IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 10TH MARCH 2010 / 19TH PHALGUNA 1931 LA.App..No. 465 of 2008() ------------------------------------- LAR.422/2003 of I ADDL.SUB COURT, THIRUVANANTHAPURAM .................... APPELLANT/CLAIMANT ---------------------------------- S. BALACHANDRAN, S/O.SAMBHU VAIDHYAN T.C. 31/198(5), NEAR I.T.I., CHACKAI THIRUVANANTHAPURAM-25. BY ADV. MR.GOPAKUMAR R.THALIYAL RESPONDENTS/RESPONDENTS ----------------------------------------------- 1. STATE OF KERALA (SPECIAL TAHSILDAR, L.A. INTERNATIONAL AIR PORT, THIRUVANANTHAPURAM) REPRESENTED BY THE DISTRICT COLLECTOR THIRUVANANTHAPURAM. 2. THE MANAGING DIRECTOR THIRUVANANTHAPURAM INTERNATIONAL AIR PORT DEVELOPMENT SOCIETY, THIRUVANANTHAPURAM. R1 BY SR.GOVERNMENT PLEADER MR.BASANT BALAJI. THIS LAND ACQUISITION APPEAL HAVING COME UP FOR ADMISSION ON 17/12/2009, ALONG WITH LAA NO.1776 OF 2007 AND CONNECTED CASES, THE COURT ON 10/03/2010 DELIVERED THE FOLLOWING: rs. PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------------------------------ L.A.A. NOS:465, 975, 999, 1091, 1116, 1152, 1223, 1409, 1411/2008 and 1776 OF 2007 ----------------------------------------------------------------------------------- Dated this the 10th March, 2010. JUDGMENT CR SURENDRA MOHAN, J. All these appeals are filed by the claimants challenging the awards passed by the Sub Court, Thiruvananthapuram, the Reference Court under Section 18 of the Land Acquisition Act, 1894, hereinafter referred to as the 'Act' for short. The properties of the appellants were acquired for the expansion of the International Airport, Thiruvananthapuram. The properties are all situate in Pettah Village of Thiruvananthapuram Taluk. 2. Section 4(1) notification in all these appeals was published on 4.2.1999 but, the land was taken possession of only in 2002 or 2003. The Land Acquisition Officer passed an award fixing land value at Rs.1,36,616/- per Are for the lands in Category I, Rs.98,712/- per Are for the lands in Category II and Rs.78,743/- per are for the lands included in Category IV. The land value awarded for the other categories are not referred to herein for the reason that the lands that form the subject matter of these appeals L.A.A.465/2008 etc. 2 have been categorised only under the three categories mentioned above. Dissatisfied with the compensation awarded by the Land Acquisition Officer, the claimants sought a reference to the Civil Court and thus the matter reached the Sub Court,Thiruvananthapuram. The claimants contended that the categorisation adopted by the Land Acquisition Officer was wrong. They also contended that the land value awarded was very low. The Reference Court examined the categorisation adopted by the Land Acquisition Officer and found that the categorisation made was perfectly justified. With regard to the dispute regarding land value, the Reference Court considered the evidence adduced by the claimants and found that they were entitled to enhancement in land value. Accordingly, the land value has been enhanced and fixed at Rs.2,25,000/- per Are for the lands included under categories I and II and at Rs.1,50,000/- per Are for the lands included in Category IV. All the claimants have claimed further enhancement in land L.A.A.465/2008 etc. 3 value. 3. The claimants have another complaint that they have not been awarded 12% additional compensation which was payable to them under Section 23(1A) of the Land Acquistion Act. The reason for not granting the said additional benefit was because the claimants had filed a writ petition before this Court, O.P.9708/99 challenging the land acquisition proceedings and pursuant to an order of stay obtained by them, the acquisition proceedings had been held up. Therefore, according to the Court they were not entitled to claim interest for the period during which the stay order was in operation, as mandated by the explanation to Section 23 (1A) of the Act. 4. According to the counsel for the claimants, the market value of similar lands in the locality was much higher and, therefore, they were entitled to be awarded land value at least at the rate of Rs.3 lakhs per cent. The counsel also claimed that the L.A.A.465/2008 etc. 4 claimants were entitled to additional compensation under Section 23(1A) of the Act for the period during which the said compensation has been disallowed by the Reference Court, for the reason that the stay order had been modified by this Court subsequently. According to the counsel the stay order was only in respect of taking possession of the land that was acquired and, therefore, there was no embargo against completion of the other formalities connected with the acquisition proceedings. Therefore, it is contended that, the order of stay granted by this Court had not caused any delay in the acquisition proceedings. 5. The learned Senior Govt. Pleader on the other hand pointed out that in a land acquisition appeal filed by the State, L.A.A.357/2008 and an appeal filed by the claimant, L.A.A.1776/07 this Court had reduced the land value awarded to Rs.1,80,000/- per Are. According to the learned Senior Govt. Pleader, the said appeals also related to the very same acquisition and concerned L.A.A.465/2008 etc. 5 properties that were nearby. Therefore, he contended that the claimants were not entitled to claim any further enhancement from the amount of Rs.2,25,000/- per Are awarded by the Reference Court, which itself was excessive. According to the learned Senior Govt. Pleader, the petitioners in all these writ petitions were parties to O.P.9708/99 which was a writ petition filed challenging the acquisition proceedings. They had obtained an order of stay in the said writ petition. Since the writ petition had been admitted and an order of stay was also granted, the validity of the acquisition proceedings itself became uncertain and, therefore, the further proceedings naturally got delayed. It is further submitted that this was an acquisition in which the emergency clause under Section 17 (4) had been invoked, with the object of taking immediate possession of the acquired lands. If possession had been taken on an early date, the commitment of the State to pay additional compensation under Section 23(1A) of the Act would have come to L.A.A.465/2008 etc. 6 an end on such taking of possession. However, since the Government could not take possession of the land, the proceedings got prolonged. Therefore, according to the learned Senior Govt. Pleader, it was due to the stay order that the acquisition proceedings were held up. Further, the stay order was modified pon 31.3.2000. Thereafter consent was given by the claimants only on 13.5.2002. Therefore, according to the senior Govt. Pleader there was delay on the part of the claimants also. On the above grounds, it is contended that the claimants are not entitled to interest for the period during which the stay order was in operation. 6. We have heard Mr. Thaliyal R. Gopakumar for the claimants and Mr. Basant Balaji, Senior Govt. Pleader in detail. We have also anxiously considered the rival contentions of the counsel. In similar cases where land value at the rate of Rs.2,25,000/- per Are was granted by the Reference Court, appeals have been disposed of L.A.A.465/2008 etc. 7 reducing the land value to Rs.1,80,000/- per Are. Accordingly LAA 1776/2007 filed by the claimant was dismissed and LAA 357/2008 filed by the State was allowed. In view of the fact that the land value has been reduced by this Court from Rs.2,25,000/- to Rs.1,80,000/- in cases relating to the same acquisition, no land value in excess of what has been awarded by the Reference Court can be granted to the claimants. They are also not entitled to claim any land value in excess of what has been granted to other similar lands. Therefore, the claim for enhancement in land value made by the appellants is rejected. 7. It is an admitted fact that O.P.9708/99 was filed by the claimants challenging the land acquisition proceedings before this Court. On 4.3.1999 this Court had passed an order of stay of dispossession of the petitioners pursuant to the acquisition of their lands. The said order of stay remained in force till 31.3.2000. On the said date, the Government was permitted to take possession of L.A.A.465/2008 etc. 8 lands that the owners were willing to surrender, after obtaining consent letters from them. Such consent letters were given only on 13.5.2002, it is contended. It is for the said period from 4.3.1999 to 13.5.2002 that the Reference Court has held the claimants not entitled to the additional compensation under Section 23(1A) of the Act. However, according to the claimants, since only dispossession was stayed there was no impediment in completing the other proceedings relating to the acquistion. The files would show that in fact the proceedings were not held up due to the stay order passed by this Court. 8. The explanation to Section 11A of the Act reads as follows:- “In computing the period of two years referred to in this section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a court shall be excluded.” L.A.A.465/2008 etc. 9 A reading of the above provision shows that what is mandated to be excluded is the period during which any action or proceeding to be taken pursuant to the said declaration is stayed. The words any action or proceeding makes it clear that the period during which any action or proceeding relating to the acquisition had remained stayed would have to be excluded. The explanation to Section 23 (1A) of the Act reads as follows:- “In computing the period referred to in this sub- section, any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any court shall be excluded.” The above provision also mandates that any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any court shall be excluded. These provisions do not contain any exclusion in respect of the action of taking possession of the land. L.A.A.465/2008 etc. 10 Since taking possession of the land is also part of the acquisition proceedings, a stay of taking possession of the land is also an order coming within the purview of the provisions referred to above. Therefore, just because the order of stay related only to taking possession of the land, the claimants cannot claim that they had not held up the acquisition proceedings by obtaining a stay order from this Court. 9. While considering the question as to whether a notification under Section 4(1) of the Act should lapse for the reason that declaration under Section 6 was not published within three years from the date of the notification, the Supreme Court held that the notification had not lapsed in Sangappa Gurulingappa Sajjan v. State of Karnataka and others {(1994)4 SCC 145}. At page 147 the Apex Court has held as follows:- “Admittedly, the validity or tenability of the notification issued and published under Section 4 (1) is subject of adjudication before the High L.A.A.465/2008 etc. 11 Court. Till the writ petitions are disposed of or the appeals following its heels, the stay of dispossession was in operation. Though there is no specific direction prohibiting the publication of the declaration under Section 6, no useful purpose would be served by publishing Section 6(1) declaration pending adjudication of the legality of Section 4(1) notification. If any action is taken to pre-empt the proceedings, it would be stigmatised either as “undue haste” or action to “overreach the court's judicial process.” Therefore, the period during which the order of dispossession granted by the High Court operated, should be excluded in computation of the period of three years covered by clause (1) of the first proviso to the Land Acquisition Act.” 10. In Ramalinga Thevar v. State of Tamil Nadu {(2000(2) KLT Short Note 38, Case No:45}, the Honourable Supreme Court has held that the Act of taking possession of the land is one of the steps in the acquisition proceedings. Considering the question, L.A.A.465/2008 etc. 12 the Supreme Court has observed as follows:- “As per the Explanation the period of exclusion from the time is the period during which “any action or proceedings” to be taken in pursuance of the said declaration is stayed. We have no doubt that one of the actions contemplated pursuant to the declaration is taking possession of the land, though such action is a post-award step in normal circumstances and in emergent circumstances it can as well be a pre-award step. Nonetheless, taking possession is one of the actions to be adopted as a follow-up measure pursuant to the declaration envisaged in S.6 of the Act.” 11. Apart from the above, in the present acquisition the emergency clause under Section 17(4) had been invoked, with the object of taking advance possession of the lands acquired. Therefore, this is a situation in which the State wanted to take possession of the land urgently. In such a situation when the act of taking possession itself was stayed by this Court, the period during L.A.A.465/2008 etc. 13 which such stay order was in operation is liable to be excluded. In the decision reported in Noormohmed 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 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.” Therefore, it is clear that even an order of stay of dispossession simplicitor would come within the ambit of the explanation to Section 23(1A) of the Act. 12. Counsel for the claimants drew our attention to the judgment of this Court dated 19.3.2008 in L.A.A.1644/2007 and L.A.A.465/2008 etc. 14 Cross Objection No:11/2008 wherein, the Cross Objectors were held entitled to additional compensation on the land value for even the period during which the stay order of this Court was in operation. However, the judgment reveals that the said relief was given to the appellants in those cases only because the Cross Objectors therein were not parties to the original petitions in which the said stay order had been passed. However, the appellants in the present appeals were actually parties to the original petition. Therefore, they are not entitled to claim the benefit of the dictum in the said cases. 13. In these appeals, as already noticed above, the order of stay was passed on 4.3.1999. The stay granted related only to dispossession of the appellants. Subsequently, on 31.3.2000, the order of stay was modified and the State was permitted to take possession of the properties by obtaining consent letters from the owners. It is worth noticing that there was no bar against passing L.A.A.465/2008 etc. 15 an award, which would have stopped the running of the additional benefit under Section 23(1A) of the Act. There is no explanation why passing of the award was delayed. It is to be noted that even after the order of stay was modified on 31.3.2000, the award was passed only on 20.6.2002, more than two years thereafter. The responsibility for the delay occasioned during this period certainly rests on the Government. Therefore, we feel that there is no justification for denying the benefit under Section 23(1A) of the Act to the appellants in these cases for the period from 31.3.2000, the date on which the order of stay was modified to the date of passing of the award, which is 20.6.2002. The appellants in all these appeals shall be entitled to the benefit of the additional compensation under Section 23(1A) of the Act for the period from 31.3.2000 to 20.6.2002 as found above. 14. In the result, the appeals are allowed to the limited extent of holding the appellants entitled to the additional L.A.A.465/2008 etc. 16 compensation under Section 23(1A) of the Act, for the period from 31.3.2000 to 20.6.2002 and modifying the award of the Reference Court to the above limited extent. In the circumstances of the case there will be no order as to costs. PIUS C.KURIAKOSE Judge K. SURENDRA MOHAN Judge jj PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. --------------------------------------- L.A.A.NO: --------------------------------------- JUDGMENT Dated: