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2005 DIGILAW 144 (KER)

State of Kerala v. V. N. Narayanan Nair

2005-02-21

K.A.ABDUL GAFOOR, K.THANKAPPAN

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Judgment :- Abdul Gafoor, J. This is an appeal by the State assailing the award of the Land Acquisition Court. 2. The respondent/claimant did not initially seek a reference under Section 18 of the Land Acquisition Act, 1894 (for short “the Act”). Therefore, his case was not referred to the civil court. Later, he came to know that the owner of the adjoining land which was acquired under the same notification had sought for reference under Section 18. His case was referred as L.A.R.No.40/86. The court later awarded enhanced land value and enhanced value for the improvements. Thereupon, the respondent/claimant moved the collector filing an application under Section 28A(I) of the Act. There was no action on the part of the collector. The respondent, therefore, moved this court and obtained a direction for consideration of his application under Section 28A(I) of the Act. The collector, thereupon, considered the application and passed an award re-determining the compensation and awarded a sum of Rs.17,927/- to the respondent. Dissatisfied with the award of re-determination, the respondent sought for a reference under Section 28A(3). That reference is answered in the impugned judgment – Annexure III, granting compensation on the counts of improvements as well as shifting charges. According to the court below, the respondent/claimant was entitled for an amount of Rs.40,679/- towards the value of coffee, a further amount of Rs.4,141/- towards the value of non-bearing trees, Rs.4,780/- towards the value of 259 jack trees and Rs.32,850/- towards the value of the land, apart from shifting charges of Rs.2,000/- in order to shift the existing building. 3. It is submitted by the Government Pleader that the Court below had acted as if it was a reference under Section 18 of the Act enhancing the value on all the counts rather than re-determining the land value in terms of the award of the court below pointed out by the claimant/respondent. This is not permissible. The improvements available in the adjoining land and that available in the land of the respondent may not always be similar. It is further pointed out that even if similar crops are available in the land in question, the yield may not be the same. The age of the plants or trees may not be the same. The improvements available in the adjoining land and that available in the land of the respondent may not always be similar. It is further pointed out that even if similar crops are available in the land in question, the yield may not be the same. The age of the plants or trees may not be the same. Such re-determination is not possible under Section 28A based on an award in respect of the adjoining property acquired based on the very same notification. In support of his contention, he has relied on the decision of this court in Kamalakshi Amma v. Special Tahsildar (2004 (2) KLT 716). 4. It is contended by the counsel for the respondent that re-determination is possible for value of improvements as well. The wording contained in Section 28A(I) does not contain any restrictions. Compensation includes compensation on all the counts. Therefore, re-determination in terms of Section 28A shall be applicable in respect of compensation on all the counts including improvements. In this connection, the decision in Indira Devi v. Special Tahsildar (1991 (1) KLT 30) is relied on. 5. First of all, we will consider the decision relied on by the respondent. In paragraph 62 thereof, a Division Bench of this court has made it clear that: “there is no automatic re-determination of the amount of compensation on the mere passing of an award by the court, and the application being made under Section 28A. The collector has to apply his mind to the facts of the case and adjudicate whether the said award is liable to be applied to the case of the applicant. There is also no total setting aside of the original award or re-opening of the matters covered by it, merely on the basis of the award of the court. On the other hand, what the provision contemplates is a re-determination of the amount of compensation, and compensation alone, on the basis of the award of the court.” The court further made it clear that: “the relevancy had applicability of the court’s award will arise in a variety of circumstances like the similarity of the lands or their being neighbouring ones, adoption of same basis for fixing the compensation earlier, adoption of a different multiplier by court for capitalization and others. The true basis of the re-determination will be to ask: What would have been the compensation the collector would have awarded had the award of the court been available at the time he made his original award?” 6. The evidence in this case consists of the oral testimony of the respondent/claimant and Exts.A1, A2 and A3. Ext.A1 is the judgment of the court below in L.A.R.No.48/86 relied on as the basis for re-determination. Ext.A2 is the basic document and Ext.A3 is the judgment in O.P.No.4640/93 wherein this court directed re-determination of the compensation. 7. Apart from deposing that there were coffee plants, jack trees etc., no further evidence had been adduced. What the court below had done as per the impugned judgment was to assess the value of improvements, applying the capitalization method based on the value of the coffee and other improvements, as adopted in Ext.A1. That means, the court below took as if it had been a reference in terms of Section 18 of the Act and not as a reference under Section 28A(3). The Division Bench, in paragraph 62 of the decision relied on by the respondent, has made it clear that re-determination will depend upon “variety of circumstances like the similarity of the lands or their being neighbouring ones, adoption of same basis for fixing the compensation.” It is not in evidence that the age of the coffee plants and the trees available in the land covered by Ext.A1 and in the land in question were same. It is also not in evidence that the yield obtained from the properties are also in the same rate. The respondent/claimant has also not produced the necessary E.B.2 book which a coffee grower has to maintain. Nor he had called for any details from the coffee pool receipts and E.B.2 book. These could have been summoned from Central Excise authorities to prove that there was a particular amount of yield from his property. Therefore, in the absence of these details, re-determination of the value of improvements as in the case of Ext.A1 was totally improper. 8. Nor he had called for any details from the coffee pool receipts and E.B.2 book. These could have been summoned from Central Excise authorities to prove that there was a particular amount of yield from his property. Therefore, in the absence of these details, re-determination of the value of improvements as in the case of Ext.A1 was totally improper. 8. In this regard, we are in full agreement with the view taken in Kamalakshi Amma v. Special Tahsildar (2004 (2) KLT 716), wherein a learned single judge has made it clear that “even otherwise, it is not difficult to hold that a situation of two neighbours whose properties have been acquired under the very same S.4(1) notification being entitled for exactly the same compensation for improvements on their properties on the reason that the improvements on their properties were exactly the same is a very remote possibility”. Section 28A(3) only mentions that the provisions of Ss.18 to 28 shall, so far as may be, applied to such reference as they apply to reference under S.18. As already stated, application under S.28A(1) envisages re-determination of compensation on account of land value and not value of improvements. The shifting charge is also not one coming within the purview of Section 28A. 9. When we agree with this reasoning, the contention raised by the respondent/claimant cannot succeed. Necessarily, the appeal has to be allowed, making it clear that he will be entitled only to that part of the impugned award enhancing the land value alone to the extent of Rs.19,208/-. 10. When we are setting aside the award the impugned in this case, necessarily, there arises no question of entertaining the cross objection. It is also dismissed. On the enhanced land value, the respondent will be entitled to the statutory benefits including solatium and interest.