High Court Kerala High Court

P.Saraswathy vs State Of Kerala on 22 July, 2010

Kerala High Court
P.Saraswathy vs State Of Kerala on 22 July, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

LA.App..No. 1344 of 2008()


1. P.SARASWATHY, T.C. 36/121, KIDANGIL
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, REPRESENTED BY THE
                       ...       Respondent

2. THE MANAGING DIRECTOR,

                For Petitioner  :SRI.GOPAKUMAR R.THALIYAL

                For Respondent  :GOVERNMENT PLEADER

The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice K.SURENDRA MOHAN

 Dated :22/07/2010

 O R D E R
          PIUS C. KURIAKOSE & K. SURENDRA MOHAN, JJ.
            ------------------------------------------------------------------------
                         L.A.A. NO:1344 OF 2008 A
            -----------------------------------------------------------------------
                     Dated this the 22nd July, 2010.

                                      JUDGMENT

SURENDRA MOHAN, J.

This is an appeal by the claimant in LAR 211/2003 of the

Additional Sub Court, Thiruvananthapuram. An extent of 3.30 ares

of land comprised in survey No: 448/2 of Pettah village,

Thiruvananthapuram taluk belonging to the appellant was acquired

by the respondents for construction of the new International

Passenger Terminal at Chackai, Thiruvananthapuram on the

requisition of the second respondent. Notification under Section 4

(1) of the Land Acquisition Act in this case was published on

4/2/1999. But, the land was taken possession of only on

13/8/2002. The Land Acquisition Officer passed an award fixing

the land value at the rate of Rs.91,867/- per are. On the above

basis, an amount of Rs.4,71,402/- was paid to the appellant as

compensation. Since the appellant was dissatisfied with the

amount awarded, she sought a reference to the Sub Court and

accordingly, the case was referred to the court. The appellant

claimed an amount of Rs.1,00,000/- per cent as compensation, with

all statutory benefits. The Reference Court considered the matter

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in the light of the evidence on record and enhanced the land value

to Rs.2,00,000/- per are.

2. According to the appellant, the land value awarded by the

Reference Court was low and therefore has sought further

enhancement in the land value. The appellant also complains that

the court below has not granted the 12% increase per annum on the

market value of the property acquired for the period from 4/3/1999

to 21/5/2001 under Section 23(1A) of the Land Acquisition Act (the

‘Act’ for short). Therefore, the petitioner claims the said 12%

increase on the market value of the acquired property for a total

number of 810 days. The reason for denying the said benefits as

per the note to the award is that in certain writ petitions this Court

had granted stay of dispossession of the property. Subsequently

the award was passed after receiving consent letters from the land

owners. According to the petitioner, she was not a party to any of

the writ petitions referred to above and therefore, the petitioner

claims that she is entitled to the benefit of Section 23(1A) of the

Act.

3. We have heard Adv. Thaliyal R.Gopakumar for the appellant

and Smt. Latha T.Thankappan, Senior Govt. Pleader for the

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respondents. We have also given our anxious consideration to the

rival contentions of the parties.

4. The only complaint of the appellant in this case is

regarding denial of the benefit under Section 23(1A) of the Act to

her. According to the appellant, for a period of 810 days from

4/3/1999 to 21/5/2001 the appellant has not been given the

benefit of 12% increase on the market value. The reason for

denying the said benefit is that as per interim orders granted in

some writ petitions, this Court had stayed the dispossession of the

property. Thereafter, awards have been passed only after

obtaining consent letters from the parties. Therefore, relying on

the explanation to Section 23(1A), the benefit has been denied to

the appellant. According to the appellant, she was not a party to

any of the petitions. Therefore, denial of the said benefit to her is

without any justification.

5. In Noormohamed v. State of Gujarat {1992(1) KLT 335}

the Supreme Court has concluded the discussion on the scope of

the above explanation in the following words:-

“In order to get the benefit of the said provision

what is required, is that the land-holder who seeks

the benefit must not have obtained any order from a

Court restraining any action or proceeding in

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pursuance of the declaration under S.6 of the said

Act so that the Explanation covers only the cases of

those land-holders who do not obtain any order from

a Court which would delay or prevent the making of

the award or taking possession of the land acquired.”

In view of the above observation, it is clear that a person who was

not a party to the writ petition in which the interim order had been

passed cannot be penalised by denying the benefits of Section 23

(1A) to her. The counsel for the claimants drew our attention to

the judgment of this Court dated 19/3/2008 in LAA 1644/2007 and

cross objection No: 11/2008 wherein the cross objectors were held

entitled to additional compensation on land value for the period

during which the stay order of this Court was in operation. The

said benefit has been extended to them for the reason that the

cross objectors therein were not parties to the original petitions in

which the stay order had been passed. The same dictum applies to

the facts of the present case also.

5. It is not disputed that the appellant in this case was not a

party to the writ petition in which the order of stay had been

passed by this Court. Therefore, there are no grounds to deny to

the appellant the benefit of 12% increase in the market value of the

acquired property for the period from 4/3/1999 to 21/5/2001. We

LAA 1344/2008 5

find that both the Land Acquisition Officer as well as the court

below have erred in denying to the appellant the said benefit.

6. In the result this appeal is allowed holding that the

appellant is entitled to the additional compensation under Section

23(1A) of the Act for the period from 4/3/1999 to 21/5/2001. The

award of the Reference Court is modified to the above extent. It is

needless to observe that the appellant would also be entitled to all

statutory benefits including interest on the amount. In the

circumstances of the case there will be no order as to costs.

PIUS C.KURIAKOSE
Judge

K. SURENDRA MOHAN
Judge
jj

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