Purushan vs State of Kerala

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 u/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 u/s 8A. The appellant filed an application u/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 u/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 Section 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.

When the application filed by the present appellant u/s 8A 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 u/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.

Since the appellant was dissatisfied by the award of the Land Acquisition Officer, he applied for a reference u/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 AW.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.

Heard Sri. P.V. Jayachandran learned counsel for the appellant and Smt. V.O. Philomina learned Government Pleader for the State.

Section 28A(3) reads as follows:

"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."

Thus it is clearly laid down in Section 28A that the provisions of Sections 18 to 28 of the Land Acquisition Act shall apply to a reference u/s 28A(3) also as they apply to a reference u/s 18. In other words, the statute recognises the principle which is judicially also recognised that the award of the officer is only an offer which the party may or may not accept and the party who does not accept the offer is entitled to seek a reference whether it be u/s 28A(3) and once the offer is not accepted and a reference case is registered whether it be u/s 18 or u/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.

Section 23 is one of the provisions which is expressly included by Section 28A(3) as applicable to a reference u/s 28A(3). Section 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 u/s 4(1). In other words, while the reference Court u/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 Section 4(1) notification. It is in that context that the parties are allowed to adduce evidence regarding market value.

In this particular case, the items of evidence adduced on the side of the appellant were Ext.A1 and parties own oral testimony as AW.1. A1 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 Section 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 Section 4(1) notification is well settled. In fact, the very legislative principle underlying Section 28A as explained by the Supreme Court in Union of India and another Vs. Pradeep Kumari and others, and in Union of India (UOI) and Another Vs. Hansoli Devi and Others, is to bring forth a parity between the land values given for similar lands acquired under the very same Section 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.

I had occasion to hold in Pulukunnathu Raghava Poduval Vs. The Special Tahsildar, that it is not obligatory to maintain an application u/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.

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 u/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 Section 28A, will certainly justify determination of the question of correct compensation payable for the acquired property by the reference Court u/s 28A(3), on the basis of the evidence on record which can include Court judgments other than the one relied on in the Section 28A application.

Significantly the expression ''redetermination'' which appears in Sub-section (1) of Section 28A is substituted by the expression ''determination'' in Sub-section (3) of Section 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.

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 u/s 23(1)A as per the judgment in Sundar v. Union of India 2001 (3) KLT 489 .

The appeal is allowed as above. In the circumstances, no order as to costs.