IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 LA.App..No. 667 of 2000() ------------------------- LAR.32/1991 of II ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT(S)/CLAIMANT: ----------------------------- KANTHIMATHY PLANTATIONS PVT. LTD., T.C.6/750, PLAMOOD JUNCTION, PATTOM PALACE P.O. THIRUVANANTHAPURAM, REP. BY ITS DIRECTOR, S.KRISHNA SHARMA, AGED 52, S/O SRI.SIVARAMAKRISHNA IYER, GENERAL MANAGER, KANTHIMATHI PLANTATIONS PVT. LTD. BY ADV. SRI.R.S.KALKURA RESPONDENT(S)/RESPONDENTS: ------------------------------------- 1. THE STATE OF KERALA, REP. BY THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 2. TRIVANDRUM DEVELOPMENT AUTHORITY, REP. BY ITS SECRETARY, JAYA MANSION, VAZHUTHAKKADU, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SMT.SUMANGALA P.N. SRI.K.A.JALEEL, SC., TRIDA FOR R2 THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 29/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & P. Q. BARKATH ALI, JJ. ------------------------------------------------ L. A. A. No.667 of 2000 ------------------------------------------------ Dated this the 29th day of July, 2009 JUDGMENT Pius C. Kuriakose, J The claimant is in appeal in this case which pertains to acquisition of a very valuable property in the heart of Thiruvananthapuram city close to the V.J.T Hall. The purpose of the acquisition was for the development of a market-cum-shopping complex. The relevant Section 4(1) notification was published on 06/06/1980. The Reference Court relied on Ext.A17 document for re-fixing the land value. Ext.A17 revealed a land value of Rs.1,23,500/-. The court did not award that land value instead a cut off 20% was made on the sale towards development charges. As regards market value of the land, the main ground L. A. A. No.667 of 2000 -2- urged by the appellant is that the above cut was not at all justified since the land under acquisition was already developed. 2. Apart from urging that the market value of the land should have been re-fixed at Rs.1,23,500/- per Are based on Ext.A17, it is the following points which are urged in this appeal filed by the claimant:- 1) The total extent of property taken over from the appellant is 41.28 cents and not 39.34 cents. But value has been given for 39.34 cents only. The Mahazar reveals that the total extent under the possession of the Government is 41.28 cents. This is supported by the Commissioner's Report also. Government does not have a case that the excess extent was “puramboke”. Hence, value be awarded for the entire extent of 41.28 cents. 2) Mahagony trees stood in the property under L. A. A. No.667 of 2000 -3- acquisition. The Commissioner's Report supports this claim of the appellant. The trees were worth at least Rs.2 lakhs. Award at least Rs.65,000/- towards the value of the trees. 3) As many as seven buildings were situated on the property under acquisition. One of the buildings was leased out to Canara Bank for a monthly rent of Rs.7,500/-. No enhancement in value has been awarded to the other buildings by the Reference Court. The Land Acquisition Officer awarded a sum of Rs.51,604/- towards the value of those other buildings. This valuation is based on PWD schedule of rates. Construction of buildings as per PWD schedule of rates is not a practical proposition. 3. We have heard the submissions of Sri.R.S.Kalkura, the learned counsel for the appellant and those of Smt.Sumangala, the learned Government L. A. A. No.667 of 2000 -4- Pleader. Sri.Kalkura would assail the impugned judgment on the grounds raised in the memorandum of appeal. Smt.Sumangala per contra would support the judgment on the reasons stated in the judgment. 4. Having considered the rival submissions and having made a survey of the evidence on record, we feel that the grounds raised by the appellants should be upheld in part. 5. The Mahazar and the Advocate Commissioner's Report will reveal that the actual extent of the property taken over and presently under the possession of the Government is 41.28 cents. But there was some survey number discrepancies and this is why the Land Acquisition Officer took the view that the additional extent is not covered by title deed of the appellant. But the Government does not have a case that this additional extent was “Puramboke”. So the L. A. A. No.667 of 2000 -5- version of the appellant that the total extent of 41.28 cents presently in the possession of the Government was taken over from him is highly probable. For the additional extent of 1.94 Are, the appellant ought to be paid compensation. However, in view of the survey number discrepancy which is yet to be rectified, we are of the view that the appellant can be given only compensation for the possessory title which he was enjoying over that property. Therefore, we are inclined to award only 50% market value of the land over the above additional extent of 1 Are and 94 sq. metres. 6. We are of the view that the cut of 20% made by the court below on the market value reflected in Ext.A17 is excessive. According to us, on a better assessment on the basis of Ext.A17 itself, the value of the land under acquisition can be re-fixed at Rs.1 lakh per Are. It is accordingly, re-fixed at Rs.1 lakh per L. A. A. No.667 of 2000 -6- Are. 7. We are unable to accept the argument that it was Mahagany trees which stood on the property under acquisition. After all, the Commissioner's Report was prepared on the basis of an inspection conducted sixteen years after the trees were cut and removed. Never-the-less, we notice some force in the submission of the learned counsel that the value presently awarded for the trees is too low. Accordingly, we award a further amount of Rs.3,000/- to the appellant towards the value of trees. 8. Another ground which is urged seriously, by Mr.Kalkura is regarding the insufficiency of compensation awarded towards the value of the buildings. There were as many as seven buildings situated in the property. The court would re-fix the value of a building which has been leased out to the L. A. A. No.667 of 2000 -7- Canara Bank, by adopting the method of capitalisation of rental income. But no enhancement was granted to the other buildings for which a total land value of Rs.51,604/- had been awarded by the Land Acquisition Officer. Obviously, the value of these buildings were determined by adopting PWD schedule of rates. It is well known that construction of buildings as per the schedule of rates of PWD is not practical. Even the PWD tenders out its works by 20% or 30% above their own schedule of rates. Taking that aspect of the matter into account, we are of the view that a further amount of Rs.20,000/- should be awarded towards the value of the other buildings which are situated in the property. It is so awarded. 9. The result is that the appeal will stand allowed to the above extent. It is made clear that the appellant will be entitled for all statutory benefits admissible under Section 23(2), 23(1A) and Section L. A. A. No.667 of 2000 -8- 28 of the Land Acquisition Act on the total enhanced compensation to which he becomes eligible by virtue of the re-fixation of land value done under this judgment. However, it is clarified that since during the period from 23/04/1984 to 08/12/1988 the land acquisition proceedings are under order of stay, during that period the appellant will not be entitled for additional amount of 12% as per Section 23(1A) of the Act. PIUS C. KURIAKOSE JUDGE P. Q. BARKATH ALI JUDGE kns/-