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Karthyayani Amma K.P vs The Special Tahsildar(La) on 3 June, 2010

Kerala High Court
Karthyayani Amma K.P vs The Special Tahsildar(La) on 3 June, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 26059 of 2009(B)


1. KARTHYAYANI AMMA K.P.,
                      ...  Petitioner

                        Vs



1. THE SPECIAL TAHSILDAR(LA),
                       ...       Respondent

2. THE DISTRICT COLLECTOR,

3. STATE OF KERALA,

                For Petitioner  :SMT.SHAMEENA SALAHUDHEEN

                For Respondent  :GOVERNMENT PLEADER

The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR

 Dated :03/06/2010

 O R D E R
                      T.R. Ramachandran Nair, J.
                   - - - - - - - - - - - - - - - - - - - - - - - -
                     W.P.(C) No. 26059 of 2009-B
                   - - - - -- - - - - - - - - - - - - - - - - - - - -
                Dated this the 3rd day of June, 2010.

                                 JUDGMENT

The petitioner’s properties have been acquired for the purpose of

Ezhimala Naval Academy. According to the petitioner, a total extent of

2.30 acres of land in R.S. No.236/1A 1A 1A of Ramanthali Village have

been acquired. The petitioner filed an application under Section 28A of the

Land Acquisition Act for re-determination of the compensation. Initially, it

was rejected as per Ext.P2 Exts.P2(a) and P2(b) stating that ” on verification

of the revenue records, no land was acquired from the applicant in the

survey number referred.” It is the case of the petitioner that there was some

mistake in the survey numbers given in the application. Therefore the

petitioner filed fresh applications as per Exts.P3 and P4 which were

rejected as per Exts.P5 and P6 orders. A reading of the above orders show

that the reason stated therein is that the application for the redetermination

of compensation under Section 28A of the Land Acquisition Act should be

made only on the basis of judgment of reference court under Section 18 of

the Act.

2. It is submitted by the learned counsel for the petitioner that the

wpc 26059/2009 2

issue is covered in favour of the petitioner by a decision of this Court in

Joseph v. District Collector (2004 (2) KLT 1029) wherein it was held that

the award of court for the purpose of an application under Section 28A(1)

can include an award made by the court in a reference case registered under

Section 28A(3) also. Therein, this Court after considering various aspects,

held thus:

“On a literal interpretation of the expression “award of the Court”

employed in S.28A, according to me all awards of the Court under

which excess compensation has been awarded by the Court over and

above the original compensation awarded by the Land Acquisition

Collector and are passed under Part III of the land Acquisition Act

are included. S.28-A(3) enables a party as does S.18 to seek a

reference to the Court for determination of the question of correct

compensation. The award of the Court whether it be on a reference

under S.18 or it be on a reference under S.28-A(3) is passed in terms

of S.26. The provisions of Ss.18 to 28 have been made applicable to

references under S.28-A(3) as they apply to reference under S.18, of

course “so far as may be”. In my view the distinction can lie only in

that, the Court considering a reference received under S.28-A(3) will

be concerned with enhanced compensation by way of land value and

incidental statutory benefits alone, while the Court dealing with a

reference under S.18 will also be concerned with the claims of the

owner for enhanced value for buildings and other improvements.

Considerations under S.23 which do not have anything to do with

wpc 26059/2009 3

claim for land value may not be relevant on reference under S.28A

(3). But as far as claims under S.28-A which are always for equal

land value for similar lands covered by the very same 4(1)

notification are concerned there cannot be any difference between the

awards passed on a reference made under Ss.18 and 28-A(3). If the

legislature wanted to include only the award passed in a reference

under S.18, the legislature would certainly have specifically referred

to awards passed on a reference under S.18(1). Instead the legislature

clearly referred to “awards passed under Part III of the statute” which

takes in awards passed in references under S.18 as well as under

S.28-A(3). Both of them are expected to be given in terms of S.26

and as far as the land value payable is concerned are expected to have

the same characteristics.”

3. In the light of the above, the orders passed by the authorities as per

Exts.P5 and P6 cannot be supported. They are accordingly quashed. There

will be a direction to the first respondent to reconsider the applications of

the petitioner on merits and pass appropriate orders within a period of three

months from the date of receipt of a copy of this judgment.

The writ petition is disposed of as above. No costs.

(T.R. Ramachandran Nair, Judge.)

kav/

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