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2004 DIGILAW 545 (KER)

Purushan v. State of Kerala

2004-11-10

PIUS C.KURIAKOSE

body2004
Judgment :- Pius C. Kuriakose, J. The important question raised for determination in this appeal is the question as to whether the claimant applicant in a reference under S.28A(3) is entitled to have more land value than what was awarded to the claimant in the Court judgment that was relied on by the applicant in his application under S.28A. The appellant led an application under S.28A of the Land Acquisition Act relying on the judgment in L.A.R.30/94. Under that judgment, the claimant in that case was awarded land value @ Rs.12,000/- per Are. The prayer of the appellant applicant in his application under S.28A was that he also be awarded land value at the rate of 12,000/- per Are as was awarded to the claimant in L.A.R 30/94. But before the claim under 28A was enquired into by the Land Acquisition Officer, the local reference Court awarded a higher rate of land value to another party, whose land was also acquired under the very same S.4(1) notification i.e. the claimant in L.A.R.378/89. Since the claimant in L.A.R. 378/89 adduced better evidence than the claimant in L.A.R.30/94, the reference Court awarded land value at the rate of Rs.12,597/- to him. 2. When the application filed by the present appellant under S.28A came up for consideration before the Land Acquisition Officer, the appellant wanted him also to be awarded land value at the rate of Rs.12,597/- that is, the rate awarded by the Court in the subsequent case L.A.R.378/89. The Land Acquisition Officer took in view that the prayer in the application under S.28A was only that the appellant be awarded compensation on the basis of L.A.R.30/94 and he has no jurisdiction to award a party more that what the party has claimed in the applications and redetermined the compensation only on the basis of L.A.R.30/94. 3. Since the appellant was dissatisfied by the award of the Land Acquisition Officer, he applied for a reference under S.28A(3). The application was granted and the case came before the Land Acquisition Reference Court. Before the Court, the parties were allowed to adduce evidence. Evidence on the side of the appellant consisted mainly of Ext.A1 judgment in L.A.R.378/89 and the appellant's own oral testimony as A.W.1. On the side of the Government the counter evidence consisted of Exts.R1 to R4 which were documents pertaining to the acquisition. Before the Court, the parties were allowed to adduce evidence. Evidence on the side of the appellant consisted mainly of Ext.A1 judgment in L.A.R.378/89 and the appellant's own oral testimony as A.W.1. On the side of the Government the counter evidence consisted of Exts.R1 to R4 which were documents pertaining to the acquisition. The learned Judge noticed that Exts.A1 case also pertains to acquisition of property under which the appellant's property was acquired. However, endorsing the view of the Land Acquisition Officer that the party is not entitled to have more that what he had claimed, the Court confirmed the award of, the Land Acquisition Officer and refused to rely on Ext.A1. 4. Heard Sri. P.V. Jayachandran learned counsel for the appellant and Smt.V.O. Philomina learned Government Pleader for the State. 5. S. 28A(3) reads as follows: "Any person who has not accepted the award under sub-s.(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 Ss.18 to 28 shall, so far as may be, apply to such reference as they apply to a reference under S.18." Thus it is clearly laid down in S.28 A that the provisions of Ss.18 to 28 of the Land Acquisition Act shall apply to a reference under S.28A(3) also as they apply to a reference under S.18. In other words, the statute recognizes the principle which is judicially also recognized that the award of the officer is only an offer which the party mayor may not accept and the party who does not accept the offer is entitled to seek a reference whether it be under S.28A(3) and once the offer is not accepted and a reference case is registered whether it be under S.18 or under S.28A(3), the Land Acquisition Reference Court can decide the reference on the basis of the evidence adduced by the rival parties as-though he is deciding the question of determining of the correct compensation for the first time the parties occupying the status of plaintiff and defendant respectively in a regular civil suit. 6. S.23 is one of the provisions which is expressly included by S.28A(3) as applicable to a reference under S.28A(3). S.23 deals with the various matters to be considered in determining compensation. 6. S.23 is one of the provisions which is expressly included by S.28A(3) as applicable to a reference under S.28A(3). S.23 deals with the various matters to be considered in determining compensation. The very first matter is the market value of the land at the date of publication of the notification under S.4(1). In other words, while the reference Court under S.28A(3) comes to decide the question of correct compensation payable for the acquired property, that Court is entitled to consider as the first point the market value of the acquired land on the date of S.4(1) notification. It is in that context that the parties are allowed to adduce evidence regarding market value. 7. In this particular case, the items of evidence adduced on the side of the appellant were Ext.A1 and parties own oral testimony as A.W.1. AI is a Court judgment in a case pertaining to acquisition of another item of property for the same purpose and was covered by the very same S.4(1) notification. Relevancy of such a judgment in the matter of market value determination of similar lands especially when they are covered by the very same S.4(1) notification is well settled. In fact, the very legislative principle underlying S.28A as explained by the Supreme Court in Union of India v. Pradeep Kumari (1996 (1) KLT 93 (SC) = AIR 1995 SC 2259) and in Union of India v. Hansoli Devi (AIR 2002 SC 3240) is to bring forth a parity between the land values given for similar lands acquired under the very same S.4(1) notification. In other words, Legislature intends that equal treatment must be given to those persons by the Court also if they were treated equally in the matter of land value by the Land Acquisition Officer. 8. I had occasion to hold in Pulukunnathu Raghava Poduval v. The Special Tahsildar (2004 (3) KLT 261) that it is not obligatory to maintain an application under S.28A that the Land Acquisition Officer should have awarded the same land value to the party making the application and also to the party to the judgment which is relied on in the application. I decided in that case that it is open to the Land Acquisition Officer to rely on the enhancement given by the reference Court in one case to lands coming under an inferior category and award a proportionate increase to the applicant's land which may be placed by the Land Acquisition Officer in a superior category and actually award more land value than what was awarded to the party in the judgment relied on in the application. 9. Learned Subordinate Judge's reasoning is that the party whose application has been completely allowed cannot have any sustainable grievances regarding the award of the Land Acquisition Officer. At first blush it would appear that the reasoning of the learned Subordinate Judge is correct. But then, the language under S.28A(3) and the binding judicial precedents, including the pronouncement of the Constitution Bench of the Supreme Court in Hansoli Devi's case dealing with legislative objective underlying S.28A, will certainly justify determination of the question of correct compensation payable for the acquired property by the reference Court under S.28A(3), on the basis of the evidence on record which can include Court judgments other than the one relied on in the S.28A application. 10. Significantly the expression 'redetermination' which appears in sub-s.(1) of S.28A is substituted by the expression 'determination' in sub-s.(3) of S.28A. Determination of any reference necessarily has to be done on the basis of the evidence which comes on record. The only dependable item of evidence in this case, which came on record before the learned Subordinate Judge was Ext.A1 and the reason stated by the learned Judge for ignoring Ext.A1 in my opinion is not sustainable. 11. The result is the appeal stands allowed. The judgment and decree of the learned Judge will stand set aside and L.A.R.34/94 will stand answered refixing the land value payable to the appellant at Rs.12,597/- per Are. Needless to mention that the appellant will be entitled for all statutory benefits including interest on solatium component as well as the component under S.23(1)A as per the judgment in Sundar v. Union of India (2001 (3) KLT 489 (SC). The appeal is allowed as above. In the circumstances, no order as to costs.