Vinod Shaney v. District Collector, Ernakulam and The Managing Director, KINFRA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **WEDNESDAY, THE 16TH DAY OF NOVEMBER 2016/25TH KARTHIKA, 1938** ## **WP(C).No. 18370 of 2009 (M)** **----------------------------** **PETITIONER:** ## **----------** **VINOD SHANEY, S/O. LATE J.C. SHANEY, RETIRED COMPANY DIRECTOR, AGED 65 YEARS, RESIDING AT BUNGLOW NO.5, PALM COUNTY", ADJ SAFRANI MEMORIAL HIGH SCHOOL, HUSSAIN, SHAHWALI DARGAH, GOLCONDA POST, HYDERBAD 500 008.** **BY ADVS.SRI.A.N.KUTTAN SRI.B.S.CHANDRA MOULI** **RESPONDENT(S):** **--------------** ## **1. THE DISTRICT COLLECTOR, ERNAKULAM.** **2. THE MANAGING DIRECTOR, KINFRA, VELLAYAMBALAM, THIRUVANANTHAPURAM. R1 BY GOVERNMENT PLEADER SRI M.V.ANANDAN R2 BY ADVS. SRI.ANIL D. NAIR SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI SRI.E.K.NANDAKUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K.V.** **WPC 18370 OF 2009:** ## **------------------** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** **---------------------** - **P1; TRUE COPY OF SALE DEED DATED 25/7/1983 IN THE NAME OF THE PETITIONER.** - **P2; TRUE COPY OF THE RELEVANT PAGES OF IN LAR 100 & 102/98, SUB COURT, ERNAKULAM.** - **P3; PETITION DATED 25/1/2008 FROM PETITIONER TO 1ST RESPONDENT.** - **P4: ORDER DATED 11/12/2008 ISSUED BY SPL TAHSILADER L.A. KAKKANAD .** - **P5: NOTICE DATED 26/3/2007 ISSUED BY THE SPECIAL TAHSILDAR (LR) KAKKANAD** **RESPONDENT(S)' EXHIBITS NIL** **-----------------------** **/TRUE COPY/** **P.A.TO JUDGE** **K.V.** ## C.K.ABDUL REHIM, J. ----------------------------------------------WP(C) No. 18370 of 2009 ----------------------------------------------Dated this the 16th day of November, 2016 ## JUDGMENT An extent of 98.500 cents of land comprised in Survey No.364/1/6,9,10 of Thrikkakara South Village, belonging to the petitioner, was acquired for a public purpose under provisions of the Land Acquisition Act, based on the requisition made by the 2[nd] respondent. The petitioner was awarded with an amount of Rs.98,571/- as compensation for the acquisition in question. Based on the protest submitted by the petitioner, the Land Acquisition case was referred for re-determination of the compensation, under section 18 of the Act. The case was considered under LAR No.102/98 before the Sub Court, Ernakulam. The Reference Court through its judgment dt. 30.3.2007 passed an award denying additional compensation to the petitioner, finding that he has not filed any reference application before the WP(C).18370/2009 2 awarding officer. Therefore the petitioner submitted an application before the 1[st] respondent as contemplated under section 28A(1) of the Act seeking re-determination of the compensation, on the basis of the common award passed by the Sub Court Ernakulam in LAR. No.102/98. It is the contention of the petitioner that the land with respect to which enhanced compensation was awarded is covered by the same notification under section 4(1) of the Act and therefore he is entitled for re-determination of compensation on the basis of such award. The above said application, copy of which is produced as Ext.P3, was considered by the Special Tahsildar (LA NH No.I Kakkanad) who is the Land Acquisition Officer concerned. Through Ext.P4 proceedings the application filed by the petitioner under section 28A(1) was rejected, observing that the land acquired from the petitioner is only having a nominal extent of 37.61 Ares, from a vast area of 3.4575 Hectors and that the said land is not almost similar with the land in which WP(C).18370/2009 3 enhancement of compensation is ordered by virtue of the judgment in LAR No.102/98. Based on such observation it was found that, the petitioner is not entitled for redetermination of compensation under section 28A. It was also found that the appeal filed by the Requisitioning Authority against the judgment in LAR.No.102/98 is pending disposal before this court as LAA.No.1429/2008. It is aggrieved by Ext.P4 proceedings through which the application for re-determination of compensation filed under section 28A(1) was rejected, that the petitioner is approaching this court. 2. Going by provisions contained in section 28A(1), any person whose land was acquired for a public purpose is entitled to get the amount of compensation re-determined in excess of the amount awarded by the Collector as allowed with respect to any other land covered by the same notification issued under section 4(1). Evidently the Land Acquisition Officer has not considered the question as to WP(C).18370/2009 4 whether acquired land of the petitioner is covered by the same notification as that of the land covered under the judgment relied on by the petitioner. Under sub section (3) of section 28A remedy is provided to any person who is not satisfied with an award passed under sub section (2) of section 28A, to require the Land Acquisition Officer to refer the matter for determination by the Reference Court under section 18 of the Act. In the decision of this court in **Savithry Amma vs. State of Kerala (1992 (2) KLT 365)** it is held that, an order refusing to re-determine the compensation by the Land Acquisition Officer is also an award within the meaning of sub section (2) of section 28A. If that be so, the person who is aggrieved by such an order also has the right to approach the Land Acquisition Officer to have the matter referred to the reference court and on such application being made, the Land Acquisition Officer is bound to refer the same to the Civil Court for disposal in accordance with law. WP(C).18370/2009 5 3. In view of the legal position remaining settled as above, this court is of the considered opinion that the petitioner can seek remedy as provided under sub section (3) of section 28A with respect to the rejection of the application for re-determination of the compensation. Since the petitioner had challenged Ext.P4 before this court in the above writ petition, I am of the considered opinion that the the said request has to be considered as a request made for reference under section 28A (3). Therefore interest of justice can be achieved by directing the Land Acquisition Officer concerned to make a reference of the matter to the competent court as contemplated under section 28A(3). 4. Hence the above writ petition is hereby disposed of by directing the 1[st] respondent or the competent Land Acquisition Officer in the matter, to make a reference of the application for re-determination of compensation submitted by the petitioner for decision of the reference court, under section 28A(3) of the Land Acquisition Act. The needful WP(C).18370/2009 6 steps in this regard shall be taken at the earliest, at any rate within a period of one month from the date of receipt of a copy of this judgment. C.K.ABDUL REHIM, JUDGE Pmn/ WP(C).18370/2009 7