Haji A. Abdul Rashid vs The Special Tahsildar and Others

K. Padmanabhan Nair, J.—The petitioners are owners of properties situated in Mammiyoor Village. Lands owned by the petitioners were acquired for a public purpose. They did not file petition u/s 18 of the Kerala Land Acquisition Act (for short ''the Act'') for referring the matter to the Land Acquisition Court for determining enhancement in the compensation. But some of the owners of properties lying adjacent to the properties owned by the petitioners filed applications u/s 18 of the Act claiming enhancement. Those cases were referred to Sub Court, Thrissur by the Land Acquisition Officer and the Sub Judge, Thrissur enhanced the compensation awarded by the Land Acquisition Officer. On 20-12-2002 petitioners had filed Ext.P2 series applications u/s 28A of the Act claiming benefit under that Section. Those applications were dismissed by the Land Acquisition Officer vide Ext.P4 judgment the requisitioning authority filed L.A.A. No. 1401/2002 and connected cases before this Court.

This Court by judgment dated 12-12-2005 dismissed all the appeals. The main contention raised by the petitioners is that they have filed application before the judgment of this Court, those applications must be deemed to be within the time. It is argued that a person who claims benefits u/s 28A of the Act is entitled to get the value fixed by the reference court which is modified or enhanced by the appellate or revisional court. According to the respondents even though the claimant u/s 28A is entitled to get the value fixed by the appellate court the time for filing the application is three months from the date of order of the Land Acquisition Court and not from the date of order of appellate or revisional court. Section 28A reads as follows;

28A. 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 u/s 11, the persons interested in all the other land covered by the same notification u/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 u/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 redetermined 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 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 Collector shall, on receipt of an application under Sub-section (1), conduct an inquiry after giving 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.

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 Sections 18 to 28 shall, so far as may be, apply to such reference as they apply to a reference u/s 18.

Learned Counsel appearing for the petitioners relied on a decision reported in Union of India v. Munshi Ram 2006(2) KLT 992 in which it was held as follows:

...the amount payable u/s 28-A of the Act is the amount which is finally payable byway of compensation to the owners of the land who challenged the award of the Collector and claimed reference u/s 18 of the Act. The said provision seeks to confer the benefit of enhanced compensation even on those owners who did not seek a reference u/s 18. It cannot be that those who secure a certain benefit by reason of others getting such benefit should retain that benefit, even though the others on the basis of whose claim compensation was enhanced are deprived of the enhanced compensation to an extent. This would be rather inequitable and unfair. Moreover, even if it be that the compensation payable to claimants who have applied u/s 28-A of the Act, is the enhanced compensation decreed by the Reference Court, we must understand the decree to mean the decree of the Reference Court as modified in appeal by the higher courts. Otherwise, an incongruous position may emerge that a person who did not challenge the award of the Collector and did not claim a reference u/s 18 of the Act would get a higher compensation than one who challenged the award of the Collector and claimed a reference, but in whose case a higher compensation determined by the Reference Court was subsequently reduced by the superior court. There can be no dispute that those claiming higher compensation and claiming reference u/s 18 of the Act are bound by the decree as modified by the superior court in appeal. The principle of restitution must apply to them. For the same reason, the same consequence must visit others who have been given the benefit of enhanced compensation pursuant to the decree passed in reference proceeding on the application of others.

It was also held as follows:

We hold that u/s 28-A of the Act, the compensation payable to the applicants is the same which is finally payable to those claimants who sought reference u/s 18 of the Act. In case of reduction of compensation by the superior courts, the applicants u/s 28-A may be directed to refund the excess amount received by them in the light of reduced compensation finally awarded.

Counsel also relied on a decision rendered by this Court in Abdul Rahim v. Special Tahsildar 2007 (2) KLT 197 in which it was held that an application u/s 28A of the Act cannot be rejected on the ground that appeal is pending against decision of reference court. In Nani v. District Collector 1998 (1) KLT 705 a learned Single Judge of this Court held that during pendency of appeal a petition u/s 28A of the Act should not be disposed of and should be kept pending for the result of the appeal. Learned Government Pleader relied on a decision reported in Louis Joyi v. State of Kerala 1997 (1) KLT 762 in which it was held that the date of passing of award by reference court is important. Government Pleader also relied on the decisions of the Supreme Court in Tota Ram v. State of U.P. 1997(2) KLT (Short Notes) Case No. 26, Page 24, Jose Antonio Cruz Dos R. Rodriguese and another Vs. Land Acquisition Collector and another, and Bhagti (Smt) (Deceased) through her Lrs. Jagdish Ram Sharma Vs. State of Haryana, . In Jose Antonio Cruz Dos R. Rodriguese''s case (supra) it was held that the date of limitation must be computed from the date of award of reference court on the basis of which redetermination is sought and not the order of the appellate court dealing with the appeal against the award of the reference court.

Advocate Shri. V.V. Asokan, learned Counsel for the petitioners argued that a reading of paragraph 7 of Munshi Ram''s case (supra) makes it very clear that the time limit for filing an application claiming benefit u/s 28A will begin to run only on the date of judgment of the appellate court and not from the date of order of the reference court. It is also argued that if such a view is not taken there is absolutely no meaning in holding that the application cannot be considered while appeal is pending. It is argued that the Land Acquisition Officer may redetermine the compensation while an appeal from the judgment and decree of the trail court in L.A.R. and in such cases the party will be left without any remedy at all. In Bhagti''s case (supra) it was specifically held that an application for redetermination of compensation can be made only on the basis of judgment of reference court u/s 18 of the Act. Since that point directly arose for consideration and answered, I respectfully follow the principle laid down in Bhagti''s case (supra). So the prayer of the petitioners cannot be allowed.

In the result, Writ petition is dismissed.