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.
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L.A.A. NO:1344 OF 2008 A
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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
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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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