Kerala High Court
Gopi Assari vs Special Tahsildar (La) on 5 August, 2009
Author: Pius C. Kuriakose
Bench: Pius C.Kuriakose, P.Q.Barkath Ali
IN THE HIGH COURT OF KERALA AT ERNAKULAM
LA.App..No. 798 of 2009()
1. GOPI ASSARI, S/O.KRISHNAN
... Petitioner
Vs
1. SPECIAL TAHSILDAR (LA),GURUVAYUR
... Respondent
2. DISTRICT COLLECTOR, THRISSUR.
3. ADMINISTRATOR
For Petitioner :SRI.D.ANIL KUMAR
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :05/08/2009
O R D E R
PIUS C. KURIAKOSE &
P. Q. BARKATH ALI, JJ.
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L. A. A. No.798 of 2009
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Dated this the 5th day of August, 2009
JUDGMENT
Pius C. Kuriakose, J The claimant in a Land Acquisition Reference case is in appeal. His grievance is not as regards the re-determination of the market value of the acquired property by the Reference Court, but the same is regarding the decision of the Reference Court to reject the reference on the ground of limitation. Annexure-A is the application for reference. The Land Acquisition Officer construed Annexure-A as an application for reference under Section 18(1). No objection was raised by the Government regarding the maintainability of the reference as a valid reference filed on time. The learned Subordinate Judge under the impugned judgment answered point No.1 raised by him regarding L. A. A. No.798 of 2009 -2- limitation in favour of the requisitioning authority and held that the reference was not a valid one for the reason that Annexure-A had not been proved to have been submitted by the claimant within six weeks of getting notice of award sent by the Government. The Requisitioning Authority/ Guruvayoor Devasom Board raised an objection regarding limitation which was upheld by the court below under the impugned judgment. Despite his finding that the reference is not a valid one, the learned Subordinate Judge proceeded to determine the correct market value of the property under acquisition. In the enquiry, several documents were produced by the claimant/appellant. None of the documents were relied on by the learned Judge. But what the learned Judge did was to rely on the basis document itself and the Commissioner's report. The learned Judge acting upon the Commissioner's Report found that the categorisation of the properties as dry lands and garden lands was not justified. It was found that a substantial portion of the property L. A. A. No.798 of 2009 -3- extending to 32.80 Ares was originally dry land itself while a small portion extending to 3.24 Ares was 'Nanja' reclaimed lands. The learned Judge thought that in the facts and circumstances of the case where the entire property was being enjoyed by the appellant as a single holding, there was no justification for treating these two portions differently and accordingly became inclined to treat the entire holding as dry land for which the Land Acquisition Officer had awarded land value at Rs.21,894/- per Are. It was noticed that the basis document was executed much earlier than the relevant Section 4(1) notification. Therefore, additions were given to the value revealed in the basis document and ultimately the learned Judge re-fixed the value of the entire property under acquisition at a uniform rate of Rs.13,783/- per cent corresponding to Rs.34,057/-, thus, granting approximately 55% above the value which was awarded by the Land Acquisition Officer for those properties treated by him as original dry lands. In the L. A. A. No.798 of 2009 -4- present appeal, the challenge is only against the decision of the learned Subordinate Judge holding that the LAR itself is barred by limitation and the appellant does not challenge the re-determination of market value by the Reference Court.
2. We have heard the submissions of Sri.D.Anil Kumar, the learned counsel for the appellant and those of Sri.N.Rajagopalan Nair, learned Standing Counsel for the Requisitioning Authority. Sri.N.Rajagopalan Nair was permitted on the principles enshrined in Order 41 Rule 22 CPC to assail the decision of the learned Subordinate Judge regarding the market value of the property under acquisition.
3. Sri. D. Anil Kumar, learned counsel for the appellant relied on the judgment of a Division Bench of this Court in Antony v. State of Kerala, 2005(1) KLT 583 to argue that even letters not in proper or prescribed form containing clear expression of dissatisfaction of the claimant to the L. A. A. No.798 of 2009 -5- compensation awarded by the L.A. Officer can be construed as request for reference. According to Mr.Anil Kumar, the intent of the Parliament as is clear from the provisions like Section 28-A is that the correct market value should be awarded to the owner who has been deprived of his property by exercise of powers of eminent domain, even when the party did not request for a reference under section 18 due to inadvertence or omission. The learned counsel submitted that the Government cannot be permitted to contend that there was no valid reference since the L.A. Officer treated Annexure A as a valid reference and did send the reference to the competent court. Sri.N. Rajagopalan Nair, learned counsel for the Guruvayoor Devaswom, the requisitioning authority would resist the submissions of Mr.Anil Kumar. Mr. Rajagopalan Nair cited a catena of decisions in support of his submissions. The learned counsel relied on the judgment of the Supreme Court in Mohammed Hasnuddin v. The State of Maharashtra, AIR L. A. A. No.798 of 2009 -6- 1979 SC 404 to argue that making of an application for reference within the time prescribed by the proviso to Section 18(2) was a sine qua non for a valid reference. Annexure A, according to the learned counsel, did not amount to such an application. Learned counsel relied on the judgment of a Division Bench of this Court in Kamalakshy v. District Collector, 1998(2) KLT 898 to argue that mere receipt of the amount under protest is not sufficient to satisfy the requirement of Section 18 and that Section 18 (1) and (2) contemplates the submission of a separate written application for reference. Reliance was placed by Sri. Rajagopalan Nair on the judgment of Full Bench of this Court in Joseph v. Special Tahsildar, 2001(1) KLT 958(F.B). Learned counsel referred to paragraph 20 of the judgment and submitted that making of an application seeking reference under section 18 is absolutely necessary. The judgment of the Supreme Court in Ernakulam Mills v. State of Kerala, AIR 1975 SC 2054 was also relied on by L. A. A. No.798 of 2009 -7- the counsel to argue that a claimant who failed to make application for reference in spite of his awareness of the necessity to make an application cannot be permitted to take advantage of his own lapse. The submissions of Mr. Rajagopalan Nair were supported by the senior Govt. Pleader who argued that the land acquisition officer while deciding to make a reference acting on Annexure A did not act as an agent of the Government, but acted in exercise of his statutory powers under section 18 (1) as a statutory authority under the Land Acquisition Act. Therefore according to the learned senior Govt. pleader, it is open to the Government to support the decision of the reference court which is to the effect that the reference made by the land acquisition officer is not a valid one.
4. The principal reason on which the learned Subordinate Judge held that the reference sent is not a valid reference under section 18 is that the claimant did not adduce any evidence to show that Annexure A was sent to L. A. A. No.798 of 2009 -8- the L.A. Officer within the statutory period of six weeks provided under Section 18(2). But in this Court, the appellant produced Annexures A, B and C. Annexure A is dated 4-3-2003. Annexure A is submitted by the appellant before the L.A. Officer as soon as he was served with notice of the award. Annexure B is dated 5-3-2003. Annexure B is copy of a letter sent by the appellant referring to Annexure A. It is stated in Annexure B that a photocopy of Annexure A is being forwarded by registered post acknowledgment due since no receipt was issued despite request in respect of Annexure A. Annexure C is the original of the postal acknowledgment card dated 2-6-2003. There is no dispute before us that Annexure C pertains to Annexure B. Annexures A, B and C are respectively marked for the purpose of this appeal as Exts.A4, A5 and A6 on the side of the appellant claimant. In the light of Annexure C (Ext.A6) which pertains to Annexure B (Ext.A5) it will have to be held that the appellant claimant has sent at least a copy of L. A. A. No.798 of 2009 -9- Annexure A (A4) to the L.A. Officer within the statutory period provided by Section 18(2). In other words, if A4 (Annexure A) can be construed as an application for reference, then the reference made by the L.A. Officer in this case is a valid one.
5. But Annexure A (Ext.A4) does not contain any specific request for a reference to the court. Ext.A4 certainly records the protest of the appellant claimant regarding the adequacy of the compensation awarded. Ext.A4 also proves that appellant received the cheque for the compensation awarded with protest. The same also evidences the intention and the decision of the appellant claimant to have the compensation enhanced in accordance with law. Instead of requesting to refer the question to the competent court, what is stated in Ext.A4 is that legal steps will be taken in due course for enhancement of the compensation.
6. O.P. No. 28202 of 1999(G) - Antony v. State of L. A. A. No.798 of 2009 -10- Kerala, came to be decided by the Division Bench by an order of reference made by one among us [P.C.K (J)]. In my reference order I referred to the judgment of the Madras High Court in Venkataswami Naidu and others v. The State of Madras, (AIR 1964 Madras 434) and the judgment of a Division Bench in Kamalakshy v. District Collector, (1998(2) K.L.J. 545). I noticed the observation of the Division Bench in Kamalakshy's case that the Madras High Court's view in Venkataswami Naidu's case is no longer good law in view of the judgment of the Supreme Court in L.A. Officer v. Shivabai, (1997(9) SCC 710). I noticed further that the question which came up before the Division Bench i.e., whether an application under section 18 (2) for reference should contain a prayer in so many words, by the protesting awardee to refer the question of determination of the correct compensation to the competent civil court never came up before the Supreme Court in Shivabai's case. I also noticed that even in the judgment of the Full Bench of L. A. A. No.798 of 2009 -11- this Court in Joseph v. Special Tahsildar (2001 (1) KLT 958 (F.B) the question whether a clear prayer seeking reference of the issue to the competent court is necessary in an application under section 18(1) was not considered or decided. This was why I passed the reference order. The Division Bench extracted the operative portion of the letter sought to be construed as request for reference under section 18(1). We re-extract the same as follows: L. A. A. No.798 of 2009 -12-
In fact the Division Bench has also quoted the relevant portion of the letter which was construed by the Madras High Court in Venkataswami Naidu's case as a letter containing an implied request for reference. We re-quote the relevant portion of that letter as follows:
"As you have not taken into account our objections and the record produced by us and as your have not included the value of the trees, the amount now determined by you is very low. We hereby make known to you that we are not in a position to accept that amount as compensation."
After surveying the case law on the point including the judgment of the Supreme Court in L.A. Officer v. Shivabai (1997)9 SCC 710) the Division Bench held in that case where the compensation amount was received under protest and a letter was written by the petitioner readily seeking enhancement of compensation in tune with market value of the land under acquisition that the letter can be construed as an application for reference even though the same never contained a prayer to make a reference to the court in coming to such a conclusion. The Division Bench L. A. A. No.798 of 2009 -13- referred to the judgment of the Supreme Court in M.V.Elisabeth v. Harwan Investment & Trading (1993 Supp. (2) SCC 433) and observed that access to court is an important right vested in every citizen and if judicial intervention is required, courts strive to redress grievances according to what is perceived to be principles of justice, equity and good conscience. The Division Bench also observed that though the court is bound by the mandates of the statute it can take a liberal and realistic view in such cases.
7. Mr.Rajagopalan Nair submitted that in case this court is inclined to construe Annexure - A as a request for reference then the case be remanded to the Sub Court, so that a fresh decision is taken regarding the compensation to be paid. We are not inclined to accede to this request. Market value was redetermined on the basis of an enquiry in which the requisitioning authority Devaswom also participated. The market value now redetermined appears L. A. A. No.798 of 2009 -14- to be reasonable. The finding regarding market value is based on evidence and at any rate the market value redetermined cannot be said to be excessive having regard to the importance and locational advantages enjoyed by the property under acquisition.
8. A request to make a reference to the competent court can easily be read into Annexure-A which contained a statement that appropriate action is being taken for facilitating award of the correct market value under law. The appellant could not have taken any action. The only action which could have been taken by the appellant was to lodge his protest regarding the value awarded and to make a request to the Land Acquisition Officer to make a reference. Annexure-A, in our opinion, can be construed as a valid reference request in the light of the judgment of the Division Bench of this Court in Antony v. State of Kerala (2005(1) KLT, 583) wherein a prayer by the claimant for award of a higher amount by the Land Acquisition Officer himself L. A. A. No.798 of 2009 -15- (without any prayer to make a reference to the competent court) was approved by the Division Bench as a valid reference request. In the instant case, we find that serious protest has been lodged about the adequacy of the value determined and the party has expressed his decision for initiation of legal action to have the correct value determined. Action in law could have been initiated only by the Land Acquisition Officer. Therefore, we construe Annexure-A as a valid request.
9. But at the same time, it is submitted by Sri.Rajagopalan Nair that though this Court by a process of judicial interpretation has become inclined to treat Annexure-A as a valid request for reference under Section 18(2) it cannot be denied that due to the inadequacy in the language employed by the appellant in Annexure-A only, the learned Subordinate Judge became compelled to answer the reference in the negative. Therefore, the Government and the Requisitioning Authority should not be mulcted with L. A. A. No.798 of 2009 -16- the heavy interest liability which is arising on account of the delay between the date of the judgment of the Reference Court and this date, so argued the learned counsel. According to him, the appellant should not be paid the interest otherwise admissible under Section 28 of the Land Acquisition Act on the re-determined compensation during the above period of four years from 07/10/05 till 05/08/09. We find some force in the above submission. It is clear from Annexure-A that the appellant is not a fully literate person and it appears to us that he was seeking advice from somebody else in the matter of drafting Annexure-A. Despite the advice, Annexure-A is a poorly drafted document and therefore, we are of the view that the Government and the Requisitioning Authority cannot be mulcted with the interest liability for the whole period between 07/10/05 till 05/08/09. According to us, the appellant need be given the benefit of this judgment only subject to the following two conditions:-
L. A. A. No.798 of 2009 -17-
1) The enhanced compensation to which the appellant becomes eligible by virtue of our re-fixation under this judgment will not carry interest otherwise admissible under Section 28 of the Land Acquisition Act during the period of three years from 07/10/05 to 07/10/08.
2) The appellant will pay a sum of Rs.2,500/- to the Kerala Mediation Centre within two weeks from today and produce receipt.
Decree copy need be issued to the appellant only if he produces receipt against payment of amount to the Kerala Mediation Centre.
The result is that the appeal will stand allowed award. It is held that Land Acquisition Reference was a valid one and that Annexure-A has been given by the appellant in substantial compliance with the requirement of Section 18 (2). The decision of the court below re-fixing the market value of the land under acquisition at Rs.13,783/- per cent is confirmed. Enhanced compensation as determined by the L. A. A. No.798 of 2009 -18- court below together with statutory benefits is awarded to the appellant. The appellant will not be eligible for interest under Section 28 during the 3 year period mentioned herein before.
Appeal allowed. No costs.
PIUS C. KURIAKOSE, JUDGE P.Q.BARKATH ALI, JUDGE kns/-