Santha Thadathil Vilayil v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN WEDNESDAY, THE 12TH DAY OF JULY 2017/21ST ASHADHA, 1939 LA.App..No. 478 of 2015 () --------------------------- AGAINST THE JUDGMENT IN LAR 89/2011 of PRINCIPAL SUB COURT,KOLLAM DATED 30-03-2015 APPELLANT(S)/CLAIMANT: --------------------- SANTHA THADATHIL VILAYIL, NADUVILA MURI, SOORANADU NORTH, KUNNATHOOR, NOW RESIDING AT PAINAGAM PLATHU VEEDU, KARUVATTA, HARIPAD. BY ADV. SRI.G.BHAGAVAT SINGH RESPONDENT(S)/RESPONDENT: ------------------------- STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, KOLLAM - 691 013. R1 BY ADV. SR GOVERNMENT PLEADER SMT.AMMINIKUTTY THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 12-06-2017, ALONG WITH LAA NO.653/15, THE COURT ON 12-07-2017 DELIVERED THE FOLLOWING: ## **A.M. SHAFFIQUE & ANU SIVARAMAN, JJ.** =========================== LAA Nos.478 & 653 of 2015 ================== Dated this, the 12[th] day of July, 2017 ## **J U D G M E N T** ## _**Shaffique, J.**_ These appeals are filed by the State of Kerala and the claimant in LAR No.89/2011 challenging the judgment dated 30/3/2015 by which enhanced compensation had been granted by the Reference Court in a reference under Section 28A(3) of the Land Acquisition Act, 1894 (hereinafter referred to as the “LA Act”). 2. The short facts arising in the case are as under:- An extent of 7.10 Ares of land belonging to the claimant was acquired pursuant to notification under Section 4(1) of the LA Act published on 27/11/1981. The Land Acquisition Officer (LAO) granted land value at `1,472/- per Are only for 1.89 Ares treating the balance 5.21 Ares as “permitted stand”. `12,151.24 was awarded as value of improvements adopting capitalisation. Initially LAA Nos.478 & 653/15 ## -:2:- the claimant did not object to the award. However, application came to be filed under Section 28A placing claim on the basis of LAR No.170/1994. The Collector passed a fresh award enhancing the land value in respect of 1.89 Ares at `5,500/- per Are. Claimant again objected to the award and sought reference under Section 28A(3) of the LA Act. Reference Court granted enhanced compensation at `5,791/- per Are. In respect of 5.21 Ares of land, it was observed that the Land Acquisition Officer had given value of improvements which was higher than the land value fixed by the Land Acquisition Officer and therefore, the claimant was not entitled for any additional compensation. 3. In the appeal filed by the State, the only ground raised is that there is duplication of interest while awarding compensation as seen from the calculation statement which forms part of the judgment. In the statement at columns 7 and 8, 9% simple interest was calculated on `763/- from 21/8/1982 to 20/8/1983 and 15% from 21/8/1983 to 30/3/2015. The same calculation is made in columns 9 and 10 on `2,518.4/-. It is argued that it is an apparent mistake which requires to be corrected. 4. Learned counsel for the claimant submitted that there was no justification on the part of the Reference Court to have LAA Nos.478 & 653/15 -:3:- denied compensation for 5.21 Ares of land. Further, it is contended that the claimant was having a larger extent of land and on account of acquisition, the land had been severed and therefore the claimant is entitled for 50% of the land value for the balance extent of 7.06 Ares of land for injurious affection on account of severance. 5. First we shall consider whether the Land Acquisition Officer was justified in not awarding any compensation in respect of 5.21 Ares of land. There is no dispute about the fact that claimant is the owner of the land which was acquired. The Land Acquisition Officer has awarded `12,151.24/- as value of improvements by capitalising the value of improvements. It is observed by the Reference Court that, since a higher value is given as value of improvements and the land value is much lower, there is justification in excluding an extent of 5.21 Ares as “permitted stand”. In respect of the other extent of 1.89 Ares, the Reference Court had fixed the land value at `5,791/- per Are. If the amount awarded by the Reference Court is taken into consideration, necessarily, the value of 5.21 Ares of land will be more than the value of improvements. Hence, there is no justification in not awarding value for 5.21 Ares of land, which has LAA Nos.478 & 653/15 -:4:- been acquired. Learned Government Pleader submits that land value was not given, since the said property was utilised as a road. But in so far as it is not a public road and it is within the property of the claimant, and his ownership continues, he is entitled for compensation. If there are improvements, a claimant is entitled for value of land as well as the value of improvements. In the case on hand, the value of improvements is not separately shown in the award and no evidence is available for the same. 6. It is settled law and as held by a Full Bench of this Court in _**Sarada K.V. v. Special Tahsildar**_ (2016 (2) KLT 120) that a claimant relying upon a judgment cannot claim land value more than what has been awarded in the judgment which is relied upon while seeking enhancement under Section 28A of LA Act. It is held as under:- _“In view of the above there cannot be any dispute that the claimant can amend his claim under Section 18. However the said proposition shall not be applicable with regard to proceedings under Section 28A since the purpose and object of Section 28A is different and the proceeding under Section 28A(1) is not one where the award of the court under Section 18 has to be given a go by and the Collector or the reference court is to embark on fresh enquiry for finding out the market value_ LAA Nos.478 & 653/15 ## -:5:- _of the land on its estimation. We have already noted above, the reasons based on which the claimant cannot be permitted to rely on any other award except the award which is the basis of the claim._ _27. We however are of the view that in a proceeding under Section 28A(3) claimant is not debarred from producing any evidence including other awards of the court to buttress his claim that he is entitled for enhancement of compensation to the extent which has been awarded by the court in the award which is basis of the claim. Thus other evidences including subsequent or earlier awards of the court may be relevant only for the limited purpose to examine as to whether the appellant is entitled for grant of the claim as raised in Section 28A(1) or not.”_ _“29. In view of the foregoing discussion, We answer the reference as follows:_ _(i) The view expressed by the Division Bench of this Court in State of Kerala v. Kumaran Nair (2001 (1) KLT 539) lays down the correct law which is approved. Divergent views expressed in Raghava Poduval v. Special Tahsildar (2004 (3) KLT 261) and Purushan v. State of Kerala (2005 (1) KLT 687) have to be disapproved. The said decisions are overruled. (ii) The Court deciding reference under Section 28A (3) cannot award compensation exceeding the amount awarded by the court on the basis of which application for redetermination under Section 28A_ LAA Nos.478 & 653/15 ## -:6:- ## _(1) has been made._ _(iii) Judgment of the Division Bench of this Court in State of Kerala v. Kumaran Nair (2001 (1) KLT 539) requires no reconsideration on the basis of the Apex Court judgment in Ambya Kalya Mhatre v. State of Maharashtra (2011 (4) KLT 1 (SC) = (2011) 9 SCC 325). “_ 7. In the said circumstances, we are of the view that the claimant is entitled for land value for 5.21 Ares, at `5,500/- per Are as awarded by the Collector. The land value is fixed at `5,500/- per Are, since in LAR No.170/1994, the land value fixed was `5,500/- Are and the Reference Court was not expected to increase the same. But, the amount paid as value of improvements on capitalization basis has to be deducted. 8. Next contention is with reference to the claim for severance or injurious affection. It is to be noted that this reference was made under Section 28A(3) of the LA Act. 9. Section 28A reads as under:- _“_ _**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_ LAA Nos.478 & 653/15 ## -:7:- _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 sub-section (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._ _(3) Any person who has not accepted the award under sub-section (2) may, by written application to the Collector, require 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.”_ 10. When an application is made under Section 28A, only enquiry made by the Collector is to find out whether the land LAA Nos.478 & 653/15 -:8:- value can be refixed on the basis of the judgment that is relied upon. It is trite that the amount awarded by the Collector shall not exceed the amount fixed in the referred judgment. Therefore, the scope of Section 28A is only for refixing the land value by which a second opportunity has been given to the land owners. Reference is made under Section 28A(3) only for the purpose of determining the land value. The words “determination of the Court” in Section 28A(3) is only with respect of redetermination as specified under Section 28A(1) by the Collector. The words “provisions of Sections 18 to 28 shall, so far as may be apply to such reference” do not indicate that all questions raised in a reference under Section 18 can be adjudicated by the Reference Court. Hence, there is no justification in contending that all other claims require adjudication in a reference under Section 28A. 11. The learned counsel for the appellant/claimant strenuously contends that Section 28A(3) gives an indication that the procedure to be adopted by the Court is on the basis of Sections 18 to 28 of the LA Act. In so far as Section 28A(1) is concerned, the enquiry to be conducted by the Collector is confined to the land value and nothing more. In such circumstances, in a reference under Section 28A(3), the Court is LAA Nos.478 & 653/15 -:9:- not expected to consider any claim other than a claim for land value based on the said award. 12. In the above circumstances, the claimant shall be entitled for a further compensation for 5.21 Ares at the rate of `5,500/- per Are, after deducting `12,151.24 being the value of improvements, i.e., `16,503.76 with all statutory benefits and interest. 13. In regard to the appeal filed by the State (LAA No.653/2015), it is evident from the award that 9% interest and 15% interest had already been granted on the balance amount payable and therefore the Court below was not justified in directing further interest to be paid on `2,518.4 as evident from columns 9 and 10 of the calculation statement. After deducting the said amount, the balance amount will come only to `4,454/-. Accordingly, these appeals are allowed and the decree shall stand modified as under:- (a) The judgment of the Court below is set aside in part and the claimant is entitled to recover the following amounts:- (i) `4,454/- with interest at the rate of 15% per annum from 30/3/2015 (date of decree) till realisation. (ii) `16,503.76 along with 12% additional market value LAA Nos.478 & 653/15 **==> picture [27 x 9] intentionally omitted <==** from 27/11/1981 to 21/8/1982 (268 days), 30% Solatium, 9% interest from 21/8/1982 to 20/8/1983 and thereafter @15% simple interest from 21/8/1983 till realisation. Sd/- **A.M. SHAFFIQUE, JUDGE** Sd/- **ANU SIVARAMAN, JUDGE** Rp //True Copy// P.S to Judge