LA.A.NO.161/2011 (Land Acquisition Appeal) - T.P. Thankappan Nair and others v. State of Kerala and the Law Officer, Hindustan Newsprint Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** **WEDNESDAY, THE 11TH DAY OF DECEMBER 2013/20TH AGRAHAYANA, 1935** ## **LA.App.No. 161 of 2011 ( )** **---------------------------AGAINST THE ORDER/JUDGMENT IN LAR 2/2007 of PRINCIPAL SUB COURT, KOTTAYAM DATED 13.08.2009** **APPELLANT(S)/CLAIMANTS 1, 2 & ADDL.CLAIMANTS 4 TO 7:** - **----------------------------------------------------------------------------------------------------** **1. T.P.THANKAPPAN NAIR,** **THATHODATHUMYALIL, SAGAR BINDU, VELLOOR VILLAGE MEVELLOOR P.O., VAIKOM TALUK, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER, SMT.SOBHANA T.NAIR W/O.THANKAPPAN NAIR, OF -DO- DO.** **2. VASUDEVAN NAIR, CHELATTUMADOM, VELLOOR VILLAGE, VAIKOM TALUK.** **3. P.C.SUNILKUMAR, S/O.CHANDRASEKHARAN NAIR, CHELATTUMADOM, VELLOOR VILLAGE, VAIKOM TALUK.** **4. P.C.MINI, D/O.CHANDRASEKHARAN NAIR, CHELATTUMADOM, VELLOOR VILLAGE, VAIKOM TALUK.** **5. P.C.JYOTHILAKSMI, D/O.CHANDRASEKHARAN NAIR, CHELATTUMADOM, VELLOOR VILLAGE, VAIKOM TALUK.** **6. SAVITHRI AMMA, W/O.CHANDRASEKHARAN NAIR, CHELATTUMADOM, VELLOOR VILLAGE, VAIKOM TALUK. (APPELLANT 2, APPELLANTS 4 TO 6 ARE REPRESENTED BY POWER OF ATTORNEY HOLDER 3RD APPELLANT SUNILKUMAR).** **BY ADV. SRI.B.KRISHNA MANI** **RESPONDENT(S)/RESPONDENTS:** **----------------------------------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR KOTTAYAM - 686002.** **2. DEPUTY COLLECTOR (L.A), KOTTAYAM - 686002.** ## **L.A.A.NO.161/2011** **3. THE LAW OFFICER, HINDUSTAN NEWSPRINT LTD., VELLOOR - 686541.** **R,R3 BY ADV. SRI.E.K.MADHAVAN R,R3 BY ADV. SRI.V.KRISHNA MENON R,R3 BY ADV. SMT.P.VIJAYAMMA R,R3 BY ADV. SRI.P.J.ANILKUMAR R,R3 BY ADV. SRI.PRINSUN PHILIP** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 05-12-2013, THE COURT ON 11.12.2013 DELIVERED THE FOLLOWING:** **C.R.** ## **S.S.SATHEESACHANDRAN, J. ------------------------------L.A.A.NO.161 OF 2011 ----------------------------------Dated this the 11[th] day of December, 2013** ## **J U D G M E N T** Appeal is directed against the judgment dated 13.08.2009 in L.A.R.No.2 of 2009 passed by the learned Principal Sub Judge, Kottayam. 2. Appellants are the claimants in a proceeding under Section 28A (3) of the Land Acquisition Act, 1984, for short, the 'Act' before the Principal Sub Court, Kottayam. Their claim related to acquisition of 31.32 ares of land in Survey No.661/1 of Velloor Village, for a public purpose. The above land was taken possession on 08.11.1978 and award No.82/1980 was passed by the Land Acquisition Officer on 01.04.1981 fixing land value at Rs.361/- per are. Claimants accepted the compensation without protest. Later, enhanced compensation was granted to another, whose land was acquired under the same notification, on a **L.A.A.NO.161/2011** **2** reference made to the Sub Court, Kottayam, in L.A.R.No.60 of 1986. Claimants thereupon moved an application under Section 28A of the Act for providing them enhanced compensation on the basis of revised land value fixed by the court. That application was rejected by Order dated 15.03.1989 by the Special Deputy Collector (LA), Vaikom. Subsequently in another reference at the instance of another party over the land acquired from him under the same notification and award passed by the Land Acquisition Officer, in L.A.R.No.21 of 1992 the Sub court granted him enhanced compensation re-fixing the land value. Claimants thereupon again moved an application under Section 28A of the Act seeking re-fixation of land value for the land acquired from them on the basis of the judgment in L.A.R.No.21 of 1992. That application was rejected by the Land Acquisition Officer by Order dated 29.11.2006. On the reference application moved by claimants, the claim was referred under Section 28A (3) of the Act to the Sub Court, and it was numbered as L.A.R.No.2 of 2007. Learned Sub Judge dismissed their claim holding that the second application moved under Section 28A of the Act for **L.A.A.NO.161/2011** **3** re-determination of the land value was not maintainable. Challenge in the appeal is against that judgment rendered by the learned Sub Judge. 3. I heard learned counsel for claimants and also learned Govt. Pleader. Dismissal of the first application moved by claimants under Section 28A of the Act based on the judgment rendered in L.A.R.No.60 of 1986 by the Sub Court, Kottayam would no way debar the claimants from moving another application based on the judgment rendered in another reference, L.A.R.No.21 of 1992, by the same court, is the submission of their learned counsel. First application was dismissed as 'time barred' and there was no decision on merits of that application is the further submission of the counsel to contend that the second application based on judgment rendered in another reference by the Sub Court required consideration on merits. Learned counsel placed reliance on the decision rendered by this Court in **Madhavi v. Special Tahsildar (2003 KHC 137)** to contend that when the first application was **L.A.A.NO.161/2011** **4** dismissed on a technical ground, the second application based on decision rendered in another reference is valid and it has to be decided on its merits. 4. Perusal of the records would show that the first application moved by claimants under Section 28A of the Act for re-determination of the land value awarded to them, was based on the judgment rendered by the reference court in L.A.R.No.60 of 1986. That application was dismissed by the Special Deputy Collector holding that the claimants were not entitled to the benefits of Section 28A of the Act since the award in the case had been passed before the commencement of Act 1 of 1984 as amended by Act 68 of 1984. Whatever be the correctness or legality of that order for turning down the claim under Section 28A of the Act, admittedly, claimants did not move any application under Section 28A (3) of the Act before the Collector for reference to the court for re-determination of the value of his acquired land. Order passed rejecting the application moved under Section 28A of the Act based on the judgment in **L.A.A.NO.161/2011** **5** L.A.R.No.60 of 1986, with no further challenge thereof, has thus become final. Subsequently, when the reference court passed judgment in another case, L.A.R.No.21 of 1992, re-fixing the value of land acquired from the claimant therein under the same notification and award passed by Land Acquisition Officer, the claimants again moved for re-determination of the land value over their acquired land. Second application under Section 28A of the Act was turned down by the Land Acquisition Officer, and on their request, reference was made to the Sub Court under Section 28A (3) of the Act for re-determination of the compensation. Learned Sub Judge dismissed that application holding that the previous application moved debarred them from moving afresh under Section 28A of the Act for re-determination of compensation on the judgment passed in another reference. 5. Whatever be the reason for rejection of his earlier application moved under Section 28A of the Act, its incorrectness cannot be set forth as a ground to entertain a second application based on a judgment in another reference by **L.A.A.NO.161/2011** **6** the court. Any challenge against the order rejecting the application under Section 28A of the Act, necessarily, has to be canvassed before the appropriate forum, seeking a reference under Section 28A (3) of the Act. When that has not been done and the Order passed on previous application has become final, there is no merit in the challenge canvassed against the order impugned in the appeal based on the decision rendered by this Court in **Madhavi's case** referred to above. Previous application of the claimant was rejected on merits, whatever be the reasons to do so, and it was not a case of rejection as time barred. Section 28A of the Act carves out a special remedy to a person whose land had been acquired under the Act even when he failed to take advantage of the right of reference to a civil court under Section 18 of the Act. But that beneficent provision can be invoked only on satisfaction of some conditions, which are _(i) An award has been made by the court under Part III after the coming into force of Section 28A;_ _(ii) By the award passed by the court compensation in excess of the amount awarded by the Collector has been allowed to the applicant in that reference;_ **L.A.A.NO.161/2011** **7** _(iii) The person moving the application under Section 28A has interest in another land covered by the same notification in which the award allowing excess amount of compensation was passed by the court._ _(iv) The applicant has not moved any application to the Collector under Section 18 of the Act._ _(v) The application under the Section has been moved within three months from the date of the award on the basis of which re-determination of the amount is sought._ _(vi) Only one application can be moved under Section 28A for re-determination of compensation._ So where a previous application was moved under Section 28A of the Act by the claimants seeking re-determination of compensation based on the judgment in another reference L.A.R.No.60 of 1986, and that was turned down on merits with the decision thereof also becoming final, a second application from the claimants based on a judgment in another reference for re-determination of compensation is clearly barred. Learned Sub Judge has correctly answered the reference holding that second application of claimants under Section 28A of the Act for re-determination of the compensation is not maintainable. **L.A.A.NO.161/2011** **8** Appeal is devoid of any merit, and it is dismissed directing both sides to suffer their respective costs. **S.S.SATHEESACHANDRAN JUDGE** ## **prp**