Smt. Sushama A. w/o Late Mudhusoodanan v. District Collector, Kozhikode and Special Tahsildar (LA), NH.No.1, Kozhikode

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN** **MONDAY, THE 19TH JULY 2010 / 28TH ASHADHA 1932** **WP(C).No. 6998 of 2010(Y)** **--------------------------------------** **PETITIONER(S):** **------------------------** **SMT.SUSHAMA A. W/O.LATE MUDHUSOODANAN RESIDING AT KANNANCHERRY ESTATE. KANIYAMBETTA P.O., WAYANADU DIST.** **BY ADV. SRI.V.S.CHANDRASEKHARAN, SMT.LEKSHMI SWAMINATHAN, DR.VINCENT PANIKULANGARA.** **RESPONDENT(S):** **--------------------------** ## **1. THE DISTRICT COLLECTOR, KOZHIKODE,** **2. THE SPECIAL TAHSILDAR (LA) NH.NO.1, KOZHIKODE.** ## **R1 & R2 BY GOVT. PLEADER SMT.SMITHA SUKUMARAN.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C) NO. 6998/2010-Y** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE DEATH CERTIFICATE OF MR.MADHUSOODANAN NAIR, DATED 18/06/2005.** **EXT.P2: COPY OF THE FAMILY CERTIFICATE DATED 27/06/2005.** **EXT.P3: COPY OF THE COMMON JUDGMENT IN LAR.318/1996 DATED 29/10/1999.** **EXT.P4: COPY OF THE JUDGMENT IN LAA NO.1219/2007 DATED 03/01/2008.** **EXT.P5: COPY OF THE REJECTION ORDER ISSUED BY THE SPECIAL TAHSILDAR (LA), KOZHIKODE IN FAVOUR OF THE PETITIONER DATED 05/03/2009.** **EXT.P6: COPY OF THE JUDGMENT REPORTED IN 2004 (3) KLT 261.** **RESPONDENT'S EXHIBITS: NIL** **//TRUE COPY//** **P.S. TO JUDGE** **rs.** ## Thottathil B.Radhakrishnan & ## S.S.Satheesachandran, JJ. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.6998 of 2010-Y = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 19[th] day of July, 2010. Judgment “CR” ## Thottathil B.Radhakrishnan, J. 1.This writ petition comes up on a reference by a learned Single Judge raising the question is as to whether the ratio of Raghava Poduval v. Special Tahsildar, 2004 (3) KLT 261 sustains in the light of the judgment of the Apex Court in Babu Ram and others v. State of UP & another, (1995) 2 SCC 689 which was over-ruled in Union of India and another v. Pradeep Kumari and others, (1995) 2 SCC 736, only on the question of limitation. Reference is also made by the learned Single Judge to Somasundaran v. Spl. Tahsildar, L.A., 2002(2) KLT 569 and Ram Mehar WP6998/10 -: 2 :- ## v. Union of India, AIR 1987 Delhi 130. - 2.In the case in hand, the complaint of the petitioner is that the request of her late husband for re-determination of compensation under Section 28A(1) was rejected merely on the ground that the award of the Court relied on by him was one that related to garden land while the land acquired from the petitioner's predecessor was a piece of paddy field. - 3.The aforesaid, essentially, gives rise to a disputed question as to how the value of compensation has to be determined, if at all to be paid. It requires an adjudication by the competent statutory authority on the basis of material evidence, including a comparative evaluation of the different pieces of land. That adjudication is not one to be carried out in writ jurisdiction, ordinarily. - 4.In terms of Section 28A(1), the Collector has to pass an order on an application under that WP6998/10 -: 3 :- provision. If the claim is rejected on the basis of materials or on comparative evaluation of the materials placed, then the questions that would arise for determination at the instance of the person aggrieved by that decision would fall into the realm of appreciation of evidence. Section 28A (3) provides the claimant with the opportunity to request for a further reference to the civil court. The reference court will have to answer the dispute on the basis of evidence. This would again give rise to an appeal to this Court under Section 54. We indicate this because, we come across writ petitions being filed in relation to compensation matters under the Act, as if they would lie at the drop of the hat. Though this Court may step in to wipe out injustice or to render justice on a particular fact situation, this Court would loath exercise its visitorial jurisdiction when appellate remedies are provided in terms of the statutory provisions. The exercise of visitorial jurisdiction, which is essentially extra-ordinary, in terms of Article 226 is quite uncalled for when statutory remedies including appeals are provided. The exceptionally WP6998/10 -: 4 :- exceptional situations which cannot be remedied by such procedures alone would qualify as extraordinary. Failure to exercise jurisdiction or manifest illegality resulting in failure of justice may call for remedial writs being issued under Article 226. But, every error in the course of exercise of jurisdiction including an alleged illegality in admitting or appreciating evidence, ought not to trigger the issuance of discretionary writs and orders in jurisdiction under Article 226; more so, when alternate statutory remedies, including appellate, are available. The constitutional scheme does not permit the statutory remedies to be pushed off as not efficacious. Reminding ourselves of the limits of jurisdiction under Article 226 vis-a-vis the width of the first appellate jurisdiction under Section 54 and of the reference court following a reference either under Section 18 or 28A(3) of the Act, it needs to be laid down with sufficient emphasis that when matters can be taken up through competent statutory tracks, writ petitions under Article 226 are not to be entertained, having regard to the availability of WP6998/10 -: 5 :- the efficacious alternate statutory remedies. 5.As noticed by the learned Single Judge in the reference order, in Babu Ram, the Apex Court held that the amount of compensation to be determined under Section 28A of the Land Acquisition Act, 1894, hereinafter referred to as the "Act" is relatable to land "similarly situated, possessed of the same value of potentialities etc." In Pradeep Kumari, the Apex Court after referring to the Statement of Objects and Reasons for the introduction of Section 28A into the Act, pointed out that the said provision was intended to remove inequality in the payment of compensation for same or similar quality of land arising on account of inarticulate and poor people not being able to take advantage of the right of reference to the civil court under Section 18 of the Act. In Raghava Poduval, this Court held that the use of the word "redetermination" in Section 28A prompts the requirement to consider the materials and come to a proper conclusion as to whether the compensation already granted by the Collector is to be enhanced in exercise of power under Section 28A WP6998/10 -: 6 :- (1). Raghava Poduval was rendered in a land acquisition appeal under Section 54 and the quality of adjudication of that appeal would have led the Court to lay down law as it did, on the basis of the facts of that case. There is no algebraic straight jacket formula on the basis of which the comparative evaluation can be done. A survey of the plethora of precedents laid down by the Apex Court, this Court and different other High Courts would show that it is inadvisable to decide all cases for compensation on the same yardstick. Appreciation of evidence relating to comparable nature of properties and other attendant matters are to be considered on a case to case basis. We are not persuaded to think that there is any striking cleavage of judicial opinion between Raghava Poduval, Babu Ram, Pradeep Kumari and Somasundaran. In fact, all those decisions operate in a manner advising the courts regarding appreciation of evidence in such matters. The ratio of Raghava Poduval rests on the facts of that case and, therefore, does not require reconsideration on any issue of law. The reference will stand answered accordingly. WP6998/10 -: 7 :- 6.With the aforesaid, we notice that though this writ petition was filed only on 3.3.2010 against the impugned order rendered nearly an year before that, this Court entertained it, presumably because the petitioner was projecting herself as an unfortunate widow who is pushing forward an application under Section 28A(1) filed by her late husband and which was pending even while the appeals in relation to the lands acquired from her sisters-in-law were pending before this Court. Therefore, we are of the view that the State Government was justified in taking a lenient view and not opposing this writ petition on any ground of delay. We also notice that the respondents have filed a counter affidavit stating the sequences of events and also pointing out that the impugned order has been issued only on the ground that the land acquired from the petitioner's predecessor was a paddy field, while the land covered by the award relied on in support of the application under section 28A(1) was a piece of garden land. As we already noticed, there is no straight jacket formula. Merely because the award WP6998/10 -: 8 :- relied on in support of the application under Section 28A(1) related to a garden land, it does not necessarily follow that the application for redetermination of compensation should be dismissed. The Collector, the repository of the statutory power under Section 28A(1) has to arrive at a conclusion, on due application of mind on the materials and documents, as to whether any compensation has to be paid by enhancing the land value on redetermination, on the basis of the materials relied on by the claimant. To aid such process, in the case in hand, we deem it appropriate to quash the impugned order, not as we are satisfied that the writ petitioner had no alternate efficacious remedy by recourse to Section 28A(3), but because this writ petition stands admitted having regard to the personal grievances of the petitioner relatable to her widowhood and consequential delay that had occurred in the matter as already noticed above. For the aforesaid reasons, this writ petition is allowed quashing the impugned order and directing the competent among the respondents to take up the WP6998/10 -: 9 :- application of the petitioner's predecessor and issue an order in accordance with law after providing the petitioner an opportunity of being heard. Let this be done within an outer limit of four months from the date of receipt of a copy of this judgment. No costs. Thottathil B.Radhakrishnan, Judge. S.S.Satheesachandran, Judge. Sha/2307