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2000 DIGILAW 366 (KER)

State of Kerala v. Kumaran Nair

2000-07-18

K.A.ABDUL GAFOOR, KURIAN JOSEPH

body2000
Judgment :- K.A. Abdul Gafoor, J. The appeal is by the State and the Cross Appeal is by the claimant in L.A.R.102/1996 on the file of the Sub Court, Kozhikode. The land acquisition reference case arose under S.28A(3) of the Land Acquisition Act, 1894, hereinafter referred to as the Act. 2. About 51.80 Acres of land in Nellikode Village in Kozhikode Taluk was notified for acquisition, on 30.10.79. Award was passed on 30.9.1981. The claimant did not object to the award. Naturally, he could not file an application for reference under S.18 of the Act. Later he came to know that as per judgment dated 10.4.1987 in L.A.R.22/83 the Court had granted Rs. 1700/- percent; whereas the claimant pit only Rs. 1109/- per cent as awarded by the land acquisition officer. Thereupon, the claimant preferred an application dated 3.7.1987, before the Collector, under S.28{AX 1) of the Act seeking re-determination of the land value in respect of the holding acquired from him. That application was enquired into based on a direction from this Court in O.P. No. 8207/92. The Collector conducted a local inspection. Subsequent to such inspection, the claimant produced an award dated 31.1.89 in L.A.R.161/85 and a judgment 8.4.1992 of this Court in L.A.A. No. 289/88. Those were produced on 5.9.1992 before the Collector. As per these Rs. 2450/- had been awarded per cent. The Collector found that the land acquired from the claimant and the land covered by L.A.R.22/83 were of similar nature and mat the claimant was entitled to get compensation equivalent to that awarded by the court in L.A.R.22/83. The claimant was not satisfied with the award so passed. According to him, he was entitled to the amount awarded in L.A.R. No. 161/85 and in L.A.A. No. 289/88. Therefore, he sought reference under S.28-A(3). The Collector referred the matter and that reference was answered by the judgment impugned in favour of the claimant. The Court granted land value taking into account the award in L.A.R. No. 161/85 and L-AA. No. 289/88, though not to the full extent, fixing the land value at Rs. 2450/- per cent State is aggrieved by this. Therefore L.A.A. No. 1241/1998. The Court did not grant interest on the amount additionally awarded by the Collector. The Court granted interest from the date of the decree until the date of realisation. No. 289/88, though not to the full extent, fixing the land value at Rs. 2450/- per cent State is aggrieved by this. Therefore L.A.A. No. 1241/1998. The Court did not grant interest on the amount additionally awarded by the Collector. The Court granted interest from the date of the decree until the date of realisation. The claimant is aggrieved as the court did not accept fully the award in L.A.R.161/85. So the claimant has preferred the Cross Appeal. 3. During the hearing, an important question centered around the interpretation of S.28-A of the Act arose for our consideration. S.28-A(1) of the Act reads as follows: "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-s.(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 dale 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." The application originally made by the claimant on 3,7.1987 did not form part of the records. But, we could trace it as it formed part of the records in O.P.No. 8207/92. Accordingly, we brought the judges papers relating to that Original Petition and found that Ext. P4 in that Original Petition was the application under S.28(A)(1) made by the claimant. That application did not refer to the objections, if any, made by the claimant against the original award passed by the Collector. What has been stated was to the following effect: "But due to some personal inconvenience I could not file an enhancement petition'.'. He therefore claimed land value and sought to "pay as per the award produced herewith". The award produced therewith was, as admitted before us, the award of the court in L.A.R.22/83. What has been stated was to the following effect: "But due to some personal inconvenience I could not file an enhancement petition'.'. He therefore claimed land value and sought to "pay as per the award produced herewith". The award produced therewith was, as admitted before us, the award of the court in L.A.R.22/83. The land value awarded there was only Rs. 1700/- per cent. Therefore, it is clear that what was claimed in the application under S.28(A)(1) was only Rs. 1700/- per cent. 4. On perusal of the files of the Collector, we could find that the Collector had examined the case in the following manner: "The petitioner's land situated in R.S.2/7 of Nellicode Village was included in the same notification. During my inspection of the site I found that the land covered by the Sub Court's decision in LAR 22/83 is lying about 1/2 K.M. away from petitioner's land and both are coconut garden on ground. Both the lands have road access also. Hence the land involved in the LAR case 22/83 and the petitioner's land are similar and similarly situated." It was also seen by the Collector-that it was "a deserving case for re-determination of compensation". The Collector also on verification of the connected files came to the conclusion as follows: "On verification of the connected files and records available in this case, no application under S.20 of the K.L.A. Act was seen to have been received in office in the matter from the petitioner." It was in the above circumstances the re-determination was allowed. 5. As per S.28(A)(1) extracted above, it was incumbent on Collector to examine one more important aspect namely whether the claimant was "also aggrieved by the award of the Collector". In other words, as per S.28(A)(1) a person who 'had not made an application to. the Collector under S.18' can seek re-determination based on an award passed by the Court provided he is a person interested in the land covered by the same notification under S.4(1) and "also aggrieved by the award of the Collector". Therefore, it was incumbent on the Collector, while considering application under S.28(A)(1), to ascertain whether the applicant was a person "aggrieved by the award of the Collector" or in other words, whether he had objected to the award as mentioned in the first proviso to S.31(2) of the Act at the time of payment of compensation. 6. Therefore, it was incumbent on the Collector, while considering application under S.28(A)(1), to ascertain whether the applicant was a person "aggrieved by the award of the Collector" or in other words, whether he had objected to the award as mentioned in the first proviso to S.31(2) of the Act at the time of payment of compensation. 6. A person who had received the amount under protest alone shall be entitled to make an application under S.18 as per the second proviso to S.31(2). So, a person can be said to have not made an application under S.18, only if he did not seek reference inspite of his entitlement to make such an application or to seek reference. An entitlement to make a reference application arises only when he had objected to the award. When the claimant had not thus made any objection to the award passed by the Collector, as is in this case, necessarily he was not a person entitled to make an application. Thus, he was not a person aggrieved by the award of the Collector. Therefore this is not a situation of "notwithstanding that he had not made an application to the Collector under S.18 as provided in S.28(A)(1) or a case of a person 'who has not accepted the award' as provided for in S.18. As per S.18 one can seek reference only if he has "not accepted the award". Here, as the claimant did not object to the award, he can not be stated to be a person'who has not accepted the award'. On the other hand, he is a person who has not protested the award and therefore had accepted the award. Consequently he was not entitled, as provided for in the 2nd proviso to S.31(2), to make an application under S.18. Then he was not "aggrieved by the award" passed by the Collector. When he was not thus a person aggrieved by the award passed by the Collector, he was not really entitled to make an application under S.28(a)(1) of the Act. Whether an applicant under S.28(A)(1) is a person aggrieved by the award passed by the Collector, is an important aspect to be examined by every Collector while conducting the enquiry under S.28(A)(2). That is not seen to have adverted to by the Collector in this case as revealed by the files. Whether an applicant under S.28(A)(1) is a person aggrieved by the award passed by the Collector, is an important aspect to be examined by every Collector while conducting the enquiry under S.28(A)(2). That is not seen to have adverted to by the Collector in this case as revealed by the files. He was thus really not entitled to make an application under S.28(A)(1) for re-determination. 7. Even then, as that award has not been challenged as such, we cannot in this Land Acquisition Appeal pronounce the legality or otherwise of the award passed by the Collector. The appellant State is aggrieved only to the extent the Collector relied on the award 'other than that on which the claimant has passed his application under S.28A' (see ground No. 2 in the Memorandum of appeal). 8. Can Collector or Court, while making re-determination of land value award compensation in excess of that had been awarded by the Court based on which application for re-determination is made? Admittedly and as seen from the application as mentioned above, what the claimant prayed for before the Collector was payment of amount equal to the rate as awarded in L.A.R. No. 22/83. But subsequently, he produced the award in L.A.R. No. 161/85 and the judgment in L.A.A. No. 289/88, on 5.9.92 and claimed the land value awarded as per the said documents. But, the Collector, awarded only Rs. 1700/- per cent, equal to that had been awarded by the court in L.A. R.22/83. The claimant, so, sought for reference under S.28(A)(3). On reference, the court, taking also into account, the award in L.A.R.161/85 and the judgment in L.A.A. 289/88, granted further additional land value of Rs. 750/- per cent. The net land value thus awarded became Rs. 2,450/- per cent. This is in excess of the rate awarded in L.A.R. No. 22/83 which forms the basis of S.28(A)(1) application. Therefore, the appeal by the State. The claimant did not get the amount awarded in L.A.R.161/85 though there was an enhancement of Rs. 750/-. So he preferred the cross objection. 9. It is thus clear that the reference court has awarded an additional land value of Rs. 750/- per cent and it is in excess of the land value awarded in L.A.R. No. 22/83 which forms basis for 28(A)(1) application. The point is whether this is permissible. 750/-. So he preferred the cross objection. 9. It is thus clear that the reference court has awarded an additional land value of Rs. 750/- per cent and it is in excess of the land value awarded in L.A.R. No. 22/83 which forms basis for 28(A)(1) application. The point is whether this is permissible. An answer to this point will decide the issue raised in the appeal as well as cross appeal. 10. Learned counsel for the claimant has referred to a decision of the Supreme Court in C. Hargovinddas v. Spl. Land Acquisition Officer, Poona (AIR 1988 SC 1652) and contended that, "even post notification instances can be taken into account (1) if they are very proximate (2) genuine and (3) the acquisition itself has not motivated the purchaser to pay. a higher price on account of the resultant improvement in development prospects". It is contended that as the court on reference under S.28(A)(3) has the same power of the reference court under S.18, necessarily, the subsequent events which has proximity to the issue involved shall also be taken note of for the purpose of awarding compensation. Therefore, the amount awarded in L.A.R.161/85 and L.A.A. 289/88 though made subsequent to the application under S.28(A)(1) and produced later before the Collector, can be taken as the basis while re-determining the land value. It need not therefore always be solely based on the judgment referred to 28(A)(1) application. 11. We are unable to appreciate this contention on behalf of the counsel for the claimant. Of course, the court in appropriate situation can take into account the post notification instances as well. All those are for the purpose of awarding the land value claimed. Here, the land value claimed as seen from 28(A)(1) application was the same rate awarded in L.A.R.22/83.Of course, S.28(A)(2) contemplates an inquiry by the Collector concerned. This is for the purpose of ascertaining whether the land covered by the award of the court and the land acquired from the claimant are situated in a similar circumstance to apply the award of the court for the purpose of re-determining the land value in respect of the land acquired from the claimant. In such an inquiry, the parties including the claimant are free to adduce any evidence. In such an inquiry, the parties including the claimant are free to adduce any evidence. The award in L.A.R. No. 161/85 and the judgment in L.A.A. No. 289/88 subsequently produced by the claimant can only be thus the evidence to substantiate the claim in the application dated 3.7.1987. The claim in the application, as mentioned above, is to pay in equal rate as awarded in L.A.R. No. 22/83. Therefore, by adducing evidence on the strength of award in L.A.R. No. 161/85 and the judgment in L.A.A. No. 289/88 wherein the court has awarded more land value than as awarded in L.A.R. No. 22/83, the claimant can only substantiate his case in his application dated 3.7.1987 based on the award in L.A.R. No. 22/83. Those documents will not enable the claimant to claim the land value awarded in those subsequent awards. As held by the Supreme Court in Union of India & Ann v. Pradeep Kumari & Ors. (AIR 1995 SC 2259), there cannot have two applications. There was only one application by the claimant. That was on 3.7.1987. That was based on the award in L.A.R. No. 22/83. At that time, the award in L.A.R. No. 161/85 had not been passed. Therefore, the basis for the claim in application dated 3.7.87 was the award in L.A.R. No. 22/83 and what was claimed was payment in same rate. That application has never been amended at any point of time. In such circumstances, one cannot get any amount over and above what has been claimed in the application for re-determination, even if there had been a subsequent award by the court, granting land value in excess of the award which forms basis for S.28(A)(1) application. 12. It is further contended by the counsel, again relying on the decision in Union of India v. Pradeep Kumari (AIR 1995 SC 2259) that always the first award alone need not be taken as the basis. The award relied on in an application under S.28(A) need not always be the first award passed by the Court in a case relating to a particular acquisition covered by a notification. It can even be a subsequent award wherein the respective claimants had adduced real evidence and obtained real compensation eligible for the land. The award relied on in an application under S.28(A) need not always be the first award passed by the Court in a case relating to a particular acquisition covered by a notification. It can even be a subsequent award wherein the respective claimants had adduced real evidence and obtained real compensation eligible for the land. In such circumstances, it is possible for any person who has entitlement to make a claim for re-determination under S.28(A)(1) to point out that subsequent award for enhanced compensation. Such claim cannot be defeated by the Land Acquisition Officer contending that the basis for re-determination shall only be the first award and not subsequent award. That is really possible. But, when what is relied on in the claim for re-determination is the first award, any further enhanced amount granted in a subsequent award will not enable him to claim the amount awarded in that subsequent award. In such circumstances, it will only be a piece of evidence to substantiate his claim mentioned in the application, especially when no amendment of the application was sought for based on any subsequent award. The awards newly produced were dated 3.1.89 and 8.4.92. It was beyond the period of limitation provided for. Therefore, it was impossible to claim the amount awarded in award in L.A.R. No. 161/85 as well as the judgment in L.A.A. No. 289/88. Thus, on any count, the amount claimed in the application for re-determination shall be the final limit beyond which the Collector cannot award any additional value. The Collector has awarded the land value equal to the rate awarded in L.A.R. No. 22/83, as claimed by the appellant. In such circumstances, the reference court could not have awarded any more amount than what had been claimed by the claimant in his application dated 3.7.87. 13. The Court also cannot grant any amount in excess of the claim in the re-determination application. Even in a reference case under S.18, whatever be the evidence on record before the Court regarding the land value, the reference court can answer the reference only to the extent of the claim made by the claimant. 13. The Court also cannot grant any amount in excess of the claim in the re-determination application. Even in a reference case under S.18, whatever be the evidence on record before the Court regarding the land value, the reference court can answer the reference only to the extent of the claim made by the claimant. The reference court even if it had been proved that the land in question had a particular value at the relevant point of time, cannot award it when it is in excess of the claim made by the claimant before the Land Acquisition Officer as the value entitled to him. As seen from sub-s.(3) of S.28(A), the procedure to be followed in reference under S.28(A)(3) is the same provided for reference under S.18. In such circumstances, the reference court under S.28(A)(3) cannot award more amount than what had been claimed in the application for re-determination. The Court does not have any power to grant more amount than what had been claimed in the application under S.28(A)(1). Therefore, the additional land value of Rs. 750/- awarded by the court below as per the impugned judgment has to be set aside. 14. Another aspect covered by the appeal is with reference to the extent of the land. It is stated in the judgment impugned that the area acquired is 1.30 acres whereas actual extent is only 1.25 acres. This aspect has been admitted by the claimant himself. In such circumstances, the claimant will be entitled to the additional land value awarded by the Collector only for 1 acre 24.946 cents. 15. The court below has awarded interest on solatium as well. As held by the Supreme Court in Tehri Hydro Development Corporation v. S.P. Singh & Ors. (1997 SC 249), a claimant is not entitled to interest on the amount of solatium. So the award requires modification in that aspect as well. 16. Therefore the appeal is allowed to the above extent and decree impugned stands modified accordingly. 17. Two aspects emerge from out of the Cross Appeal. First is whether the claimant is entitled to compensation of Rs. 3,000/- per cent on the basis of the award in L.A.R.161/85 and the judgment in L.A.A. No. 289/88. 16. Therefore the appeal is allowed to the above extent and decree impugned stands modified accordingly. 17. Two aspects emerge from out of the Cross Appeal. First is whether the claimant is entitled to compensation of Rs. 3,000/- per cent on the basis of the award in L.A.R.161/85 and the judgment in L.A.A. No. 289/88. That point has already been considered and answered while dealing with the Land Acquisition Appeal that the claimant cannot seek re-determination over and above the rate quoted in his application under S.28(A)(1). Therefore, the claimant is not entitled to the land value at the rate of Rs. 3.000/- per cent. 18. The second aspect is whether the claimant is entitled to the statutory interest from the date of taking possession of the land in question, on the amount additionally awarded by the Collector. The Supreme Court has held in Union of India v. Pradeep Kumari (AIR 1995 SC 229) as follows: "Shri. Goswamy has next contended that while re-determining the amount of compensation under S.28-A it is not permissible for the Collector to award interest on the additional amount of compensation awarded by him for the reason that under S.28 of the Act only the court can direct payment of interest on the excess amount awarded as compensation and no such power is conferred on the Collector and, therefore, interest cannot be awarded by the Collector on the additional amount of compensation determined under S.28-A. It is no doubt true that under S.28 only the Court can direct payment of interest on the excess amount awarded as compensation and the collector is not competent to award interest on the additional amount of compensation under the said provision. But sub-s.(2) of S.28-A provides that after an application has been submitted under sub-s.(1) of S.28 A the Collector after conducting an inquiry makes an award determining the amount of compensation payable to the applicants and under sub-s.(3) of S.28-Aany person who has not accepted the award under sub-s.(2) may move the Collector requiring that the matter be referred for determination to the Court and the provisions of Ss.18 to 28 have been made applicable to such reference. This would show that after an application has been submitted under S.28-A(1) for re-determination of the amount of compensation the process of such re-determination results in making of an award by the Collector and a person not accepting the said award can move the Collector to refer the matter to the Court for determination and such reference is governed by Ss.18 to 28. If that is so S.34 of the Act would be applicable to the award that is made by the Collector under sub-s.(2) of S.28-A and it would be permissible for him to award interest under S.34 on the additional amount of compensation awarded by him. The second contention urged by Shri. Goswamy is, therefore, rejected." Going by this dictum, the claimant for re-determination of land value is also entitled for interest as in an ordinary reference case arising under S.18. Therefore, the claimant will be entitled for interest at 9% per annum on the additional land value of Rs. 750/-per cent for one year from the date of taking possession and thereafter at 15% per annum until it is paid. The Appeal and Cross Appeal are allowed in part as mentioned above. The parties shall pay and receive the respective costs.