Pallipurath Kunhikkoran v. District Collector, Kannur & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE THE CHIEF JUSTICE MR.ASHOK BHUSHAN & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **TUESDAY, THE 9TH DAY OF FEBRUARY 2016/20TH MAGHA, 1937** **WA.No. 1659 of 2013 () IN WP(C).15387/2013 -------------------------------------------AGAINST THE JUDGMENT IN WP(C)No.15387 OF 2013 DATED 18.6.2013 ----------------** **APPELLANT(S)/PETITIONER IN THE WRIT PETITION :-** **-------------------------------------------------** **PALLIPURATH KUNHIKORAN S/O.KUNHATHI, CHALAKKODE P.O., TALIPARAMBA TALUK KANNUR DISTRICT.** **BY ADVS.SRI.K.M.AUGUSTINE SRI.E.HARIDAS** **RESPONDENT(S)/RESPONDENTS IN THE WRIT PETITION :-** **---------------------------------------------------** ## **1. THE DISTRICT COLLECTOR, KANNUR, PIN-670 002.** **2. THE SPECIAL TAHSILDAR (LAND ACQUISITION), EZHIMALA NAVAL ACADEMY, PAYYANNUR, PIN-670 301.** ## **3. THE SPECIAL TAHSILDAR,** **(L.A. GENERAL), THALASSERY, KANNUR PIN-670 101.** **BY SR.GOVERNMENT PLEADER SRI.P.I.DAVIS** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09-022016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **jvt** ## **WA.NO.1659 OF 2013** ## **APPENDIX** ## **APPELLANT'S EXHIBITS** **:-** **ANNEXURE A1 :- CERTIFIED COPY OF THE JUDGMENT DATED 18.6.2013 IN WP(C)No.15387 OF 2013.** **RESPONDENT'S EXHIBITS :- NIL.** **//TRUE COPY//** **P.A. TO JUDGE** ## **'CR'** ## **ASHOK BHUSHAN, C.J & A.M. SHAFFIQUE, J.** **-------------------------------------W.A. No.1659 of 2013 ---------------------------------------Dated this the 9[th] day of February 2016** ## **J U D G M E N T** ## **Ashok Bhushan, CJ.** This writ appeal has been filed against the judgment dated 18[th] June, 2013 in W.P(C) No.15387 of 2013, by which, the writ petition filed by the petitioner has been dismissed as barred by time. 2. Brief facts, which gave rise to the writ appeal are :- the petitioner's land was acquired by notification dated 22.2.1983 issued under Section 4(1) of the Kerala Land Acquisition Act. Though the compensation awarded to the appellant was very meagre, he could not initiate any proceedings under Section 18 for enhancement of compensation. An application under Section 28A was filed by the petitioner on the basis of L.A.R No.98/1992 which was rejected by order dated 19[th] July, 2008 (Ext.P1). The petitioner, thereafter, made an application (Ext.P5) for redetermination of compensation on the basis of L.A.R No.222 of 2001 . The said application was rejected by Ext.P6 order dated 3.2.2009. The petitioner, again made an application, Ext.P7, for making reference under Sec.28A(3), which too, was rejected by W.A. No.1659 of 2013 -: 2 :- Ext.P8 dated 10.8.2009. The petitioner, aggrieved by the aforesaid orders, filed the writ petition seeking for the following reliefs :- - “i) Issue a writ of certiorari or such other appropriate order or direction calling for the records and proceedings leading upto the issuance of Exts.P1, P6 orders and P8 notice and quash Ext.P8 with a declaration that the petitioner is entitled to get the benefits on the basis of 2[nd] application u/s 28A of Land Acquisition Act even though the 1[st] application is time barred one. - ii) Alternatively issue a writ of mandamus or such other writ order or direction commanding the respondents to refer Ext.P7 application filed u/s 28A(3) of the Land Acquisition Act to the Sub Court, Payyannur for adjudication along with Ext.P5 application u/s 28A of Land Acquisition Act.” 3. Learned counsel for the petitioner submits that in so far as the rejection of the first application under Sec.28A by Ext.P1 order, the petitioner does not propose to challenge the said order due to the reason that he had filed another application, Ext.P5, on the basis of another LAR No.222/2001. It is submitted that the earlier application having been rejected, which was based on another LAR is not a bar for filing another application under Sec.28A on the basis of another award. He submits that each and every award gives cause of action to the petitioner for filing an application under Sec.28A. Hence, the petitioner intended to prosecute Ext.P5 application. He further submitted that the W.A. No.1659 of 2013 -: 3 :- rejection of Ext.P5 application by the Special Tahsildar (LA) by Ext.P6 order dated 3.2.2009 was only on the ground that earlier application has been rejected. Learned counsel for the petitioner further submitted that the notice, Ext.P8, by which, the application under Sec.28A(3) was rejected was also erroneous since the only reason for rejection is that duplicate application was erroneous. Learned counsel for the appellant has relied upon the judgment of the Apex Court in **Koyyodan Cheriya Kannan & Ors.** v. **District Collector, Kannur and Ors.** [SLP (C) No.34444 of 2013] in support of his submission. It is relevant to note that the case which sent up to the Apex Court arose from the same notification under Sec.4(1), under which, the petitioner's land was acquired. 4. We have considered the submissions made by the learned counsel for the parties and perused the records. 5. The submission of the learned counsel for the appellant is that rejection of the subsequent application filed under Sec.28A on the ground of the earlier application rejected, is erroneous. It is clear from the order passed on the first application, Ext.P1, that the said application was based on the award in LAR No.98/1992, whereas, the subsequent application, which was submitted on the basis of another Land Acquisition Reference, LAR No.222/2001. A W.A. No.1659 of 2013 -: 4 :- copy of the second application has been produced as Ext.P5, which clearly indicated the said number. The rejection order, Ext.P6 is to the following effect :- “Ref: D.Dis. C.2300/05. Proceedings of the Special Tahsildar (LA) Ezhimala Naval Academy, Payyannur, dt.3-2-2009. (Present: Sri. K.T.Anilkumar) ... Sub:- L.A.Ezhimala Naval Academy--application for redetermination of compensation u/s28A of L.A.Act--rejected--orders issued. Ref:- Appln. from Sri.Palliprath Kunhikkoran dt. 20-4-05. ... Sri. Palliprath Kunhikkoran had filed an application u/s 28A of L.A.Act for redetermination of compensation for an extent of 3.70 acres and 34 cents of land in R.S.No.306 and 307 respectively of Ramanthali village basing the judgment in LAR.222/01 of Sub Court, Payyannur. The applicant had already been filed an application for the same purpose on 7-6-95 and which was rejected as per the proceedings of Special Tahsildar (LA) Payyannur ref.1617/05 dt. 22-7-08. Hence, this application is not entertainable. In this circumstances, the application filed by Sri. Palliprath Kunhikkoran dt. 20-4-05 is rejected as duplicate. **==> picture [159 x 25] intentionally omitted <==** 6. The Special Land Acquisition Officer did not advert to the fact that the 2[nd] application was based on different LAR. It has been laid down by the Apex Court in **Union of India** v. W.A. No.1659 of 2013 -: 5 :- **Smt.Pradeep Kumari** [(1995) 2 SCC 736] that each award gives separate cause of action and the land owner is entitled to file an application within three months under Sec.28A on the basis of any award and the 2[nd] application filed by the petitioner, which was based on different award was fully maintainable and the same ought not to have rejected by the Special Land Acquisition Officer. It is further submitted that the first application was rejected only on the ground of limitation and was not considered on merit. Hence, the first application cannot be said to be any valid application so as to debar the petitioner from filing another application. It is true that the Apex Court in **Union of India's case** (supra) has laid down the conditions under which an application under Sec.28A can be entertained. It is useful to quote the conditions laid down by the Apex Court in the said case, which are to the following effect :- - “A person would be able to seek redetermination of the amount of compensation payable to him provided the following conditions are satisfied : - (i) An award has been made by the court under Part III after the coming into force of S.28-A; - (ii) By the said award the amount of compensation in excess of the amount awarded by the Collector under Section 11 has been allowed to the applicant in that reference; ## W.A. No.1659 of 2013 -: 6 :- - (iii) The person moving the application under S.28-A is interested in other land covered by the same notification under S.4(1) to which the said award relates; - (iv) The person moving the application did not make an application to the Collector under S.18; - (v) The application is moved within three months from the date of the award on the basis of which the redetermination of amount of compensation is sought; and - (vi) Only one application can be moved under S.28-A for redetermination of compensation by an applicant.” Since the first application was rejected by Ext.P1 on the ground of limitation, it will not be treated to be a decision on merit so as to debar the petitioner from filing another application on the basis of another award. ## 7. The Division Bench of this Court in paragraph 19 of the judgment in **District Collector** v. **Muhammed Kunhi** [2012 (4) KLT 360] has made the following observation :- “ **19.** So far as not preferring an application it means making an effective application. It does not include an application for reference being dismissed on the ground of limitation, because there is no application fructifying into any reference. In such circumstances, owner can maintain application under S.28A of the act as long as other conditions are fulfilled. A person who gets benefit of higher compensation under S.28A(1) of the Act can ## W.A. No.1659 of 2013 -: 7 :- make an application to the Collector under S.28A(3) for making a reference to the court as defined in S.3(d) of the Act and this right cannot be denied.” The rejection of the application of the petitioner for making a reference under Sec.28A(3) due to the above reason was also erroneous. The learned Single Judge without entering into the merits of the case, dismissed the writ petition on the ground that it is barred by limitation. 8. The provision of Sec.28A was inserted in the Land Acquisition Act by Act 68 of 1984 to extend the benefit to those land owners who could not make any reference under Sec.18 due to them being illiterate or there being any financial constraints. Thus, Sec.28A is a beneficial provision, which has been incorporated to extend the benefit to the above said land owners. The Apex Court in **Koyyodan Cheriya Kannan & Ors.'s case** (supra) had occasion to consider a case arising out of proceedings under Secs.28A and 28A(3) and dismissal of the writ petition as barred by laches. 9. The judgment of the Apex Court which has been relied upon by the learned counsel for the appellant in **Koyyodan Cheriya Kannan & Ors.'s case** (supra) was also a case where the rejection of application under Section 28A(3) was on the ground W.A. No.1659 of 2013 -: 8 :- that it is not in Form 22A. The writ petition in the aforesaid case was rejected on the ground of delay. The facts of the case has been noticed by the Supreme Court, which are to the following effect :- “The learned counsel appearing on behalf of the respondents, Ms. Liz Mathew, justified the impugned judgment and order, inter alia, by contending that the applications filed by the appellants were not only not in the prescribed form Rule 22(A) but also the writ petitions were filed belatedly before the High Court and therefore, the learned Single Judge has rightly affirmed the rejection of the claim made by the appellants under Section 28(A)(3) by the Land Acquisition Collector and the order of the learned Single Judge is correctly not interfered with by the learned Division Bench of the Kerala High Court by passing the impugned common Judgment and order by dismissing the appeal by assigning valid reasons and therefore the same need not be interfered with by this Court.” 10. The Apex Court was considering the appeal against the judgment of the High Court, where the High Court refused to exercise the discretion under Article 226 on the ground of laches. The Apex Court, while allowing the appeal, held that in the facts of the present case, the High Court committed error in rejecting the W.A. No.1659 of 2013 ## -: 9 :- ## writ petition on the ground of delay. Following was observed by the Apex Court in paragraph (3) of the aforesaid case :- “We have heard Mr. Huzefa Ahmadi, learned senior counsel appearing on behalf of the appellants and Ms. Liz Mathew, learned counsel on behalf of the respondents. We are required to examine this matter keeping in view the constitutional and fundamental rights conferred upon the appellant/land losers by the Constitution of India and also the object and the intentment of the provision of Section 28(A)(3) of the Land Acquisition Act of 1894 giving statutory right of claiming compensation on parity as that of similarly placed. The land losers have been solely depending upon the agricultural occupation to eke out their family members livelihood. We have considered the rights of the parties keeping in view the constitutional and fundamental rights of the appellants and examined the correctness of the decision taken by both the Land Acquisition Collector and the constitutional court viz., the High Court of Kerala. The rejection of their applications filed under Section 28(A)(3) of the Land Acquisition Act of 1894 by the Land Acquisition Collector for the reason that the appellants have not filed claim petitions in the Form 22(A), which is prescribed under Rule 16(A) of the Kerala Land Acquisition Rules, which approach of them is highly technical. Time and again, this Court in number of cases has laid down the law that when a litigant approaches a court of law or constitutional court, they are required to examine the substance of the matter ## W.A. No.1659 of 2013 ## -: 10 :- having regard to the constitutional and fundamental rights of the constitution referred upon litigants in the matter.” 11. The above judgment of the Apex Court is fully supporting the submission raised by the learned counsel for the appellant on both counts. The Apex Court has observed that in such matters, the Court had to examine the substance of the matter and on technical grounds, the writ petition ought not to have been rejected. Similar order passed by the Special Tahsildar (LA) rejecting the application under Section 28A(3) was disapproved by the Apex Court in the aforesaid case. The Apex Court had remanded the matter to the Land Acquisition Collector. Following directions were issued by the Apex Court :- “For the foregoing reasons, we set aside the impugned judgment and order passed in the writ appeals and allow the writ petitions. We remand the matter to the Land Acquisition Collector to examine the claim afresh made by the land losers under Section 28(A)(3) of the Land Acquisition Act with reference to the LAR No.120/87 passed by the reference court. The appellants are at liberty to furnish other particular as prescribed under Form 22A of the Rules as may be necessary to the Land Acquisition Collector within two weeks from the date of receipt of the copy of this order. The Land Acquisition Collector is required to examine the claim of the appellant-land losers within six weeks ## W.A. No.1659 of 2013 ## -: 11 :- thereafter with reference to the market value determined in the award passed in favour of the other land owners of their land which was acquired under the notifications along with land of the land losers herein strictly as provided under Section 28(A)(3) of the Act. After careful examination, if the Land Acquisition Collector finds the appellant-land losers entitled to the market value determined in the award passed of the similar land owners, the said benefit shall be extended to the appellants also along with the statutory benefits provided under Section 34 of the Land Acquisition Act. If the Land Acquisition Collector rejects their claim, the appellants/land losers are entitled to get the same referred to the Jurisdictional Reference Court for adjudication of the market value of their land on par with the awardee of the Award already issued in favour of other land owners.” 12. In view of the foregoing discussions, we are of the view that present is a case, which ought not to have been dismissed on the ground of laches by the learned Single Judge. Further to the above, the rejection of the applications under Secs.28A and 28A(3) by the Special Tahsildar (LA) was erroneous and cannot be sustained. In the result, the appeal is allowed. The judgment of the learned Single Judge dated 18.6.2013 in W.P.(C) No.15387 of 20132 is set aside. The orders, Exts.P6 and P8, are also quashed. W.A. No.1659 of 2013 **==> picture [37 x 10] intentionally omitted <==** The Special Tahsildar (LA) is directed to consider the application, Ext.P5, afresh, in accordance with law at an early date. The appellant/petitioner shall submit a copy of this judgment before the 3[rd] respondent, who shall take appropriate steps for an early disposal of the matter. **Sd/-** **ASHOK BHUSHAN CHIEF JUSTICE** **Sd/A.M. SHAFFIQUE J UDGE** Jvt/12.2.2016.