1. The issue that arises for consideration in this writ petition is as to whether the pendency of an application filed under Section 28A of the Land Acquisition Act, 1894 will be a bar in making a fresh application under the said Section for re-determination of the amount of compensation, based on a subsequent award passed by the court in respect of another land covered by the very same notification under Section 4(1) of the said Act.
2. Heard arguments of learned counsel for the petitioner and also learned Senior Government Pleader for the respondents.
3. Going by the averments in the writ petition, the petitioner''s property comprised in Sy.Nos.3/4, 3/8 and 3/9 of Peringadu Village in Adoor Taluk of Pathanamthitta District was acquired by the Kerala State Transport Project (KSTP), based on a notification dated 7.1.2003 issued under Section 4(1) of the Land Acquisition Act, for widening Adoor-Chengannur M.C.Road. The 4th respondent Land Acquisition Officer passed an award in LAC No.786 of 2003 and deposited the compensation amount in the Sub Court, Pathanamthitta, under sub-section (2) of Section 31 of the Act. Later, the petitioner received the said amount from the Sub Court.
4. The petitioner did not file an application under Section 18 of the Act seeking reference to court for determination of the amount of compensation. On coming to know that the Sub Court, Pathanamthitta has passed an award in L.A.R.No.103 of 2006 refixing the land value of another land acquired under the very same notification at Rs.1,35,905/- per Are, the petitioner submitted Ext.P1 application dated 21.6.2011 before the 3rd respondent District Collector, under Section 28A of the Act, seeking redetermination of the amount of compensation based on the subsequent award passed by the reference court. The said application was submitted before the 3rd respondent on 24.6.2011.
5. After submission of Ext.P1 application, the petitioner came to know that, the reference court has passed another award in L.A.R.No.115 of 2006, re-fixing the land value of another land acquired under the very same notification at Rs.2,00,000/- per Are. Therefore, the petitioner submitted Ext.P2 application dated 22.7.2011 before the 3rd respondent, under Section 28A of the Act, seeking re-determination of the amount of compensation based on the said award passed by the reference court. The said application was submitted before the 3rd respondent on 29.7.2011. The petitioner has also submitted Ext.P3 representation dated 1.8.2011 before the 4th respondent requesting re-determination of the amount of compensation based on the judgment of the reference court produced along with Ext.P2 application.
6. Since Ext.P2 application was not considered, the petitioner approached this Court in W.P.(C)No.5360 of 2012. Thereafter, the petitioner moved Ext.P4 representation dated 6.3.2012 before the 4th respondent, with a request to withdraw Ext.P1 application. The said request was turned down in Ext.P5 order dated 15.3.2012, by which the petitioner was informed that, Ext.P2 application deserves no consideration since Ext.P1 application is already under consideration. Feeling aggrieved by Ext.P5 order, the petitioner is before this Court in this writ petition, seeking various reliefs.
7. By the order dated 13.4.2012, this Court directed the respondents to keep in abeyance the disposal of Ext.P1 application. Later, by judgment dated 21.5.2012, this Court closed W.P.(C) No.5360 of 2012 as infructuous, in view of Ext.P5 order of the 4th respondent.
8. Separate counter affidavits have been filed by the 4th respondent Land Acquisition Officer and the 5th respondent Requisition Authority contending that, the petitioner is not entitled for re-determination of compensation based on the award passed by the reference court, referred to in his applications filed under Section 28A of the Act. The 4th respondent contended further that, Ext.P2 application for re-determination of compensation was rightly rejected by Ext.P5, since proceedings have already been initiated for re-determination based on Ext.P1 application made by the petitioner.
9. During the course of arguments, the learned counsel for the petitioner pointed out that, the land value re-fixed by the reference court in L.A.R.No.103 of 2006, at Rs.1,35,905/- per Are, attained finality in view of the dismissal of L.A.A.No.599 of 2012 filed by the State, vide the judgment of this Court dated 30.10.2014. L.A.A.No.591 of 2012 filed by the State against the land value re-fixed by the reference court in L.A.R.No.115 of 2006, at Rs.2,00,000/- per Are, was disposed of by the judgment of this Court dated 21.10.2013 and the matter was remanded to the reference court for fresh consideration, in accordance with law, along with L.A.R.No.111 of 2006. After remand, L.A.R.No.115 of 2006 was settled in the Adalat re-fixing the land value at Rs.2,80,000/- per Are.
10. The only issue that arises for consideration in this writ petition is as to whether the stand taken by the 4th respondent in Ext.P5 order, in not entertaining Ext.P2 application made by the petitioner under Section 28A of the Act for re-determination of the amount of compensation, based on a subsequent award passed by the reference court is legally sustainable.
11. Section 28A of the Land Acquisition Act, inserted by the Land Acquisition (Amendment) Act, 1984, provides for redetermination of the amount of compensation on the basis of the award of the court. Sub-section (1) of Section 28A of the Act provides that, where in an award under Part III, the court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under Section 11, the persons interested in all the other land covered by the same notification under sub-section (1) of Section 4 and who are also aggrieved by the award of the Collector may, notwithstanding that they had not made an application to the Collector under Section 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 re-determined on the basis of the amount of compensation awarded by the court. As per the proviso to subsection (1) of Section 28A, in computing the period of three months within which an application to the Collector shall be made under that sub-section, the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be excluded.
12. As per sub-section (2) of Section 28A of the Act, the Collector shall, on receipt of an application under sub-section (1), conduct an inquiry after giving notice 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. As per sub-section (3) of Section 28A, 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 under Section 18.
13. The object underlying the enactment of Section 28A of the Act, as indicated in the statement of objects and reasons of the Land Acquisition (Amendment) Act, 1984, reads thus;
"Considering that the right of reference to the civil court
under Section 18 of the Act is not usually taken advantage of
by inarticulate and poor people and is usually exercised by
the comparatively affluent landowners and that this causes
considerable inequality in the payment of compensation for
the same or similar quality of land to different interested
parties, it is proposed to provide an opportunity to all
aggrieved parties whose land is covered under the same
notification to seek re-determination of compensation, once
any one of them has obtained orders for payment of higher
compensation from the reference court under Section 18 of
the Act."
14. Therefore, the inquiry contemplated by sub-section (2)
of Section 28A of the Act is limited for the purpose of ascertaining
whether the land covered by the award of the court and the land
acquired from the claimant are acquired under the very same
Section 4(1) notification and situated in a similar circumstance to
apply the award of the court for the purpose of re-determining the
land value in respect of the land acquired from the claimant. In such
an inquiry, the parties including the claimant are free to adduce any
evidence. Therefore, the inquiry contemplated by sub-section (2) of
Section 28A has to be for the purposes of finding out as to whether
the claim made by such claimant for re-determination of land value
based on the award of the court is justified and he is entitled for
enhancement of compensation to the same extent.
15. In Union of India v. Pradeep Kumari (1995 (2) SCC 736) a Three-Judge Bench of the Apex Court held that, the object underlying the enactment of Section 28A of the Act is to remove inequality in the payment of compensation for same or similar quality of land arising on account of inarticulate and poor people not being able to take advantage of the right of reference to the civil court under Section 18 of the Act. This is sought to be achieved by providing an opportunity to all aggrieved parties whose land is covered by the same notification to seek re-determination once any of them has obtained orders for payment of higher compensation from the reference court under Section 18 of the Act. Section 28A is, therefore, in the nature of a beneficent provision intended to remove inequality and to give relief to the inarticulate and poor people who are not able to take advantage of right of reference to the civil court under Section 18 of the Act. In relation to beneficent legislation, the law is well settled that while construing the provisions of such a legislation the court should adopt a construction which advances the policy of the legislation to extend the benefit rather than a construction which has the effect of curtailing the benefit conferred by it. The provisions of Section 28A should, therefore, be construed keeping in view the object underlying the said provision.
16. In Pradeep Kumari''s case (supra), the Apex Court held further that, the object underlying Section 28A of the Act would be better achieved giving the expression ''an award'' in Section 28A its natural meaning as meaning the award that is made by the court in Part III of the Act after the coming into force of Section 28A. If the said expression in Section 28A(1) is thus construed, a person would be able to seek re-determination of the amount of compensation payable to him provided the following conditions are satisfied:-
(i) An award has been made by the court under Part III after
the coming into force of Section 28A;
(ii) By the said award the amount of compensation in excess
of the amount awarded by the Collector under Section 11,
has been allowed to the applicant in that reference;
(iii) The person moving the application under Section 28A is
interested in other land covered by the same notification
under Section 4(1) of which the said award relates;
(iv) The person moving the application did not make an
application to the Collector under Section 18.
(v) The application is moved within three months from the
date of the award on the basis of which the re-determination
of amount of compensation is sought; and
(vi) Only one application can be moved under Section 28A for
re-determination of compensation by an applicant.
17. In Sarada K.V. v. Special Tahasildar, Thalassery
(2016 (2) KLT 120) a Full Bench of this Court, after analysing the
scope and object of Section 28A of the Act in view of the law laid
down by the Apex Court in Pradeep Kumari''s case (supra),
concluded that, sub-section (1) of Section 28A of the Act gives an
option to the land owner who had not made an application under
Section 18 to file an application for re-determination on the basis of
any of the award of the court under Section 18 arising out of the
same notification, who has an option to claim parity with any award
given by the court under Section 18 which is more beneficial to him.
However, only one application can be filed under sub-section (1) of
Section 28A of the Act by a land owner who wanted to take benefit
of the award under Section 18 and who has not earlier filed an
application under Section 18. Once the land owner has chosen an
award from which he wanted to claim parity, he cannot be permitted
to rely on another award since that shall be indirectly permitting
him to file many applications under sub-section (1) of Section 28A
based on different awards, which is not permissible. Para.23 of the
judgment reads thus;
"23. Keeping in view of the foregoing discussion and
analysing the scope and object of Section 28A, the following
conclusions are inescapable:
(i) Section 28A(1) gives an option to the land owner who had
not made an application under Section 18 to file an
application for re-determination on the basis of any of the
award of the court under Section 18 arising out of the same
notification. This clearly means that the land owner has an
option to claim parity with any award given by the court
under Section 18 which is more beneficial to him. The Apex
Court in Union of India v. Pradeep Kumari (1995 (2) SCC 736)
has laid down that only one application can be filed under
Section 28A(1) by a land owner who wanted to take benefit of
the award under Section 18 and who has not earlier filed an
application under Section 18. Once the land owner has
chosen an award from which he wanted to claim parity, he
cannot be permitted to rely on another award since that shall
be indirectly permitting him to file many applications under
Section 28A(1) based on different awards, which is not
permissible.
(ii) The scope of Section 28A(2), i.e., enquiry by Collector has
to be for the purposes of finding out as to whether the claim
of the claimant based on the award is justified and he is
entitled for enhancement of compensation to the same
extent. The Collector under Section 28A(2) has no freedom to
award compensation in excess of the amount claimed by the
applicant. Whether the claimant can be given the benefit of
the award claimed and whether his land is comparable are the
questions which are to be gone into by the Collector. The right
has been given to seek a reference under Section 28A(3) to
the court if he feels aggrieved by the determination under
Section 28A(2).
(iii) The reference court while deciding an application under
S.28A(3) has to keep in mind that the scope of reference is
confined to the claim of the applicant under Section 28A(1)
which is based on an award given by the court under Section
18. Scope of Section 28A(3) cannot be treated to empower
the court to award compensation in excess of the award
which is the basis of the claim. In case it is accepted that
under Section 28A(3) court is entitled to grant higher
compensation to one granted under Section 18, Section 28A
(3) can be utilised for different and higher compensation to
those who had not even filed application under Section 18
proceeding which shall lead to inequality and injustice to the
original claimants who got only a particular amount.
Legislature has never intended a situation where under
Section 28A(3) court exceeds the amount originally granted
under Section 18. Thus, although the provisions of Section 18
to 28 are applicable in proceeding under Section 28A(3), they
are applicable as far as possible. In event a claimant under
Section 28A(3) is permitted to rely on other awards of the
court under Section 18, which was not the basis under
Section 28A(3) it shall be permitting him to file several
applications under Section 28A(1) based on different awards
delivered in different point of time which is not permissible in
view of the law laid down by the Apex Court in Union of India
v. Pradeep Kumari (supra)."
18. In the instant case, the petitioner, who did not file an
application under Section 18 of the Act seeking reference to court
for determination of the amount of compensation, submitted Ext.P1
application before the 3rd respondent, under Section 28A of the Act,
seeking re-determination of the amount of compensation based on
the subsequent award passed by the reference court in
L.A.R.No.103 of 2006. During the pendency of that application, the
petitioner submitted Ext.P2 application before the 3rd respondent,
again invoking Section 28A of the Act, seeking re-determination of
the amount of compensation based on another award passed by the
reference court in L.A.R.No.115 of 2006.
19. In view of the law laid down in the decisions referred to supra, once the petitioner has chosen to file Ext.P1 application under Section 28A of the Act, claiming parity on the award passed by the reference court in L.A.R.No.103 of 2006, he cannot be permitted to file another application invoking the said Section, seeking re-determination of the amount of compensation based on another award passed by the reference court in L.A.R.No.115 of 2006. In such circumstances, the request made by the petitioner in Ext.P4 representation to withdraw Ext.P1 application was rightly turned down in Ext.P5 order, by which he was informed that, Ext.P2 application deserves no consideration since Ext.P1 application is already under consideration. In that view of the matter, the challenge made in this writ petition against Ext.P5 order passed by the 4th respondent can only be repelled and I do so.
20. Since the request made by the petitioner in Ext.P4 representation to withdraw Ext.P1 application dated 21.6.2011 has already been turned down in Ext.P5 order, it is for the 3rd respondent to consider the said application made by the petitioner under Section 28A of the Act, claiming parity on the award passed by the reference court in L.A.R.No.103 of 2006. In the result, this writ petition is disposed of, by directing the 3rd respondent District Collector to consider Ext.P1 application made by the petitioner in accordance with law and pass appropriate orders thereon, after conducting an inquiry as contemplated by sub-section (2) of Section 28A of the Act, with notice to the petitioner, as expeditiously as possible, at any rate, within a period of four months from the date of receipt of a certified copy of this judgment. No order as to costs.
