by the claimants for redetermination of compensation under Section 28A of the Act were not maintainable. The appeals are accordingly dismissed. Sd/- P.B.SURESH KUMAR, JUDGE. Sd/- ## JOHNSON JOHN, JUDGE. ## YKB As per order dated 22/01/2024 in LAA Nos.198, 210 & 214 of 2019 (indigent), the following addition has been made in the judgment dated 30/11/2023: “Appellants shall pay the court fee within a period of 15 days from today, failing which, the court fee shall be recovered as provided in the provisions in the Code of Civil Procedure.” Sd/- DEPUTY REGISTRAR