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High Court of KeralaDivision BenchAppeals allowed; remanded to the reference cour...

State of Kerala represented by the Special Tahsildar (LA), Cochin Corporation, Vyttila - 19 v. E.R. Philip S/o A.G. Raphel; E.R. John Bosco; The Secretary Kochi Corporation; K.M. Kunjumuhammed; Shameer S/o Kunjumuhammed; Ramsheed; Rasheed; Raji; T.J. Philomina; John Basio; Mini John; Mary Getrood; Tessy Mathew (and others as listed in LA App Nos. 235, 246, 258, 283, 307, 308, 326 of 2015) and related respondents

Case / Petition Number:LA.App. Nos. 235 of 2015, 246 of 2015, 258 of 2015, 283 of 2015, 307 of 2015, 308 of 2015, 326 of 2015

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • V. Chittambresh
  • R. Narayana Pisharadi
Judgment Date
2019-01-23
Court Decision / Holding
The appeals are allowed. The impugned judgments of the reference court in L.A.Rs Nos. 23/2011 to 29/2011 are set aside and these cases are remanded to the reference court for fresh consideration and disposal in accordance with the principles laid down by the Full Bench in Sarada. The applicants shall produce a certified copy of the fresh award in L.A.R. No. 76/2009. If it is brought to the notice that an appeal is pending against the fresh award, the reference court shall wait until disposal of that appeal. The registry shall send back the lower court records forthwith. No costs.
Final Disposition
Appeals allowed; remanded to the reference court for fresh determination in light of Sarada’s principles; no costs.

Parties to the Case

Appellants / Petitioners

  • State of Kerala represented by the Special Tahsildar (LA), Cochin Corporation, Vyttila-19

Respondents

  • E.R. Philip S/o A.G. Raphel
  • E.R. John Bosco
  • Secretary, Kochi Corporation
  • K.M. Kunju Muhammed
  • Shameer S/o Kunju Muhammed
  • Ramsheed
  • Rasheed
  • Raji
  • T.J. Philomina
  • John Basio
  • Mini John
  • Mary Getrood
  • Tessy Mathew

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri A.K. Sukumaran, Sr. GP

Counsels for Respondents

  • • Sri Varghese K. Paul
  • • Sri Raajesh S. Subrahmanian
  • • Smt. Vincy Mary Vavachan
  • • Sri K. Anand
  • • Sri K.P. Justine
  • • Sri E.D. George

Case Synopsis & Summary

These consolidated land acquisition appeals concern the compensation awarded under Section 28A(3) of the Land Acquisition Act, 1894 for lands acquired for a railway overbridge in the Kochi area following notification dated 21.04.2003. The State of Kerala, represented by the Special Tahsildar (LA), challenged the reference court’s enhancement of compensation, which had been based on evidence and a prior award in L.A.R. No. 76/2009 related to the same notification. The State argued that no subsisting award existed after this Court’s 11.09.2012 decision (LA A No. 432/2012 setting aside the 76/2009 award and remanding for fresh consideration), and that the reference court’s use of 28A(3) was illegal because it relied on an award not finally in place. The court surveyed relevant authorities, including Purushan v. State of Kerala (overruled by the Full Bench in Sarada), Union of India v. Pradeep Kumari, Union of India v. Munshi Ram, and Bharatsing v. State of Maharashtra, to define the proper scope of 28A and the Procedure for 28A(3). Ultimately, the High Court remands the cases to the reference court for fresh determination in light of Sarada’s principles, awaiting the finality of related appeals, and directs no costs.

Provisions of Law Cited

Land Acquisition Act, 1894 - Section 4(1)Land Acquisition Act, 1894 - Section 18Land Acquisition Act, 1894 - Section 28A(1)Land Acquisition Act, 1894 - Section 28A(2)Land Acquisition Act, 1894 - Section 28A(3)

Legal Doctrines & Maxims

  • Principles laid down by the Full Bench in K.V. Sarada v. Special Tahsildar, Thalassery (2016) 2 KLT 120 on the scope and object of Section 28A and the relationship with the award under Section 18
  • Union of India v. Pradeep Kumari, AIR 1995 SC 2259 (SC) – one application under Section 28A(1); parity with an award under Section 18
  • Scope and limitations of Section 28A(2) – Collector’s inquiry cannot confer rights beyond the award claimed
  • Union of India v. Munshi Ram, AIR 2006 SC 1716; Bharatsing v. State of Maharashtra, (2018) 11 SCC 92
  • Purushan v. State of Kerala, 2005 (1) KLT 687 – market value can be fixed by court in reference under Section 28A(3)

Submissions & Arguments

Contentions of Appellants / Petitioners

The State contends that there was no subsisting award in L.A.R.76/2009 following this Court’s remand in LA A No. 432/2012, and that relying on the Section 28A(3) reference to enhance compensation is illegal because Purushan’s approach has been overruled by the Full Bench in Sarada. The court should await the fresh award in L.A.R.76/2009 or remand for fresh determination strictly in line with Sarada’s principles, ensuring that 28A(3) does not create injustice by exceeding the underlying 18-award. The 28A(3) reference is intended to provide parity with Section 18 outcomes, not to re-open or multiply awards, and the reference court must await disposal of appeals before deciding.

Contentions of Respondents

The respondents contend that the 28A(3) process aims to adjust compensation under the same notification and that the award in L.A.R.76/2009 (though later set aside) formed a basis for enhancement; the procedure remains legally permissible within the framework of 28A and 18; the court should decide within the bounds of the award under 18 and maintain consistency with established precedents, arguing for a reasoned, final computation without indefinite delays. They emphasize that 28A(3) cannot exceed the 18-based award and must adhere to the scope defined by Purushan and subsequently Sarada.

Cited Precedents (5)

Case NameCitationTreatmentExplanation
Purushan v. State of Kerala2005(1) KLT 687OverruledPurushan’s approach is overruled by the Full Bench decision in Sarada (2016(2) KLT 120), which refines the scope of Section 28A and prohibits extending beyond the basis of the 18-award.
K.V. Sarada v. Special Tahsildar, Thalassery2016(2) KLT 120PositiveSarada is the controlling Full Bench decision establishing the scope and object of Section 28A and the limitations on the 28A(3) proceedings, guiding the remand and re-determination process.
Union of India v. Pradeep KumariAIR 1995 SC 2259PositiveApex Court principle cited for one application under Section 28A(1) and parity with any award under Section 18; used to limit 28A(1) relief.
Union of India v. Munshi RamAIR 2006 SC 1716PositiveCited for guiding the scope of 28A claims and decision-making in reference proceedings.
Bharatsing v. State of Maharashtra(2018) 11 SCC 92PositiveCited as part of apex court guidance on related principles governing land acquisition compensation and 28A/18 interplay.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** ## **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY,THE 23RD DAY OF JANUARY 2019 / 3RD MAGHA, 1940** **LA.App..No. 235 of 2015** **THE JUDGMENT AND DECREE IN LAR NO.24/2011 OF III ADDITIONAL SUB COURT, ERNAKULAM DATED 23.02.2013** ## **APPELLANT/1ST RESPONDENT:** **STATE OF KERALA REPRESENTED BY THE SPECIAL TAHSILDAR (LA), COCHIN CORPORATION, VYTTILA - 19.** **BY SRI. A.K.SUKUMARAN, SR.GP** ## **RESPONDENTS/CLAIMANTS AND 2ND ADDL.RESPONDENT:** **1 E.R.PHILIP S/O. A.G.RAPHEL, ETTURUTHIL (H), PULLEPPADY, KOCHI – 682 018. 2 E.R.JOHN BOSCO, S/O. A.G.RAPHEL, ETTURUTHIL (H), PULLEPPADY, KOCHI - 682 018. 3 THE SECRETARY KOCHI CORPORATION, SHANMUGHOM ROAD, ERNAKULAM. 682 011** **BY ADVS. SRI.VARGHESE K.PAUL FOR R1 AND R2 SRI.RAAJESH S.SUBRAHMANIAN,SC,FOR R3 SMT.VINCY MARY VAVACHAN FOR R1 AND R2** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 16.01.2019, ALONG WITH LA.App..246/2015, LA.App..258/2015, LA.App..283/2015, LA.App..307/2015, LA.App..308/2015, LA.App..326/2015, THE COURT ON 23.01.2019 DELIVERED THE FOLLOWING:** L.A.A.Nos.235 of 2015, 246 of 2015, 258 of 2015, 283 of 2015, 307 of 2015, 308 of 2015 2 & 326 of 2015 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** ## **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY,THE 23RD DAY OF JANUARY 2019 / 26TH POUSHA, 1940** **LA.App..No. 246 of 2015** **THE JUDGMENT AND DECREE IN LAR NO.25/2011 OF III ADDITIONAL SUB COURT, ERNAKULAM DATED 23.02.2013** ## **APPELLANT/1ST RESPONDENT:** **STATE OF KERALA REPRESENTED BY THE SPECIAL TAHSILDAR (LA), COCHIN CORPORATION, VYTTILA - 19.** **BY SRI. A.K.SUKUMARAN, SR.GP** ## **RESPONDENTS/CLAIMANTS AND 2ND ADDL.RESPONDENT:** **1 E.R.PHILIP S/O. A.G.RAPHEL, ETTURUTHIL (H), PULLEPPADY, KOCHI – 18. 2 THE SECRETARY KOCHI CORPORATION, SHANMUGHOM ROAD, ERNAKULAM. 682 021** **BY ADVS. SRI.VARGHESE K.PAUL FOR R1 SMT.VINCY MARY VAVACHAN FOR R1 SRI.K.ANAND,SC,FOR R2** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 16.01.2019, ALONG WITH LA.App..235/2015, LA.App..258/2015, LA.App..283/2015, LA.App..307/2015, LA.App..308/2015, LA.App..326/2015, THE COURT ON 23.01.2019 DELIVERED THE FOLLOWING:** L.A.A.Nos.235 of 2015, 246 of 2015, 258 of 2015, 283 of 2015, 307 of 2015, 308 of 2015 3 & 326 of 2015 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY,THE 23RD DAY OF JANUARY 2019 / 26TH POUSHA, 1940** **LA.App..No. 258 of 2015** **THE JUDGMENT AND DECREE IN LAR NO.27/2011 OF III ADDITIONAL SUB COURT, ERNAKULAM DATED 23.02.2013** ## **APPELLANT/FIRST RESPONDENT:** **STATE OF KERALA REPRESENTED BY THE SPECIAL TAHSILDAR(LA), COCHIN CORPORATION, VYTTILA-19.** **BY SRI. A.K.SUKUMARAN, SR.GP** ## **RESPONDENTS/CLAIMANTS AND 2ND ADDL.RESPONDENT:** **1 K.M.KUNJUMUHAMMED KALARIKKAL HOUSE, NOW RESIDING AT A1 LADIES STORES, NEAR GIRLS HIGH SCHOOL, ERNAKULAM-682011.** **2 SHAMEER S/O.KUNJUMUHAMMED, KALARIKKAL HOUSE, NOW RESIDING AT A1 LADIES STORES, NEAR GIRLS HIGH SCHOOL, ERNAKULAM-682011.** ## **3 RAMSHEED** **S/O.KUNJUMUHAMMED, KALARIKKAL HOUSE, NOW RESIDING AT A1 LADIES STORES, NEAR GIRLS HIGH SCHOOL, ERNAKULAM-682011.** L.A.A.Nos.235 of 2015, 246 of 2015, 258 of 2015, 283 of 2015, 307 of 2015, 308 of 2015 4 & 326 of 2015 ## **4 RASHEED** **S/O.KUNJUMUHAMMED, KALARIKKAL HOUSE, NOW RESIDING AT A1 LADIES STORES, NEAR GIRLS HIGH SCHOOL, ERNAKULAM-682011.** ## **5 RAJI** **S/O.KUNJUMUHAMMED, KALARIKKAL HOUSE, NOW RESIDING AT A1 LADIES STORES, NEAR GIRLS HIGH SCHOOL, ERNAKULAM-682011.** **6 THE SECRETARY KOCHI CORPORATION, SHANMUGHOM ROAD, ERNAKULAM-682011.** **BY ADVS.** **SRI.VARGHESE K.PAUL FOR R1 TO R5 SRI.E.D.GEORGE,SC,COCHIN CORPORATION FOR R6** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 16.01.2019, ALONG WITH LA.App..235/2015, LA.App..246/2015, LA.App..283/2015, LA.App..307/2015, LA.App..308/2015, LA.App..326/2015, THE COURT ON 23.01.2019 DELIVERED THE FOLLOWING:** L.A.A.Nos.235 of 2015, 246 of 2015, 258 of 2015, 283 of 2015, 307 of 2015, 308 of 2015 5 & 326 of 2015 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY,THE 23RD DAY OF JANUARY 2019 / 26TH POUSHA, 1940 LA.App..No. 283 of 2015** **THE JUDGMENT AND DECREE IN LAR NO.29/2011 OF 3RD ADDL. SUB COURT, ERNAKULAM DATED 23.02.2013** ## **APPELLANT/1ST RESPONDENT:** **STATE OF KERALA REPRESENTED BY THE SPECIAL TAHSILDAR (LA), COCHIN CORPORATION, VYTTILA - 19. BY SRI. A.K.SUKUMARAN, SR.GP** ## **RESPONDENTS/CLAIMANT AND 2ND ADDL.RESPONDENT:** **1 E.R.TONY S/O. RAPHEL, ETTURUTHIL (H), PULLEPPADY, KOCHI – 682 018. 2 THE SECRETARY KOCHI CORPORATION, SHANMUGHOM ROAD, ERNAKULAM 682 011** **BY ADVS. SRI.VARGHESE K.PAUL FOR R1 SRI.K.P.JUSTINE,SC,FOR R2 SMT.VINCY MARY VAVACHAN FOR R1** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 16.01.2019, ALONG WITH LA.App..235/2015, LA.App..258/2015, LA.App..246/2015, LA.App..307/2015, LA.App..308/2015, LA.App..326/2015, THE COURT ON 23.01.2019 DELIVERED THE FOLLOWING:** L.A.A.Nos.235 of 2015, 246 of 2015, 258 of 2015, 283 of 2015, 307 of 2015, 308 of 2015 6 & 326 of 2015 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY,THE 23RD DAY OF JANUARY 2019 / 26TH POUSHA, 1940 LA.App..No. 307 of 2015** **THE JUDGMENT AND DECREE IN LAR NO.28/2011 OF III ADDITIONAL SUB COURT, ERNAKULAM DATED 23.02.2013** **APPELLANT/1ST RESPONDENT:** **STATE OF KERALA REPRESENTED BY THE SPECIAL TAHSILDAR (LA), COCHIN CORPORATION, VYTTILA - 19.** **BY SRI. A.K.SUKUMARAN, SR.GP** ## **RESPONDENTS/CLAIMANTS AND 2ND ADDL.RESPONDENT:** **1 SAIFUNNISA W/O.ABDU, KALARIKKAL HOUSE, SIVARAMAMENON ROAD, THRIKKANARVATTOM, NOW RESIDING AT A1 LADIES STORES, NEAR GIRLS HIGH SCHOOL, ERNAKULAM SOUTH, KOCHI - 16. 2 THE SECRETARY KOCHI CORPORATION, SHANMUGHOM ROAD, ERNAKULAM.** **BY ADVS. SRI.VARGHESE K.PAUL FOR R1 SMT.VINCY MARY VAVACHAN FOR R1 SRI.K.P.JUSTINE SC, COCHIN CORPN FOR R2** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 16.01.2019, ALONG WITH LA.App..235/2015, LA.App..258/2015, LA.App..246/2015, LA.App..283/2015, LA.App..308/2015, LA.App..326/2015, THE COURT ON 23.01.2019 DELIVERED THE FOLLOWING:** L.A.A.Nos.235 of 2015, 246 of 2015, 258 of 2015, 283 of 2015, 307 of 2015, 308 of 2015 7 & 326 of 2015 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY,THE 23RD DAY OF JANUARY 2019 / 26TH POUSHA, 1940** **LA.App..No. 308 of 2015** **THE JUDGMENT AND DECREE IN LAR NO.26/2011 OF III ADDITIONAL SUB COURT, ERNAKULAM DATED 23.02.2013** ## **APPELLANT/1ST RESPONDENT:** **STATE OF KERALA REPRESENTED BY THE SPECIAL TAHSILDAR (LA), COCHIN CORPORATION, VYTTILA - 19.** **BY SRI. A.K.SUKUMARAN, SR.GP** ## **RESPONDENTS/CLAIMANT AND 2ND ADDL.RESPONDENT:** **1 MINI JOHN W/O. JOHN BOSCO, ETTURUTHIL (H), PULLEPPADY, KOCHI - 18. 2 THE SECRETARY KOCHI CORPORATION, SHANMUGHOM ROAD, ERNAKULAM - 682 021.** **BY ADVS.** **SRI.VARGHESE K.PAUL FOR R1 SMT.VINCY MARY VAVACHAN FOR R1 SRI.E.D.GEORGE,SC,COCHIN CORPORATION FOR R2** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 16.01.2019, ALONG WITH LA.App..235/2015, LA.App..258/2015, LA.App..246/2015, LA.App..283/2015, LA.App..307/2015, LA.App..326/2015, THE COURT ON 23.01.2019 DELIVERED THE FOLLOWING:** L.A.A.Nos.235 of 2015, 246 of 2015, 258 of 2015, 283 of 2015, 307 of 2015, 308 of 2015 8 & 326 of 2015 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY,THE 23RD DAY OF JANUARY 2019 / 26TH POUSHA, 1940** **LA.App..No. 326 of 2015** **THE JUDGMENT AND DECREE IN LAR NO.23/2011 OF III ADDITIONAL SUB COURT, ERNAKULAM DATED 23.02.2013** ## **APPELLANT/1ST RESPONDENT:** **STATE OF KERALA REPRESENTED BY THE SPECIAL TAHSILDAR (LA), COCHIN CORPORATION, VYTTILA - 19.** **BY SRI. A.K.SUKUMARAN, SR.GP** ## **RESPONDENTS/CLAIMANT AND 2ND ADDL.RESPONDENT:** > * **1 T.J. PHILOMINA W/O.A.G.RAPHEL, ETTURUTHIL(H), PULLEPPADY, KANAYANNUR TALUK, ERNAKULAM.682 011. (DIED AND LEGAL REPRESENTATIVES IMPLEADED)** **2 THE SECRETARY KOCHI CORPORATION, SHANMUGHOM ROAD, ERNAKULAM-682 011.** - **3 MR.E.R.JOHN BASIO, S/O.SMT.T.J.PHILOMONA, ETTURUTHIL HOUSE, PULLEPPADY,ERNAKULAM, KOCHI-18.** L.A.A.Nos.235 of 2015, 246 of 2015, 258 of 2015, 283 of 2015, 307 of 2015, 308 of 2015 9 & 326 of 2015 |**4**|**MR.E.R.PHILIP**| |---|---| ||**S/O.SMT.T.J.PHILOMONA,**| ||**ETTURUTHIL HOUSE,**| ||**PULLEPPADY,ERNAKULAM,**| ||**KOCHI-18.**| |**5**|**MR.E.R.CLETUS,**| ||**S/O.SMT.T.J.PHILOMONA,**| ||**ETTURUTHIL HOUSE,**| ||**PULLEPPADY,ERNAKULAM,**| ||**KOCHI-18.**| |**6**|**MR.E.R.EDISON,**| ||**S/O.SMT.T.J.PHILOMONA,**| ||**ETTURUTHIL HOUSE,**| ||**PULLEPPADY,ERNAKULAM,**| ||**KOCHI-18.**| |**7**|**MR.E.R.POLSON,**| ||**S/O.SMT.T.J.PHILOMONA,**| ||**ETTURUTHIL HOUSE,**| ||**PULLEPPADY,ERNAKULAM,**| ||**KOCHI-18.**| |**8**|**MR.E.R.THOMAS,**| ||**S/O.SMT.T.J.PHILOMONA,**| ||**ETTURUTHIL HOUSE,**| ||**PULLEPPADY,ERNAKULAM,**| ||**KOCHI-18.**| |**9**|**MRS.MARY GETROOD,**| ||**D/O.SMT.T.J.PHOLOMINA,**| ||**HOUSE NO.1794/28,**| ||**AMALABHAVAN ROAD,**| ||**PURAVARA VEEDU,**| ||**KADAVANTHRA,**| ||**ELAMKULAM VILLAGE.**| |**10**|**MRS.TESSY MATHEW,**| ||**D/O.SMT.T.J.PHILOMINA,**| ||**KUTTANAPPILLI VEEDU,**| ||**1964/27,KADAVANTHRA,**| ||**ELAMKULAM VILLAGE.**| ||**(LEGAL REPRESENTATIVES OF THE DECEASED 1ST**| ||**RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 3 TO**| ||**10 VIDE ORDER DATED 3.3.16 IN I.A.1518/2015.**| L.A.A.Nos.235 of 2015, 246 of 2015, 258 of 2015, 283 of 2015, 307 of 2015, 308 of 2015 10 & 326 of 2015 **BY ADVS. SRI.E.D.GEORGE,SC,COCHIN CORPORATION FOR R2 SRI.VARGHESE K.PAUL FOR ADDL.R3 TO R10** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 16.01.2019, ALONG WITH LA.App..235/2015, LA.App..258/2015, LA.App..246/2015, LA.App..283/2015, LA.App..307/2015, LA.App..308/2015, THE COURT ON 23.01.2019 DELIVERED THE FOLLOWING:** L.A.A.Nos.235 of 2015, 246 of 2015, 258 of 2015, 283 of 2015, 307 of 2015, 308 of 2015 & 326 of 2015 11 **“CR”** ## **V.CHITAMBARESH &** ## **R.NARAYANA PISHARADI, JJ.** ************************** L.A.A.Nos.235 of 2015, 246 of 2015, 258 of 2015, 283 of 2015, 307 of 2015, 308 of 2015 & 326 of 2015 ---------------------------------------------Dated this the 23[rd] day of January, 2019 ## **JUDGMENT** ## **R.Narayana Pisharadi, J** The procedure adopted by the reference court for determination of compensation under Section 28A(3) of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') is under challenge in these appeals. 2. Lands owned by the party respondents in these appeals (hereinafter referred to as 'the applicants') were acquired for the purpose of construction of a railway overbridge. Notification under Section 4(1) of the Act was published on L.A.A.Nos.235 of 2015, 246 of 2015, 258 of 2015, 283 of 2015, 307 of 2015, 308 of 2015 & 326 of 2015 12 21.04.2003. The Land Acquisition Officer fixed the compensation due to the applicants. They did not make any application under Section 18 of the Act. Subsequently, they filed application under Section 28A(1) of the Act for redetermination of the amount of compensation. The basis of that application was the award passed by the reference court in L.A.R.No.76/2009, which related to acquisition of land for the same purpose under the same notification. The Land Acquisition Officer rejected the claim made by the applicants for redetermination of the compensation on the basis of the award passed by the reference court in L.A.R.No.76/2009 but made reference to the court under Section 28A(3) of the Act. 3. During the proceedings before the reference court, AW1 and AW2 were examined and Exts.A1 to A4 and Exts.C1 and C1(a) documents were marked. The reference court enhanced the amount of compensation after taking such evidence and after conducting an elaborate enquiry. Aggrieved by the awards passed by the reference court, the State has filed these appeals. L.A.A.Nos.235 of 2015, 246 of 2015, 258 of 2015, 283 of 2015, 307 of 2015, 308 of 2015 & 326 of 2015 13 4. We have heard learned Government Pleader and the learned counsel for the respondents. 5. Learned Government Pleader has submitted that the award passed by the reference court in L.A.R.No.76/2009 was set aside by this Court in the appeal L.A.A.No.432/2012 and this Court remanded the aforesaid case for fresh consideration by the reference court. Therefore, the learned Government Pleader would contend that there was no subsisting award in L.A.R.No.76/2009 on the basis of which the reference court could have redetermined the compensation under Section 28A(3) of the Act. Learned Government Pleader also contended that the procedure adopted by the reference court for determination of the compensation in the cases referred to under Section 28A(3) of the Act was illegal and improper. 6. The applicants had not produced before the reference court the certified copy of the judgment of that court in L.A.R.No.76/2009. They had produced a copy of the judgment of this Court in the appeal L.A.A.No.432/2012. The aforesaid L.A.A.Nos.235 of 2015, 246 of 2015, 258 of 2015, 283 of 2015, 307 of 2015, 308 of 2015 & 326 of 2015 14 appeal was filed by the claimants therein challenging the award passed by the reference court in L.A.R.No.76/2009. As per the judgment dated 11.09.2012 in L.A.A.No.432/2012, this Court had set aside the award passed in L.A.R.No.76/2009 and remanded that case for fresh consideration by the reference court. 7. In such circumstances, there is merit in the contention of the learned Government Pleader that there was no subsisting award in L.A.R.No.76/2009 which formed the basis of the claim made by the applicants for redetermination of the amount of compensation under Section 28A(1) of the Act. In other words, there was no judgment or decree of the reference court in L.A.R.No.76/2009 in existence on the basis of which the applicants could have claimed determination of the amount of compensation under Section 28A(3) of the Act. 8. The reference court has found that the applicants are entitled to get enhancement of compensation. The reference court has treated the reference made under Section 28A(3) of L.A.A.Nos.235 of 2015, 246 of 2015, 258 of 2015, 283 of 2015, 307 of 2015, 308 of 2015 & 326 of 2015 15 the Act as a reference under Section 18 of the Act and enhanced the compensation on the basis of the evidence tendered before it. 9. The reference court has relied upon the decision of this Court in **Purushan v. State of Kerala : 2005(1) KLT 687** in adopting the procedure mentioned above. In **Purushan** (supra), this Court had held that market value of the land as on the date of notification can be fixed by the court in a reference made under Section 28A(3) of the Act on the basis of the evidence adduced before the court. However, the decision in **Purushan** (supra) stands overruled by the decision of the Full Bench of this Court in **K.V.Sarada v. Special Tahsildar, Thalassery : 2016(2) KLT 120** . 10. The Full Bench of this Court, in **Sarada** (supra), has taken note of the decision of the Apex Court in **Union of India v. Pradeep Kumari (AIR 1995 SC 2259)** and laid down the following principles with regard to the scope and object of Section 28A of the Act. 16 L.A.A.Nos.235 of 2015, 246 of 2015, 258 of 2015, 283 of 2015, 307 of 2015, 308 of 2015 & 326 of 2015 _“(i) Section 28A(1) gives an option to the land owner who had not made an application under Section 18 to file an application for redetermination on the basis of any of the award of the court under Section 18 arising out of the same notification. This clearly means that the land owner has an option to claim parity with any award given by the court under Section 18 which is more beneficial to him. The Apex Court in Union of India v. Pradeep Kumari, 1996 (1) KLT 93(SC) has laid down that only one application can be filed under Section 28A(1) by a land owner who wanted to take benefit of the award under Section 18 and who has not earlier filed an application under Section 18. Once the land owner has chosen an award from which he wanted to claim parity, he cannot be permitted to rely on another award since that shall be indirectly permitting him to file many applications under Section 28A(1) based on different awards, which is not permissible._ _(ii) The scope of Section 28A(2), i.e., enquiry by Collector has to be for the purposes of finding out as to whether the claim of the claimant based on the award is justified and he is entitled for enhancement of compensation to the same extent. The Collector under Section 28A(2) has no freedom to award compensation in excess of the amount claimed by_ 17 L.A.A.Nos.235 of 2015, 246 of 2015, 258 of 2015, 283 of 2015, 307 of 2015, 308 of 2015 & 326 of 2015 _the applicant. Whether the claimant can be given the benefit of the award claimed and whether his land is comparable are the questions which are to be gone into by the Collector. The right has been given to seek a reference under Section 28A(3) to the court if he feels aggrieved by the determination under Section 28A(2)._ _(iii) The reference court while deciding an application under Section 28A(3) has to keep in mind that the scope of reference is confined to the claim of the applicant under Section 28A(1) which is based on an award given by the Court under Section 18. Scope of Section 28A(3) cannot be treated to empower the court to award compensation in excess of the award which is the basis of the claim. In case it is accepted that under Section 28A(3) court is entitled to grant higher compensation to one granted under Section 18, Section 28A(3) can be utilised for different and higher compensation to those who had not even filed application under Section 18 proceeding which shall lead to inequality and injustice to the original claimants who got only a particular amount. Legislature has never intended a situation where under Section 28A(3) court exceeds the amount originally granted under Section 18. Thus, although the provisions of Sections 18 to 28_ L.A.A.Nos.235 of 2015, 246 of 2015, 258 of 2015, 283 of 2015, 307 of 2015, 308 of 2015 & 326 of 2015 18 _are applicable in proceeding under Section 28A(3), they are applicable as far as possible. In event a claimant under Section 28A(3) is permitted to rely on other awards of the court under Section 18, which was not the basis under Section 28A(3) it shall be permitting him to file several applications under Section 28A(1) based on different awards delivered in different point of time which is not permissible in view of the law laid down by the Apex Court in Union of India v. Pradeep Kumari (supra).”_ 11. In **Sarada** (supra), the Full Bench has also held that in the proceedings under Section 28A of the Act, the Collector or the reference court cannot embark on a fresh enquiry for finding out the market value of the land. In view of the principles laid down by the Full Bench of this Court in **Sarada** (supra), there can be no doubt with regard to the fact that the procedure adopted by the reference court in determining the amount of compensation due to the applicants in the reference made under Section 28A(3) of the Act was illegal and improper. 12. It is true that when the reference court decided the cases, the decree of that court in L.A.R.No.76 of 2009 was not in L.A.A.Nos.235 of 2015, 246 of 2015, 258 of 2015, 283 of 2015, 307 of 2015, 308 of 2015 & 326 of 2015 19 existence as it had been set aside by this Court in L.A.A.No.432 of 2012. But, the fact remains that when the applicants filed the application under Section 28A(1) of the Act and when the reference was made under Section 28A(3) of the Act, the decree in L.A.R.No.76 of 2009 was in existence. The decree in that case was set aside by this Court only subsequently. 13. The requirement of an application under Section 28A(1) of the Act is that a decree must have been passed by the court in a reference made under Section 18 of the Act and the person moving an application under Section 28A(1) must not have sought such reference. Admittedly, in the instant case, the award passed by the Land Acquisition Officer was accepted by the applicants and they had not sought any reference under Section 18 of the Act for enhancement of compensation. Another person, whose land was acquired under the same notification, sought reference under Section 18 of the Act and his claim for enhancement of compensation was decided by the reference court in L.A.R.No.76 of 2009. Therefore, the applicants were L.A.A.Nos.235 of 2015, 246 of 2015, 258 of 2015, 283 of 2015, 307 of 2015, 308 of 2015 & 326 of 2015 20 certainly entitled to file the application under Section 28A(1) of the Act. The reference court, when it came to know that the decree passed in L.A.R.No.76 of 2009 was set aside by this Court and that the aforesaid case was remanded for fresh consideration, should have waited till the passing of a fresh award in that case before it considered the reference made under Section 28A(3) of the Act. 14. Incidentally, the question arises what the reference court shall do when it is brought to the notice of it that an appeal is pending before the superior court from the decree or award passed by it which is relied upon by an applicant under Section 28A(3) of the Act for redetermination of the compensation. 15. The amount payable under Section 28A of the Act is the amount which is finally payable by way of compensation to the owners of the land who challenged the award of the Collector and claimed reference under Section 18 of the Act. The compensation payable to claimants who have applied under Section 28A of the Act is the enhanced compensation decreed by the reference court L.A.A.Nos.235 of 2015, 246 of 2015, 258 of 2015, 283 of 2015, 307 of 2015, 308 of 2015 & 326 of 2015 21 under Section 18 of the Act. But, decree of the reference court, in this context, means the decree as modified in appeal by the superior courts. The compensation payable to the claimants under Section 28A(1) or Section 28A(3) of the Act means the compensation finally payable to those persons who sought reference under Section 18 of the Act. If that be so, when the reference court has decided the matter under Section 18 of the Act and when the State or the requisitioning authority or the claimants therein have challenged that decree of the reference court in appeal before the High Court or before the Supreme Court, then the Collector dealing with the application under Section 28A(1) of the Act or the court dealing with the reference under Section 28A(3) of the Act, will have to wait till the disposal of the appeal before disposing the application under Section 28A(1) of the Act or the reference under Section 28A(3) of the Act, as the case may be. The reason is that the decree of the reference court under Section 18 of the Act would attain finality only when the appeal is disposed of and till then, the matter L.A.A.Nos.235 of 2015, 246 of 2015, 258 of 2015, 283 of 2015, 307 of 2015, 308 of 2015 & 326 of 2015 22 remains sub judice before a superior court. 16. We take cue from the decisions of the Apex Court in **Union of India v. Munshi Ram : AIR 2006 SC 1716 and Bharatsing v. State of Maharashtra : (2018) 11 SCC 92** for the aforesaid propositions. 17. In the aforesaid circumstances, we have no other option but to remand the cases to the reference court for fresh consideration and disposal in accordance with the principles laid down by the Full Bench of this Court in **Sarada** (supra). It is submitted before this Court that the reference court has passed fresh award in L.A.R.No.76 of 2009, after the remand of the case by this Court. The applicants have to produce certified copy of that judgment before the reference court. 18. Consequently, the appeals are allowed. The impugned judgments passed by the reference court in L.A.R.Nos.23/2011 to 29/2011 are set aside and these cases are remanded to the reference court for fresh consideration and disposal. The applicants shall produce before the reference court a certified L.A.A.Nos.235 of 2015, 246 of 2015, 258 of 2015, 283 of 2015, 307 of 2015, 308 of 2015 & 326 of 2015 23 copy of the fresh award passed by it in L.A.R.No.76 of 2009. If it is brought to the notice of the reference court that appeal is pending before any superior court against the fresh award passed by it in L.A.R.No.76/2009, the reference court shall wait till the disposal of that appeal and dispose of the cases only after the disposal of the appeal. The parties shall appear before the reference court on 18.02.2019. The registry shall send back the lower court records forthwith. No costs in the appeals. ## (sd/-) ## **V.CHITAMBARESH, JUDGE** (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr/22/01/2019 True Copy PS to Judge