Sulaikha E P and others v. The State of Kerala represented by its Secretary, Revenue Department, Kozhikode District and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM TUESDAY, THE 30[TH] DAY OF JANUARY 2024 / 10TH MAGHA, 1945** ## **WP(C) NO. 43468 OF 2023** ## **PETITIONERS:** 1 SULAIKHA.E.P AGED 77 YEARS W/O. E.P.MUHAMMAD KOYA, 'SINGAPUR" HOUSE, CHAKKERIKKAD PARAMB, P.O. ARAKKINAR, BEYPORE VILLAGE, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN - 673028 2 NAZEEMA D/O. E.P. MUHAMMAD KOYA, "NESTLE" HOUSE, VETTOM, KANOOR, P.O. VAKKAD, MALAPPUARAM DISTRICT, PIN - 676502 3 SHEEBA ASHRAF D/O. E.P. MUHAMMAD KOYA, "VALIYA VEETTIL", VANDIPPETTA, P.O. NADAKKAVU, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN - 673011 4 HARIS.E.P S/O. MOHAMMAD KOYA, 19/1504 C, "GRACE", P.O. CHALAPPURAM, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN - 673002 5 ROSHNA NASSER D/O. E.P. MUHAMMAD KOYA, 2128, "RAYYAN", MEENCHANDA, KALLAI, KUNDUNGAL, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN - 67300 6 HASEENA BASHEER D/O. E.P. MUHAMMAD KOYA, NO.211, INDWIN PAVILLION APARTMENT, VIBHUTHIPURA MAIN ROAD, ANNASANDRAPALYA, BANGALORE NORTH, VIMANAPURA, BANGALORE, KARNATAKA STATE., PIN - 560017 BY ADVS. V.N.HARIDAS B.SHAMEERA SAIFUDEEN T.S ## **RESPONDENTS:** 1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, **W.P.(C).No.43468 of 2023 2** GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2 THE DISTRICT COLLECTOR 2. THE DISTRICT COLLECTOR, KOZHIKODE, DISTRICT COLLECTOR OFFICE, KOZHIKODE COLLECTORATE, CIVIL STATION P.O., KOZHIKODE DISTRICT, PIN - 673020 3 THE SPECIAL TAHASILDAR (L.A.) KOZHIKODE CITY ROAD IMPROVEMENT PROJECT, CIVIL STATION P.O., KOZHIKODE DISTRICT, PIN - 673020 ## **OTHER PRESENT:** SR.GP - JUSTIN JACOB THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **W.P.(C).No.43468 of 2023 3** ## **VIJU ABRAHAM,J** ## **-------------------** ## **W.P.(C).No.43468 of 2023 --------------------------------Dated this the 30[th] day of January, 2024** ## **JUDGMENT** Petitioners have approached this Court aggrieved by Exts.P3 and P5 orders issued by the 3[rd] respondent. 2. Petitioners are the legal heirs of one E.P.Muhammed Koya. Late Muhammed Koya and his daughter Roshna Nasser owned 0.0100 hectares of land comprised in T.S.No.5-20-976/12 in Kasaba Village, Kalathilkunnu Desom, Kozhikode Taluk, Kozhikode District. The said property was acquired for the widening of road from Gandhi Road to Mini Bye Pass and from Kuniyil Kavu Junction to Nandilath Junction. Section 4(1) notification was published on 18.01.2011 and along with the property of the petitioners, several other properties were also acquired, compensation was awarded on 26.09.2012 as per Award No.33/2012. Other property owners preferred claim for further enhancement. In such an application, the Principal Sub Court, ## **W.P.(C).No.43468 of 2023 4** Kozhikode answered the reference in favour of the applicants as per Ext.P1. Petitioners relying on Section 28A of the Land Acquisition Act, 1894 which mandates that any persons interested in all other land covered by the same notification under Section 4(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 Section 18, can require to redetermine the compensation on the basis of the amount of compensation awarded by the court, submits that they have preferred Ext.P2 application under Section 28A, which has preferred within the time limit stipulated by the statute. However, the application was rejected as per Ext.P3 holding that the property of the petitioners and that of the compensation awarded by the court are not similar. Petitioners submit that there is also another order in LAR 366/2014 before the Principal Sub Judge, Kozhikode granting benefit to the appellants therein and the said judgment was also produced before the 3[rd] respondent which was also rejected as per Ext.P5 holding that the same has ## **W.P.(C).No.43468 of 2023 5** been produced beyond the period stipulated as per the Act. Petitioners submit that the said rejection as per Exts.P3 and P5 are not in accordance with law contending that it is settled law that the application for re-determination for compensation cannot be rejected for the reason that the properties are not similar. Petitioners submit that the issue has been settled by this Court in **Shyamala E alias Shyamala Radhakrishnan v District Collector Kannur and another (2021 (5) KLT 127), Kunhippennu and others v. State of Kerala and others (2022(4) KLT 88)** . Petitioners would further submit that this Court in **Pallipurath Kunhikoren v. District Collector Kannur and others (2016 (2)** **KHC 150 DB)** has held that if there are two separate awards, the applicants can prefer application for re-determination on the basis of subsequent award. 3. Heard the learned Government Pleader also. 4. This Court in **Kunhipennu** 's case cited supra, in paragraph 5 as held as follows: “5. A reading of section 28A of the Act makes it clear that the collector shall redetermine the amount of compensation to all persons interested in all other lands covered by the same notification under ## **W.P.(C).No.43468 of 2023 6** section 4, subsection (1) and who are aggrieved by the award of the collector. The section mandates that the only criteria to be taken into consideration by the District Collector is whether the property of the claimant and that of the property in the relied judgment is in respect of the same 4(1) notification. On going through the award Ext.P1, it can be seen that the Land Acquisition Officer has divided the lands into two categories i.e, lands lying on the eastern side of the Railway Track and lands lying on the western side of the Railway Track. For lands lying on the eastern side of the Railway Track, the Land Acquisition Officer, after taking document No. 1745/05 dated 28.5.2005 of Sub Registrar, Uduma as a basic document fixed the land value at Rs.31,170/- per cent, whereas for the lands on the western side of the Railway Track, Document No.2409/04 dated 19.8.04 the Sub Registrar, Uduma was taken as a basic document and fixed the land value at Rs.42,732/- per cent. The petitioners land, as well as the land which is the subject matter on relied on judgment namely, L.A.R. No.39/2010 lies on the western side of the Railway Track and the land value awarded by the Land Acquisition Officer for both the properties are at the rate of Rs.42,732/ per cent. When the Land Acquisition Officer himself has treated both the properties as similar and similarly situated and granted the same value, the rejection of the Application under Section 28A of the Act by Ext.P3 is illegal and improper. When the properties are acquired under the same notification and the same land value given by the Land Acquisition Officer treating it as similar lands the 3rd respondent cannot go into a further classification based on the distance of the property from the road. The reasoning given in Ext.P3 for rejection is that the petitioner’s land lies around 50 meters west of the railway line and that there is no road access whereas in the judgment relied on the property lies at a distance of 50 mtrs towards the west to the State Highway and thus the properties are not similarly situated. I am afraid the 3rd respondent, who has passed the award under ## **W.P.(C).No.43468 of 2023 7** Ext.P3 has treated both the properties alike and granted the same land value treating it as similar. In such a situation, he cannot make further classification as stated in Ext.P3 while redetermining the compensation under section 28A of the Act. When section 28(A) of the Act directs the Land Acquisition Officer only to look into if both the properties are under the same 4(1) notification, he cannot add another condition like similarity of the property while re determination of compensation. The reasoning stated by the 3rd respondent in Ext.P3 is illegal and improper and hence, the same is liable to be set aside and I do so.” In view of the categorical declaration of law as stated above, I am of the opinion that the matter requires reconsideration at the hands of the 3[rd] respondent in the light of the judgments cited supra, Exts.P3 and P5 are set aside, with a consequential direction to the 3[rd] respondent to reconsider Ext.P2 application taking into consideration Exts.P1 and P4 and the judgments of this Court in **Pallippurath Kunhikoran** 's case as well as **Kunhipennu** 's case cited supra, copies of which shall be made available before the 3[rd] respondent by the petitioners. A fresh decision in this regard shall be taken by the 3[rd] respondent within a period of 2 months from the date of receipt of a copy of the judgment, after affording ## **W.P.(C).No.43468 of 2023 8** an opportunity of being heard to the petitioners and any other affected parties. sd/- **VIJU ABRAHAM, JUDGE** pm **W.P.(C).No.43468 of 2023 9** ## **APPENDIX OF WP(C) 43468/2023** PETITIONERS' EXHIBITS Exhibit P1 A TRUE COPY OF THE JUDGMENT IN LAR NO.325 OF 2014 DATED 12.11.2019 OF THE PRINCIPAL SUB COURT, KOZHIKODE Exhibit P2 A TRUE COPY OF THE APPLICATION PREFERRED BY THE PETITIONERS UNDER S.28A FOR THE REDETERMINATION OF COMPENSATION IN THE LIGHT OF THE AMOUNT OF COMPENSATION AWARDED BY THE COURT DATED 03.02.2020 Exhibit P3 A TRUE COPY OF THE ORDER ISSUED BY THE 3RD RESPONDENT REJECTING THE APPLICATION SUBMITTED BY THE PETITIONERS DATED 08.01.2021 Exhibit P4 A TRUE COPY OF THE JUDGMENT OF THE PRINCIPAL SUB COURT, KOZHIKODE IN LAR NO. 366 OF 2014 DATED 16.12.2015 Exhibit P5 A TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT DATED 26.09.2023