P. Saraswathy v. State of Kerala and The Managing Director, Thiruvananthapuram International Airport Development Society

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE** **& THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN** **THURSDAY, THE 22ND JULY 2010 / 31ST ASHADHA 1932** **LA.App..No. 1344 of 2008()** **-------------------------LAR.211/2003 of II ADDL.SUB COURT,TRIVANDRUM** **....................** **APPELLANT(S): CLAIMANT:** **------------------------------------------** **P.SARASWATHY, T.C. 36/121, KIDANGIL VEEDU, VALLAKKADAVU P.O., THIRUVANANTHAPURAM.** **BY ADV. SRI.GOPAKUMAR R.THALIYAL** **RESPONDENT(S): RESPONDENTS:** **----------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM.** **2. THE MANAGING DIRECTOR, THIRUVANANTHAPURAM INTERNATIONAL AIRPORT DEVELOPMENT SOCIETY, THIRUVANANTHAPURAM.** **R1 BY GOVERNMENT PLEADER SMT. LATHA T. THANKAPPAN BY ADV. BASANTH BALAJI** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 23/12/2009, THE COURT ON 22/07/2010 DELIVERED THE FOLLOWING:** **Kss** **PIUS C. KURIAKOSE & K. SURENDRA MOHAN, JJ. -----------------------------------------------------------------------L.A.A. NO:1344 OF 2008 A ----------------------------------------------------------------------Dated this the 22[nd ] 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 LAA 1344/2008 2 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 LAA 1344/2008 3 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 LAA 1344/2008 4 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 LAA 1344/2008 6