IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE WEDNESDAY, THE 28TH JANUARY 2009 / 8TH MAGHA 1930 WP(C).No. 35376 of 2008(J) -------------------------- PETITIONER(S): --------------- SISTER SUPERIOR, ST.TERASA'S CONVENT, (MANAGER, ST.JOSEPH'S SCHOOLS), KOONNAMMAVU, ERNAKULAM. BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, ERNAKULAM. 3. SUPERINTENDING ENGINEER, NATIONAL HIGHWAY 17, OFFICE OF THE SUPERINTENDING ENGINEER, N.H.17, TRICHUR. 4. SPECIAL TAHSILDAR (LA).N.H.NO.III, VYTTILA, ERNAKULAM - 682 019. ADV. P.K.RAVINDRANATH MENON SR.SC FOR I.TAX SRI.RANJITH THAMPAN,ADDL.ADVOCATE GENER FOR R1-4 Sr. GOVERNMENT PLEADER Mr.M.R.Sabu THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE, J. ----------------------------------------------- W.P.(C)No. OF 200 ----------------------------------------------- Dated this the day of February, 2008 J U D G M E N T The Mother Superior of St.Terasa's Convent who is Ex-officio Manager of St.Joseph's Schools at Koonammavu in Ernakulam District is the petitioner and the core issue which arises for determination is the petitioners eligibility for the special amount payable under Section 23(1-A) of the Land Acquisition Act during the entire period from the date of the notification under section 4(1) till the date of passage of the award or the date of taking possession, whichever is earlier. Ext.R4(a) is the copy of the award and it is seen from Ext.R4(a) that the period from the date of publication of section 4(1) notification till 20-6-2008 is excluded from the reckoning for computing the amount under section 23(1-A) on the reason that the was stay from this court in respect of the land acquisition proceedings. The contention of the writ petitioner is that this court never stayed the entire proceedings in land acquisition, but stayed only the actual taking over of possession pursuant to the award to be passed by the L.A. Officer. According to the writ petitioner, there is no justification for disallowing the amount under section 23(1-A) for the period from the date of publication of section 4(1) notification till date of passage of the award since this WP(C)N0. -2- court never stayed even the passage of the award. Ext.P7 is copy of the counter affidavit which had been filed by the L.A. Officer in O.P. No.12801 of 2001, one of the writ petitions filed by the petitioner. A reading of that counter affidavit will show that it is conceded that the scope of the order of stay passed by this court on 28-4-2000 was only to stay dispossession of the writ petitioner from the properties proposed to be acquired. It was only on 25-1-2007 that this court passed Ext.P8 order which certainly has the effect of stay of all proceedings for acquisition absolutely. It is clear on a reading of Ext.P7 counter affidavit and especially paragraphs 4, 5, 6 and 7 therein that despite the order of stay which is now highlighted by the Government to decline payment of the amount under section 23(1-A) to the writ petitioner. The acquisition had been proceeding atleast upto the stage of promulgation of the declaration under section 6 which was made on 18-12-2005. A learned Judge of this Court in Bavajan Sahib v. State of Kerala, 1987 (1) KLT 836 interpreted the explanation to section 11(A) of the Land acquisition Act which is more or less similarly worded as the explanation to section 23(1-A) and ruled that when this court orders stay of taking possession the order will have only post award operation. Mr,.T.M.Abdul Latiff, learned WP(C)N0. -3- counsel for the petitioner would draw a distinction between the explanation to section 11(A) and the explanation to section 23(1-A) and argue that the question to be considered while interpreting Section 23(1-A) is whether it was necessary for the authorities to hold up the acquisition proceedings on account of the order of stay passed. Counsel submitted that it was absolutely unnecessary for the authorities to have held up the acquisition proceedings. They did not actually hold up the proceedings. They continued with the proceedings and they actually promulgated the important declaration under section 6. But they thought in terms of taking possession of the property even in other cases covered by the very same acquisition project only when the statutory two year period was about to expire. The learned Govt. Pleader would draw my attention to Ext.R4(d) and submit that in almost all the other cases relating to acquisition of land for the same purpose i.e., the widening and up-gradation of National Highway 17 the Government was able to take possession. But in the instant case because of the order of stay only award could not be passed and possession could not be taken. The purpose of the acquisition, according to the learned Govt. Pleader was the emergent purpose of widening and up-grading the National Highway 17. The said purpose WP(C)N0. -4- could have been accomplished only by taking possession. When there was stay by this court restraining taking over of possession the Government cannot be blamed for not having though in terms of passing the award. Learned Govt. Pleader also pointed out that unlike interim orders of stay of dispossession passed on ordinary grounds of challenge, in this particular case acquisition proceedings were challenged on the basis of a judgment of the Constitution Bench of the Supreme Court and therefore the Government was advised to wait till this court gives an authoritative pronouncement. The Government cannot be penalised for having decided in the light of legal advice received on the basis of a judgment of the Constitution Bench not to pass award and take possession. Having anxiously considered the submissions addressed at the Bar I find it difficult to accept the argument of the Government that the writ petitioner is not entitled for the amount admissible under section 23(1-A) even during the period from 23-8-2004 till 18-12-2005 which is the last date for publication of the declaration under section 6. Significantly, during this period subsistence of the stay order passed by this court the respondents continued with the proceedings for acquisition. They published the notification under section 6(1) of the WP(C)N0. -5- Kerala Survey and Boundaries Act on 14-11-2003 and other dates in newspapers as well as in Kerala Gazette as per Rules inviting interested persons to file objections. Later they published composite notification under section 4(1) and section 17(4) in the Gazette as well as in newspaper as well as in the locality as per Rules and they published notice under section 9(1) in Form No.9-A and finally they promulgated the declaration under section 6(1) and published the same in accordance with the Rules. All these they did during the currency of the order of stay which restrained them only from taking possession. Mr.Latiff's argument based on Ext.P8 order of absolute stay was that atleast till the date of Ext.P8 the writ petitioner should be given the amounts due under section 23(1-A). The above argument cannot be said to be totally unattractive. However, I am not inclined to accept that argument because I feel that in the special circumstances of this case the Government was justified in waiting till this court gave its verdict on the effect of the judgment of the Constitution Bench of the Supreme Court in view of the obvious situation that the writ petitioner was an educational institution established and conducted by a religious minority. WP(C)N0. -6- The result is that the writ petition will stand allowed in part. The respondents are directed to release a total amount of Rs.31,41,525.24 towards additional amounts payable to the petitioner on account of Section 23(1-A) being the amount relating to the period from 23-8-04 to 18-12-2005. In the circumstance, the parties will suffer costs. The respondents are directed to release the amount at the earliest and at any rate within one month of receiving copy of the judgment. It is made clear that this court has not decided on the liability of the petitioner to pay income-tax on the amount now ordered to be released. (PIUS C.KURIAKOSE, JUDGE)