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. 293 of 2004() ------------------------------------ LAR.20/2000 of III ADDL.SUB COURT, ERNAKULAM .................... APPELLANT/RESPONDENT. ----------------------------------------- STATE OF KERALA. BY SR.GOVT. PLEADER MR.P.K. BABU. RESPONDENTS/CLAIMANTS. ------------------------------------------ 1. GEORGE MANAYIL, VADUTHALA. 2. JAMES MANAYIL, VADUTHALA. 3. THE SECRETARY, CORPORATION OF KOCHI, KOCHI. R1 & R2 BY ADV. SRI.P.R.LESLIE STEPHEN, SMT.LILLY LESLIE. THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 22/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. PIUS C. KURIAKOSE & K. SURENDRA MOHAN, JJ. ------------------------------------------------------------ L.A.A. NO: 293 OF 2004 C ----------------------------------------------------------- Dated this the 22nd July, 2010. JUDGMENT SURENDRA MOHAN, J. This is an appeal filed by the State challenging the judgment and decree dated 15/12/2001 of the Sub Court, Ernakulam in L.A.R.20/2000. The land in question was acquired for the Corporation of Kochi for opening a lane extending from the railway line up to the backwaters at Vaduthala. Section 3(1) notification under the Land Acquisition Act was published on 16/5/1978 and the land was taken possession of on 20/12/1979. However, the award in the case was passed only on 10/2/1999 after about 20 years. Lands belonging to many others were also acquired as per the notification, which was the subject matter of references before the Sub Court, Ernakulam in LAR Nos:22, 24, 25, 28, 29, 30 and 32/2000. It is seen that the Reference Court considered this case along with all the other cases mentioned above and disposed of the cases together, as per a common judgment. However an appeal appears to have been filed only in the present case. 2. The Reference Court entered upon the reference and, pursuant to claim statements filed by the claimants in the present LAA 293/2004 2 and other connected cases, the trial was conducted. The evidence in the case consists of the oral evidence of A.W.1, Exts.A1 and A2 documents on the side of the claimants, B1 and B2 on the side of the respondents and Ext.C1 commission report. It is worth noticing that there is no oral evidence on the side of the respondents and no documentary evidence except the notice of award and the mahazars in the various cases. After considering the claim petitions in the light of the evidence on record, the Reference Court found that the delay that was occasioned in passing the award in the present and the connected cases was not attributable to any act on the part of the claimants. Since they were not to be blamed for the delay, it has been held that they were entitled to get compensation for their properties on the basis of the market value as on the date of the award. 3. Accordingly, relying on Ext.A1 document, the court below has granted compensation to the claimants in all the cases. In the present case, the claimants were held entitled to an amount of Rs.1,45,581/- as compensation. The claimants were also held entitled to all statutory benefits due under the Land Acquisition Act, on the above compensation. This appeal is filed challenging the said award. LAA 293/2004 3 4. We have heard Adv. P.K.Babu, Senior Govt. Pleader who appears for the appellant and Adv. Lilly Leslie for respondents 1 and 2. None appeared for the third respondent. We have heard the appeal in detail and have considered the rival contentions advanced before us with reference to the materials on record. 5. We notice at the outset that though a number of cases have been disposed of by the common judgment of the Sub Court, Ernakulam, which is under challenge in this appeal, no appeal appears to have been filed against the other cases that were disposed altogether. We also notice that the other cases that were disposed of by the very same common judgment were also cases involving similar properties and that they were also disposed of adopting the very same criteria. One fails to understand why an isolated appeal has been filed in this case without filing appeals in any of the other cases. Consequently, the judgment under appeal in this case has become final with respect to the other cases involved. 6. In the present case, the main objection of the learned Govt. Pleader is that the Reference Court has awarded compensation for the acquired land on the basis of the market value that was prevailing as on the date of award. According to the LAA 293/2004 4 learned Govt. Pleader, it was the market value as on the date of the Section 3(1) notification that should have been taken into account. He places reliance on the decision of the apex Court in Chimanlal v. Special Land Acquisition Officer, Poona (AIR 1988 SC 1652}. In the said decision, it has been held at page 1656 as follows:- “The market value of land under acquisition has to be determined as on the crucial date of publication of the notification under S.4 of the Land Acquisition Act (dates of notifications under Ss.6 and 9 are irrelevant)” In view of the above binding precedent, it is contended that the reference court seriously went wrong in taking the date of award as the crucial date for determining the market value. Therefore, he has prayed for setting aside the award. 7. Mrs. Lilly Leslie who appears for respondents 1 and 2 who are the claimants, submits that in the present case Section 3(1) notification published on 16/5/1978 and the land was taken possession of on 20/12/1979. After having taken possession of the land, the same was utilised for forming the proposed road and the purpose of the acquisition itself was accomplished shortly thereafter. However, in spite of the above, neither was the award passed nor was any amount paid as compensation to the land LAA 293/2004 5 owners. Finally, the award was passed only after the land owners approached this Court by filing O.P.3602/1990. The said writ petition was disposed of on 10/2/1999 directing that the award be passed. Even thereafter, the matter was delayed and finally an award was passed only on 10/2/1999. The delay was not due to any fault on the part of the claimants/land owners. The court below has noticed that as per the notes to the award, the delay was caused due to the fact that the requisitioning authority had failed to provide the necessary funds. Therefore, it is contended by the counsel that there is absolutely no justification for penalising land owners for the delay on the part of the authorities. According to the counsel, in view of the inordinate delay in passing the award in the present case, the Reference Court was justified in awarding market value as on the date of the award. Therefore, it is submitted that the appeal may be dismissed with costs. 8. It is admitted that the land was taken possession of on 20/12/1979. However, the award in this case has been passed only on 10/2/1999. The reason for the delay is stated to be paucity of funds with the Corporation of Kochi, the requisitioning authority. 9. In Poker Haji v. Union of India {ILR 1985(2) Kerala 122} a Division Bench of this Court had to consider whether the delay in LAA 293/2004 6 passing of the award had vitiated the proceedings. In the said case, the notification under Section 3(1) of the Act was published on 7/8/1973 and the declaration under Section 6 was made on 2/7/1974. However, the award was passed only on 30/11/1979. Holding that the delay in the case was unreasonable, this Court quashed the notification itself. In George v. Special Tahsildar (L.A), G.C.D.A.{1984 KLT 471} where there was inordinate delay in passing the award a Single Bench of this Court has held that the land acquisition proceedings can be continued provided the land owners were paid compensation for the land so acquired at the prevailing market price as on the date of the award. In an unreported decision dated 12/11/1987 in O.P.8266/1984 this Court has held relying on the decision in George v. Special Tahsildar {1984 KLT 471} that the land value would have to be ascertained on the basis of the market value prevailing as on the date of the award. A similar view has been taken by a Single Bench of the Karnataka High Court also in Patel Byrappa v. State of Karnataka and others {AIR 1989 Karnataka 283} . In the said case, compensation was directed to be determined on the basis of the price of land prevailing as on the date on which the award was communicated to the party. LAA 293/2004 7 10. In Chandra Bansi Singh and others v. State of Bihar and others {(1984) 4 SCC 316} the apex court has held in similar circumstances that the claimant was entitled to be paid additional interest at the rate of 7½ % per annum for the period of delay which was occasioned not due to any fault on the part of the claimant. The apex court has also granted compensation computed as on the date of the award where the delay was found to be unconscionable, in the decision reported in Siddappa Vasappa Kuri v. Special Land Acquisition Officer {(2002)1 SCC 142} . In the said case, though the period was comparatively less than the delay in the present case, it has been held that compensation should be worked out as on the date of the award. 11. The weight of the precedents referred to above, clearly support the approach adopted by the Reference Court in this case. As noticed above, the Reference Court in the present case determined the compensation due to respondents 1 and 2 by taking the date of award as the crucial date for such determination. In the present case, as already noticed, the delay is more than 19 years and the reason for the delay is stated to be non-availability of funds with the Corporation of Kochi, the requisitioning authority. In this case the land was also taken possession of on 20/12/1979 LAA 293/2004 8 and the purpose of the acquisition was also accomplished by converting the land acquired into a lane for the use of the public. Therefore, the benefit of the acquisition had accrued to the public also in the present case. In the above circumstances there is absolutely no justification for the contention of the learned Govt. Pleader that the date of Section 3(1) notification should have been adopted for determining the compensation payable in the present case. The approach of the Reference Court in the above circumstances is perfectly justified and is only in accordance with the principles of equity. Therefore, we do not find any reason to interfere with the award passed in this case. This appeal fails and is accordingly dismissed. No costs. PIUS C. KURIAKOSE Judge K. SURENDRA MOHAN Judge jj LAA 293/2004 9