IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 17TH JUNE 2010 / 27TH JYAISTHA 1932 WP(C).No. 35056 of 2009(B) ------------------------------------- PETITIONER(S): ----------------------- K.KOTTAN, REPRESENTED BY THE POWER OF ATTORNEY HOLDER & SON P.V.ACHUTHAN, S/O.KOTTAN, AGED 53 YEARS, RESIDING AT PUTHIYANKAV, KARAMEL VELLUR AMSOM, ANNOOR DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT. BY ADV. SRI.V.N.RAMESAN NAMBISAN RESPONDENT(S): ---------------------- 1. THE DISTRICT COLLECTOR, KANNUR. 2. THE SPECIAL TAHSILDAR (LAND ACQUISITION) NAVAL ACADEMY, PAYYANNUR. GOVERNMENT PLEADER SMT.N.SUDHA DEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.35056/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER NO.D.DIS. 802/05/C DTD. 25.11.2008 OF THE 2ND RESPONDENT REJECTION APPLICATION UNDER SECTION 28A OF THE LAND ACQUISITION ACT FLED BY THE FATHER OF THE PETITIONER. P2:- COPY OF THE APPLICATION DTD. 11.12.2008 FILED UNDER SECTION 28A (3) OF THE LAND ACQUISITION ACT FILED BY THE FATHER OF THE PETITIONER. P3:- COPY OF THE ORDER NO.D.DIS 2022/08/D DTD. 20.5.08 OF THE 2ND RESPONDENT REJECTING APPLCIATION UNDER SECTION 28A(3) OF THE LAND ACQUISITION ACT FILED BY THE FATHER OF THE PETITIONER. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.35056 of 2009-B - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of June, 2010. JUDGMENT The petitioner is aggrieved by the rejection of the application for redetermination of the compensation, filed by him by invoking Section 28A of the Land Acquisition Act. 2. An extent of 1.40 acres of land comprised in R.S. No.79/2 of Ramanthali Village of Kannur Taluk was acquired from the petitioner's father for the purpose of Naval Academy, Payyannur. The father of the petitioner had filed an application under Section 28A of the Act. The same was rejected on technical grounds, as per Ext.P1. Again his father filed an application under Section 28A(3) of the Act which is now rejected as per Ext.P3. In Ext.P3 the reason for rejection shown is that the application dated 28.5.1998 was rejected for the reason that no land was acquired from the father of the petitioner comprised in R.S. No.80/1 and therefore the application under Section 28A(3) cannot be entertained. It is submitted by the learned counsel for the petitioner that the rejection of applications as per Exts.P1 and P3 are wrong. It is pointed out that any decision taken by the Collector under sub-section (2) will amount to an award and therefore it wpc 35056/2009 2 should have been referred to the civil court as per Section 28A(3) of the Act. Reliance is placed on the decision of this Court in Savithri Amma v. State of Kerala (1990 (2) KLT 365). 3. A reading of Ext.P1 order will show that it was rejected on a technical ground stating that no property from the petitioner's father in R.S. No.80/1 was acquired. The matter was not considered on merits. Herein, the averments in the counter affidavit are relevant to be considered. It is admitted in para 2 that an extent of 0.6260 hectare of land comprised in R.S. No.79/2 of Ramanthali Village was acquired from the father of the petitioner, Shri Kakkalath Kottan and compensation was awarded to the land owner as per award No.2/VI/83 dated 31.12.1983. Aggrieved by the amount of compensation, Shri Kottan filed an application under Section 28A of the Act for redetermination of the compensation for the land in R.S.No.236/1A1A1A of Ramanthali village. He placed reliance upon the judgment in L.A.R. No.120/87 of Sub Court, Payyannur. It is further averred in the counter affidavit that on verification of the application, it is seen that the survey number furnished in the application is old survey number and hence a notice was issued to the applicant on 10.10.2008 for furnishing new survey number of the acquired land. In reply, Shri Kottan wpc 35056/2009 3 submitted the new survey number as 80/1 and after noticing that no property has been acquired in R.S.No.80/1, the application was rejected. The application under Section 28A(3) of the Act is also rejected on the same ground. 4. The state of affairs as shown above, reveals that the rejection of the application only on a technical ground with regard to the mistake in the survey number. It was a too hasty decision, that too without conducting any enquiry. There is no dispute that the property in R.S.No.79/2 of Ramanthali Village was acquired. In fact, the old survey number, viz. R.S.236/1A1A1A was shown by the applicant also. Merely because a wrong survey number was shown subsequently, that should not defeat the right of the applicant for redetermination of the compensation. If the authority had bestowed their attention to sub-section (2) and allowed an opportunity to the applicant to correct the survey number, then this much of hardship could not have been occurred to the person concerned. Sub- section (2) of Section 28A reads as follows: “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.” wpc 35056/2009 4 Therefore, it is obligatory on the part of the Collector to conduct an enquiry after giving notice to all the persons interested and after giving them a reasonable opportunity of being heard, shall pass an award. Any decision taken by the Collector on an application under Section 28A will be an award, going by the decision of this Court in Savithri Amma's case (1990 (2) KLT 365). If that is so, the Collector ought to have followed the mandatory procedure under sub-section (2) before rejecting the application. That was not done in this case and no reasons have been shown for not adopting the said procedure. Herein, there is no dispute that the land belonging to the father of the petitioner was acquired. The extent is 0.6260 hectare in R.S.No.79/2 of Ramanthali Village. Therefore, the parties should have been given an opportunity to correct the survey number. From the land acquisition proceedings, it will be evident and clear that the property of the petitioner's father was acquired and its survey number is R.S.79/2. The provisions under Section 28A of the Act is a beneficial one for the benefit of the land owners to get enhanced compensation. That benefit cannot be denied on technical grounds like this. In several cases, the Apex Court has held that the provisions under Section 28A of the Act is a beneficial one. 5. In that view of the matter, since the reasons shown in Exts.P1 wpc 35056/2009 5 itself is wrong and P3 which is only a dependent order, cannot also survive and therefore they are quashed. The writ petition is disposed of with the following directions: The application dated 28.5.1998 referred to in Ext.P1, filed under Section 28A of the Act will be reconsidered and a decision will be taken on merits, after hearing the parties. The petitioner will be allowed to correct the survey number in the application as R.S.No.79/2. Due enquiry will be conducted in the matter and an award will be passed in terms of sub-section (2) of Section 28A of the Act, expeditiously. No costs. (T.R. Ramachandran Nair, Judge.) kav/