Sunil R Nair v. State of Kerala; Kesavan Nair v. State of Kerala (WP(C) Nos. 29963 & 29964 of 2017)

WP(C) NO. 29963 & 29964 OF 2017 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 10[TH] DAY OF JUNE 2024 / 20TH JYAISHTA, 1946 WP(C) NO. 29963 OF 2017** ## **PETITIONER/S:** **SUNIL.R.NAIR AGED 35 YEARS AGED 35 YEARS, S/O RAMAKRISHNAN NAIR, LEKSHMI BHAVANAM, MEKKADU, CHAVARA, NOW RESIDING AT SREENILAYAM CHANDRATHIL ROAD, EDAPPALLY, COCHI** **BY ADVS. SRI.C.RAJENDRAN SMT.R.S.SREEVIDYA** ## **RESPONDENT/S:** **1 STATE OF KERALA REP, BY THE REVENUE SECRETARY, REVENUE DEPARTMENT, TRIVANDRUM- 695 001 2 THE DISTRICT COLLECTOR KOLLAM- 691 001 3 THE SPECIAL TAHSILDAR LA THE KERALA MINERALS AND METALS LIMITED SANKARAMANGALAM, CHAVARA, EDAPPALICOTTA- 691 583** ## **OTHER PRESENT:** **SRI.RIYAL DEVASSY, GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.06.2024, ALONG WITH WP(C).29964/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) NO. 29963 & 29964 OF 2017 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 10[TH] DAY OF JUNE 2024 / 20TH JYAISHTA, 1946** **WP(C) NO. 29964 OF 2017** ## **PETITIONER/S:** **KESAVAN NAIR AGED 48 YEARS AGED 48 YEARS, S/O.GOPINATHAN PILLAI,LEKSHMI BHAVANAM, MEKKADU, CHAVARA,NOW RESIDING AT THOTTAPPALLISSERIL VEEDU,MUTHUKULAM NORTH, CHOOLATHERUM P.O.,KAYAMKULAM.** **BY ADVS. SRI.C.RAJENDRAN SMT.R.S.SREEVIDYA** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY THE REVENUE SECRETARY,REVENUE DEPARTMENT, TRIVANDRUM - 695 001.** - **2 THE DISTRICT COLLECTOR KOLLAM - 691 001.** - **3 THE SPECIAL THAHSILDAR LA THE KERALA MINERALS AND METALS LIMITED,SANKARAMANGALAM, CHAVARA, EDAPPALICOTTA, 691 583,KOLLAM DISTRICT.** **BY ADVS. GOVERNMENT PLEADER, RIYAL DEVASSY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.06.2024, ALONG WITH WP(C).29963/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) NO. 29963 & 29964 OF 2017 3 ## **P.V.KUNHIKRISHNAN, J** **–-------------------------------------** **W.P.(C.) Nos. 29963 & 29964 of 2017 -------------------------------------Dated this the 10[th] day of June, 2024** ## **JUDGMENT** These writ petitions are connected and the same issue is raised and therefore, I am disposing of these writ petitions by a common judgment. 2. I will narrate the facts in W.P.(C.) No. 29963/2017 first. Sri. Ramakrishnan Nair, S/o Narayan Pillai, Lekshmi Bhavanam, Mekkad, Panmana was the owner of the landed property of 0.24 and 1.30 ares of land comprised in Sy. Nos. 2236/5, 2241/2 and 12.95 ares of land in Sy. No. 2354/A2 of Panmana Village in Karunagappally Taluk. The said properties were acquired by the Special Tahsildar (LA) No.II for Mineral and Metal, Chavara. The above said Radhakrishnan Nair died WP(C) NO. 29963 & 29964 OF 2017 4 on 14.04.2005. His legal heirs are Rajamma Pillai, Sunil R Nair, Sujith Nair and Salini Nair, is the submission. In addition to the said properties, properties of other persons were also acquired for the same purpose under the same notification. On acquisition of the said property, the 3[rd] respondent has passed an award bearing No. 148/78 allowing compensation to the petitioner. The petitioner was not satisfied with the amount awarded by the 3[rd] respondent. So he received the amount under protest, is the submission. 3. One Mr. Venugopalan filed LAR 564/88 for enhancement of compensation before the Sub Court, Kollam. The Sub Court enhanced the land value by Rs. 3,450/- per Are by its award dated 11.08.1997. The petitioner applied for a copy of the award on 13.08.1997 and the copy of the award was received from the court on 18.08.1998. The property for which the said judgment was passed and the property of the petitioner were acquired under the very same notification, is WP(C) NO. 29963 & 29964 OF 2017 5 the submission. So the petitioner submitted a petition to the District Collector to redetermine the amount of compensation as per Sec. 28A of the Land Acquisition Land. Even though, the petitioner filed Ext.P2 before the District Collector, the 3[rd] respondent considered the application and rejected the same stating that owners whose land was acquired after 14.09.1984 are entitled to get enhanced compensation. Aggrieved by the same, this writ petition is filed. 4. W.P.(C) No. 29964/2017 is filed by one Kesavan Nair. Sri. Gopalakrishnan Nair, Lekshmi Bhavanam, Mekkadu, Panmana was the owner of the landed property of 0.24 and 1.30 ares of land comprised in Sy.No.2353/2 of Panmana Village in Karunagappally Taluk. The said properties were acquired by the Special Tahsildar (LA) No.II for Mineral and Metals, Chavara. The above mentioned Gopalakrishnan Nair died on 04.05.2015 and his legal heirs are Kesavan Nair, Jayasree V., Vijaya Lekshmi Amma, Lekshmi Bhavanam, WP(C) NO. 29963 & 29964 OF 2017 6 ## Mekkad, Panmana. 5. In addition to the said properties, properties of other persons were also acquired for the same purpose under the same notification. On acquisition of the said property, the 3[rd] respondent had passed an award bearing No.148/78 allowing compensation to the petitioner. The petitioner was not satisfied with the amount awarded by the 3[rd] respondent and he received the amount on protest. 6. When one Mr.Venugopalan filed LAR 564/88 for enhancement of compensation before the Sub Court, Kollam and the land value was enhanced, the petitioner filed an application under Section 28A of the Land Acquisition Act. The same was rejected mainly for the reason that owners whose land was acquired after 14.09.1984 alone are entitled to get an enhancement of compensation. Aggrieved by the same, these writ petitions are filed. 7. Heard the learned counsel for the petitioners and the WP(C) NO. 29963 & 29964 OF 2017 7 ## learned Government Pleader. 8. Ext.P3 is the impugned orders in these writ petitions. Ext.P3 in both these writ petitions are one and the same. Therefore, Ext.P3 is extracted hereunder:- _"_ നന .ബബ.2 _,_ പപപൊനനനവബല സസപപഷഷ്യൽതഹസബൽദപൊരനപട ഓഫഫീസസ _,_ പകഎനഎനഎൽ, ചവറ തഫീയതബ:30.09.08 ## നനപൊടഫീസസ ക�രള� ല�ൻറ� അ���സബഷൻ ആകസടസ പസക്ഷൻ 28 എ പപകപൊരന സപൊനപസതതബകപൊനനകകൂലഷ്യന ലഭബകനനതബനപൊയബ തപൊങ്കൾ സമർപബച്ചയനപക്ഷയബൻനമൽ നമൽനനന്വേഷണന നടതബയതബൽ തപൊങ്കളളുപട ഭകൂമബ ഏപറ്റെടനതസ 1984 നസ മനൻപസ _._ അവപൊർഡസതനക നലസകബയബടളുള്ളതപൊണസ _14.9.1984_ നസ നശേഷന പപപൊനനനവബലകസ ഭകൂമബ ഏപറ്റെടനതവർകസ മപൊപതനമ പസക്ഷൻ 28 എ പപകപൊരമനള്ള . ആനനകകൂലഷ്യതബനസ അർഹതയനള് **ള** തപൊങ്കളളുപട അവപൊർഡസ നൽകബയ തഫീയതബ ടബ തഫീയതബകസ മനൻപപൊയതബനപൊൽ പക എൽ എ ആകസടസ പസക്ഷൻ 28 എ പപകപൊരമനള്ള ആനനകകൂലഷ്യതബനസ അർഹതയബല്ലപയനതബനപൊൽ തപൊങ്കളളുപട അനപക്ഷനബരസബച്ചബരബകനനന. സസപപഷഷ്യൽതഹസബൽദപൊർ(എൽഎ)” ## 9. The short point to be decided whether Section 28A WP(C) NO. 29963 & 29964 OF 2017 8 of the Land Acquisition Act is applicable only to those land owners whose properties were acquired after 1984. 10. The same issue is considered by a Division Bench of this Court in _**Indira Devi vs. Special Tahsildar (1991 KHC 39).**_ Paragraphs 27 and 38 of the above judgment is relevant and the same is extracted hereunder:- _“27. On a plain reading of S.28A, all that it requires basically for its operation is an award of the court made after its commencement, by which compensation in excess of that award by the Collector under S.11 is allowed. Though certain other requirements are also laid down as analysed by us in Para.22, a requirement regarding the date of making of the Collector's award, that it should be after the commencement of the section is nowhere stipulated. The section is explicit in what it requires and on what it operates. When it has expressly set out the conditions necessary to attract its operation, it is not possible, nor is it permissible, to read a further condition into it, that the award of the Collector under S.11 should also be made only after the section came into force. It is not for the court to add such a condition, and confine the applicability of the section to cases where the award of the Collector itself_ WP(C) NO. 29963 & 29964 OF 2017 9 _is made after September 24, 1984._ _38. We have therefore, no hesitation in holding that S.28A can be invoked in all cases where the award of the Court is passed after the date of commencement of the Act 68 of 1984, irrespective of the date on which the award of the Collector was passed, whether it was before or after that date.”_ 11. From the above, it is clear that Section 28A can be invoked in all cases where the award of the Court is passed after the date of commencement of the Act 68 of 1984, irrespective of the date on which the award of the Collector was passed, whether it was before or after that date. Admittedly, in these writ petitions, the award is passed by the court after 14.09.1984. If that is the case, the reasoning in Ext.P3 in these writ petitions is unsustainable. Therefore, these writ petitions are disposed of with the following directions:- 1. _Ext.P3 in W.P.(C) No.29963/2017 and W.P.(C) No.29964/2017 are quashed._ WP(C) NO. 29963 & 29964 OF 2017 10 2. _The competent authority among the respondents will reconsider the application submitted by the petitioners under Section 28A dehors the reason stated in Ext.P3, as expeditiously as possible, at any rate, within three months from the date of receipt of a certified copy of this judgment._ **sd/P.V.KUNHIKRISHNAN JUDGE** SKS/bng WP(C) NO. 29963 & 29964 OF 2017 11 ## **APPENDIX OF WP(C) 29964/2017** **PETITIONER EXHIBITS** **EXHIBIT-P1: A TRUE PHOTOCOPY OF THE AWARD IN LAR 564/88 OF THE SUB COURT, KOLLAM DATED 11/8/97.** **EXHIBIT-P2: A TRUE PHOTOCOPY OF THE PETITION SUBMITTED BY THE PETITIONER'S FATHER BEFORE THE 2ND RESPONDENT.** **EXHIBIT-P3: A TRUE PHOTOCOPY OF THE ORDER DATED 30/9/2008 ISSUED BY THE 3RD RESPONDENT.** WP(C) NO. 29963 & 29964 OF 2017 12 ## **APPENDIX OF WP(C) 29963/2017** **PETITIONER EXHIBITS EXHIBIT P1 THE TRUE COPY OF THE AWARD IN LAR 564/1988 OF SUB COURT KOLLAM DATED 11/08/1997 EXHIBIT P2 THE TRUE PHTOSTAT COPY OF THE PETITION DATED NOVEMBER 1998** **EXHIBITP3 A TRUE PHTOCOPY OF THE ORDER DATED 30-092008**