Allowed

Gopinadhan Nair v. State of Kerala

Kerala HC6 Mar 2013OP(C)/2433/2012

Case brief

AI extract

What is this about?

The High Court distinguished earlier precedents holding that Section 23(1A) amount is compensation, not interest, and held that interest under Section 28 is payable on the aggregate compensation. The petition was allowed, the impugned order set aside, and the execution case remitted for fresh calculation.

What did the court decide?

The order dated 30.11.2011 in the execution proceedings was set aside, and the execution case was remitted to the executing court to decide after hearing parties on interest payable under Section 28 o

Gopinadhan Nair Vs State of Kerala — Land Acquisition | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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WEDNESDAY, THE 6TH DAY OF MARCH 2013/15TH PHALGUNA 1934

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OP(C).No. 2433 of 2012 (O)

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E.P.NO.76 OF 2000 IN L.A.R.No.24 OF 1997 OF SUB COURT, PALA

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PETITIONER/DECREE HOLDER-CLAIMANT:

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K.V.GOPINATHAN NAIR AGED 72 YEARS

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KAVUNGUMPALLIL PULIYANNOOR KARA PULIYANNOOR VILLAGE

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BY ADV. SRI.P.C.HARIDAS

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RESPONDENT/JUDGMENT DEBTOR:

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STATE OF KERALA

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REPRESENTED BY DISTRICT COLLECTOR KOTTAYAM

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BY GOVERNMENT PLEADER: SMT. LILLY LESLIE

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 06-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 2433 of 2012 (O)

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APPENDIX

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PETITIONER(S) EXHIBITS

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EXT.P1	TRUE COPY OF THE DECREE DATED 30-06-2000 IN LAR NO 24/97 OF THE SUB COURT PALA
EXT.P2	TRUE COPY OF STATEMENT DATED 29-02-2008 FILED BY THE PETITIONER IN E.P NO 76/2000 IN LAR 24/97 OF THE SUB JUDGE PALA
EXT.P3	TRUE COPY OF ORDER DATED 15-03-2008 IN E.P NO 76/2000 IN LAR 24/97 OF THE SUB JUDGE PALA
EXT.P4	TRUE COPY OF THE ORDER DATED 02-06-2011 IN CRP 882/2008 OF THIS HON'BLE COURT.
EXT.P5	TRUE COPY OF STATEMENT DATED 21-06-2011 FILED BY THE PETITIONER IN E.P NO 76/2000 IN LAR 24/97 OF THE SUB JUDGE PALA
EXT.P6	TRUE COPY OF STATEMENT FILED BY THE REPSONDENT IN E.P NO 76/2000 IN LAR 24/97 OF THE SUB JUDGE PALA
EXT.P7	TRUE COPY OF THE ORDER DATED 30-11-2011 P.NO 76/2000 IN LAR 24/97 POF THE SUB JUDGE PALA

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RESPONDENTS' EXHIBITS :NIL

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true copy /

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P.A to Judge

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THOMAS P.JOSEPH, J. =========================

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O.P(C).No.2433 of 2012

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============================ Dated this the 06^th day of March, 2013

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J U D G M E N T

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Ext.P7, order dated 30.11.2011 in E.P.No.76 of 2000 in L.A.R.No.24 of 1997 of the Sub Court, Pala accepting Ext.P6, calculation statement filed by the respondent/State and rejecting Ext.P5, calculation statement of petitioner is under challenge.

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Property of petitioner was acquired on 24.11.1993. Reference Court passed Ext.P1, decree on 30.06.2000 specifically stating that petitioner will not be entitled to get interest on solatium. In execution, petitioner filed Ext.P2, calculation statement including interest on solatium as well. By Ext.P3, order executing court accepted that statement. Respondent/State filed C.R.P.No.882 of 2008 and by Ext.P4, order, got rid of Ext.P3, order. This Court held that petitioner is not entitled to get interest on solatium in view of Ext.P1, decree and directed parties to file fresh statements. It is accordingly that parties filed Exts.P5 and P6, statements.

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Petitioner, in Ext.P5, statement calculated interest on the amount awarded to him under Sec.23(1A) of the Land Acquisition Act (for short, “the Act”). Respondent has declined to calculate interest on the said amount.

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O.P(C).No.2433 of 2012

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Executing court, relying on the decisions in K.S Paripoornan Vs. State of Kerala ((1994)5 SCC 593) and Ghaziabad Development Authority Vs. Anoop Singh (AIR 2003 SC 1004) found that petitioner is not entitled to get interest on the amount awarded under Sec.23(1A) of the Act.

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Learned counsel for petitioner has contended that what is awarded under Sec.23(1A) of the Act is not interest but, it is part of compensation. Therefore, on the said amount petitioner is entitled to get interest under Sec.28 of the Act. Reliance is placed on the decision in State of Punjab Vs. Amarjit Singh Vs. Anr . ((2011)4 SCC 734).

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Learned Government Pleader appearing for the respondent placed reliance on the decisions in K.S Paripoornan Vs. State of Kerala and Ghaziabad Development Authority Vs. Anoop Singh (supra).

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Decisions just above mentioned and relied on by the executing court do not relate to the issue involved - there, what the Supreme Court considered was retrospectivity of Sub-sec.(1A) incorporated in Sec.23 by Act 68 of 1984.

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Going by Sub-sec.(1A) of Sec.23, contention of respondent and finding of the executing court that it is interest on

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O.P(C).No.2433 of 2012

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the amount of compensation awarded cannot be accepted. What is payable under Sec.23(1A) is compensation in addition to the market value of land which is to be calculated @12% of the market value. That is not interest. On the other hand, as the provision says and the heading of Sec.23 indicates, that it is part of compensation.

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Under Sec.28 of the Act, claimant is entitled to get interest on the aggregate amount of compensation awarded under Sec.23. It follows that interest is payable on the amount awarded under Sec.23(1A) of the Act as well. That is what the Supreme Court has held in State of Punjab Vs. Amarjit Singh Vs. Anr . (supra). There, in paragraph 12, after referring to the items of compensation payable under Sec.23 as clause (a) to (c) (Clause (c) being additional amount at 12% per annum payable under Sec.23 (1A)) it is held that on the aggregate amount interest is payable.

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In the light of the above, executing court was clearly at error in holding that petitioner is not entitled to get interest under Sec.28 of the Act on the amount awarded under Sec.23(1A) of the Act.

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This original petition is allowed as under:

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(i) Ext.P7, order dated 30.11.2011 in E.P.No.76 of 2000 in L.A.R.No.24 of 1997 of Sub Court, Pala is set aside.

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O.P(C).No.2433 of 2012

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(ii) E.P.No.76 of 2000 is remitted to the executing court for fresh decision after hearing the parties and calculating interest payable under Sec.28 of the Act on the amount of compensation awarded under Sec.23(1A) of the Act as well.

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Sd/-

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THOMAS P.JOSEPH, JUDGE

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Sbna

Gopinadhan Nair v. State of Kerala

Case brief

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Gopinadhan Nair v. State of Kerala

Case brief

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