Allowed

Sumithra v. the District Collector

Kerala HC22 Nov 2010WP(C)/29773/2010

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a writ petition concerning land acquired under the Land Acquisition Act. The court held that the rejection of the petitioner's application for enhanced compensation was illegal because her land was acquired under the same notification as lands in a reference case where compensation had been enhanced. The writ petition was allowed, and the lower authorities were dir

What did the court decide?

The order rejecting the Ext.P3 application was quashed. The respondents were directed to adjudicate the claim for redetermination of compensation under section 28A of the Land Acquisition Act within t

Sumithra Vs the District Collector — Land Acquisition | Kerala HC (2010)

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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 P.N.RAVINDRAN

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MONDAY, THE 22ND NOVEMBER 2010 / 1ST AGRAHAYANA 1932

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WP(C).No. 29773 of 2010(V)

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PETITIONER(S):

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SUMITHRA,W/O.LATE SREEDHARAN, MUTTATHUKUNNEL HOUSE, MUTHOLAPURAM,ELANJI VILLAGE, MUVATTUPUZHA TALUK.

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BY ADV. SRI.GEORGE SEBASTIAN

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RESPONDENT(S):

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1. THE DISTRICT COLLECTOR, ERNAKULAM.

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2. THE SPECIAL TAHASILDAR (LAND ACQUISITION) MUVATTUPUZHA VALLEY IRRIGATION PROJECT, KOOTHATTUKULAM.

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R1 & R2 BY GOVERNMENT PLEADER K.R. DEEPU

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THIS WRIT PETITION (CIVIL) HAVING FINALLY HEARD ON 22/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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WP(C) NO. 29773/2010

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APPENDIX

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PETITIONER'S EXHIBITS:

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P1 COPY OF THE AWARD DATED 18/1/96 PASSED BY THE SPL. TAHASILDAR(L.A), MVIP, ELANJI.

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P2 COPY OF THE COMMON JUDGMENT OF THE SUB COURT, MUVATTUPUZHA DATED 5/8/2005.

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P3 COPY OF THE APPLICATION DATED 28/10/2002 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

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P4 COPY OF THE ACKNOWLEDGEMENT CARD SIGNED BY 1ST RESPONDENT 1/11/2002.

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P5 COPY OF THE ACKNOWLEDGEMENT CARD SIGNED BY THE SPECIAL TAHASILDAR M.V.I.P ELANJI DATED 1/11/2002.

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P6 COPY OF THE JUDGMENT DATED 22/8/2007 IN WP(C) NO. 21875/2007.

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P7 COPY OF THE APPLICATION DATED 28/10/2007 BEFORE THE 1ST RESPONDENT WIH COPY TO THE 2ND RESPONDENT.

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RESPONDENT'S EXHIBITS:

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R2(A) COPY OF THE DECISION U/S.28 A (2) OF THE SPL. TAHASILDAR ( LAND ACQUISITION) NO.4 MVIP, KOOTHATTUKULAM.

/TRUE COPY/

P.A.TO.JUDGE

sts

P.N.RAVINDRAN , J.

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W.P.(C) No. 29773 OF 2010

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Dated this the 22^nd day of November, 2010

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J U D G M E N T

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A parcel of land 6.80 ares in extent, situated in Survey No.93/7-3 and 93/7-4 of Elanji Village, Ernakulam District that belonged to the petitioner was acquired by the second respondent for the Piravom Branch Canal of the Muvattupuzha Valley Irrigation Project. An award was passed on 18.1.1996. Though the petitioner was dissatisfied with the land value awarded by the second respondent, she did not seek a reference under section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act' for short) in time. Under the very same section 4(1) notification, lands belonging to others had also been acquired. Two among them namely Sri.Joseph, son of Kurian and Sri.Baby son of Thomas had sought a reference under section 18 of the Act seeking enhancement of compensation in respect of their lands. The Land Acquisition Officer thereupon referred the said dispute to the Sub Court, Muvattupuzha where they were taken on file as LAR Nos.208 & 219 of 1999 respectively. The said cases were heard and disposed of along with LAR Nos. 118, 119, 213, 215, 216, 220, 264 of 1999 and 15 of 2000. All the cases other than LAR Nos. 208 and

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219 of 1999 arose out of a different notification. Since the acquisition was for the same purpose, a common judgment (Ext.P2) was passed on 5.8.2002 in the said cases. The section 4(1) notification issued in LAR Nos. 208 and 219 of 1999 was published on 22.5.1994. The petitioner's land was acquired pursuant to the said notification. In the other cases, the section 4(1) notification was published on 15.2.1994, three months earlier in point of time. By Ext.P2 judgment the compensation awarded to the claimants in LAR Nos.208 and 219 of 1999 whose lands were also acquired by the very same section 4 (1)notification dated 22.5.1994 was enhanced. The petitioner thereupon filed Ext.P3 representation before the first respondent seeking redetermination of the compensation in view of Ext.P2 judgment passed by the reference court. The said application was sent by registered post and was submitted to the District Collector within the time limit of three months stipulated in section 28A of the Land Acquisition Act. When there was no progress in the matter, the petitioner filed W.P.(C) No.21875 of 2007 in this Court. It appears, on the misconception that the number of the land acquisition reference was wrongly given in the section 28A(3) application, (Ext.P3), the petitioner withdrew W.P.(C) No.21875 of 2007 reserving

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liberty with her to move this Court afresh. She thereafter submitted Ext.P7 representation dated 28.10.2007 before the District collector Ernakulam relying on the judgment delivered on 31.7.2007 in LAR No.2 of 2006. This writ petition was thereafter filed on 27.9.2010 contending that though nearly 8 years have passed after Ext.P3 representation was filed and nearly three years have passed after Ext.P7 representation was filed, seeking the benefit of enhancement of compensation under section 28A of the Act, there has been no progress in the matter. In the writ petition, the petitioner seeks a direction to the respondents to redetermine the compensation awarded to her having regard to Ext.P2 judgment and the judgment in LAR No. 2 of 2006 on the file of Sub Court, Muvattupuzha.

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The second respondent has sworn to a counter affidavit dated 12.11.2010. In paragraph 3 thereof, it is stated that Ext.P3 application was rejected as an invalid application for the reason that the judgment produced along with it (Ext.P2) was that of LAR No.119 of 1999 and that the section 4(1) notification involved in that case was published on 18.2.1994 whereas in the instant case, the notification was published only on 22.5.1994. As regards Ext.P7, it is contended that the judgment in LAR No.2 of 2006 was passed on

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an application under section 28A(3) and therefore, Ext.P7 application was also rejected.

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I heard Sri.George Sebastian, learned counsel for the petitioner and Smt.K.R.Deepa, learned government Pleader appearing for the respondents. I have also gone through the pleadings and the materials on record. It is evident from paragraph 3 of the counter affidavit filed by the second respondent that Ext.P3 application was rejected on the short ground that Ext.P2 Award of the reference court did not relate to the very same notification. The second respondent has stated that the judgment of the reference court produced by the petitioner along with Ext.P2 Award was LAR No.119 of 1999, which arose from a notification dated 18.2.1994 and that petitioner's land was acquired under a different notification dated 22.5.1994.

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In my opinion, the said decision cannot be sustained. The petitioner had admittedly produced along with Ext.P2, a certified copy of the common judgment passed by the Sub Court, Muvattupuzha in 10 reference cases namely LAR Nos. 118, 119, 208, 213, 215, 216, 219, 220, 264 of 1999 and 15 of 2000. The petitioner had in Ext.P3 application referred to and relied on the judgment in LAR Nos. 208

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and 219 of 1999 which arose from awards passed pursuant to the section 4(1) notification published on 22.5.1994. These aspects are clear from paragraph 4 of Ext.P2 judgment. The respondents have admitted that the petitioner's land was also acquired as per notification dated 22.5.1994. Ext.P2 judgment discloses that land value awarded to the claimant in LAR Nos.208 and 219 of 1999 was enhanced. It appears that the second respondent failed to take note of this aspect, when he rejected Ext.P3 application. In such circumstances, the stand taken by the second respondent that Ext.P3 application was an invalid application cannot be sustained. As regards Ext.P7, though the learned counsel appearing for the petitioner canvassed the correctness of Ext.R2(a) order rejecting Ext.P3 application, I am of the opinion that in view of my finding as regards the maintainability of Ext.P3 application, the question whether Ext.P7 was rightly rejected need not be gone into. In that view of the matter, it has to be necessarily held that the writ petition is to be allowed.

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I accordingly dispose of this writ petition, quashing the order passed by the second respondent rejecting Exts.P3 application and with a direction to the respondents to adjudicate the claim made by

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the petitioner for redetermination of the compensation under section 28A of the Land Acquisition Act in the light of Ext.P2 award passed in LAR Nos.208 and 219 of 1999 on the file of Sub Court, Muvattupuzha. The respondents shall pass an Award under section 28A of the Act expeditiously and in any event within three months from the date on which the petitioner produces a certified copy of this judgment before the first respondent after affording the petitioner an opportunity to substantiate her contentions. In the event of the petitioner being found entitled for payment of enhancement of compensation, the first respondent shall take steps to disburse the same within another three months form the date on which she becomes entitled to receive the enhanced compensation.

(JUDGE)

vps

WPC No.29773/2010 7

WPC No.29773/2010 8

Sumithra v. the District Collector

Case brief

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Sumithra v. the District Collector

Case brief

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