State of Kerala v. Indira Amma

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** **TUESDAY, THE 25TH DAY OF FEBRUARY 2014/6TH PHALGUNA 1934** ## **LA.App..No. 390 of 2011 ( )** **---------------------------AGAINST THE JUDGMENT IN LAR 4/2005 of ADDITIONAL SUB COURT,KOLLAM ===================** ## **APPELLANT/RESPONDENT IN LAR:** **---------------------------------------------------** **KERALA STATE, REPRESENTED BY DISTRICT COLLECTOR, KOLLAM.** **BY GOVERNMENT PLEADER SRI. EGY N. ELIAS** ## **RESPONDENT/CLAIMANT IN LAR:** **------------------------------------------------** **INDIRA AMMA, KAIPPILLEZHATHU THEKKATHIL, PALLISSERIKKAL MURI SASTHAMCOTTA VILLAGE.** ## **BY ADV. SRI.B.SURESH KUMAR** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 17-02-2014, THE COURT ON 25-02-2014 DELIVERED THE FOLLOWING:** ## **SD** **C R** S.S. SATHEESACHANDRAN, J., --------------------------------------- L.A.A. No.390 OF 2011 --------------------------------------Dated this the 25[th] day of February, 2014 JUDGMENT State is the appellant. Appeal is directed against the judgment and decree dated 24.11.2009 in L.A.R. No. 4/2005 passed by the learned Additional Sub Judge, Kollam. 2. Reference made to the court in the above case was under Section 28A(3) of the Land Acquisition Act, for short, 'the Act'. An extent of 4.40 ares of land comprised in survey No. 683/1-9 in Sasthamcotta Village belonging to respondent, hereinafter referred to as claimant, was acquired for the formation of Kallada Irrigation Project. An award was passed fixing the land value at Rs.3,414/- per are, by the Land Acquisition Officer. After passing of the judgment in L.A.R. No. 8/88 of Sub Court, Kollam, over another piece of land, stated to be acquired under the same notification, claimant applied for redetermination of land value, on the basis of the award passed by court, but, it was turned down. Claimant along with some land owners, whose land had been acquired under the notification, filed a writ petition and this Court by judgment dated **2** _L.A.A. No. 390/2011_ 27.01.2004 directed the special Tahsildar to refer the claim made by the writ petitioners to the court under Section 28A(3) of the Act. Accordingly, reference was made to the court below and, thereupon, appreciating the materials produced by both sides and treating the reference as one falling under Section 18 of the Act learned Sub Judge has redetermined the land value. An award was passed declaring that the plaintiff is entitled to land value at Rs.10,171/- per are allowing him to have such enhanced compensation for the acquired land with other statutory benefits. That award is challenged in this appeal. 3. I heard learned Government Pleader and also learned counsel for claimant. Learned counsel appearing for claimant submitted that in L.A.A. No. 1345 of 2010 this Court has set aside the award passed by court below over an identical matter and remitted the case for fresh disposal as a reference made under Section 28A(3) of the Act. Respondent/claimant in that appeal too had canvassed for redetermination of land value of his acquired land under the same notification on the basis of judgment rendered in L.A.R. No. 8/88, according to counsel. 4. Judgment papers of the above appeal, **3** _L.A.A. No. 390/2011_ L.A.A.No.1345/2010 were called for, and examining them, I find identical situation covered by that appeal falls for consideration in the present appeal as well. Award passed by learned Sub Judge, it is seen, was on a reference made under Section 28A(3) of the Act. Redetermination of the land value on the basis of award passed by the court in L.A.R. No. 8/88, by the claimant led to the reference under Section 28A(3) of the Act. That reference was considered and decided by the court below as if it was a reference made under Section 18 of the Act. Relying on another award passed by the court, namely, L.A.R.No. 95/88, and also looking into other materials tendered, learned sub judge redetermined the land value and awarded enhanced compensation to the claimant for the acquired land overruling the objections raised by the State that in an enquiry under Section 28A(3) such redetermination of land value is impermissible. Learned counsel for respondent/claimant while conceding that the impugned award passed by learned sub judge has to be set aside and remitted for fresh consideration in view of the judgment dated 11.11.2011 rendered by this Court in L.A.A.No. 1345/2010, still, contended that when a reference is made under **4** _L.A.A. No. 390/2011_ Section 28A(3)of the Act to the court, it is open to the reference court to redetermine the land value and award enhanced compensation on the materials placed over and above the land value fixed in the award passed earlier on which the claim was made for redetermination of land value by Collector. Learned counsel referring to Section 28A(3) of the Act contended that the provisions of sections 18 to 28 of the Act are applicable when a reference is made to the court under Section 28A(3) on the request of claimant dissatisfied with the award passed by Collector determining amount of compensation payable on an application moved under that Section. In support of the submission made, learned counsel has relied on **Ramakrishna** ## **Rao v. Shigareni Collieries [2010(4) KLT 255(SC)].** 5. Section 28A of the Act reads thus: “ **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 notification under section 4, subsection (1) and who are also aggrieved by the award of **5** _L.A.A. No. 390/2011_ 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 redetermined 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.” What the Section provides is an opportunity to an interested owner to claim compensation equal to the sum awarded to **6** _L.A.A. No. 390/2011_ another land owner for the land acquired from him under the same notification, on his reference for enhanced compensation, by the court. Equal compensation to all persons whose land had been acquired compulsorily under the same notification is the salutary principle governing that section, but, that is subject to satisfaction of the conditions imposed thereunder. Inarticulate poor people on account of illiteracy and lack of knowledge or ignorance, sometimes fail to seek for a reference under Section 18 of the Act and accept the land value fixed in the award by the Land Acquisition Officer without protest. Where other similarly placed land owner, whose land had been acquired under the same notification, on his reference made under Section 18 is awarded enhanced compensation by the court, interested owners similarly placed can apply to the Collector, within a period of three months of passing of the award by the court, for granting the compensation to the land acquired from them equal to the sum awarded by the court. In the present case claimant had moved for granting the equal sum awarded by the reference court in L.A.R.No. 8/88 of Sub Court, Kollam. That application moved under Section 28A was turned down by the Collector and, **7** _L.A.A. No. 390/2011_ pursuant to the directions given by this Court in the writ petition filed by the claimant and others, it is stated, reference was made to the sub court under Section 28A(3) of the Act. When such a reference was made under Section 28A(3) of the Act challenging the award of the Collector, whatever be the grounds thereof, no enquiry for enhanced compensation contemplated under Section 18 of the Act would emerge for consideration. What has been stated in Clause (3) of the above section that on a reference being made by Collector, on the request of a party dissatisfied with the award of the Collector, under Clause (2) of that section, provisions of sections 18 to 28 shall, so far as may be, apply to a reference under section 18 does not postulate that the reference has to be determined as a reference made under section 18 of the Act. A reference under section 18 is distinct and different from a reference made under section 28A(3) of the Act. When a reference is made under section 18 of the Act on the protest of land owner over the land value fixed and awarded for the acquired land by Collector the interested land owner can produce materials and substantiate his claim for enhanced land value. But in a reference under Section 28A(3) of the Act, which is **8** _L.A.A. No. 390/2011_ against the award passed by Collector on a claim for equal value of land as under an award passed by court in respect of land belonging to another owner under same notification, claimant thereof can only seek equal value as under the award passed by court, and no enquiry over any enhanced claim by him dehors that award is permissible. In L.A.A.No. 1345/2010 which is referred to earlier, setting aside an award passed in the same line as under the award now impugned in the present appeal this Court has made it clear that redetermination under section 28A of the Act is essentially to be made on the basis of the award relied by the applicant. In **Ramakrishna Rao's case** (supra), decision relied by counsel referred to above, question considered by apex court was entirely different. Headnote prepared over that decision, it is seen, is not in tune with the ratio decidendi evolved. That was a case where reference made by Collector under Section 28A(3) of the Act on the request of the land owner, who was dissatisfied with the award on his application by Collector, was quashed by the High Court holding that a person who had obtained higher compensation under Section 28A(1) cannot seek for reference under Section 29A(3). In that case **9** _L.A.A. No. 390/2011_ pending the application moved by land owner before the Collector for equal land value under the award passed to other land owners, on appeal preferred by such land owners questioning the award of the court their claims were reconsidered, and, after remission, enhanced compensation above what was fixed under previous award of the court was granted. In that back ground applicant who moved under Section 28A of the Act for equal land value under the previous award by the court applied for reference to the court. That reference challenged by the State was quashed holding that he had been paid equal value under the award passed by the court and, therefore, he was not entitled for further reference to court on the award of the Collector. Apex court taking note of the redetermination of award previously passed by the court, which formed the basis of reference under Section 28A of the Act, held that he is entitled to receive compensation at par with other land owners. In the above decision apex court has explained what could be the compensation payable to a land owner who did not apply for reference under Section 18, but, has applied under Section 28A of the Act on passing of an award by court in the case of another **10** _L.A.A. No. 390/2011_ owner whose land had been acquired under the same notification. It has been stated that he cannot get higher value than what was awarded to the other land owner, expressing thus: “.......the Court to which reference is made under Section 28A(3) will have to bear in mind that a person who has not sought reference under Section 18 cannot get compensation higher than the one payable to those who had sought reference under that section.” 6. In the present case where a claim was raised before Collector on the award passed by the court in L.A.R.No. 8/88 the claimant in the reference made under Section 28A(3) by the Collector applied for enhanced compensation relying on the award passed in another case, L.A.R. No. 95/88, producing fresh materials as well. Reference court ignoring the fact that it was only a reference under Section 28A(3) of the Act and he cannot claim compensation higher than what was awarded to the claimant in L.A.R. No. 8 of 1988, provided it was applicable, which formed the basis of his application under Section 28A of the Act, re-fixed the land value as if the claim has to be adjudged as a reference made under Section 18 of the Act for enhanced compensation. Reasonings made by court below to do so and **11** _L.A.A. No. 390/2011_ also the award passed redetermining the land value and granting enhanced compensation to the claimant are patently unsustainable. Setting aside the decree and judgment the case is remanded to the court below for fresh disposal, taking note of the observations made above, and in accordance with law. Parties are directed to appear before the reference court, through their counsel, on 17.03.2014. Additional Sub Judge shall make every endeavour to complete the enquiry on the reference, and pass the award, expeditiously. Parties are directed to suffer their costs. Sd/- S.S. SATHEESACHANDRAN JUDGE sd // True Copy // P.A. To Judge