IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 16TH FEBRUARY 2009 / 27TH MAGHA 1930 LA.App..No. 651 of 2007() ------------------------- LAR.366/2004 of ADDL.SUB COURT,KOTTAYAM .................... APPELLANT(S): CLAIMANT: ----------------------- CYRIAC, S/O.EAPEN, KOCHUPURACKAL PADINJATTUMBHAGOM KARA, ATHIRAMPUZHA VILLAGE, REPRESENTED BY THE DULY CONSTITUTED POWER OF ATTORNEY, VARGHESE EAPEN, S/O.EAPEN, KOCHUPURACKAL HOUSE, ATHIRAMPUZHA VILLAGE, KOTTAYAM. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENT(S): RESPONDENT: -------------------------- STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, KOTTAYAM/. SR.GOVERNMENT PLEADER SRI.BASANT BALAJI THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 16/02/2009, ALONG WITH LAA NO. 762 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ. ----------------------------------------------- LAA. Nos. 651 OF 2007 & 762 of 2008 -------------------------------------------------------- Dated this the 16th day of February, 2009 J U D G M E N T Pius C.Kuriakose, J. LAA. No. 651/07 is filed by the claimant and LAA. No.762/08 is filed by the State. Both the appeals are directed against the judgment of the Land Acquisition Reference Court, Kottayam in the same reference case. The parties will be referred to as claimant and State respectively. The case pertains to acquisition of 1.67 Ares of land belonging to the claimant situated in Survey No. 454/16-1 of Athirampuzha Village for the purpose of construction of M.V.I.P. Branch Canal. The relevant section 4(1) notification was published on 25-7-2003 and the land acquisition officer awarded a total amount of Rs.94,773/- as compensation. The above compensation included value for a building which existed on the property as well as land value. Land value was awarded by him at the rate of Rs.11,936/- per cent corresponding to Rs.29,456/- per Are. The claimant claimed land value at the rate of Rs.3 lakhs, Rs.50,000- for a compound wall and a further amount of Rs.1 lakh on account of injurious affection of the remainder property of the claimant after acquisition. He claimed Rs.1 lakh towards value of the building and also a further amount of Rs.1 lakh for construction of a retaining wall for preserving his remainder LAA. N0s. 651/07 & 762/08. -2- land. The evidence before the reference court consisted of Exts.A1 to A6 and testimonies of PWs. 1 to 5 on the side of the claimant apart from Ext.C-1 commission report, C-1(a) plan and testimony of CW-1, the Commissioner. On the side of the Government, there was no contra oral evidence and the evidence consisted only of Ext.R1 basis document and Ext.R2 group sketch. The reference court held that the basis document was not dependable and would award additional compensation towards building value computed on the basis of loss of rental value at Rs.13,000/-. Apart from that, the value of land was re- fixed at Rs.59,000/- per Are, thus allowing enhanced land value of Rs.29,500/- per Are. In LAA. No.651/07 the appellant claimant impugnes the fixation of land value by the reference court as well as the adequacy of the compensation fixed by that court towards value of the building. Per contra the State in LAA. No. 762/08 contends that the enhancement granted by the reference court is excessive. 2. Very extensive submissions were addressed before us by Mr.Mathew John K. learned counsel for the claimant and Sri.Basant Balaji, senior Govt. Pleader for the State. The learned counsel and the learned Govt. Pleader would draw our attention to the various items of evidence regarding the case and as desired by them we made a LAA. N0s. 651/07 & 762/08. -3- thorough re-appraisal of the entire evidence on record. We are of the view that the learned Subordinate Judge was a little miserly in the matter of determination of the compensation due for the building which existed on the acquired property and also in the matter of determination of the value of the acquired land. Ext.A5 rent chit revealed that the rent in respect of the building in the acquired land was Rs.1000/- per mensem. Ext.A5 is of the year 1998 and A6 is a subsequent rent chit pertaining to the building of the year 2002. The evidence of AW-5 was to the effect that he took the building on lease on a monthly rental of Rs.1500/- and on a security of Rs.70,000/-. But the further evidence in the case is to the effect that the monthly rent of Rs.1,500/- was for two rooms including a room which was not in existence at the time of acquisition. The learned Subordinate Judge has not rejected the case of the claimant that the monthly rental value of the room which existed at the time of acquisition is Rs.750/- per mensem. However, on the reason that there was no conclusive evidence regarding the monthly rental value of the building which actually existed at the time of acquisition, the learned Sub Judge fixed monthly rent at as low an amount as Rs.150/-. The version of the claimant and his witnesses were consistently to the effect that the LAA. N0s. 651/07 & 762/08. -4- building would have stood for a minimum of 20 years more. Nevertheless, the learned Judge takes it that the building would fetch rental value only for a further period of 10 years and on that basis the learned Judge estimated the value of the building at Rs.18,000/-, deducted approximate maintenance expense of Rs.5000/- and arrived at additional value of the building based on rental income at Rs.13,000/- only. This approach, in our view, is erroneous. According to us, there is sufficient material in the case to fix the rental value of the building which existed on the acquired property at Rs.750/- per mensem. Calculating the value of the building on that basis the same would come to Rs.90,000/- as on the date of acquisition. Following the principles laid down by this court in 2005(3) KLT 580, 12% will have to be deducted towards depreciation since it is not disputed that the building was a B-class building. When this is done and when credit is given to the payments already made it will be seen that the claimant will be entitled for a further amount of Rs.42,200/- as balance towards value of the building which existed on the acquired property. 3. Coming to the question of the correct market value payable for the acquired land we find that Ext.A1 should not have been rejected in toto. It could have been relied on to a certain extent. In LAA. N0s. 651/07 & 762/08. -5- fact, the court below found that the land covered by Ext.A1 and the land involved in the acquisition are similar. But the court below proceeded to discard Ext.A1 on the ground that A1 reflects a transaction entered into out of necessity and does not reflect the true market value of the property. According to us, the above reasoning of the learned Subordinate Judge is not founded on evidence. Ext.A1 document is of December 1992, ten years prior to the publication of the section 4(1) notification in this case. The land value reflected in Ext.A1 is Rs.27,000/-. Both A1 property and the acquired properties are admittedly situated in the heartland of Athirampuzha, an ancient town in Kottayam District famous for trade and commerce. By the time of publication of notification under section 4(1) which is relevant time for determination of the market value, the importance of Athirampuzha which was already important in several contexts had increased due to establishment of the Headquarters of the Mahatma Gandhi University. On making a comparative assessment of the acquired property and the property covered by Ext.A1 and on making due additions and deductions for relevant aspects including passage of time, we are of the view that the correct market value of the acquired land at the time of the relevant section 4(1) notification was LAA. N0s. 651/07 & 762/08. -6- Rs.35,000/- per cent. The claimant is entitled for enhanced land value on the basis of such re-fixation of market value by us. The result of the above discussions is that L.A.A. No. 762/08 is dismissed. L.A.A. No.651/07 is allowed. The appellant claimant is awarded a further amount of Rs.55,200/- towards value of the building which existed on the acquired property over and above the value fixed by the land acquisition officer. The market value of the land acquired is re-fixed at Rs.35,000/- per cent corresponding to Rs.86,485/- per Are. Thus the appellant is awarded enhanced land value of Rs.57,029/- per Are over and above the land value awarded by the L.A. Officer. It is needless to mention that the claimant will be entitled for all statutory benefits on the enhanced compensation to which they are entitled under this judgment, admissible under sections 23(1), 23 (1-A) and section 28 of the Land Acquisition Act. The parties will suffer their costs in this appeal. (PIUS C.KURIAKOSE, JUDGE) (C.K.ABDUL REHIM, JUDGE) ksv/- The figure of “Rs.55,200/-” occurring in the 3rd sentence in the last paragraph of LAA. N0s. 651/07 & 762/08. -7- the judgment dated 16/02/2009 in L.A.A.No. 651/2007 is corrected as “Rs.44,200/-” vide order dated 02/04/2009 in I.A. No. 1252/2009 in L.A.A. No. 651/2007 Sd/- Registrar (Judicial) The figure “Rs.44,200” occurring in the corrected portion of the common judgment dated 16-2-2009 in LAA Nos. 651/2007 and 762/2008 (in the 3rd line in page 6 of the corrected judgment) is substituted as “Rs.42,200/-” vide order dated 05/01/2010 in I.A. 4417/2009 in LAA 651/2007. Sd/- Registrar (Judicial)