Skaria Abraham v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 29TH JULY 2008 / 7TH SRAVANA 1930 LA.App..No. 155 of 2006() ------------------------LAR.81/1993 of SUB COURT, MUVATTUPUZHA .................... APPELLANT: CLAIMANT ------------------- SKARIA ABRAHAM, VATHAKKATTEL HOUSE, MEMMUKHOM, MANEED VILLAGE. BY ADV. SMT.SANTHAMMA ISSAC SRI.N.C.THOMAS SRI.CHERIAN THOMAS RESPONDENTS: ------------- STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, ERNAKULAM, KOCHI-682 030. BY GOVERNMENT PLEADER SRI.BASANT BALAJI THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 29/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## I.A.NO.358/06 IN L.A.A.NO.155 OF 2006 ## DISMISSED Sd/-, PIUS.C.KURIAKOSE, JUDGE 29-07-2008 ## **PIUS.C.KURIAKOSE, J.** - - - - - - - - - - - - - - - - - - - - - ## **L.A.A.No.155 OF 2006** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29[th] day of July, 2008 ## **JUDGMENT** The claimant has come up in appeal against the award of the reference court in a reference under Section 28A(3) of the Land Acquisition Act. As per the award the extent of land acquired was only 3.33 Ares. The awarding officer granted land value at the rate of Rs. 1500/- per Are. The appellant had not sought for a reference under Section 18. He however applied under Section 28A seeking re-determination of the compensation on the basis of the judgment of the court in L.A.R. No. 117/1988 which was also a case pursuant to the very same section 4(1) notification and for the very same purpose. The land acquisition officer entertained the application under Section 28A and re-fixed the value of the acquired properties at the rate of Rs. 5800/- per Are on the basis of the award in L.A.R. No. 117/88. Since the method of valuation on the basis of capitalisation from income was found to be more beneficial to the appellant, the appellant was not given any enhanced compensation on account of the LAA.No. 155/06 2 re-determined land value since the appellant had received much more than the amount which would have been paid even if the land value had been taken as Rs. 5800/- per Are. Before the Land acquisition officer in the enquiry under Section 28A, the appellant took up the contention that the correct extent of the property which had been acquired from his possession was 4.75 Ares and not 3.33 Ares. The appellant therefore claimed land value for 1.42 Ares of land also. That claim was negatived by the land acquisition officer. At the appellant's instance a reference under Section 28A (3) was made. The reference was answered in negative by the reference court. It was noticed by the reference court that the appellant had no claim either before the land acquisition officer in the application under Section 28A or before the court in his claim statement that he had been deprived of an additional extent of 1.42 Ares. Against the judgment of the reference court, the appellant preferred L.A.A. No. 365/2000 and this court remanded the case to the reference court permitting both sides to adduce evidence for substantiating the appellant's plea that he had been dis-possessed of an additional extent of 1.42 Ares. LAA.No. 155/06 3 2. Paragraph 5 is the operative portion of the remand order passed by this court and the same is extracted below. “ L.A.R. No. 81 of 1993 is remanded back to the court below for further trial to the limited extent of enabling the appellant to adduce additional evidence regarding the actual extent of property acquired from him in L.A.R. No. 81 of 1993. It will be open to the appellant to adduce further evidence by examining himself once again and also by examining the village officer or any other person competent to give relevant evidence concerning the extent of property. Needless to say that the respondent-State will have the right to challenge such evidence and to adduce contra evidence as well.” 3. Pursuant to the order of remand, the appellant would examine PWs 3 and 4 and on the side of the respondents RW1 was examined. The learned Subordinate Judge on appreciation of the additional evidence adduced and re-appreciation of evidence already on record would hold that the claimant had failed to establish that he has been dispossessed of 1.42 Ares of properties over which he was having title. Non-production of title document was taken note of by LAA.No. 155/06 4 the reference court. 4. In this appeal, the appellant impugns the judgment of the reference court on various grounds and I have heard the submissions of Smt.Santhamma Issac, learned counsel for the appellant and those of Sri.Basant Balaji, learned Government Pleader. Assailing the judgment of the reference court, Smt.Santhamma Issac would read over to me Ext.C1 Commissioner's report and testimonies of AWs 2 and 3. She would also read over to me the testimonies of RW1. She would highlight that RW1 has stated that the area which is shown as 'Kanal Bund' in Ext.C1 plan takes in the property which was acquired from the appellant. 5. The learned Government Pleader would resist the submissions of the learned counsel for the appellant. Drawing my attention to the first judgment of the reference court ( the judgment set aside by this court in L.A.A.No. 365/2000), the learned Government Pleader submitted that the appellant had not claimed either before the land acquisition officer or before the court that an additional extent of 1.42 Ares belonging to him had been acquired without paying him any LAA.No. 155/06 5 compensation. 6. Learned counsel for the appellant made available for my perusal the various items of evidence and I have gone through the evidence. Having considered the arguments and having re-appreciated the evidence, I am of the view that the learned Subordinate Judge cannot be faulted for having concluded that the appellant had failed to establish by producing documents that he was having title over the additional extent of 1.42 Ares which according to RW1 forms part of the Kanal Bund. It may be true that the evidence indicates that so much extent of land was taken over from the physical possession of the appellant. But the question is whether the appellant was entitled to compensation for that much extent also as owner of the land. As for that question, the evidence fell short of holding that the appellant was having title. Smt. Santhamma Issac requested for a further opportunity to produce the title document. I am not inclined to grant that opportunity at this distance of time. Therefore, the appeal is liable to fail. 7. More over I am at a loss to understand how the dispute as LAA.No. 155/06 6 the one presently raised could be settled in an application under section 28A which is concerned with re-determination of the amount of compensation on the basis of a relevant court award. the award of the court. Section 28A is obviously a provision which has been enacted with the objective of bringing forth a parity in the land values which are awarded to persons whose properties have been acquired pursuant to the very same section 4(1) notification irrespective of whether they sought for a reference under Section 18. Essentially the exercise of re-determination is to be done on the basis of the court award relied on. In the instant case, it was the judgment of the reference court in L.A.R. No. 117/1988 which was relied on. The court judgment relied on cannot be of any assistance or relevance in resolving the present controversy as to whether the appellant was deprived of properties not covered by the award. 8. I have heard the counsel for the appellant and the learned Government Pleader on this specific question. My attention was drawn by the learned counsel for the appellant to section 28A (3) and it was argued that the provisions of section 18 to 28 shall also apply to all LAA.No. 155/06 7 references under Section 28A (3) as are applied to references under Section 18. My attention was drawn by the learned counsel to the clause _fourthly_ in Section 23 and it was argued that under that clause questions like the present one can be entertained and adjudicated. Learned counsel places reliance on the judgment of this court in **Krishnamma v. Special Tahsildar** (2000(2)702) and the judgment of the Full Bench in **Peter John v. Commissioner of Income Tax** ( 1985 KLT 687 (F.B.). 9. I asked the learned Government Pleader to place before me judicial authorities, if available, which may support the proposition advanced by the counsel for the appellant. Learned Government Pleader would submit that he was not able to come across any direct authority. He would cite however the judgment of this court in **Somasundaran v. Spl. Tahsildar, L.A.** (2002(2)KLT 569).Learned Government Pleader drew my attention to my own judgment in **Kamalakshmi Amma v. Special Tahsildar** ( 2004(2)KLT 716) and it was argued that this court has very clearly indicated in that decision that in proceedings under section 28A, the court is concerned only with LAA.No. 155/06 8 the redetermination of compensation on account of the land value for the property covered by the land acquisition officer's award and not with other things such as value of improvements. 10. Sub-section (1) of section 28A reads as follows: “28A(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: 11. Sub-section (2) of section 28A provides that the Collector shall, after holding enquiry on application received under sub-section (2) of section 28A make an award determining the amount of compensation payable to the applicant and sub-section (3) of section 28A provides that persons who have not accepted the award passed by the Collector under sub-section (2) of section 28A can have the matter LAA.No. 155/06 9 referred to the court for determination 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. A careful reading of section 28A itself is sufficient to understand that the enquiry which is contemplated under section 28A is an enquiry into the question whether the applicant is eligible for payment of “excess of the amount awarded by the Collector under section 11” as was allowed by the court in the court award relied on by the applicant. 12. The argument of the learned counsel for the appellant that a reference under section 28A(3) is for all practical purposes a reference under section 18 itself and therefore since in a reference under section 18 the question of the correct extent acquired from the claimant can be gone into cannot receive acceptance. Section 18(1) will now be quoted “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 LAA.No. 155/06 10 of the compensation among the persons interested.” Thus Section 18 (1) expressly provides that a reference pursuant to an application under section 18(1) can relate not only to the question of correct compensation but also specifically to objection regarding the measurement and extent of the land, the entitlement of the awardee for the amount and also regarding the manner in which the compensation amount should be apportioned between the awardees. But as already noticed the scope of an enquiry under section 28A by the land acquisition officer is confined to the entitlement of the applicant to have excess compensation paid to him on the basis of the award passed by the reference court in favour of another person whose property was also acquired pursuant to the very same notification under section 4(1). The scope of reference under section 28A(3) cannot go completely outside the scope of the original proceeding under section 28A and this is why the Legislature has cautiously mentioned that in references under section 28A(3) provisions under sections 18 to 28 shall apply only so far as may be to a reference under section 18. 13. Section 19 of the Land Acquisition Act deals with the LAA.No. 155/06 11 matters to be contained in references drawn up by the land acquisition collector for information of the court and some of the clauses in that section will naturally have application in a reference under section 28A (3). Section 20 deals with service of notice by court and that section will also have application to a considerable extent. Section 21 in the context of a reference under section 28A(3) will have to be understood as confining the scope of the enquiry to the claimant's entitlement for the same rate of compensation as was awarded by the court in the court award relied on. Section 22 which provides that the proceedings shall be in open court and the parties can appear through pleaders will certainly apply in the case of references under section 28A(3). Section 23 is the section which provides for the matters to be considered by the reference court while determining compensation for the acquired property. It is provided that the six matters specifically enumerated thereon shall be taken into consideration by the court while determining compensation. The first and the all important matter to be taken into consideration is the market value of the land on the date of publication of the notification under sub-section (1) of section 4 and LAA.No. 155/06 12 the court will arrive at a finding regarding this matter relying on the court award produced along with the application under section 28A once it is seen that the court award is a relevant one for the purposes of section 28A and that the application has been filed within the prescribed time limit. The second, third, fourth, fifth and sixth aspects directed to be taken into consideration under section 23 cannot have application in a proceeding under section 28A since the court award relied on cannot normally be of any assistance to the court in the case of the applicant where the facts situation will be different. Section 23 (1-A) and section 23(2) will certainly apply to proceedings under section 28A(3) also. 14. Smt.Santhamma Issac's argument before me was that the matter mentioned “fourthly” under section 23(1) will encompass question as to whether other property of the claimant had been actually acquired and whether he should be paid compensation for that property. I cannot agree. The 4[th] aspect mentioned under subsection (1) of section 23 only statutorily recognises the claimant's entitlement for compensation on the ground of the acquisition injuriously affecting LAA.No. 155/06 13 the properties of the claimant which are not acquired. Compensation for injurious affection as is well known, is a compensation to be given with respect to the unacquired property and not with respect to the property acquired. 15. Section 24 deals with the matters to be neglected in determining compensation and that section to a certain extent will have application in proceedings under section 28A(3). Section 25 provides that the amount of compensation to be awarded by the court shall not be lower than the amount awarded by the collector and that section will certainly have application and can even be read as meaning also that the compensation to be awarded by the court shall not be less than the amount awarded by the collector under section 28A. Section 26 deals with form of awards and though section 26(2) will apply completely section 26(1) can apply only to a limited extent. Section 27 dealing with costs shall apply and section 28 also shall apply. 16. Smt.Santhamma Issac would place reliance on the judgment of a Full Bench of this court in Peter John v. Commr. of Incometax, 1985 KLT 687 (F.B). It will be noticed immediately that LAA.No. 155/06 14 the judgment of the Full Bench cannot be of any assistance in resolving the question whether in a reference under section 28A(3) the reference court is competent to decide disputes as to the extent actually acquired from the claimant. The Full Bench was deciding the question of liability of the amounts awarded by the Land Acquisition Court and the land acquisition officer towards interest under sections 28 and 34 to assessment for income-tax. Incidentally, the Full Bench observed that the right to receive compensation and interest on the compensation accrues to the owner of the property on the date he is dispossessed from the property. Smt.Santhamma Issac placed reliance also on the judgment of P.R.Raman, J. in Somasundaran v.Sp.Tahsildar, L.A., 2002(2) KLT 569. That decision also cannot be of any assistance in resolving the question raised. What has been held in Somasundaran's case is only that in a reference under section 28A(3) initiated at the instance of a claimant whose application under section 28A was dismissed on merits by the collector, the court has every power to reject the application on the ground of limitation if such a ground is raised by the Government and found sustainable. That decision cannot LAA.No. 155/06 15 be an authority for the proposition that in a reference under section 28A(3) the court is bound to enquire into matters outside the scope of the original proceeding under section 28A. Result of the forgoing discussion is that the appeal fails not only on merits but also on the ground that the appellant's claim for compensation for property not covered by the award could not be entertained in a proceeding under section 28A and for that matter in a reference under section 28A(3) also. The appeal is dismissed but without any order as to costs. **PIUS.C.KURIAKOSE JUDGE** sv. LAA.No. 155/06 16