State of Kerala v. Kurian Mathew and Hindustan News Print

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE WEDNESDAY, THE 24TH SEPTEMBER 2008 / 2ND ASWINA 1930 LA.App..No. 1374 of 2008() -------------------------LAR.35/2006 of PRL.SUB COURT,KOTTAYAM .................... APPELLANT: 1ST RESPONDENT ------------------------- STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, KOTTAYAM. BY GOVERNMENT PLEADER MR.BASANT BALAJI RESPONDENTS: CLAIMANT & 2ND RESPONDENT: ----------------------- 1. KURIAN MATHEW, THAMARAPPALLIL, KUNNAMPALLIKKARA, MULAKKULAM VILLAGE. 2. HINDUSTAN NEWS PRINT R2 BY ADV.MR.U.K.RAMAKRISHNAN THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 24/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.NO.3100 OF 2008 IN LAA NO.1374 OF 2008 DISMISSED. 24.9.2008 SD/- PIUS C.KURIAKOSE, JUDGE. ## **PIUS C. KURIAKOSE,J.** **- - - - - - - - - - - - - - - - - - - - - - - - -** L.A.A.No.1374 of 2008 **- - - - - - - - - - - - - - - - - - - - - - - - -** Dated: 24[th] September, 2008 ## **JUDGMENT** This appeal filed by the Government pertains to acquisition of 5.06 ares of land in Mulakkulam village pursuant to a notification under Section 3(1) of the Kerala Land Acquisition Act corresponding to Section 4(1) of the Land Acquisition Act, 1894 dated 19.12.1975. The award of the Land Acquisition Officer in this case was on 30.6.1977. The Land Acquisition Officer granted land value at the rate of Rs.135/- per cent. The first respondent-claimant did not seek a reference under Section 18 though the award was far below the claim which he had submitted in response to notice under Section 9 (3). But later on coming to know that the court had passed award in LAR No.67/86 in respect of property acquired from another person pursuant to the very same notification enhancing the rate of land value granted by the officer, the first respondent filed application under Section 28A for redetermination of the compensation based on that court award. That application was rejected by the Land Acquisition Officer on technical reasons. Later the first respondent filed a fresh application under Section 28A on the basis of another court award in LAR No.84/93. That application was dismissed. LAA No.1374/08 - 2 - However, on the first respondent's application, a reference was made to the court under Section 28A(3) and it is accordingly that the court came to consider the reference case in which the award impugned in this appeal was passed. Under the impugned award, the reference court enhanced the land value relying on the court award relied on by the 1[st] respondent in his application under Section 28A to Rs.900/per cent. Apart from that, the court granted statutory benefits including the additional amounts due under Section 23(1A) of the Land Acquisition Act to the first respondent. 2. On hearing the Government Pleader for admission, I noticed merit prima facie in the ground raised by the Government that the court below had erred in granting the amounts due under Section 23 (1A) to the first respondent since the award of the Collector in this case was passed long prior to 30.4.1982. The appellant was permitted to serve notice on the first respondent through his counsel in the court below Mr.P.O.Devasia and accordingly a copy was served on Mr.P.O.Devasia and the memo was produced in this case. Similarly Mr.E.K.Madhavan, counsel for the 2[nd] respondent, the requisitioning authority was directed to take notice on behalf of the 2[nd] respondent. 3. I have heard the submissions of Mr.Basant Balaji, learned LAA No.1374/08 - 3 - Senior Government Pleader and Mr.U.K.Ramakrishnan, Senior Counsel, on behalf of the 2[nd] respondent. Nobody entered appearance on behalf of the 1[st] respondent despite service of notice on Adv.Mr.P.O.Devasia who was appearing not only for the 1[st] respondent in this case but also for the claimant-respondent in a connected land acquisition reference case which was disposed of jointly by the court below. 4. I am not at all impressed by the submission of the learned Government Pleader that the reliance placed by the court below on the court award in LAR No.84/93 is wrong. As rightly noticed by the court below, the properties of the first respondent and the properties of the parties to the court award relied on were acquired for the same purpose and pursuant to the very same notification under Section 3 (1) of the Kerala Act which corresponds to Section 4(1) of the Central Act. The Land Acquisition Officer had awarded the same rate of value for both these properties. The primary object underlying Section 28A is to ensure that there is parity between the compensation received by persons whose similar properties are acquired pursuant to the same Section 4(1) notification. It is not disputed that the court award relied on by the first respondent has LAA No.1374/08 - 4 - become final. Under the above circumstances, there is no warrant at all for interfering with the decision of the court below enhancing land value to Rs.900/- per cent. 5. But there is considerable merit in the submission of the learned Government Pleader supported as the same is by the learned Senior Counsel for the 2[nd] respondent, that the court below should not have awarded the amounts due under Section 23(1A) of the Land Acquisition Act to the first respondent. The L.A.Officer's award was passed prior to 30.4.1982. On going through the judgment under appeal, it is seen that the learned Subordinate Judge has relied on my own judgment in **Joseph V. District Collector** (2004 (2) KLT 1029) to support his view. I do not know how the learned Judge could read my judgment in **Joseph's** case as deciding that the benefit under Section 23(1A) can be extended even to those land owners in whose cases the award had been passed by the Collector prior to 30.4.1982. In fact the ratio decidendi in **Joseph's** case is that for the purpose of maintaining applications under Section 28A, the court award which can be relied on by the applicant can also be a court award passed in a reference under Section 28A(3). I had incidentally referred to the judgment of the Supreme Court in **Union of India v.** LAA No.1374/08 - 5 - **Pradeep Kumari** [(1995) 2 SCC 736] and observed that Section 28A is a piece of beneficial legislation intended to remove inequality and to give relief to the inarticulate poor people who were unable to take advantage of their right to seek a reference to the civil court under Section 18 of the Land Acquisition Act. I had not decided in that judgment that awardees under Section 28A(3) will be entitled for the benefit under Section 23(1A) irrespective of the date of original award passed by the Land Acquisition Collector in their case. After holding that an award under Section 28A(3) can also be relied on for maintaining an application under Section 28A, I had only directed the second respondent in that case, the L.A. Officer to reconsider the application under Section 28A filed by the petitioner therein which had been rejected on the ground that the same is not based on an award under Section 18. I had no occasion to consider the eligibility of the party in that case to the amounts due under Section 23(1A). 6. The question whether the additional amounts provided under Section 23(1A) can be awarded to a party in whose case the award of the Collector is passed prior to 30.4.1982 is no longer res integra. This question is finally settled by the Constitution Bench of the Supreme Court in **K.S.Paripoornan v. State of Kerala** [ (1994) 5 LAA No.1374/08 - 6 - SCC 593]. The Constitution Bench by majority answered the reference in the following terms: 1. The judgment in **Union of India v. Zora Singh** [(1992) 1 SCC 673] in so far as it holds that the amount under Section 23(1A) payable in all cases where the reference was pending before the reference court on 24.9.1984 irrespective of the date on which the award was made by the Collector does not lay down the correct law. 2. In respect of acquisition proceedings initiated prior to the date of commencement of the amending Act (24.9.1984), payment of additional amount payable under Section 23(1A) will be restricted to matters referred to in clauses (a) and (b) of sub-section (1) of Section 30 of the amending act. Thus it will apply, (a) to cases where acquisition proceedings were pending on 30.4.1982, the date of introduction of the land acquisition amendment bill in the House of the People in which no award has been passed by the Collector before that date, (b) to cases where Collector has passed his award during the period from 30.4.1982 till 24.9.1984 and (c) to cases where award was passed by the Collector after 24.9.1984. Following the judgment of the Constitution Bench, it has to be held that the decision of the reference court to the extent the same grants LAA No.1374/08 - 7 - to the claimant additional amounts payable under Section 23(1A) is wrong. It is accordingly held that since the award of the Land Acquisition Officer in this case was passed prior to 30.4.1982, the first respondent will not be entitled for the additional amounts provided under Section 23(1A). The appeal is allowed by deleting the amounts awarded to the first respondent under Section 23(1A). The judgment and decree of the reference court stands modified to the above extent. The parties are directed to suffer their costs. srd ## **PIUS C.KURIAKOSE, JUDGE**