P. Jumaida Beevi v. State of Kerala (District Collector), Thiruvananthapuram

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI MONDAY, THE 6TH DAY OF AUGUST 2012/15TH SRAVANA 1934 LA.App..No. 661 of 2005 ( ) --------------------------LAR.241/1994 of II ADDL.SUB COURT,TRIVANDRUM APPELLANT(S)/11[th] CLAIMANT.: ------------------------- P.JUMAIDA BEEVI, CHARIPPPAU VILAKOM VEEDU, CHANTHAMUKKU, THEKKUMKARA MURI, NEDUMANGADU REP. BY HER P.A.HOLDER, THAJUDEEN, NARAKATHUVILA VEEDU, ARUVIKKARA VILLAGE, KOKKOTHAMANGALAM MURI, NEDUMANGAD. BY ADVS.SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V. RESPONDENT(S): -------------- STATE OF KERALA DISTRICT COLLECTOR, COLLECTORATE THIRUVANANTHAPURAM. R1 BY ADV. GOVERNMENT PLEADER SRI.ALOYSIOUS THOMAS THIS LAND ACQUISITION APPEAL HAVING COME UP FOR ADMISSION ON 06-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **PIUS C.KURIAKOSE & A.V.RAMAKRISHNA PILLAI JJ. -----------------------L.A.A . NO. 661 OF 2005 ------------------------** Dated this the 6[th] day of August, 2012 ## **JUDGMENT** ## Pius C.Kuriakose,J This is an appeal by the claimant pertaining to acquisition of land in Nedumangad village for the purpose of E.E.C.Market at Nedumangad village pursuant to Section 4 (1) notification published on 16/6/1992. The Land Acquisition Officer included a portion of the property under acquisition in 'B' category - property having frontage of road and awarded land value at the rate of Rs.12,794/- per Are. Another portion was included in category E - property without road frontage and awarded value at the rate of Rs.8750/- per Are. It was on Ext.A4 judgment that the claimant relied on before the Reference Court. The learned Subordinate Judge placing reliance on Ext.A4, would refix the LAA NO.661/2005 2 value of the portion of property included in B category at Rs.29,121/- per Are. Similarly, value of the portion included in category E was refixed at Rs.21,977/- per Are. The Government also had preferred an appeal ( LAA No.447/2003) against the award of the Reference Court. The above appeal was dismissed by this court on 8/6/2009. This court could not at that time decide the present appeal, as the appellant sought time for production of documents which will show that the 15 cents of land in Sy.No.1821/2/1 Nedumangad village, for which the appellant was not paid compensation despite possession being taken from him, was not maintained as a road by the Nedumangad Municipality. 2. Having heard both sides, we find that the only issue which seriously arises for decision in this appeal is whether the appellant is eligible for payment of compensation in respect of 15 cents of land in Sy.No.1828/2/1 of Nedumangad village which was also has taken over from the possession of the appellant. The Land Acquisition Officer did not award any compensation to the appellant for the above 15 cents for the reason that the above portion was lying as a road and that the road stands LAA NO.661/2005 3 vested in the Nedumangad municipality. A reading of the claim statement submitted by the appellant before the Land Acquisition Officer will show that the appellant had raised a claim that she is entitled for payment of compensation in respect of the above extent of 15 cents also. She has specifically contended that the total extent of property, which was taken over from her possession, includes the above extent of 15 cents also. A perusal of the mahazar will also show that 15 cents of land in Sy. No. 1828/2/1/ was also taken over from the possession of the appellant along with the other portions in respect of which an award is passed and compensation is given. 3. Sri.Aloysius Thomas learned senior Government Pleader placing reliance on the judgment of the Supreme Court in **Narayana Pillay Daivasen v. The State of Kerala (AIR 1971 Supreme Court 2287** ), submitted that an owner/ claimant, who in his application for reference does not raise an issue about the area compulsorily acquired, cannot agitate the issue of area before the Reference Court . The learned senior Government Pleader drew our attention to paragraph 6 of the above judgment. The learned Government Pleader conceded that the LAA NO.661/2005 4 appellant had raised such a claim before the Land Acquisition Officer as well as before the Reference Court . But, according to him, as the appellant had not raised claim through the Reference Application under Section 18(1) and (2) of the Act, the court was not authorised to adjudicate on the claim regarding extent. 4. Section 18 of the L.A.Act reads as follows; “18. Reference to Court:- (1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. (2). The application shall state the grounds on which objection to the award is taken: Provided that every such application shall be made ,- (a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award ; (b) in other cases within six weeks of the receipt of the notice from the Collector under Section 12, sub-section (2), or within six months from the date of the Collector's award, whichever period shall first expire.” LAA NO.661/2005 5 5. A reading of Section 18(2) quoted above give sufficient indication regarding the necessity for the applicant to raise the ground on which he is taking objection to the award passed by the Land Acquisition Officer. In other words, unless an objection is taken in the Reference application regarding the extent acquired from the possession of the claimant, the Reference Court is not authorise to adjudicate the issue of extent. This is what their Lordship of the Supreme Court held at paragraph 6 in Narayana Pillay v. State of Kerala (cited supra). “The only other question which has been sought to be pressed before us relates to the extent of the area which was acquired. Since in the application for reference under S.18 of the Act it was accepted that the area was 4 Acres 15 Cents, we are unable to see how it is open to the appellant to agitate that matter. “ 6. Facts which obtain in the present case are different. The appellant did not accept the extent actually acquired by him either in the claim petition filed before the Land Acquisition Officer or in the claim statement filed before the Reference Court. The only question is whether the appellant accepted the extent LAA NO.661/2005 6 actually acquired by him in the reference which he filed on receiving notice of the award. Translated to English this was what the appellant states in paragraph 1 of the Reference Application. “ I have received award notice dated 3/6/1993 regarding the acquisition of land belonging to me 15 cents in R.S. No.1828/2/1/ of Nedgumangad village and Taluk, 1 Acre and 7 cents in R.S.1828/2/2 of the same village and Taluk, (Thus total 1 Acre and 22 cents) and 59 and one half cents in R.S. No. 1684/1/2 of the same village for the purpose of E.E.C. market at Nedgumangad. “ (underlining supplied ). 7. In paragraph 2 of the Reference Application, the appellant raised objection regarding the compensation fixed by the Land Acquisition Officer for the lands as well as the building which existed on the land. 8. According to Sri.G.Ram Mohan, learned counsel for the appellant in as much as the appellant had in the first paragraph of the Reference application raised a contention that a total extent of 1 Acre and 22 cents inclusive of 15 cents in R.S. No.1828/2/1 was acquired from her possession and the appellant understood the award passed by the Land acquisition officer as an award passed in respect of the entire extent of 1 LAA NO.661/2005 7 Acre 22 cents , it has to be found that in the reference application also the appellant had raised an objection regarding the non payment of compensation for 15 cents which is presently in dispute. 9. The learned senior Government Pleader Sri.Aloysius Thomas would argue that the reference application refers to the award which has been passed only in respect of 1 Acre 7 cents. Since the Reference Application has been made with reference to the award, the same cannot be construed as made in respect of 15 cents which is not covered by the award . 10. We have given our anxious consideration to the rival submissions addressed at the Bar. We are of the view that notwithstanding the statutory provision under Section 18(1) and 18(2) and the judgment of the Apex Court in Narayana Pillay v. State of Kerala (cited supra), in the present case, there is justification for taking the view that the appellant had raised objection regarding the extent actually taken over from her possession at all the three stages of the proceedings; the first stage of claim statement before the Land Acquisition Officer, the second stage of reference application under Section 18 (1) and LAA NO.661/2005 8 the 3[rd] stage of claim statement before the Reference Court . When land belonging to an owner is taken over by the Government in exercise of the Government's powers of eminent domain against the wishes of the owner, the interpretation by the Court on the provision of the statute which is expropriatory in nature has to be made in a manner which is more beneficial to the citizen whose land has been taken over whenever two interpretations are possible. In that view of the matter, we hold that in the present case the appellant had raised objections regarding non payment of compensation in respect of 15 cents. 11. The result of the above discussion is that the appellant is awarded compensation for 15 cents of land for which the compensation was not paid for the reason that the same is lying as a road. As there is material to hold that the property was lying as a pathway open to the general public also, we are not inclined to award full rate that was awarded to the other claimants whose properties are included in B category, We deduct 20% from the rate awarded the other portions of the appellant's property, included in B category. LAA NO.661/2005 9 12. It is needless to mention that the appellant will be entitled for all statutory benefits admissible under Section 23 (2), 23 (1A) and Section 28 of the Act on the enhanced compensation. Parties are directed to suffer their respective costs. However, during the period of 789 days by which the filing of the appeal was delayed, interest under Section 28 of the Act will not admissible on the enhanced compensation. The appellant will be issued decree copy only after ensuring that he has remitted balance court fee payable on the appeal memorandum. Sd/- ## **PIUS C.KURIAKOSE, JUDGE** **Sd/-** **A.V.RAMAKRISHNA PILLAI, JUDGE.** dpk /True copy/ P.A to Judge. LAA NO.661/2005 10