IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 30TH NOVEMBER 2009 / 9TH AGRAHAYANA 1931 LA.App..No. 1496 of 2005(D) --------------------------- LAR.8/2001 of ADDL.SUB COURT, KOCHI .................... APPELLANT(S): CLAIMANTS. ------------------------ 1. C.K.VENKITARAM NAIDU, S/O.LATE C.S.KRISHNASWAMI NAIDU, COCHIN TIN FACTORY QUARTERS,PARRY JUNCTION, PALLURUTHY, KOCHI 5. 2. C.V.SREELATHA, W/O.C.K.VENKITRAM NAIDU, COCHIN TIN FACTORY QUARTERS, PARRY JUNCTION, PALLURUTHY, KOCHI 5. 3. DEVIKA, D/O.Mr. C.K.VENKITRAM NAIDU, REP. BY POWER OF ATTORNEY HOLDER, MRS.SREELATHA, COCHIN TIN FACTORY QUARTERS, PARRY JUNCTION, PALLURUTHY, KOCHI 5. 4. KANNIKA, D/O.MR.C.K.VENKITRAM NAIDU, REP. BY POWER OF ATTORNEY HOLDER, MRS.SREELATHA, COCHIN TIN FACTORY QUARTERS, PARRY JUNCTION, PALLURUTHY, KOCHI 5. 5. REKHA, D/O.MR.C.K.VENKITRAM NAIDU, REP. BY POWER OF ATTORNEY HOLDER, MRS.SREELATHA, COCHIN TIN FACTORY QUARTERS, PARRY JUNCTION, PALLURUTHY, KOCHI 5. BY ADV. SRI.P.GOPALAKRISHNAN NAIR RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, KAKKANAD, ERNAKULAM. 2. THE SECRETARY, G.C.D.A. KADAVANTRA, ERNAKULAM. GOVT.PLEADER SMT. LATHA T.THANKAPPAN FOR R1. ADV. SRI.S.B.PREMACHANDRA PRABHU FOR R2 THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 30/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------ LAA. No. 1496 of 2005 ------------------------------------------- Dated this the 30th day of November, 2009 J U D G M E N T Pius C. Kuriakose, J. The claimants in LAR. No. 8 of 2001 on the files of the Addl. Subordinate Judge's Court, Kochi are the appellants. Their properties were acquired by the first respondent State at the instance of the second respondent GCDA. The properties were situated in Rameswaram Village of Kochi Taluk. The acquisition was pursuant to a notification under Section 4(1) published on 14-9-1997. The land acquisition officer awarded land value at the rate of Rs.25,792/- per cent, corresponding to Rs.66,800/- per Are as against claim for Rs.2,50,000/-. The reference court on evaluating the evidence in the case which consisted of Exts. A1 to A20, B1 to B8, oral evidence of AWs. 1 to 7, RW1 and RW2, C1 commissioner's report and Exts.A1(a) and X1(b), re-fixed the land value at Rs.30,888/- per cent, corresponding to LAA.1496/05 - 2 - Rs.80,000/- per Are. According to the appellants, though they were dispossessed of a total extent of 63.138 cents, they were given land value for 45 cents only, situated in survey No. 572/2. It is their claim in this appeal that the first appellant should have been awarded land value for a further extent of 9.138 cents including 4.138 cents which was used as a passage from the property under acquisition to the main road. The appellants contend that for the buildings which existed upon the properties which were acquired having door Nos. 18/98, 18/99, 18/100 and 18/101, they were not paid adequate compensation. According to them, their claim for value of the buildings was Rs.77,32,034/-. However, the L.A. Officer awarded only Rs.20,88,312/-. It is also urged in the memorandum of appeal, that for a neighbouring property situated adjacent to the property under acquisition, which was also acquired for the same purpose, the L.A. Officer awarded land value at LAA.1496/05 - 3 - the rate of Rs.1,36,000/- per Are and this is highlighted as an instance of discrimination against the appellants. The appellants also urge that a full fledged Ice Factory was functioning on the property under acquisition and that they should have been paid compensation for shifting. 2. We have heard the submissions of Sri.P.Gopalakrishnan Nair, learned counsel for the appellants and those of Sri.S.B. Premachandra Prabhu, learned counsel for GCDA, the requisitioning authority. We have also heard Smt. Latha T.Thankappan, Senior Govt. Pleader for the first respondent State. Sri.Gopalakrishnan Nair addressed extensive submissions before us on the basis of grounds A to DD raised in the memorandum of appeal. The learned counsel submitted that compensation was denied for 5 cents of kayal land which was taken over from the possession of the appellant on the reason that the same was kayal puramboku and hence Government property. LAA.1496/05 - 4 - The reality was that though in the revenue records the above 5 cents continued to be described as kayal land, the same had been reclaimed and was under the exclusive possession of the appellant for scores of years. Exts.A5 series of tax receipts and Ext.X1(a) and X1(b) G.R. Registers would support the appellant's claim for exclusive possession over that part of the land which was acquired. Mr. Gopalakrishnan Nair also submitted that compensation was completely denied in respect of a further extent of 4.138 cents of land which existed as a 12 ft. wide passage in Sy. No. 572/11 from the main road to the property under acquisition. The passage was used exclusively by the appellant's predecessors and thereafter by the appellant. The above land was actually granted to appellant's father by British India Government during the second world war for exclusive user by the appellant's predecessor who had put up an industrial establishment on the property under LAA.1496/05 - 5 - acquisition. There was clinching evidence to hold that the above two items were under the exclusive possession of the appellants and enjoyed by the appellants along with their pandaravaka land extending to 54 cents. Exts.A8, A9, A10 and A11 as well as certified copy of the order of the High Court in CMP. 1866/2000, according to Mr.Gopalakrishnan Nair, were sufficient to prove that the value of the land under acquisition at the relevant time was not less than Rs.2,50,000/- per cent. But the reference court did not consider these documents in the proper perspective and ultimately what was granted was only a paltry enhancement of Rs.13,200/- per Are, corresponding to Rs.5096/- per cent. Mr. Gopalakrishnan Nair referred to these documents and argued that land value should be enhanced as claimed in the appeal. The property covered by B7 basis document was not at all comparable, so submitted Mr. Gopalakrishnan Nair. According to the learned counsel Ext.A13 valuation of LAA.1496/05 - 6 - the buildings was prepared by Advocate Commissioner with the assistance of a Chartered Engineer. Under Ext.A13 the valuation was taken on the basis of CPWD rates at the relevant time. As per Ext.A13, after depreciation, the value will come to Rs.41,18,928/-. But the court below did not rely on Ext.A13 which was proved by AW6. The court below granted a nominal increase of 25% over what was awarded by the L.A. Officer. Mr. Gopalakrishnan Nair submitted that on behalf of the GCDA it had been submitted before this Court that inventory of the machinery, equipments, buildings etc. will be prepared before possession is taken and that copy of the inventory will be furnished to the appellants. That was never done. This has resulted in gross prejudice to the appellants. As a result of this, the appellants were unable to take out a commission in which case it would have been possible for them to bring valuable evidence regarding the nature of the machinery, equipments LAA.1496/05 - 7 - etc. which existed on the property under acquisition. Mr. Gopalakrishnan Nair also submitted that the shifting charges awarded is grossly inadequate. 3. All the submissions of Mr. Gopalakrishnan Nair were very stiffly resisted by Sri.S.B.Premachandra Prabhu. Mr.Premachandra Prabhu supported the judgment of the reference court on the basis of the various reasons stated therein. Mr.Premachandra Prabhu was supported in his submissions by Smt.Latha T. Thankappan, Senior Govt. Pleader. As regards the award of land value at the rate of Rs.1,36,000/- per Are for the nearby property acquired for the same purpose, Mr.Prabhu submitted that the above property was acquired pursuant to a subsequent notification and also that the above property was enjoying direct frontage of the road, viz., Aroor – Thoppumpady Road. But the acquired property did not have frontage of any road. That property was connected to the road only by a narrow LAA.1496/05 - 8 - pathway. The pathway did not belong to the appellants. The pathway was all along Government puramboku. 4. We have very anxiously considered the rival submissions addressed at the Bar. While we are able to approve the action of the learned Subordinate Judge in not placing reliance on Ext.A13, we feel that the learned Subordinate Judge was a little miserly when he came to awarding compensation for the buildings which existed on the property under acquisition. It is applying the principle that construction of buildings as per the PWD schedule of rates followed by the L.A. Officer is not a practical proposition that the L.A. Court granted enhancement by 25% over what was awarded by the L.A. Officer. Applying the same principle and the totality of the evidence which is available in the case we are of the view that the appellants are entitled for enhanced value of the building of 40% over what was awarded by the L.A. Officer. This means that LAA.1496/05 - 9 - towards value of buildings, the appellants will be entitled for a further amount of Rs.2,50,600/-. We award the above amount to the appellants over and above what is awarded by the court under the impugned judgment. Shifting charges has been granted to the appellants at Rs.33,000/- only in terms of clause (5) of Section 23 of the L.A. Act. We feel that the above amount is grossly inadequate. The appellants should have been granted a minimum amount of Rs.50,000/- towards shifting charges. We therefore award a further amount of Rs.17,000/- to the appellants towards shifting charges. 5. We shall now come to the appellants claim for land value. It was relying on Ext.B7 basis document that the L.A. Officer awarded land value at the rate of Rs.66,800/-. The learned Subordinate Judge under the impugned judgment has rightly found that B7 was not a proper basis. The appellants relied on Exts.A7, A8 and A9 mainly for LAA.1496/05 - 10 - higher land value,. A7 was a document executed two years and four months prior to the date of Section 4(1) notification. The same reveals a land value of Rs.60,309/- per cent. Ext. A8 document also was a document of 1998 and pre-notification. A8 however, pertains to a small extent of 2.800 cents of land. A8 reveals a land value of Rs.1 lakh per cent. A8 was eschewed from consideration by the learned Subordinate Judge on the reason that the same relates to a small bit. Ext.A9 was rejected and in our opinion, rightly by the learned Subordinate Judge for the reason that A9 is a post notification document. Having reappraised the evidence, we are of the view that the learned Subordinate Judge's action in not placing reliance on Exts.A8 and A9 was proper. 6. It came out in evidence that A7 property was situated at a distance of 1.5 kms. away from the national highway and at a distance of 300 metres north-east of LAA.1496/05 - 11 - Palluruthy Temple and that the said property also enjoyed kayal frontage as in the case of property under acquisition. The learned Subordinate Judge did not place reliance on A7 on the reason that a running fisheries factory was functioning upon that property unlike the property under acquisition where the factory had become non-functional at the time of acquisition. Thus the court below did not place reliance on any of the documents produced by the claimants for supporting their claim for enhancement of land value. What the court below did was to do guess work and re-fixed the market value of land at Rs.80,000/- per Are noticing the superiority of the property under acquisition over the property covered by B7 document. Having considered the rival submissions addressed before us in the context of the market value of the land under acquisition we are of the view that the court below was not justified in rejecting Ext.A7 completely. After all, Ext.A7 was in the same village LAA.1496/05 - 12 - and the distance between the acquired property and Ext.A7 property was 1 kilometre only. Though the acquired property was not enjoying direct frontage of national highway, the distance between national highway margin and the acquired property was just 41 metres. It is true that the appellants were not having absolute ownership over the pathway which provided access to the national highway. But it cannot be denied that for several decades the appellants predecessors and thereafter the appellants were enjoying the said access. It is also to be noticed that the property under acquisition was having water transport facilities. In terms of the importance of the locality the market value of the property under acquisition and the property covered by Ext.A7 were atleast equal and according to us, the appellants should have been awarded the value reflected in Ext.A7. Ordinarily we would have been inclined to give some additions over the value reflected LAA.1496/05 - 13 - in Ext.A7 for passage of time. But in the instant case we are unable to make any additions over the value reflected in Ext.A7 since there is no evidence at all as to any escalation in the land value during the period of 23 months between A7 and the date of acquisition. Taking into account the various relevant inputs gatherable from the evidence on record, we re-fix the value of the land under acquisition at Rs.1,50,000/- per Are. 7. We shall now deal with the appellants' claim for land value for 5 cents of kayal land and 4.138 cents of land which forms the passage connecting the property under acquisition to the main road. As for the claim for value of 5 cents of kayal land we are in agreement with the learned Subordinate Judge that in the absence of any documentary evidence the appellant cannot be awarded any amount towards value of the above 5 cents. But we find some merit in the submission of Mr.Gopalakrishnan Nair that towards LAA.1496/05 - 14 - value of 4.138 cents which was lying as a bund connecting the property under acquisition and the highway, the appellants ought to have been awarded some compensation. It is in evidence that the above portion of original kayal land, the appellants' predecessors were permitted by the then Government to use the same, as a passage to the main road by putting up a bund. According to us, the appellants had possessory title over the same. In view of that, we are of the view that for the above portion of 4.138 cents the appellants are eligible for 35% of the market value of the land calculated at the rate of Rs.1,50,000/- per Are. Accordingly we award 35% of the market value at the rate of Rs.1,50,000/- per Are for the above extent of 4.138 cents. The above amount will come to Rs.87,937.50, which we round off to Rs.87,940/-. 7. The appeal is allowed to the above extent, but without any order as to costs. For the total enhanced LAA.1496/05 - 15 - compensation to which the appellants become eligible by virtue of this judgment, they will be entitled for all statutory benefits admissible under Sections 23(2), 23(1A) and 28 of the Land Acquisition Act. PIUS C.KURIAKOSE, JUDGE K.SURENDRA MOHAN, JUDGE ksv/-