State of Kerala v. James Alex S/o. KAlexander, Lissy Alex W/o. KAlexander, Leena Alex D/o. KAlexander, Jose Alex S/o. KAlexander & Deputy Chief Engineer, Construction Southern Railway, Thiruvananthapuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** ## **&** ## **THE HONOURABLE MR.JUSTICE R.NARAYANA PISHARADI** **WEDNESDAY,THE 12TH DAY OF DECEMBER 2018 / 1ST SRAVANA, 1940** ## **LA.App..No. 86 of 2017** ## **AGAINST THE JUDGMENT AND DECREE DATED 18-03-2016 IN LAR 111/2010 of PRINCIPAL SUB COURT,KOLLAM** ## **APPELLANT/1ST REPONDENT IN LAR:** **STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, KOLLAM** **BY SR.GOVERNMENT PLEADER SRI.T.K.SHAJAHAN** ## **RESPONDENTS/CLAIMANT & 2ND RESPONDENT IN LAR:** - **1 JAMES ALEX S/O. K ALEXANDER, ANANDA BHAVAN, KALLELIBHAGAM, KARUNAGAPPALLY 690 518** - **2 LISSY ALEX W/O. K ALEXANDER, ANANDA BHAVAN, KALLELIBHAGAM, KARUNAGAPPALLY 690 518** - **3 LEENA ALEX** - **D/O. K ALEXANDER, ANANDA BHAVAN, KALLELIBHAGAM, KARUNAGAPPALLY 690 518** - **4 JOSE ALEX** - **S/O. K ALEXANDER, ANANDA BHAVAN, KALLELIBHAGAM, KARUNAGAPPALLY 690 518** - **5 THE DEPUTY CHIEF ENGINEERCONSTRUCTIOS SOUTHERN RAILWAY THIRUVANANTHAPURAM 695 001** **SMT.RENY ANTO** **SMT.ASHA CHERIAN, SC, RAILWAYS FOR R5 SRI.K.SIJU KAMALASANAN FOR R1 & R2** **THIS LAND ACQUISITION APPEAL HAVING COME UP FOR ADMISSION ON 10.12.2018, ALONG WITH LA.App..88/2017, THE COURT ON 12.12.2018 DELIVERED THE FOLLOWING:** L.A.A.Nos.86/2017 & 88/2017 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY,THE 12TH DAY OF DECEMBER 2018 / 19TH AGRAHAYANA, 1940 LA.App..No. 88 of 2017** **AGAINST THE JUDGMENT AND DECREE DATED 18-03-2016 IN LAR 55/2011 of PRINCIPAL SUB COURT,KOLLAM** ## **APPELLANT/1ST RESPONDENT IN LAR:** **STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, KOLLAM.** **BY SR.GOVERNMENT PLEADER SRI.T.K.SHAJAHAN** ## **RESPONDENTS/CLAIMANT & 2ND RESPONDENT IN LAR:** **1 THOMAS S/O.PHILIPHOSE, PUTHEN PURACKAL VEEDU,KALLELIBHAGAM, EDAKKUPANAYARA P.O.,KARUNAGAPPALLY, KOLLAM - 690 518. 2 THE DEPUTY CHIEF ENGINEER CONSTRUCTIONS SOUTHERN RAILWAY, THIRUVANANTHAPURAM - 695001.** **BY ADVS. SMT.RENY ANTO FOR R1 SRI.P.K.RAMKUMAR, SC, RAILWAYS FOR R2 SRI.K.SIJU KAMALASANAN FOR R1** **THIS LAND ACQUISITION APPEAL HAVING COME UP FOR ADMISSION ON 10.12.2018, ALONG WITH LA.App..86/2017, THE COURT ON 12.12.2018 DELIVERED THE FOLLOWING:** L.A.A.Nos.86 of 2017 & 3 88 of 2017 ## **V.CHITAMBARESH &** ## **R.NARAYANA PISHARADI, JJ.** ************************** L.A.A.Nos.86 of 2017 & 88 of 2017 ---------------------------------------------- Dated this the 12[th] day of December, 2018 ## **JUDGMENT** ## **R.Narayana Pisharadi, J** These appeals arise out of the judgment dated 18.03.2016 passed by the Sub Court, Kollam in L.A.R.Nos.111/2010 and 55/2011 respectively. 2. An extent of 19.05 Ares of land was acquired for the purpose of doubling of Kollam – Kayamkulam railway line. Notification under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') was published on 24.01.1991. The land was taken possession on 05.06.1991. The Land Acquisition Officer awarded compensation fixing the land value at Rs.7,400/- per Are. The owner of the property did not L.A.A.Nos.86 of 2017 & 4 88 of 2017 file any application under Section 18 of the Act. Subsequently, an application was filed under Section 28A(1) of the Act for redetermination of the compensation on the basis of the judgment of the Sub Court, Kollam in L.A.R.No.32 of 1994 wherein compensation was granted by fixing the land value at Rs.37,050/- per Are. The Land Acquisition Officer re-determined the land value at Rs.37,050/- per Are. Thereafter, the claimants filed application under Section 28A(3) of the Act and the matter was referred to the court below. As per the judgment dated 18.03.2016 in L.A.R.No.111 of 2010, the reference court enhanced the compensation fixing the land value at Rs.47,949/per Are. The State has come up in appeal in L.A.A.No.86 of 2017. 3. Another extent of 8.85 Ares of land was acquired for the same purpose under the same notification. The Land Acquisition Officer awarded compensation fixing the land value at Rs.6,728/- per Are. The owner of the property did not make an application under Section 18 of the Act. Subsequently, application was filed under Section 28A(1) of the Act for re- L.A.A.Nos.86 of 2017 & 5 88 of 2017 determination of the compensation on the basis of the judgment of the Sub Court, Kollam in L.A.R.No.32 of 1994. The Land Acquisition Officer re-determined the compensation by fixing the land value at Rs.37,050/- per Are. As per the judgment dated 18.03.2016 in L.A.R.No.55/2011, the reference court enhanced the compensation by refixing the land value at Rs.43,594/- per Are. The State has come up in appeal in L.A.A.No.88 of 2013. 4. We have heard learned Government Pleader and also the learned counsel for the respondents/claimants. 5. Learned Government Pleader has contended that the reference court should not have enhanced the amount of compensation by refixing the land value at a rate over and above the rate fixed by the court in L.A.R.No.32 of 1994. Learned Government Pleader would rely upon the decision of the Full Bench of this Court in **Sarada v. Special Tahsildar : 2016(2) KHC 81 :2016(2) KLT 120** in support of his contention. 6. Section 28A of the Act reads as follows: _"28A. Re - determination of the amount of compensation on the basis of the award of the_ L.A.A.Nos.86 of 2017 & 88 of 2017 6 _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 S.11, the persons interested in all the other land covered by the same notification under S.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 S.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 him 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_ L.A.A.Nos.86 of 2017 & 88 of 2017 7 _the Collector for the determination of the Court and the provisions of S.18 to 28 shall, so far as may be, apply to such reference as they apply to a reference under S.18."_ 7. In **Sarada** (supra) the Full Bench of this Court considered the question whether the Court deciding a reference under Section 28A(3) of the Act can award compensation exceeding the amount as awarded by the Court on the basis of which award the application for redetermination has been made by an interested person under Section 28A(1) of the Act. The Full Bench has held as follows: _“Under S.28A(1), any person who has not earlier made a reference to the Court for enhancement can make application within three months from the date of the award of the Court for redetermination of his compensation on the basis of the compensation awarded by the Court. Thus the cause of action for filing an application under S.28A(1) is the award by a Court whereby compensation earlier determined by the Land Acquisition Collector has been enhanced. S.28A(2) is a mechanism for deciding such applications S.28A(3) gives right to the claimant who has not accepted the award determined by the_ L.A.A.Nos.86 of 2017 & 8 88 of 2017 _Collector under S.28A(2) to make an application for reference to the Court and the provisions of S.18 to 28 so far as applicable have been made applicable to such references as they applied to reference under S.18.'' (_ emphasis supplied _)._ 8. One of the conclusions made by the Full Bench in ## **Sarada** (supra) reads as follows: _“The reference Court while deciding an application under S.28A(3) has to keep in mind that the scope of reference is confined to the claim of the applicant under S.28A(1) which is based on an award given by the Court under S.18. Scope of S.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 S.28A(3) Court is entitled to grant higher compensation to one granted under S.18, S.28A(3) can be utilised for different and higher compensation to those who had not even filed application under S.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 S.28A(3) Court exceeds the amount originally granted under S.18. Thus, although the provisions of S.18 to 28 are applicable in proceeding under S.28A(3), they are applicable as_ L.A.A.Nos.86 of 2017 & 9 88 of 2017 _far as possible.”_ 9. In the light of the judgment of the Full Bench of this Court in **Sarada** (supra), the person who files an application under Section 28A(3) of the Act cannot be given enhancement of compensation by the reference court at a rate higher than the rate adopted by the reference court in the case on which such person relies upon. Redetermination of the amount of compensation under Section 28A of the Act must be commensurate with the compensation payable to those who had sought reference under Section 18 of the Act. A person who has not sought reference under Section 18 of the Act cannot get compensation higher than the one payable to those who had sought reference under that section. In a reference under Section 28A(3) of the Act, which is 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 the same notification, claimant thereof can only seek equal value as under the award passed by the Court. 10. In the aforesaid circumstances, the court below has L.A.A.Nos.86 of 2017 & 10 88 of 2017 gone wrong in awarding compensation at a rate higher than the rate at which compensation was awarded by the court in L.A.R.No.32 of 1994. 11. Consequently, the appeals are allowed. The value of the land acquired which is involved in L.A.A.Nos.86 of 2017 and 88 of 2017 is refixed at Rs.37,050/- per Are. The respondents/claimants are entitled to get all other statutory benefits also on the basis of compensation calculated at the aforesaid rate. No costs in the appeals. ## **V.CHITAMBARESH, JUDGE** ## **R.NARAYANA PISHARADI, JUDGE** jsr/11/12/2018