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2007 DIGILAW 739 (KER)

Saradha P. v. State of Kerala

2007-10-31

K.PADMANABHAN NAIR

body2007
JUDGMENT K. Padmanabhan Nair, J. 1. Heard. Admitted. Learned Government Pleader takes notice for respondents 1 to 3. 2. Reliefs sought for in these Writ Petitions are identical. Properties belonging to the petitioners were acquired for a public purpose. They were given compensation also. They did not file any application under S.18 of the Land Acquisition Act claiming enhanced compensation. In both these cases petitioners filed applications under S.28A of the Act claiming re-determination of the compensation already awarded. The request of the petitioners in Writ Petition No. 23773 of 2007 was rejected by the Land Acquisition Officer on the ground that the land acquired from the petitioners in that Writ Petition and the land covered by LAR No. 60 of 1995 are different categories of lands. In Writ Petition No. 28743 of 2007, the reasons for rejecting the application filed by the petitioner are: (1) the first reference application is a time barred application (Filed after a period of 6 years), (2) an OP (OP No. 12242/97) is pending before the Honourable High Court on the same matter and (3) the 2nd reference application is not admissible. 3. The petitioners filed applications under S.28A(3) for the Act for referring the matter to the competent Court for adjudication. In Writ Petition No. 23773 of 2007 application was rejected on the ground that there was no award under S.28A of the Act. In Writ Petition No. 28743 of 2007 the application was dismissed on the ground that there was no award and reference can be made only in case where an award is passed by the Land Acquisition Officer under S.23A(2) of the Act. 4. The matter was considered in Savithry Amma v. State of Kerala, 1990 KHC 391 : 1990 (2) KLJ 315 : 1990 (2) KLT 365 in which it was held as follows: "The order refusing to re-determine the compensation payable to the affected party on the basis of the amount of compensation awarded by the Court will also be an award within the meaning of sub-sections 2 and 3. The order refusing to re-determine the compensation by the Land Acquisition Officer is also an award within the meaning of sub-section 2 of S.28A and if that be so, the person who is aggrieved by such an order also has the right to approach the Land Acquisition Officer to have the matter referred to the Civil Court and on such application being made, the Land Acquisition Officer is bound to refer the same to the Civil Court for disposal in accordance with law." Counsel has also relied on a decision reported in K. R. Somasundaran v. Special Tahsildar, 2002 KHC 474 : 2002 (2) KLT 569 : 2002 (1) KLJ 751 : ILR 2002 (3) Ker. 240 : 2003 (1) LACC 23 in support of his case. It was held as follows: "The fact that the District Collector has dismissed the application on the latter ground by itself will not take away the jurisdiction of the Court when the matter is ultimately referred to It since the correctness or otherwise of the decision of the District Collector is at large before the reference Court. Suppose in a case the District Collector dismissed the application on the ground that it is beyond time that is also a matter which could be referred to the reference Court in case the party seeks for such a reference under sub-section 3 of S.28A. Therefore, the Court has necessarily to consider as to whether the application is barred by limitation as provided for under S.28A in such cases. Therefore, the provision under S.28A enables a reference Court to reexamine the question and also to examine the correctness or otherwise of the decision rendered by the District Collector." 5. So an order rejecting an application filed under S.28A is also in substance an award. In case any person is aggrieved by the order rejecting an application for re-determination approaches the Land Acquisition Officer within the time allowed with a petition under S.28A(3) of the Act, the Land Acquisition Officer cannot reject that application on the ground that he did not re-determine the compensation. Whether such a person is entitled to re-determination of the compensation, etc., are matters for the Civil Court to decide under a proper reference. So the impugned orders are liable to be quashed. In the result, Writ Petitions are allowed. Ext. Whether such a person is entitled to re-determination of the compensation, etc., are matters for the Civil Court to decide under a proper reference. So the impugned orders are liable to be quashed. In the result, Writ Petitions are allowed. Ext. P4 order passed by the Special Tahsildar in WP (C) No. 23773 of 2007 and Ext. P6 order in WP (C) No. 28743 of 2007 are hereby quashed. The Land Acquisition Officers concerned are directed to reconsider the matter and pass appropriate orders in accordance with law as stated above, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment.