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.
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W.P.(C) No. 26059 of 2009-B
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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/
