Allowed

Sugunan, v. State of Kerala

Kerala HC8 Feb 2019WP(C)/1139/2019

Case brief

AI extract

What is this about?

The Court held that a Land Acquisition Officer must refer a claim for enhanced compensation under Section 18 of the Land Acquisition Act, 1894 to the LAR Court within one month if an application was filed before the resolution of an apportionment dispute. The_petitioner's early vigilant application could not be overlooked.

What did the court decide?

The 4th Respondent LAO is directed to refer the petitioner's claim for enhanced compensation under Section 18 of the Land Acquisition Act to the LAR concerned within one month.

Sugunan, Vs State of Kerala — Land Acquisition | Kerala HC (2019)

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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 ALEXANDER THOMAS

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FRIDAY ,THE 08TH DAY OF FEBRUARY 2019 / 19TH MAGHA, 1940

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WP(C).No. 1139 of 2019

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PETITIONER/S:

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SUGUNAN, AGED 71 YEARS S/O.VASUDEVAN, PUTHEZHATHU HOUSE, THIRUNELLOOR MURI, PALLIPPURAM VILLAGE, CHERTHALA, ALAPPUZHA DISTRICT.

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BY ADVS. SRI.N.RATHEESH SMT.SUMA RATHEESH

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RESPONDENT/S:

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1 STATE OF KERALA,REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT, THIRUVANANTHAPURAM.

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2 THE DISTRICT COLLECTOR, ALAPPUZHA DISTRICT, ALAPPUZHA, PIN-688001.

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3 THE KERALA STATE INDUSTRIAL DEVELOPMENT CORPORATION LTD., KESTON ROAD, KOWDIAR, THIRUVANANTHAPURAM, PIN-695003.

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4 THE SPECIAL TAHSILDAR (LAND ACQUISITION), INDUSTRIAL GROWTH CENTRE, PALLIPPURAM, INDUSTRIAL GROWTH CENTRE, PALLIPPURAM, CHERTHALA, ALAPPUZHA DISTRICT, PIN-688006.

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OTHER PRESENT:

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SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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(C.R)

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ALEXANDER THOMAS, J.

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==================

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W.P.(C).No. 1139 of 2019

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==================

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Dated this the 8^th day of February, 2019

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J U D G M E N T

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The prayers in the above Writ Petition (Civil) are as follows:

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“a) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction directing the 2^nd and 4^th respondents to initiate proceedings to refer the claim of the petitioner in L.A. No. 254/2000, L.A.No.373/2000, L.A.No.488/ 2000 with respect to Industrial Growth Centre at Pallippuram Village in Cherthala Taluk for adjudication, to the Sub Court, Cherthala under Section 18 of the Land Acquisition Act; and

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b) Pass such other orders as are deemed fit and necessary in the facts and circumstances of the case.”

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Heard Sri.N.Retheesh, learned counsel appearing for the

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petitioner and Sri.Saigi Jacob Palatty, learned Senior Govt. Pleader appearing for the respondents.

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The petitioner's property in Pallipuram Village, Cherthala Taluk, Alappuzha Revenue District, was acquired by the 4^th respondent as per the provisions of the Land Acquisition Act, 1894 on the basis of the requisition of the 3^rd respondent Kerala State Industrial Development Corporation Ltd. for setting up of their project by name, “Industrial Growth Centre”, Cherthala. That land acquisition awards were passed in respect of the properties acquired from the petitioner and the petitioner had objected to the awards.

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W.P.(C).1139/19 - : 3 :-

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Exts.P-1, P-3 and P-5 are the 3 awards in respect of the petitioner's property. Immediately thereafter the petitioner had submitted objections thereto as per Exts.P2, P-4 and P-6 respectively clearly pointing out that the compensation granted is meagre and that it should be enhanced and that the claim of the petitioner for enhanced compensation should be referred to the LAR Court concerned [Sub Court, Cherthala] for adjudication under Sec.18 of the Land Acquisition Act, 1894. However, it appears that since there were disputes regarding the apportionment of the award amounts, the 4^th respondent Tahsildar (LA), who is the notified land acquisition officer, had referred the matters in relation to Exts.P-1, P-3 and P-5 only for adjudication of the apportionment dispute between the claimants as envisaged in Sec.31 of the Land Acquisition Act, 1894. It appears that the 4^th respondent, at that point of time, did not also simultaneously refer the matter to the LAR Court in the matter of enhancement compensation as envisaged in Sec. 18. Presumably this would have occurred because, in a case where there is apportionment dispute, ordinarily the right of a claimant to get the award amount and also consequently to seek enhanced compensation to get crystallized only after apportionment dispute is duly settled and adjudicated by the competent fora like LAR Court, as envisaged in

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W.P.(C).1139/19 - : 4 :-

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Sec. 30 or 31 of the Act as the case may be. Later, the LAR Court had passed awards in the matters in Exts.P1, P-3 and P-5 as per award/ judgment dated 24.8.2005 of the Sub Court, Cherthala, in L.A.R.No. 26/2005 LAR Award dated 6.9.2005 in L.A.R.No. 27/2005 and award dated 29.10.2003 in L.A.R.No. 4/2002, etc. According to the petitioner, he was under the bonafide belief that since he had already filed applications seeking reference under Sec.18(1) immediately after passing of the impugned Exts.P-1, P-3 and P-5 land acquisition case awards, as per Exts.P2, P-4 and P-6 applications for reference, he was under the bona fide belief and expectation that the 4^th respondent land acquisition officer would have referred the matter to the LAR court, not only in respect of the apportionment dispute under Sec. 31(2), but also the reference request for enhanced compensation under Sec. 18 and after the settlement of the apportionment disputes by the LAR court the said court would issue notice to the petitioner for adjudication of his claim for enhanced compensation under Sec. 18(1). No information whatsoever was conveyed by the respondents and only recently, the petitioner could reliably learn from the officials of the 4^th respondent as well as from the court below concerned that the 4^th respondent had never made a Sec. 18 reference and all what he had done was only a Sec. 31 reference pursuant to

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W.P.(C).1139/19 - : 5 :-

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Exts.P1, P-3 and P-5. It is the case of the petitioner that since the petitioner has already submitted an application for reference immediately after the passing of Exts.P1, P-3 and P-5 awards as per Exts.P2, P-4 and P-6 applications, there is absolutely no necessity or compulsion in law that the petitioner should have again mandatorily submitted another reference application under Sec.18 after the passing of the LAR awards in Sec. 31 apportionment dispute.

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It is in the light of these aspects that the petitioner would contend that the action on the part of the 4^th respondent LAO in not referring the claim for enhanced compensation under Sec. 18 is per se manifestly illegal, improper and arbitrary and that since he has a legal obligation to make reference under Sec. 18 in view of Exts.P-2, P-4 and P-6 applications, this Court in exercise of the discretion may issue a mandamus so as to direct the 4^th respondent LAO to immediately refer the claim for enhanced compensation under Sec. 18 in respect of the matters covered by the abovesaid LAC awards as per Exts.P-1, P-3 and P-5.

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Earlier this Court had directed the 4^th respondent Special Tahsildar to furnish instructions as to whether the applications as per Exts.P2, P-4 and P-6 had been submitted by the petitioners and if so, when and whether it was pursuant to such applications, that

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W.P.(C).1139/19 - : 6 :-

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reference was made to the LAR Court on the Sec. 31 apportionment question, etc. This Court had also directed the LAR court concerned (Sub Court, Cherthala) to give details in that regard in respect of LAR Nos.26, 27 of 2005 and LAR 4/2002 as to whether the said references were pertaining to only Sec. 31 apportionment dispute or whether it also pertains to Sec. 18 reference as well and the date on which award/ judgment was passed by the LAR court in those LARs. Now the Sub Court, Cherthala, has furnished a report dated 24.1.2019 to the Registry of this Court, wherein it has been stated that all the abovesaid LAR Nos.26 and 27 of 2005 as well as LAR 4/2002 were only in respect of Sec. 31 apportionment dispute and that an award dated 24.8.2005 was passed in L.A.R.No. 26/2005 for an amount of Rs. 3,46,439/-, Rs. 10,93,336/- was passed in award dated 6.9. 2005 in LAR No.27/2005 and an amount of Rs. Rs.33,173/- was passed in L.A.R.No.4/2002. The said amounts referred to in the report of the LAR Court appears to be figures after income tax deduction at source, etc. Since the LAR Court has submitted a clear report before this Court that the above-said 3 LARs 26, 27 2005 and L.A.R.No. 4/2002 were pertaining only to Sec.31 apportionment disputes it is evidently clear that the request for reference made under Sec. 18 as per Exts.P-2, P-4 and P-6

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W.P.(C).1139/19 - : 7 :-

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applications has not been made by the LAO. It is also not in dispute that immediately after passing the impugned Land Acquisition Case awards as per Exts.P-1 and P-3 and P-5 by the 4^th respondent LAO the petitioner has submitted applications as per Exts. P-2, P-4 and P-6 seeking enhanced compensation and also explicitly requesting that the matter should be referred for adjudication under Sec. 18(1). As observed herein above, the 4^th respondent LAO cannot be seriously found fault with in not having initially referred not only the Sec. 31 apportionment dispute, but also Sec. 18(1) reference to the LAR Court, pursuant to Exts.P2 P-4, and P-6 applications because at that time, dispute regarding apportionment was pending as between the claimants, as it is well settled that ordinarily the right of the claimants even for the apportionment and consequently for enhanced amounts would get crystallized only after the apportionment dispute is duly resolved by the competent fora including the LAR Court. However, the crucial aspect of the matter is that once awards were passed by the LAR Court under Sec. 31(2) dispute, the 4^th respondent LAO was obliged in law to have acted upon the initial request made by the petitioner as per Exts.P2, P-4 and P-6 applications so as to refer the claim of the petitioner for enhanced compensation as per Sec.18(1). Merely because the

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W.P.(C).1139/19 - : 8 :-

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claimant, who is otherwise fettered with a apportionment dispute, has submitted an application for reference immediately after the award, does not mean that the said application is of no consequence and that the applicant should make a separate application after the resolution of the apportionment dispute. It has been held by this Court in the judgment dated 23.1.2019 W.P.(C).No. 40371/2018 that ordinarily a claimant who is fettered with the apportionment dispute need first be subjected on only to Sec. 31(2) apportionment dispute and after his right is crystallized on resolution of the apportionment dispute, he certainly has a right to file application for reference under Sec. 18 or 28A as the case maybe, within the period of limitation which has been reckoned from the date of the award on the apportionment dispute. But that does not mean that an applicant who is otherwise more vigilant and alert and has submitted an application for reference immediately after the LAC award is passed, notwithstanding the apportionment dispute, should be again made to file another application for reference under Sec. 18 or Sec. 28 A as the case may be, after the settlement of the resolution of the apportionment dispute, where in a case like this, the claimant has already filed application for Sec.18 reference before the apportionment dispute, it is the bounden duty of the LAO to refer the

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W.P.(C).1139/19 - : 9 :-

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dispute under Sec. 18 after the award on apportionment dispute is rendered by the competent fora provided that such application is otherwise within the period of limitation. In the instant case, no dispute has been raised by the respondents that the initial application filed by the petitioner as per Exts.P2, P-4 and P-6 are time barred or that they have been submitted beyond the time as conceived in Sec. 18(2) of the Land Acquisition Act, 1894. Going by the facts and circumstances disclosed in this case, it appears to this Court that unlike in many other cases, the petitioner claimant in this case has been more vigilant and alert in having submitted the application for reference even before the settlement of the apportionment dispute and therefore such a vigilant and alert claimant cannot be penalised for having submitted an application at an early point of time. In the light of these aspects, it is only to be held that the action on the part of the respondents in not referring the claim of the petitioner for enhanced compensation under Sec.18(1) is illegal and ultra vires. Correspondingly, it is ordered that the 4^th respondent LAO will immediately take up the request of the petitioner in Exts.P2, P-4 and P-6 applications and will refer the claim of the petitioner for enhanced compensation under Sec. 18 of the Land Acquisition Act, 1894, before the LAR court concerned within a period of one month

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W.P.(C).1139/19 - : 10 :-

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from the date of production of a certified copy of this judgment.

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With these observations and directions, the Writ Petition (Civil)

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stands finally disposed of.

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Sd/-

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sdk+ ALEXANDER THOMAS, JUDGE

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: 11 :-

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE AWARD NO.138/2000 DATED 16.9.2000 IN L.A.NO.254/2000 OF THE 4TH RESPONDENT.
EXHIBIT P2	TRUE COPY OF THE OBJECTION DATED NIL IN AWARD NO.138/2000 DATED 16.9.2000 IN L.A.NO.254/2000 OF THE 4TH RESPONDENT.
EXHIBIT P3	TRUE COPY OF THE AWARD NO.141/2000 DATED
	15.9.2000 IN L.A.NO.488/2000 OF THE 4TH RESPONDENT.
EXHIBIT P4	TRUE COPY OF THE OBJECTION DATED NIL IN AWARD NO.141/2000 DATED 16.9.2000 IN L.A.NO.488/2000 OF THE 4TH RESPONDENT.
EXHIBIT P5	TRUE COPY OF THE AWARD NO.515/2000 IN L.A.NO.373/2000 OF THE 4TH RESPONDENT.
EXHIBIT P6	TRUE COPY OF THE APPLICATION DATED 20.12.2001 FILED BY THE PETITIONER TO EXHIBIT P5 AWARD RAISING CLAIMS AND OBJECTIONS AND PRAYING FOR REFERENCE.
EXHIBIT P7	TRUE COPY OF THE LAND ACQUISITION REFERENCE NOTICE RECEIVED FROM THE HON'BLE SUB COURT AT CHERTHALA IN LAR NO.26/2005.
EXHIBIT P8	TRUE COPY OF THE LAND ACQUISITION REFERENCE NOTICE RECEIVED FROM THE HON'BLE SUB COURT AT CHERTHALA IN LAR NO.27/2005.
EXHIBIT P9	TRUE COPY OF THE LAND ACQUISITION REFERENCE NOTICE RECEIVED FROM THE HON'BLE SUB COURT AT CHRTHALA IN LAR NO.4/2002.

Sugunan, v. State of Kerala

Case brief

What is this about?

What did the court decide?

Sugunan, v. State of Kerala

Case brief

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