IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 28TH SEPTEMBER 2011 / 6TH ASWINA 1933 LA.App..No. 725 of 2010() ------------------------- LAR.154/2008 of PRINCIPAL SUB COURT,ERNAKULAM .................... APPELLANT(S): CLAIMANTS ----------------------- 1. THANKAM RAJAPPAN W/O.LATE M.G.RAJAPPAN, MADATHILPARAMBIL VEEDU, PEOPLES ROAD, VADUTHALA. 2. SUNIL M.R.S/O.LATE M.G.RAJAPPAN, MADATHILPARAMBIL VEEDU, PEOPLES ROAD, VADUTHALA. 3. SUDHEER M.R.S/O.LATE M.G.RAJAPPAN, MADATHILPARAMBIL VEEDU, PEOPLES ROAD, VADUTHALA 4. SUJITHA M.R.S/O.LATE M.G.RAJAPPAN, MADATHILPARAMBIL VEEDU, PEOPLES ROAD, VADUTHALA (APPELLANT NOS.1 TO 4 ARE LEGAL REPRESENTATIVES OF MG.RAJAPPAN, THE 1 ST CLAIMANT IN THE LAR WHO DIED ON 6/12-2009 5. M.G.BALAN, MADATHILPARAMBIL VEEDU, PEOPLES ROAD, VADUTHALA 6. M.G.VIJAYAN, MADATHILPARAMBIL VEEDU, PEOPLES ROAD, VADUTHALA BY ADV. SRI.MANUEL KACHIRAMATTAM RESPONDENT(S): RESPONDENT ------------------------- 1. STATE OF KERALA REP.BY SPECIAL TAHSILDAR (LA) RAILWAYS, ERNAKULAM. 2. THE DEPUTY CHIEF ENGINEER, RAILWAYS, ERNAKULAM. 3. CHAKRAPANI, S/O.LATE VELAYUDHAN, PALLATHU HOUSE, EDAVANAKKADU VILLAGE, KOCHI TALUK, ERNAKULAM 4. P.V.RAMDAS S/O.LATE VELAYUDHAN, PALLATHU HOUSE, EDAVANAKKADU VILLAGE, KOCHI TALUK, ERNAKULAM 5. RAJI W/O.HARIDASSAN P.P., PALAKKALPARAMBIL HOUSE PALLAT PO,PANATHIRAMPALA KODUNGALLOOR TALUK,THRISSUR. 6. RAKESH S/O.LATE VELAYUDHAN, PALLATHU HOUSE, EDAVANAKKADU VILLAGE, KOCHI TALUK. 7. RAMESHAN S/O. .LATE VELAYUDHAN,PALLATHU HOUSE, EDAVANAKKADU VILL AGE KOCHI TALUK. (RESPONDENT NOS.3 TO 7 ARE CLAIMANT NUMBERS 4 TO 8 BEFORE THE SUBCOURT) ADV. SRI.M.C.CHERIAN,SR.SC.,RAILWAYS THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 28/09/2011, ALONG WITH LAA NO. 1139 OF 2010 AND CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ L.A.A.Nos. 725, 1139 of 2010 & L.A.A. NO.410 OF 2011 ------------------------ Dated this the 28th day of September, 2011 JUDGMENT Pius C.Kuriakose, J. The claimants are in appeal. The properties under acquisition were situated in Cheranellur village and were acquired pursuant to Section 4(1) notification published on 9/4/2007 for the purpose of providing rail connectivity from Edappally to ICTT Vallarapadam. The Land Acquisition Officer categorised the properties acquired for this purpose into various categories and in these appeals we need have to be concerned only with categories 2 and 3. Properties included in category 2 were dry lands having frontage of Corporation tarred road as well as access to three meters vide pathway. Properties included in category 3 were dry lands having access to mud road. For properties included in category 2, the Land Acquisition Officer awarded land value at the rate of Rs.4,10,340/- per Are. LAA.Nos.725/2010 & others 2 For properties included in category 3, the Land Acquisition Officer awarded land value at the rate of Rs.3,69,306/- per Are. Thus, awarding 90% of the value awarded to the properties in category 2. Though very strongly we feel that the ratio fixed by the Land Acquisition Officer between the values of properties in categories 2 and 3 is not correct as according to us the properties in category 2 were far superior, we are inclined to maintain the same ratio while fixing the land value for properties in categories 2 and 3 because there is no challenge to the ratio and categorization by any of the parties before us. 2. L.A.A. Nos.1139/2010 and 725/2010 pertain to properties in category 2 while L.A.A. No.410/2011 pertains to properties included in category 3. The Reference Court tried the cases separately and the appellants/claimants relied on the various documents. The learned Subordinate Judge did not place any specific reliance on any of the documents produced by the appellants. Keeping in mind decision taken by the learned Subordinate Judge himself in certain other connected matters what was done was to refix the value of the lands included in category 2 at Rs.5,65,217/- per Are and in category 3 at the rate LAA.Nos.725/2010 & others 3 of Rs.5,08,696/- per Are respectively . 3. In these appeals various grounds are raised challenging what is described as gross inadequacy of the compensation refixed by the Reference Court. Very extensive submissions were addressed before us by Sri.E.Narayanan learned counsel for the appellant in L.A.A. No.410/2011, by Sri. Manuel Kacherimattom learned counsel for the appellants in L.A.A. No.725/2010 and Smt.Hemalatha learned counsel for the appellant in L.A.A. No.1139/2010. The learned counsel drew our attention to the various documents relied on by the claimants before the court below particularly to Ext.A14 in L.A.A. No.1139/2010 and Ext.A2 in L.A.A. No. 410/2011. The learned counsel also relied on Ext.A6 judgment which was produced in L.A.A. 410/2011. 4. It was submitted by Sri.Narayanan appearing for the appellant in L.A.A. No. 410/2011 that against Ext.A6 there was an appeal (L.A.A. No.1478/2009) filed before this court by the appellant and this court refixed the value of the land therein at Rs.8,64,850/- per Are. As requested by the learned counsel for the appellants, we have called for the records pertaining to L.A.A. LAA.Nos.725/2010 & others 4 No.1478/2009. We notice that the above appeal pertains to acquisition of land in Mulavukadu village. We are therefore not inclined to place any reliance on the judgment in L.A.A. No.1478/2009. 5. Coming to Ext.A6 in L.A.A. No. 410/2011 and Ext.A14 in L.A.A. No.1139/2010, we notice that the said documents pertain to land in Ernakulam Village i.e. lands situated on Marine Drive which, we are sure, does not bear in comparison with the properties under acquisition. We are therefore of the view that learned Subordinate Judge was perfectly justified in discarding those documents from consideration. Ext.A8 relied on by the appellants in L.A.A. No.725/2010 is the letter written by the District Collector in respect of DLPC package offered by the acquiring authority for properties in the same village. Ext.A8 will show that the Government offered land value of Rs.11,65,837/- per Are as part of the DLPC package. The learned Subordinate Judge has observed in its judgment that the Government did not dispute the fact that so much of land value was offered by the Government as part of the DLPC package. But, according to the learned Subordinate Judge, the same rate LAA.Nos.725/2010 & others 5 cannot be awarded to the present appellants who were not willing to accept the Government's offer. The argument of the learned counsel for the appellants was that Ext.A8 is binding on the Government and the requisitioning authority and at least the value reflected in Ext.A8 should be granted. 6. All the submissions of the learned counsel for the appellants were very stiffly resisted by Sri.M.C.Cherian and Sri.Sunil Nath learned counsel for the requisitioning authority Railway. According to them, the rates presently fixed by the learned Subordinate Judge are quite reasonable and there is no warrant for interference. The submissions of the learned counsel for the Railway were supported by the learned senior Government Pleader Sri.V.T.K.Mohanan and Smt.T.T.Josephina, learned Government Pleader. 7. We have given our anxious consideration to the rival submissions addressed at the Bar. We have made a quick reappraisal of the evidence. We are of the view that while the learned Subordinate Judge was justified in discarding in almost all the documents produced by the claimants in these three cases, the learned Subordinate Judge could have placed some LAA.Nos.725/2010 & others 6 reliance on Ext.A8 letter of the District Collector which shows that for properties in category 2 the Government had offered land value of Rs.4,71,808/- per cent corresponding to Rs.11,65,837/- per Are. When this aspect of the matter was brought to the notice of the learned counsel for the Railway, their submission was that since the rate in Ext.A8 is fixed taking into account the amount which may have to be paid to the parties if acquisition proceedings were resorted to, suitable deductions have to be made from the rate shown in Ext.A8. According to the Railway, deduction of at least 60% have to be made taking into account 30% which is payable by way of solatium, 5% which is payable on account of Section 23 (1)(A) and 25% towards statutory benefits under Section 28. 8. While we agree with the learned counsel for the Railway that some amounts have to be deducted from the rate offered to persons who are willing to accept the DLPC package, we are not prepared to accept the argument that 60% is the proper percentage to be deducted. Keeping in mind all the relevant inputs applicable to the present cases, we are of the view that deduction of 40% can be made from the value reflected in Ext.A8 LAA.Nos.725/2010 & others 7 which means that correct market value payable for the properties included in category 2 will have to be refixed at Rs..6,99,502/- per Are which can be safely rounded off to Rs.7 Lakhs per Are. 9. Allowing these appeals, we refix the value of properties in category 2 (L.A.A. No.725/2010 and 1139/2010) at Rs. 7 Lakhs per Are. 10. As we are maintaining the ratio maintained between the value of properties in categories 2 and 3 by the Land Acquisition Officer and the court below, we refix the value of properties in categories 3 involved in L.A.A. No.410/2011 at Rs. 6,30,000/- per Are. 11. The appeals are allowed as above. The appellants will be entitled for statutory benefits admissible under Section 23 (2), 23 (1A) and Section 28 of the Act. However, while interest is provided in the decree under Section 28, the Section will have due regard to the conditions if any imposed by this court while condoning the delay if any in the matter of instituting the appeals. Parties are directed to suffer their respective costs. The LAA.Nos.725/2010 & others 8 decree copies will be issued to the appellants/claimants only upon remittance of the full court fee payable on the appeal memorandum. In L.A.A. No.1139/2010 it should be ensured that court fee payable as per the amended appeal memorandum is remitted in full. PIUS C.KURIAKOSE,JUDGE C.K.ABDUL REHIM,JUDGE. dpk