IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE MONDAY, THE 26TH MAY 2008 / 5TH JYAISHTA 1930 WP(C).No. 4699 of 2008(H) ------------------------- PETITIONER: ----------------- THAYYIL ABDULLA KUNHI, S/O.ASSINAR, KOVVAPRAM, KUNHIMANGALAM, CHERUTHAZHAM VILLAGE, EZHILODE POST, KANNUR TALUK. REPRESENTED BY POWER OF ATTORNEY HOLDER M.K.SEKHARAN, S/O.KUNHIKANNAN, P.O.EZHILODE, KANNUR TALUK. BY ADV. SRI.V.N.RAMESAN NAMBISAN RESPONDENTS: ---------------------- 1. THE DISTRICT COLLECTOR, KANNUR. 2. SPECIAL THASILDAR, LAND ACQUISITION (N.H), KANNUR. BY GOVERNMENT PLEADER, SRI.BASANTH BALAJI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE, J. ------------------------------------ W.P.(C) No.4699 OF 2008 ------------------------------------ Dated this the 26th day of May, 2008 J U D G M E N T ~~~~~~~~~~~ This writ petition has been filed by the petitioner requesting that the applications submitted by him for determination of the compensation under Section 28A of the Land Acquisition Act be directed to be disposed of in accordance with law. The 2nd respondent Land Acquisition Officer has filed a detailed counter affidavit. It is contented therein that following the judgment of this Court reported in State of Kerala v. Kumaran Nair [2001(1) KLJ 343], the application was rejected since the petitioner had accepted the award without lodging any protest. It is also contented that as soon as the rejection order was passed, the matter was communicated to the petitioner as well as to his advocate, Sri.K.Venugopalan. Specifically, it is contented that Sri.K.Venugopalan, learned counsel for the petitioner, has accepted the rejection order on 11.3.2004. The respondent has not produced any material which would show that the rejection order had been communicated to the petitioner or had been W.P.(C)No.4699/2008 2 received by Adv.Sri.K.Venugopalan. Sri.Basant Balaji, learned Government Pleader submitted that if time is given, he will be able to produce material which would show that the order has been communicated to this Court. Mr.Ramesan Nambisan, counsel for the petitioner, submits that when Adv. K.Venugopalan was contacted he would say that he had never received the order of the Land Acquisition Officer as contented in the counter affidavit. 2. Heard both sides. As submitted by Mr.Ramesan Nambisan the one ground on which the application under Section 28A of the L.A.Act filed by the petitioner was rejected that the petitioner had accepted the award amount without protest. That ground cannot be a good one since it is now settled that the only requirements for maintaining application under Section 28A are that the properties of the applicant was acquired on the basis of the very same Section 4(1) notification as the properties covered by the Court judgment relied on, and that at the instance of the applicant there was no reference under Section 18(2). There is no necessity that the applicant should W.P.(C)No.4699/2008 3 have accepted the original compensation with protest. That being the legal position, the petitioner should be given an opportunity atleast to challenge the rejection order, so submitted the learned counsel. Having regard to the legislative intendment underlying Section 28A as explained by the various decisions including the decision in Babua Ram and others v. State of U.P. and another [1995(2)SCC 689], I feel that there is justification for accepting the submission of Mr.Ramesan Nambisan. Under these circumstances, I dispose of this writ petition directing the petitioner to communicate another copy of the order rejecting the application under Section 28A filed by the petitioner, either to the power of attorney holder of the petitioner or to Adv.Sri.V.N.Ramesan Nambisan, petitioner's counsel in this Court. The communication as directed above shall be made within one month from the date of receipt of a copy of this judgment. (PIUS C. KURIAKOSE, JUDGE) ps