Nabeesa Pacheeri (Died) W/o Kizha KKethil Hydrali and Moidutty S/o Kizha KKethil Hydrali v. State of Kerala represented by the District Collectorate, Malappuram; The Sub Collector Perinthalmanna; The Executive Engineer PWD Roads Division, Manjeri, Malappuram District

## **`“CR”`** # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI TUESDAY, THE 24[TH] DAY OF MAY 2022 / 3RD JYAISHTA, 1944 ``` ## **`WP(C) NO. 8548 OF 2017`** ## **`PETITIONER/S:`** - `1 NABEESA PACHEERI(Died) W/O.KIZHAKKETHIL HYDRALI, AGED 71 YEARS, PONNIAKURUSSI, PERINTHALMANNA .P.O., MALAPPURAM DISTRICT, REP. BY HER POWER OF ATTORNEY HOLDER MOIDUTTY, S/O. KIZHAKKETHIL HYDRALI, AGED 49 YEARS, KIZHAKKETHIL HOUSE, PONNAIKURUSII, PERINTHALMANNA.P.O., MALAPPURAM DISTRICT.` - `2 MOIDUTTY, S/O KIZHAKKETHIL HYDRALI, AGED 50 YEARS, KIZHAKKETHIL HOUSE, PONNIAKURUSSI, PERINTHALMANNA P.O., MALAPPURAM DISTRICT. (ONE OF THE LEGAL HEIRS OF THE DECEASED SOLE PETITIONER IS IMPLEADED AS ADDITIONAL PETITIONER AS PER ORDER DATED 06/04/2018 IN IA.6058/2018) BY ADV SRI.U.K.DEVIDAS` ## **`RESPONDENT/S:`** - `1 STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTORATE, MALAPPURAM-676 505` - `2 THE SUB COLLECTOR PERINTHALMANNA, MALAPPURAM DISTRICT-679 322` - `3 THE EXECUTIVE ENGINEER PWD ROADS DIVISION,MANJERI, MALAPURAM DISTRICT-676 121` ## **`OTHER PRESENT:`** ``` GP SMT.DEVISHRI R ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 8548 OF 2017 ``` -2- ## **JUDGMENT** ## (Dated this the 24[th] day of May 2022) The short question that arises for consideration in this Writ Petition is whether the District Collector should grant interest under Section 34 of the Land Acquisition Act (for short ‘the Act’) when he redetermines the compensation under Section 28A of the Act. An extent of 0.1804 hectors of land comprised in Sy.No.12/18 was acquired to form Perinthalmanna-Manathmangalam-Kakkooth bye-pass-II road. 2. The original owner passed away and the petitioners herein are the legal heirs. The amount was deposited before the Sub Court, Manjeri and the petitioners received the same as per award in L.A.R.No.1 of 2011 dated 22.12.2011. The petitioners could not file an application ``` WP(C) NO. 8548 OF 2017 ``` -3- under section 18 of the Act. Hence they filed an application under Section 28A of the Act on 22.11.2013 before the 2[nd] respondent. The 2[nd] respondent passed an award on 1.12.2016 for an amount of Rs.13,82,636.04. The counsel for the petitioners submits that while passing the award Ext.P3, the Land Acquisition Officer has not awarded the statutory interest to the petitioners. He further submits that the petitioners are entitled to all statutory benefits which were granted in Ext.P2. 3. Section 28A of the Act is Re-determination of the amount of compensation on the basis of the award of the Court. Section 28A of the Act is in the nature of a beneficent provision intended to remove inequality and to give relief to the inarticulate and poor people who are not able to take advantage of the right of reference to the Civil ``` WP(C) NO. 8548 OF 2017 ``` -4- court under Section 18 of the Act. The question whether the Collector can award interest on the compensation redetermined came up for consideration before the Hon'ble Apex Court in **Union of India and another v. Pradeep Kumari and others [1995(2) SCC 736]** . After considering Sections 28 and 34 of the Act, the Apex court declared that the Collector is bound to award interest under Section 34 of the Act on the excess amount declared under Section 28A of the Act. Relying on the said decision, this court in **Kallianikutty Amma v. The Special Tahsildar (LA) [2003(1) KLT 1014]** held that the Collector ought to have granted interest under Section 34 of the Act on the enhanced amount awarded on redetermination of compensation under Section 28A of the Act. ``` WP(C) NO. 8548 OF 2017 ``` -5- 4. The Honourable Apex Court in a decision reported in **Union of India and another v. Pushpavathi and others [2018(3) SCC 28]** , held that the dispute relating to nonaward of interest on compensation payable to landowners under Section 28 or/and under Section 34 of the Act, the remedy available is only taking recourse to Article 226 of the Constitution of India in a Writ Petition and reference under Section 18 or Section 28A(3) of the Act, cannot be considered to be an alternative statutory remedy available to the landowner for getting the question of non-award of interest. The Apex Court in the said decision, in paragraph Nos.36 to 40 held as follows:- “36. In our considered opinion, the dispute relating to non - award of the interest to the landowners, whether under S.28 or S.34 is not a dispute, which falls under ``` WP(C) NO. 8548 OF 2017 ``` -6- S.18 or / and 28A(3) of the Act. In other words, a reference under S.18 can only be made by the Collector in respect of those issues, which are specified under S.18. 37. A dispute relating to non - award of interest payable to the landowners under S.28 or / and S.34 of the Act is not specified under S.18 and hence it is not capable of being referred by the Collector to the Civil Court under S.18 of the Act. It is also for the reason that payment of interest is statutory in character and being statutory, it is mandatory for payment once conditions specified under S.28 or / and 34 are fulfilled. 38. It is true that once the interest is awarded by the Court under S.28 or by the Collector under S.34 of the Act, it becomes the part of the award. However, it is hardly of any significance and has no bearing for deciding the question of remedy to challenge issue relating to the non - award of interest. 39. As mentioned above, such issue is required to be decided keeping in view the wording of S.18 of the Act, which specifies the issues on which the reference can be made to the Court and non - award of interest is not the issue specified in S.18 of the Act. In this view of the matter, no reference can be made to the Court to decide the issue of non - award of interest under S.18 of the ``` WP(C) NO. 8548 OF 2017 ``` Act. 40. The aforementioned reasoning, in our view, equally applies to the cases falling under S.28A(2) and (3) of the Act because any dispute, whether arising under S.11 or 28A(2), is referable to the Civil Court in reference by the Collector under S.18 of the Act.” 5. After considering the entire issue, in paragraph No.42 it was declared as follows by the Honourable Apex Court: “ 42. In the light of the foregoing discussion, we are of the considered opinion that the dispute in relation to non - award of interest can be raised by an aggrieved person only by taking recourse to Art.226 of the Constitution in writ petition. In other words, reference under S.18 or S.28A(3) cannot be considered to be an alternative statutory remedy available to the landowner for getting the question of non - award of interest payable under S.28 or / and 34 of the Act decided by the Civil Court.” The above decision of the Apex Court declares that a Writ ``` WP(C) NO. 8548 OF 2017 ``` -8- Petition under Article 226 of the Constitution alone will lie in case the claimant is not awarded statutory interest while redetermination of the compensation under Section 28A of the Act. 6. Thus, any re-determination of compensation under section 28A of the Act attracts interest under section 34 of the Act also. In the case on hand, the 2[nd] respondent failed to grant interest under Section 34 of the Act. In view of the settled position of law by the Honourable Apex Court and this Court, I am of the considered opinion that the petitioners are entitled to succeed and are entitled to interest on the enhanced compensation redetermined under Section 28A of the Act. In the result, this Writ Petition is allowed and it is declared that the petitioners are entitled to interest on the enhanced compensation and the 2[nd] respondent is directed to calculate the amount of interest payable under section ``` WP(C) NO. 8548 OF 2017 ``` -9- 34 of the Act on enhanced compensation redetermined under Ext.P3 award and pay the same to the petitioners, as soon as possible and at any rate, within three months from the date of receipt of a certified copy of this judgment. sd **BASANT BALAJI,** **JUDGE** _dl/_ ``` WP(C) NO. 8548 OF 2017 ``` -10- ## **`APPENDIX OF WP(C) 8548/2017`** ``` PETITIONER EXHIBITS P1TRUE COPY OF THE AWARD WITH DECREE DATED 22.12.2011IN LAR NO.1/2011 P2TRUE COPY OF THE COMMON AWARD DATED 30.8.2013 IN LAR NO 44/2011 AND CONNECTED CASES P3TRUE COPY OF THE AWARD DATED 1.12.2016 P4TRUE COPY OF THE NOTICE ISSUED BY THE SECOND RESPONDENT ```