Allowed

Kumbil Thankam v. the Special Tahsildar

Kerala HC6 Jul 2009LA.App./179/2006

Case brief

AI extract

What is this about?

The Special Leave Petition and Land Acquisition Appeal were allowed. The Court held that the reference under Section 18 was valid, inferring oral protest from the claim statement and circumstances, setting aside the reference court's judgment to answer the reference on merits.

What did the court decide?

The appeal and writ petition allowed; impugned judgment set aside; matter remitted to the reference court to answer the reference on merits within five months.

Kumbil Thankam Vs the Special Tahsildar — Land Acquisition | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE &

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THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI

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MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931

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LA.App..No. 179 of 2006(D)

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-------------------------LAR.63/2003 of II ADDL.SUB COURT,THRISSUR

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APPELLANT(S): CLAIMANT

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KUMBIL THANKAM, W/O.KESAVAN, P.O.KAVEEDU, PERAKAM, GURUVAYOOR.

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BY ADV. SRI.V.V.ASOKAN SMT.S.AMINA

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RESPONDENT(S):

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THE SPECIAL TAHSILDAR (L.A), GURUVAYOOR DEVASWOM, GURUVAYOOR.

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DISTRICT COLLECTOR, THRISSUR.

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THE ADMINISTRATOR, GURUVAYOOR DEVASWOM, GURUVAYUR.

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ADV. SRI.N.RAJAGOPALAN NAIR,SC,GURUVAYUR D.B FOR R3 GOVERNMENT PLEADER SMT.LATHA.T.THANKAPPAN FOR R1 & R2

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THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 06/07/2009 ALONG WITH WPC NO. 32092 OF 2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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PIUS.C.KURIAKOSE & P.Q.BARKATH ALI, JJ.

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L.A.A.Nos.179 OF 2006 & W.P.(C) No.32092 OF 2006

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- - - - Dated this the 6^th day of July, 2009

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JUDGMENT

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Pius.C.Kuriakose, J.

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W.P.(C)No.32092/2006 is filed by the claimant in

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L.A.R.No.63/2003 of Second Additional Sub Court, Thrissur - Land Acquisition Court being aggrieved by Ext.P6 judgment of the reference court declining to answer the reference which was sent under Section 18 of the Land Acquisition Act by the land acquisition officer, on the reason that there is no valid reference. L.A.A.No.179/2006 is the regular land acquisition appeal preferred against the judgment and decree of the land acquisition reference court in L.A.A.No.63/2003

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We have heard the submissions of Sri.V.V.Asokan, learned counsel for the appellant/claimant/petitioner and those of Sri.Basant Balaji, learned senior government pleader as well as those of Sri.N.Rajagopalan Nair, standing counsel for Guruvayur Devaswom. It is seen on going through the impugned judgment of the reference court that it became evident by Ext.P4 reference application and Ext.A6

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L.A.A.Nos.179 OF 2006 & W.P.(C) No.32092 OF 2006 2

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postal acknowledgment card that the claimant did send a request for reference of the question of determination of the correct market value of the acquired properties within the statutory time frame of six weeks from the date of the award. In fact, it is seen from the original award passed by the land acquisition officer itself that he was anticipating a request for reference by the party under Section 18 since what was awarded was only a lesser amount than what the party had claimed in the claim statement submitted by her in response to the notice under Section 9(3). It is clear that Ext.A4 was construed by the land acquisition officer as a proper application for reference and that is why he referred the matter to the reference court which registered the reference and enquired into the same. The learned subordinate Judge has declined to answer the reference on the reason that though Ext.A4 was submitted by the party on time, the party received the cheque for the original compensation awarded without protest. In order to show that there was protest, Ext.A7 counter foil of the D Form cheque which was given to the party towards the original compensation was relied on by the appellant/claimant. Ext.A7 contains an endorsement by the

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L.A.A.Nos.179 OF 2006 & W.P.(C) No.32092 OF 2006 3

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party to the effect that the cheque is being received by her under protest. Learned Subordinate Judge however has noticed the admission of AW1 the party that it was not she who had made the endorsement and that it is probably her son who accompanied her for receiving the cheque who made the endorsement. Relying on the oral evidence of AW1 only, the learned Subordinate Judge held under the impugned judgment that the application for reference, though made on time, was not valid on the reason that the receipt of the cheque for original compensation was not proved to be with protest.

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Having considered the rival submissions addressed before us and having kept in mind the relevant statutory provisions as well as the judicial precedents rendered by the Supreme Court as well as by this court in the context of Section 18 of the Land Acquisition Act, we are of the view that it was too technical on the part of the learned Subordinate Judge to have taken the view that the reference made by the land acquisition officer was not a valid one. It is true that the receipt of the original compensation with protest is a statutory pre-requisite for a valid reference under Section 18. But then it is not

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L.A.A.Nos.179 OF 2006 & W.P.(C) No.32092 OF 2006 4

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the law that the protest should be in writing. Protest can be oral and protest can be gathered from the circumstances which attend on the case. Admittedly, the party had submitted a claim statement in answer to the notice under Section 9(3). The tenor of that claim statement is such that the party will not be satisfied with anything less than what she has claimed in that claim statement . This is why even in the original award the land acquisition officer has made an observation ( even before he had received a regular application for reference) that the question of determining the correct market value will be referred to the land acquisition court. The reference application Ext.A4 was submitted by the party within a few days of receiving the cheque . We are sure that the receipt of the original cheque was made by the party without giving up her claims for much higher value as already raised by her in her claim statement before the land acquisition officer. In other words, we are of the view that the party's protest to the adequacy of the compensation can be inferred from the circumstances attending on this case.

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The result of the above discussion is that the appeal as well as the

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L.A.A.Nos.179 OF 2006 & W.P.(C) No.32092 OF 2006 5

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writ petition will stand allowed. The judgment under appeal will stand set aside. L.A.R.No.63/2003 will go back to the II Additional Subordinate Judge's Court, Thrissur. That court will permit all the parties to adduce whatever further evidence they want to in substantiation of their claims regarding market value of the property and will answer the reference on merits on the basis of the entire evidence which comes on record. Needful in compliance with the above direction shall be done by the learned Subordinate Judge at the earliest and at any rate within five months of receiving copy of this judgment.

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Transmit all the records forthwith.

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PIUS.C.KURIAKOSE JUDGE

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P.Q.BARKATH ALI JUDGE

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sv.

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L.A.A.Nos.179 OF 2006 & W.P.(C) No.32092 OF 2006

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Kumbil Thankam v. the Special Tahsildar

Case brief

What is this about?

What did the court decide?

Kumbil Thankam v. the Special Tahsildar

Case brief

What is this about?

What did the court decide?

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