Allowed

Kunhipennu v. the State of Kerala

Kerala HC25 May 2022WP(C)/7787/2018

Case brief

AI extract

What is this about?

In this writ petition, the Kerala High Court allowed the petitioners who sought redetermination of land acquisition compensation under Section 28A of the Land Acquisition Act. The Court quashed the Collector's rejection order, holding that since the Land Acquisition Officer had already treated the petitioner's land and the comparable land as similarly situated under the same notification, the Coll

What did the court decide?

Ext.P3 order set aside; 3rd respondent directed to reconsider the application within 4 months considering the intent of Section 28A.

Kunhipennu Vs the State of Kerala — Land Acquisition | Kerala HC (2022)

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CR

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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 BASANT BALAJI
WEDNESDAY, THE 25TH DAY OF MAY 2022 / 4TH JYAISHTA, 1944
WP(C) NO. 7787 OF 2018

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PETITIONER/S:

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1 KUNHIPENNU,AGED 81 YEARS, W/O LATE AMBU, RESIDING AT VADAKKEVEEDU, PALAKUNNU, BEKAL (P.O.),KASARAGOD DISTRICT, PIN - 671318.

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2 LAKSHMI,AGED 64 YEARS, W/O KUMARAN, RESIDING AT VALIYA VALAPPU, BEKAL KUNNIL, BEKAL FORT(P.O.), KASARAGOD DISTRICT,PIN - 671316.

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3 KUNHIKANNA.V.K.,AGED 60 YEARS, S/O LATE AMBU, RESIDING AT VADAKKEVEEDU, PALAKUNNU, BEKAL (P.O.),KASARAGOD DISTRICT, PIN - 671318.

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4 RAJAN.V.K.,AGED 57 YEARS, S/O LATE AMBU, RESIDING AT R HOUSE,VEDITHARAKKAL, BEKAL (P.O.), KASARAGOD DISTRICT,PIN - 671318.

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5 KUNHIKRISHNAN.V.K.AGED 52 YEARS, S/O.LATE AMBU, RESIDING AT VADAKKEVEEDU, PALAKUNNU, BEKAL (P.O),KASARGOD DISTRICT, PIN 671318.

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6 ANITHA.V.K.AGED 45 YEARS,W/O.RAMAKRISHNAN,RESIDING AT SAKTI NAGAR, PALLIKKARE, BEKAL FORT

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P.O.,KASARAGOD DISTRICT, PIN - 671316.

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BY ADVS.SRI.JAWAHAR JOSE SMT.CISSY MATHEWS SRI.SARUN RAJAN

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RESPONDENT/S:

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1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY,REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM, PIN 695001.

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2 THE DISTRICT COLLECTOR CIVIL STATION, VIDHYANAGAR, KASARAGOD,PIN - 671123.

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3 THE SPECIAL TAHSILDAR LAND ACQUISITION KASARAGOD, PIN 671123.

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OTHER PRESENT:

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GP DEVISHRI R

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 25.05.2022, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:

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WP(C) NO. 7787 OF 2018

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JUDGMENT

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(Dated this the 25^th day of May 2022)

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An extent of 0.0214 hectares of land in resurvey

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No.129/2 of Pallikkara-II village was acquired for the construction of a Railway over bridge and an amount of Rs.5,88,188/- was paid as total compensation as per award 9.7.2010. Dissatisfied by the amount of compensation,

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the petitioners filed an application under Section 28A of the Land Acquisition Act (for short ‘the Act’) for redetermination of the compensation amount based on the judgment and decree dated 27.1.2016 in L.A.R. No. 39/2010 of Sub Court, Hosdurg. The 3^rd respondent, vide Ext.P3 order dated 24.5.2017 rejected the application.

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Aggrieved by the said rejection order, this Writ Petition is

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filed.

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WP(C) NO. 7787 OF 2018

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The respondents have not filed any counter

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affidavit or statement controverting the allegations in the Writ Petition despite the fact that a period of 4 years has

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elapsed after the filing of the writ petition.

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Ext.P3 is the rejection order of application filed

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under section 28A of the Act. The reason stated in Ext.P3 order is that the property of the petitioners as well as the

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property in the judgment relied on by the petitioners are not similar and similarly situated and hence, the application

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cannot be considered.

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Section 28A of the Act reads as follows:-

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“[28A. Re-determination of the amount of compensation on the basis of the award of the Court. - (1) where in an award under this part, the court allows to the applicant any amount of compensation in excess of the amount awarded by the collector under section

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WP(C) NO. 7787 OF 2018

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11, the persons interested in all the other land covered by the same notification under section 4, sub-section (1) and who are also aggrieved by the award of the Collector may, notwithstanding that they had not made an application to the Collector under section 18, by written application to the Collector within three months from the date of the award of the Court require that the amount of compensation payable to them may be redetermined on the basis of the amount of compensation awarded by the court.”

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A reading of section 28A of the Act makes it clear that the collector shall redetermine the amount of compensation to all persons interested in all other lands covered by the same notification under section 4, subsection (1) and who are aggrieved by the award of the collector. The section mandates that the only criteria to be taken into consideration by the District Collector is whether

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WP(C) NO. 7787 OF 2018

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the property of the claimant and that of the property in the relied judgment is in respect of the same 4(1) notification. On going through the award Ext.P1, it can be seen that the Land Acquisition Officer has divided the lands into two categories i.e, lands lying on the eastern side of the Railway Track and lands lying on the western side of the Railway Track. For lands lying on the eastern side of the Railway Track, the Land Acquisition Officer, after taking document No. 1745/05 dated 28.5.2005 of Sub Registrar, Uduma as a basic document fixed the land value at Rs.31,170/- per cent, whereas for the lands on the western side of the Railway Track, Document No.2409/04 dated 19.8.04 the Sub Registrar, Uduma was taken as a basic document and fixed the land value at Rs.42,732/- per cent. The petitioners land, as well as the land which is the subject

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WP(C) NO. 7787 OF 2018

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matter on relied on judgment namely, L.A.R. No.39/2010 lies on the western side of the Railway Track and the land value awarded by the Land Acquisition Officer for both the properties are at the rate of Rs.42,732/ per cent. When the Land Acquisition Officer himself has treated both the properties as similar and similarly situated and granted the same value, the rejection of the Application under Section 28A of the Act by Ext.P3 is illegal and improper. When the properties are acquired under the same notification and the same land value given by the Land Acquisition Officer treating it as similar lands the 3^rd respondent cannot go into a further classification based on the distance of the property from the road. The reasoning given in Ext.P3 for rejection is that the petitioner’s land lies around 50 meters west of the railway line and that there is no road access

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WP(C) NO. 7787 OF 2018

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whereas in the judgment relied on the property lies at a

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distance of 50 mtrs towards the west to the State Highway and thus the properties are not similarly situated. I am afraid the 3^rd respondent, who has passed the award under Ext.P3 has treated both the properties alike and granted the same land value treating it as similar. In such a situation, he cannot make further classification as stated in Ext.P3 while redetermining the compensation under section 28A of the Act. When section 28(A) of the Act directs the Land Acquisition Officer only to look into if both the properties are under the same 4(1) notification, he cannot add another condition like similarity of the property while re determination of compensation. The reasoning stated by the 3^rd respondent in Ext.P3 is illegal and improper and hence, the same is liable to be set aside and I do so.

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WP(C) NO. 7787 OF 2018

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In the result, this Writ Petition is allowed, setting aside

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Ext.P3 order of 3^rd respondent and the 3^rd respondent is directed to reconsider the same in the light of the observations made above and taking into consideration of the indent of the Legislature in Section 28A of the Act within a period of 4 months from the date of receipt of a certified copy of this judgment.

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sd/

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BASANT BALAJI, JUDGE

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dl/

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WP(C) NO. 7787 OF 2018

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APPENDIX OF WP(C) 7787/2018

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PETITIONER EXHIBITS
EXHIBIT-P1:TRUE COPY OF THE RELEVANT PAGES OF THE
AWARD DATED 9.7.2010 WHICH IS BEARING
NUMER 1/2010.
EXHIBIT-P2:TRUE COPY OF THE APPLICATION SUBMITTED
BY THE PETITIONER BEFORE THE 3RD
RESPONDENT UNDER SECTION 28-A OF THE
LAND ACQUISITION ACT.
EXHIBIT-P3:TRUE COPY OF THE ORDER DATED 24.5.2017
PASSED BY THE 3RD RESPONDENT.

Kunhipennu v. the State of Kerala

Case brief

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Kunhipennu v. the State of Kerala

Case brief

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