LALAN v. STATE OF KERALA & ORS

**WP(C) NO. 19358 OF 2010** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 4[TH] DAY OF AUGUST 2021 / 13TH SRAVANA, 1943** ## **WP(C) NO. 19358 OF 2010** ## **PETITIONER/S:** LALAN, AGED 52 YEARS, S/O.KRISHNANKUTTY, KADEPARAMBIL HOUSE, SOUTH CHITTOOR PO., ERNAKULAM. BY ADV SRI.T.N.SURESH ## **RESPONDENT/S:** 1 STATE OF KERALA SECRETARY, LAND AND REVENUE DEPARTMENT,, SECRETARIAT, THIRUVANANTHAPURAM. 2 THE DISTRICT COLLECTOR ERNAKULAM. 3 THE SPECIAL TAHSILDAR LA I.C.T.T. VALLARPADAM, ELOOR. ## **OTHER PRESENT:** SMT.MABLE.C.KURIAN, SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 19358 OF 2010** **2** ## **P.V.KUNHIKRISHNAN, J** ## **-------------------------------------------W.P.(C.) No.19358 of 2010** **-------------------------------------Dated this the 4[th] day of August, 2021** ## **JUDGMENT** The above writ petition is filed with following prayers : (i) Call for the records connecting Exts.P1 to P7 from the respondents concerned and quash Ext.P7 Award passed by the 3[rd] respondent, by issuing a writ of certiorari. (ii) Issue a writ of Mandamus or any other appropriate writ or order, directing the respondents 2 and 3 to consider Ext.P6 application in accordance with law. (iii) Grant such other reliefs as this Hon'ble Court may deem fit and proper in the circumstances of this case.” 2. The short facts necessary for the disposal of the writ petition are narrated hereafter : The petitioner is one of the co-owner of 3 acres and 25.750 cents of agricultural land comprised in survey No.524/3-10 of Kadamakudi Village as per the document Nos.204/1984, 2253/1984 of SRO, Ernakulam and 2271/1983 of Njarakkal. Out of the total extent of the land, 1.22 acres of land was acquired by the 3[rd] respondent for the Vallarpadam Container Transshipment Connectivity road. The 2[nd] respondent-Collector has evolved a scheme after due deliberation with land owners **WP(C) NO. 19358 OF 2010** **3** and other officers concerned. Exts.P1 and P2 are the decisions. In the meanwhile, the 3[rd] respondent without considering the benefit covered by Exts.P1 and P2 passed an award deposited the compensation amount under Sec.31(2) of the Land Acquisition Act. In the meanwhile, one of the land owners, who is covered by the same notification issued under Sec. 4(1) of the Land Acquisition Act approached the authorities for reference under Sec.18 of the Land Acquisition Act and the matter reached before the Reference Court. As per Ext.P5 reference award, the Reference Court enhanced the compensation. Therefore, the petitioner filed an application under Sec.28A of the Act before the 3[rd] respondent. The third respondent rejected Ext.P6 as per Ext.P7 order. Ext.P7 order is challenged in this writ petition. 4. Heard the learned counsel for the petitioner and the learned Government Pleader. 5. The counsel for the petitioner submitted that the reasoning in Ext.P7 order to reject Sec.28A application is against Sec.28A of the Land Acquisition Act. The counsel submitted that if the property of the petitioner and the property **WP(C) NO. 19358 OF 2010** **4** covered by Ext.P5 award are covered by the same notification under Sec.4 (1) of the Land Acquisition Act, the 3[rd] respondent is bound to redetermine compensation. The Government Pleader submitted that the property of the petitioner is category 8(B) and the property covered in Ext.P5 award is category 3(B). It is also stated that the property covered in Ext.P5 is a better property having road access. Therefore, Ext.P7 order is passed. 6. The short point is whether Ext.P7 order is in accordance to Sec.28A of the Land Acquisition Act. Sec.28A of the Land Acquisition Act is extracted hereunder : ## “[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 under subsection (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. **WP(C) NO. 19358 OF 2010** **5** (3) Any person who has not accepted the award under subsection (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.] “ 7. When an award is passed by the reference court, and the Court allows to the applicant in that case, any amount of compensation in excess of the amount awarded by the Collector under Sec. 11, the persons interested in all the other land covered by the same notification under Sec.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 Sec.18, by written application to the Collector within 3 months from the date of the award of the Court requiring that the amount of compensation payable to them may be redetermined on the basis of the amount of compensation awarded by the Court. As per Sec **.** 28A(2), the Collector shall on the receipt of the application under sub-sec (1), conduct an enquiry 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. Sec.28A(3) says that **WP(C) NO. 19358 OF 2010** **6** 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 Secs.18 to 28 shall, so far as may be, apply to such reference as they apply to a reference under Sec.18. 8. This Court in **Sushama A. v. District Collector, Kozhikode and anr.** [ILR 2010 (3) Ker 578] considered this point in paragraph 6 and same is extracted hereunder : 6. With the aforesaid, we notice that though this writ petition was filed only on 3.3.2010 against the impugned order rendered nearly an year before that, this Court entertained it, presumably because the petitioner was projecting herself as an unfortunate widow who is pushing forward an application under Section 28A(1) filed by her late husband and which was pending even while the appeals in relation to the lands acquired from her sisters-in-law were pending before this Court. Therefore, we are of the view that the State Government was justified in taking a lenient view and not opposing this writ petition on any ground of delay. We also notice that the respondents have filed a counter affidavit stating the sequences of events and also pointing out that the impugned order has been issued only on the ground that the land acquired from the petitioner's predecessor was a paddy field, while the land covered by the award relied on in support of the application under section 28A(1) was a piece of garden land. As we already noticed, there is no straight jacket formula. Merely because the award relied on in support of the application under Section 28A(1) related to a garden land, it does not necessarily follow that the application for redetermination of compensation should be dismissed. The Collector, the repository of the statutory power under Section 28A(1) has to arrive at a conclusion, on due application of **WP(C) NO. 19358 OF 2010** **7** mind on the materials and documents, as to whether any compensation has to be paid by enhancing the land value on redetermination, on the basis of the materials relied on by the claimant. To aid such process, in the case in hand, we deem it appropriate to quash the impugned order, not as we are satisfied that the writ petitioner had no alternate efficacious remedy by recourse to Section 28A(3), but because this writ petition stands admitted having regard to the personal grievances of the petitioner relatable to her widowhood and consequential delay that had occurred in the matter as already noticed above.” 9. Ext.P7 order was passed on 29.4.2010. Thereafter, this writ petition was filed on 21.6.2010. Therefore, I think it is proper to consider the validity of Ext.P7 order, even though the petitioner was having alternative remedy. I perused Ext.P7 order. According to me, Ext.P7 order is not in accordance to the provisions of Sec.28A of the Land Acquisition Act as far as the comparison of the properties are concerned. The petitioner contends that, he can convince the authority that, his property and the property covered by Ext.P5 award are similar. I think one more opportunity can be given to the petitioner, in the facts and circumstances of this case. Therefore, according to me, Ext.P7 can be set aside and the matter can be remitted back to the competent authority for considering Ext.P6 afresh. The competent authority is free to decide the matter untrammelled **WP(C) NO. 19358 OF 2010** **8** by any observation in this judgment. Therefore, this writ petition is allowed in the following manner : - 1) Ext.P7 order of the 3[rd] respondent is set aside. - 2) The third respondent/the competent authority will reconsider Ext.P6 afresh in accordance to Sec.28A of the Land Acquisition Act and pass appropriate proceedings in accordance to law, after given an opportunity of hearing to the petitioner. - 3) The third respondent/the competent authority will pass orders in Ext.P6 as expeditiously as possible, at any rate, within 5 months from the date of receipt of a copy of this judgment. SD/- **P.V.KUNHIKRISHNAN** **JUDGE** SKS **WP(C) NO. 19358 OF 2010** **9** ## **APPENDIX OF WP(C) 19358/2010** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 19.10.2006 - EXHIBIT P2 TRUE COPY OF THE SCHEDULE PREPARED BY THE 2ND RESPONDENT DATED 18.9.2006 - EXHIBIT P3 TRUE COPY OF THE AWARD DATED 1/09/2007 IN LAC NO.113/2005 ISSUED BY THE 3RD RESPONDENT. - EXHIBIT P4 TRUE COPY OF THE AWARD DATED 26/9/2009 IN LAR NO.220/2007 OF THE SUB COURT, ERNAKULAM. - EXHIBIT P5 TRUE COPY OF THE ORDER DATED 13/10/2009 IN LAR NO.163/2008 OF SUB COURT, ERNAKULAM - EXHIBIT P6 TRUE COPY OF THE APPLICATION DATED 9/1/2010 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P7 TRUE COPY OF THE AWARD DATED 29.4.2010 PASSED BY THE 3RD RESPONDENT.