ANNAMMA VARGHESE Vs. SPECIAL TAHSILDAR (LA) (NH) KOTTAYAM

JUDGEMENT

(1.) The petitioner, owner of an extent of an item of immovable property comprised in Re-survey No. 48/3-1 of Cheirakadavu Village in Kanjirappally Taluk, has filed this Writ Petition challenging Ext. P5 proceedings of the 1st respondent, rejecting an application filed by her under Section 28A(3) of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act' for short). An extent of 2.82 Ares of land was acquired for the purpose of up-gradation of the Punalur-Muvattupuzha road. According to the petitioner, only a meagre amount was awarded to her as compensation for the land acquired. However, the petitioner had not sought for a reference to the Civil Court, under S. 18 of the Act. According to her, an adjacent property owner had sought for such a reference and the matter was adjudicated by the Sub Court, Pala, and by Ext. P2 judgment, enhanced compensation was awarded. The petitioner thereupon submitted Ext. P3 application dated 18.4.2011 under S. 28A of the Act, seeking the benefit of Ext. P2 judgment. However, the same was rejected by the 1st respondent. Therefore, the petitioner preferred Ext. P4 application under S. 28A(3) of the Act. As per Ext. P5 proceedings dated 17.12.2012, the 1st respondent has rejected the said application. The petitioner challenges the said order in this Writ Petition. The reason stated for rejection of the petitioner's application is that, as per an agreement, Ext. R1(b) dated 18.6.2008, entered into between the petitioner's husband and the 1st respondent at the instance of the additional 3rd respondent, a resettlement and rehabilitation package was accepted. Therefore, having accepted the compensation granted as per Ext. R1(b), it is not open to the petitioner to turn around and seek a reference under Section 28A(3) of the Act in view of Ext. P2 judgment. Since the petitioner had accepted the award without any protest, it has been held that the petitioner is not entitled to seek a relief under S. 28A(3) of the Act.

(2.) According to the learned counsel for the petitioner, Advocate Sri Thomstine K. Augustine, the 1st respondent had already passed an award under S. 11(1) of the Act and notice of the said award had been issued to the petitioner as early as on 1.4.2008. Ext. P1 is the notice of award so issued. Having passed an award determining the compensation payable to the petitioner, it is contended that the 1st respondent had no power or authority to enter into an agreement in the nature of Ext. R1(b), invoking the powers under S. 11(2) of the Act. Reliance is also placed on a decision of the Apex Court to support the above contention.

(3.) A counter affidavit has been filed by the 1st respondent. According to the 1st respondent, there are two modes available to the 1st respondent in the matter of acquiring land for a public purpose. They are, negotiated direct purchase and acquisition of the land. Where the procedure for negotiated direct purchase is adopted, the party accepts a lump sum payment as compensation with no right to claim an enhancement in the said amount. This is because of the fact that having agreed for the lump sum amount, he is not permitted to turn around and seek enhanced compensation later. Where the second mode of acquisition is adopted, it is within the powers of the 1st respondent to fix the compensation for the land, without the junction of the land owner and therefore, the owner of the land is entitled to challenge the land value so fixed and to claim enhancement. In the present case, the petitioner having accepted the amount of compensation and executed Ext. R1(b) agreement, he is not entitled to claim any further enhancement. Therefore, the learned Government Pleader seeks dismissal of this Writ Petition.