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1989 DIGILAW 369 (KER)

Mathai Thomas v. State of Kerala

1989-09-04

BALAKRISHNA MENON, RAMAKRISHNAN

body1989
Judgment :- 1. This appeal by the claimant is against the award of the court below in L.A.R. No.86 of 1979 relating to the acquisition of 4.77 acres of land in Survey No.533/1 of Velloor Village. The acquisition was for the purpose of the Velloor Newsprint Project. 2. The notification under S.3(1) of the Kerala Land Acquisition Act was published on 27-6-1972. As against the claim for compensation at the rate of Rs.400/-per cent the Land Acquisition Officer awarded Rs. 102/- per cent. The court below after considering Exts.A1 and A3 sale deeds and Ext.A2 judgment in L.A.A. 190 of 1979 has enhanced the compensation to Rs.300/- per cent. It is found that the judgment in L.A.A. 190 of 1979 relates to the acquisition of a land about 3 kms. away from the land involved in the present acquisition, and hence in reliance can be placed on Ext.A2. The court below has not relied on Ext.A3 sale deed for the reason that it relates not merely to land but also to buildings. In the absence of evidence relating to the market value of the building the court below was perfectly justified in not relying on Ext. A3 for the purpose of determining compensation for the land acquired in the present case. Ext.Al is a sale deed of the year 1969 conveying 30 cents of land for Rs.9,000/-. That works out at Rs.300/- per cent. The land involved in Ext.Al is about 1.9 kms. away from the acquired land. It is, however, considering the nature of the land conveyed under Ext.Al and its locality etc. that the court below has determined the land value in the present case at Rs.300/- per cent. 3. Learned counsel for the appellant Sri.P.C. Chacko relies on the decision of this court in L.A.A. No.18 of 1983 relating to the acquisition of an adjacent land in Survey No.530 under the same notification for the same purpose. This court in the judgment in L.A.A. 18 of 1983 affirmed the decision of the court below awarding compensation at the rate of Rs.350/- per cent for the following reason stated in the judgment: "In a batch of cases disposed of by us today, we had awarded compensation for the land acquired for the purpose of the Velloor Newsprint Project at the rate of Rs.300/- per cent. The court below in the present case has awarded compensation at the rate of Rs.350/- per cent, taking into consideration that the land involved in this case has been considerably improved upon". 4. There was no appeal by the State against the award of compensation at the rate of Rs.350/- per cent. The appeal by the claimant was dismissed on the ground that in a batch of cases relating to the acquisition of adjacent lands for the same purpose, compensation was awarded at the rate of Rs.300/- per cent only. 5. Learned counsel for the appellant Sri.P.C. Chacko points out that the court below has found that the land involved in the present acquisition is also land similar to the improved land referred to in L.A.A.No.18 of 1983. The judgment under appeal shows that the acquired land had been fully improved upon and is similar to the land involved in L.A.A. 18 of 1983. 6. Learned counsel relies on S.28-A of the Land Acquisition Act, 1894 introduced by S.19 of the Amending Act 68/1984. S.28-A of the Land Acquisition Act reads: "(28-A. 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 S.11, the persons interested in all the other land covered by the same notification under S.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 S.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 re-determined on the basis of the amount of compensation awarded by the Court: Provided that in computing the period of three months within which an application to the Collector shall be made under this sub-section, the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be excluded. (2) The Collector shall, on receipt of an application under sub-section (1), conduct an inquiry after giving notice to all the persons interested and giving them a reasonable opportunity of being heard and make an award determining the amount of compensation payable to the applicants. (2) The Collector shall, on receipt of an application under sub-section (1), conduct an inquiry after giving notice to all the persons interested and giving them a reasonable opportunity of being heard and make an award determining the amount of compensation payable to the applicants. (3) Any person who has not accepted the award under sub-section (2) may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court and the provisions of S.18 to 28 shall, so far as may be, apply to such reference as they apply to a reference under S.18)" 7. It is clear from the Section itself that it is an enabling provision by recourse to which persons whose lands are acquired and had not made any application for reference to the court may apply to the Collector for enhancement of compensation based on the award of the court relating to land covered by the same notification, within three months from the date of the award of the court. On receipt of such an application the Collector is required to conduct an enquiry as contemplated by sub-section (2) and make a fresh award determining the amount of compensation payable to the applicant. The requirements of the Section are that the person who applies for enhanced compensation to the Collector must be one who had not applied for reference earlier under S.18 of the Act, there is an award by the court relating to acquisition of land involved in the same notification and the application to the Collector is to be made within three months from the date of the award of the court. On satisfaction of these conditions the Collector is required to hold an enquiry as contemplated by sub-section (2) and pass a fresh award superseding his earlier award. This provision can have no application to a case where the claimant has failed to make an application to the Collector within the time mentioned in sub-section (1). 8. In the present case, however, there was a proper reference under S.20 of the Kerala Land Acquisition Act to the court below and in this appeal this court is concerned about the adequacy of the compensation awarded as per the judgment under appeal. 9. 8. In the present case, however, there was a proper reference under S.20 of the Kerala Land Acquisition Act to the court below and in this appeal this court is concerned about the adequacy of the compensation awarded as per the judgment under appeal. 9. In the light of the fact that compensation at the rate of Rs.350/- per cent was awarded for the adjacent land for the reason that the land had been improved upon and that award was not even appealed against by the State, we see no reason why compensation at the same rate should not be granted to the land involved in the present acquisition, which is also fully improved upon. 10. We, therefore, modify the award passed by the court below enhancing the compensation from Rs.300/- per cent to Rs.350/- percent. Since the award of the court below is prior to 30-4-1982, the claimant is not entitled to the benefits of S.23(1-A) of the Act nor is he entitled to enhance solatium and interest as provided for in the Land Acquisition (Amendment) Act, 68 of 1984. The appeal is allowed to the above extent. The parties will suffer their respective costs. Allowed.