IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 35260 of 2008(V)
1. M.BABU, S/O.GOVINDAN, AGED 48,
... Petitioner
Vs
1. STATE OF KERALA, REP. BY SECRETARY
... Respondent
2. THE DISTRICT COLLECTOR, CIVIL STATION,
3. THE REVENUE DIVISIONAL OFFICER,
For Petitioner :SMT.LEELAMMA GEORGE ABRAHAM
For Respondent : No Appearance
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :03/12/2008
O R D E R
PIUS C. KURIAKOSE,J.
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W.P.(C) No.35260 of 2008
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Dated: 3rd December, 2008
JUDGMENT
Heard Smt.Leelamma George, counsel for the petitioner and
Mr.Basant Balaji, Senior Government Pleader in detail.
2. The learned Government Pleader would refer to the
judgment of the Supreme Court in Union of India v. Budh Singh
[(1995) 6 S.C.C. 233] wherein it has been laid down that the court
has no jurisdiction to award interest in excess of the rate prescribed
under the Act and for any period anterior to the publication of Section
4(1) notification. The learned Government Pleader submitted that
when possession of the land is taken even before the promulgation of
a notification under Section 4(1), such taking over of possession
cannot be described as taking over of possession under the provisions
of the Land Acquisition Act. The Government Pleader pointed out that
in this case the Supreme Court rejected a suit filed by the land owner
for damages for action of deprivation of income pursuant to
possession taken over even prior to Section 4(1) notification on the
ground of limitation. The learned Government Pleader also referred to
the judgment of a Division Bench of this court in Special Tahsildar
(LA) v. Melath Chathukutty Nair (2002(1) KLT 700) wherein also
W.P.C.No.35260/08 – 2 –
it has been clearly laid down that any direction to pay interest under
Section 34 or Section 28 from a date which is earlier to the date of
Section 4(1) notification is clearly illegal and that the maximum that a
claimant can get by way of interest is only interest from the date of
Section 4(1) notification. It is also held by the Division Bench that in
cases where possession is taken in anticipation of the promulgation of
a notification under Section 4(1), the date of Section 4(1) is to be
treated as the date on which possession was taken over legally for
the purpose of calculation of interest under Section 34 or Section 28.
3. Having regard to the position of law as emerging from the
above decisions and the judgment of the Supreme Court in R.L.Jain
v. DDA [ (2004) 4 S.C.C. 79] referred to in my order dated
28.11.2008, the petitioner’s claim for interest under Section 34 from
the date of taking over possession cannot be upheld. The notification
under Section 4(1) in this case was promulgated on 18.8.1999. The
petitioner is eligible for interest at the rate of 9% per annum for the
period from 18.8.1999 till 18.8.2000 and for interest at the rate of
15% per annum from 18.8.2000 till date of payment. Ext.P1 is liable
to be modified to that extent. Accordingly, in modification of Ext.P1,
there will be a direction that the respondents shall pay interest to the
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petitioner on the redetermined market value at the rate of 9% per
annum from 18.8.1999 till 18.8.2000 and at the rate of 15% per
annum from 18.8.2000 till date of payment. The respondents are
directed to pay the statutory interest found as above to be eligible for
the petitioner at the earliest and at any rate within two months of
receiving copy of this judgment.
The Writ Petition is disposed of as above.
srd PIUS C.KURIAKOSE, JUDGE