Allowed

Koyyodan Damodaran v. the District Collector, Kannur and Anoth

Kerala HC16 Nov 2022WP(C)/1045/2011

Case brief

AI extract

What is this about?

The High Court allowed the writ petition holding that a subsequent Section 28A application based on a different award is maintainable even if a prior application based on an earlier award is pending but time-barred. The court set aside the lower authority's rejection of the second application and directed a reference to the court, leaving the interest question open for the reference court.

What did the court decide?

Ext.P5 set aside; respondents to refer Ext.P6 application filed under Section 28A(3) of the Land Acquisition Act to the concerned court for adjudication.

Koyyodan Damodaran Vs the District Collector, Kannur and… — Specific Performance | Kerala HC (2022)

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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.V.KUNHIKRISHNAN

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WEDNESDAY, THE 16^TH DAY OF NOVEMBER 2022 / 25TH KARTHIKA, 1944

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WP(C) NO. 1045 OF 2011

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AGAINST THE ORDER/JUDGMENT LAR 120/1987 OF SUB COURT, PAYYANNUR

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PETITIONER:

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KOYYODAN DAMODARAN S/O.KANNAN, ETTIKKULAM P.O., KANNUR DISTRICT BY ADVS. SRI.V.C.JAMES SRI.SERGI JOSEPH THOMAS

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RESPONDENTS:

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1 THE DISTRICT COLLECTOR, KANNUR-670001 2 THE SPECIAL TAHSILDAR (L.A), EZHIMALA NAVAL ACADAMY, PAYYANNUR-670301 BY ADV. SMT.N.SUDHA DEVI, SPECIAL GOVERNMENT PLEADER (LA)

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 1045 OF 2011

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P.V.KUNHIKRISHNAN, J.

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------------------------------

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W.P.(C).No. 1045 of 2011

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Dated this the 16^th day of November, 2022

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JUDGMENT

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The above Writ Petition is filed with the

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following prayers:

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“(i) issue a writ of mandamus or such other writ order or direction commanding the respondents to refer Ext.P6 application filed u/s 28A(3) of the Land Acquisition Act to the Sub Court, Payyannur for adjudication.

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(ii) issue another writ of mandamus or such other appropriate writ order or direction commanding the respondents to produce/refer the files relating to Exts. P2 and P6 also in the proceedings in L.A.R. No. 222/09 pending before the Sub Court, Payyannur expeditiously.

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(iii) to stay all further proceedings in L.A.R. No. 222/09 on the files of Sub Court, Payyannur till the production of Exts. P2 and P6 by the respondents before the Sub Court, Payyannur in L.A.R.No. 222/09.

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(iv) Grant such other relief as this Hon'ble Court may deem fit and proper in the circumstances of the case.”[SIC]

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WP(C) NO. 1045 OF 2011

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Petitioner's father Puthiya Parambath Kannan

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had been in possession and enjoyment of 1 Acre and 76 cents of land comprised in Re.Sy.No. 321/1 of Ramanthali Village in Kannur District. After the death of the petitioner's father, petitioner and his brothers got the properties as the legal heirs of Puthiya Parambath Kannan. It is the case of the petitioner that the above properties were garden lands and situated in a potential area. The above property was acquired for the establishment of Naval Academy at Ezhimala. The notification u/s 4(1) of the Land Acquisition Act was published on 22/2/1983. According to the petitioner, the original compensation amount fixed by the Land Acquisition Officer was quite insufficient and even then the same was received by the petitioner under protest. Thereafter the petitioner filed Ext.P1 application on 04.04.94 u/s 28A of the Land Acquisition Act on the basis of the appeal judgment passed by this Court in

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WP(C) NO. 1045 OF 2011

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L.A.A. No.321/1991. Later the petitioner filed Ext.P2 application on 22.5.1998 relying the judgment in L.A.R. No.120/1987 for the same relief. According to the petitioner this application is filed on account of the change of legal position. The petitioner was an aggrieved person in view of the judgment passed by the reference court in L.A.R. No. 120/87 in which the land value was awarded at the rate of Rs.1,500/- per cent. It is the case of the petitioner that the Land Acquisition Officer rejected both applications as per Exts.P3 and P5. Petitioner filed Exts.P4 and P6 reference applications u/s 28A(3) of the Land Acquisition Act. The land Acquisition Officer referred Ext.P4 application dated 06.09.2001 to the reference court. According to the petitioner, Ext. P1 application dated 04.04.1994 is a time barred application. Petitioner is aggrieved by the non reference of Exts.P4 and P6 applications. According to the petitioner, if the same is not referred to the civil court petitioner will be

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WP(C) NO. 1045 OF 2011

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put into irreparable loss and hardship. The first application was referred to the court as per L.A.R. No. 124/87 (L.A.A.No.221/91). Ext.P2 application was filed based on L.A.R.No.120/87. Ext.P2 application was rejected as per Ext.P5 order stating that it is a duplicate application. Aggrieved by the same, this writ petition is filed.

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3 . Heard counsel appearing for the petitioner and the learned Special Government Pleader (Land Acquisition).

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4 . The counsel appearing for the petitioner submitted that there is no dispute to the respondents that Ext.P2 application is filed within time. According to the respondents it is a duplication because when Ext.P1 application is pending Ext.P2 is submitted. The counsel for the petitioner relied on the judgment of the Division Bench of this Court in Pallipurath Kunhikoran v. District Collector, Kannur and others [2016 (2) KHC 150] in which it is stated that

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WP(C) NO. 1045 OF 2011

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the second application based on another subsequent award is maintainable. The counsel submitted that Ext.P1 application is based on the judgment in L.A.A No.221/1991 which is not maintainable in the light of the decision of the Apex Court. Therefore, the reference court also decided the reference in negative as per Ext.P8. The counsel submitted that Ext.P5 order is unsustainable and liable to be interfered by this Court.

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5 . The learned Special Government Pleader seriously opposed the prayers of the petitioner and submitted that, Ext.P2 application is submitted when Ext.P1 application is pending. There is latches on the part of the petitioner in pursuing the matter. The Special Government Pleader submitted that, if the second reference is ordered there will be huge liability to the State by way of interest also. The Special Government Pleader submitted that, in the peculiar facts and circumstances of this case, this Court may

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WP(C) NO. 1045 OF 2011

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not interfere with Ext.P5. The Special Government Pleader also submitted that, if this Court is directing to refer the matter u/s 28A(3) of the Land Acquisition Act, the period from the year 2001 to 2011 may be excluded for claiming interest. The Special Government Pleader also submitted that during this period, the petitioner was sleeping over his right and he did not approach this Court in time. The Special Government Pleader further submitted that the petitioner was aware that the first application is time barred and it is not a valid one, and that application u/s 28A(3) is pending.

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6 . This Court considered the contentions of the petitioner and the Special Government Pleader. This Court cannot accept the contentions raised by the Special Government Pleader. This Court perused Ext.P5 order. The reason mentioned in Ext.P5 to reject the application is that there is duplication. It will be better to extract the contents in Ext.P5:

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WP(C) NO. 1045 OF 2011

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“Sri.Koyyodan Damodaran, S/o. Kannan has filed 4 applications U/s.28A of L.A. Act, 1894 for the land acquired in R.S. Nos. 323/5, 323/7 and 321/1 of Ramanthali for the establishment of Naval Academy.

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The applicant and his co-owners have already filed applications for the same purpose on 11-8-90, and 4-4-94 and registered as F-1138/99, F-1457/99 and F-1189/99 and action has been taken in that files.

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Therefore the applications mentioned under the reference 1 st cited is treated as duplicate application and rejected accordingly.

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The applicant is informed accordingly.”

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7 . A perusal of the same will show that the only

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reason stated is that it is a duplicate application. In Pallipurath Kunhikoran 's case (supra), this Court considered this point and observed like this:

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“6. The Special Land Acquisition Officer did not advert to the fact that the 2 nd application was based on different LAR. It has been laid down by the Apex Court in Union of India v. Smt.Pradeep Kumari [(1995) 2 SCC 736] that each award gives separate cause of action and the land owner is entitled to file an application within three months under Sec.28A on the basis of any award and the 2 nd application filed by the petitioner, which was based on different award was fully maintainable and the same ought not to have

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WP(C) NO. 1045 OF 2011

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rejected by the Special Land Acquisition Officer. It is further submitted that the first application was rejected only on the ground of limitation and was not considered on merit. Hence, the first application cannot be said to be any valid application so as to debar the petitioner from filing another application. It is true that the Apex Court in Union of India's case (supra) has laid down the conditions under which an application under Sec.28A can be entertained. It is useful to quote the conditions laid down by the Apex Court in the said case, which are to the following effect :-

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“A person would be able to seek redetermination of the amount of compensation payable to him provided the following conditions are satisfied :

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(i) An award has been made by the court under Part III after the coming into force of S.28-A;

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(ii) By the said award the amount of compensation in excess of the amount awarded by the Collector under Section 11 has been allowed to the applicant in that reference;

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(iii) The person moving the application under S.28-A is interested in other land covered by the same notification under S.4(1) to which the said award relates;

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(iv) The person moving the application did not make an application to the Collector under S.18;

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(v) The application is moved within three months from the date of the award on the basis of which the redetermination of amount of compensation is sought; and

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(vi) Only one application can be moved under

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S.28-A for redetermination of compensation by an applicant.”

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Since the first application was rejected by Ext.P1 on the ground of limitation, it will not be treated to be a decision on merit so as to debar the petitioner from filing another application on the basis of another award.”

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8 . In the light of the above dictum laid down by this Court, according to me, Ext.P5 will not stand. It is true that the petitioner filed Ext.P2 application when Ext.P1 is pending. But a claimant has got right to file an application under Section 28A of the Land Acquisition Act, for each award and for each award the claimant has got separate cause of action. Therefore, it can not be said that Ext.P2 application is not maintainable simply because Ext.P2 is submitted when Ext.P1 is pending. The petitioner conceded that Ext.P1 application is not maintainable in the light of the fact that the same is submitted based on a land acquisition appeal judgment. The reference court also rejected the reference as per Ext.P8 judgment. Therefore,

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WP(C) NO. 1045 OF 2011

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according to me, Ext.P1 application was rejected on the ground of limitation and also on the fact that it is an invalid reference. Ext.P6 is the application submitted by the petitioner under Section 28A (3) of the Land Acquisition Act and the same is not considered. In the light of the finding that Ext.P5 will not stand, according to me, the authority has to refer the matter to the reference court in accordance to law. But, regarding the interest portion, I am of the considered opinion that the statutory benefit to a claimant cannot be denied by this Court invoking the powers under Article 226 of the Constitution of India. If there is any grievance to the petitioner and the Government, both parties are free to adduce evidence before the reference court. My stand is justified in the light of the judgments of this Court in W.P.(C). No.30794/2018, W.P.(C). No.35730/2018 and W.P.(C). No.2267/2019. The judgment of the Apex Court in Civil Appeal No.10800/2014 will also justify the above

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WP(C) NO. 1045 OF 2011

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position. Therefore, I make it clear that the question of payment of interest to the petitioner from 2001 till this writ petition is filed is left open and the same can be considered by the reference court at the appropriate stage. Both sides are free to adduce evidence on that aspect.

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Therefore, this writ petition is allowed in the following manner:

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i ) Ext.P5 is set aside.

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ii ) There will be a direction to the respondents

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to refer Ext.P6 application filed under Section 28A(3) of the Land Acquisition Act to the court concerned for adjudication.

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Sd/-

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P.V.KUNHIKRISHNAN JUDGE

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WP(C) NO. 1045 OF 2011

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APPENDIX OF WP(C) 1045/2011

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PETITIONER EXHIBITS

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EXHIBIT P1:	TRUE COPY OF THE 28A APPLICAT	ION
	DATED 4.4.1994 FILED BY	THE
	PETITIONER BEFORE THE 1" RESPONDE	NT.
EXHIBIT P2:	TRUE COPY OF THE 28A APPLICAT	ION
	DATED 22.5.98 FILED BY	THE
	PETITIONER BEFORE THE RESPONDENT.	2ND
EXHIBIT P3:	TRUE COPY OF THE PROCEEDINGS REF. 1457/99 DATED 21.7.01 OF THE SPEC THAHSILDAR (L.A.), KANNUR.	F. IAL
EXHIBIT P4:	TRUE COPY OF THE SECTION 28 A APPLICATION DATED 6.9.2001 FILED	(3) BY
	THE PETITIONER BEFORE THE RESPONDENT.	2ND
EXHIBIT P5:	TRUE COPY OF THE PROCEEDINGS NO.R F-982/98/K/DIS. DATED 24.7.2001	EF. OF
	THE SPECIAL THAHSILDAR (L.A KANNUR.	.),
EXHIBIT P6:	TRUE COPY OF THE SECTION 28 A APPLICATION DATED 6.9.2001 FILED	(3) BY
	THE PETITIONER BEFORE THE RESPONDENT.	2ND
EXHIBIT P7:	CERTIFIED COPY OF THE I.A. 7/2011.	NO.
EXHIBIT P8:	CERTIFIED COPY OF THE JUDGMENT LAR 222/09.	IN
EXHIBIT P9	CERTIFIED COPY OF THE DECREE IN 222/09.	LAR

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RESPONDENTS EXHIBITS: NIL

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//TRUE COPY// PA TO JUDGE

Koyyodan Damodaran v. the District Collector, Kannur and Anoth

Case brief

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Koyyodan Damodaran v. the District Collector, Kannur and Anoth

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