IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 11TH FEBRUARY 2011 / 22ND MAGHA 1932 LA.App..No. 1566 of 2009() -------------------------- LAR.118/2001 of ADDL.SUB COURT, N. PARAVUR .................... APPELLANT(S): 1ST RESPONDENT: ----------------------------- STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, ERNAKULAM. BY SR. GOVERNMENT PLEADER SMT. LATHA T.THANKAPPAN SMT. T.T.JOSEPHINA RESPONDENT(S): CLAIMANTS AND ADDITIONAL 2ND RESPONDENT: ------------------------------------------------------- 1. SMT.LUCY, D/O.MUNDADAN THOMAS, KOTHAKULANGARA SOUTH, ANGAMALY. 2. SMT.MARY, W/O.OLIKKAPPURAM PETER BABU, KOTHAMANGALAM. 3. SRI.MOONEY, S/O.POONOLY MATHAI, MATTOOR (REPRESENTED BY POWER OF ATTORNEY HOLDER SRI.PAUL THOMAS). 4. KOCHI INTERNATIONAL AIRPORT SOCIETY, REPRESENTED BY ITS MANAGING DIRECTOR. ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE FOR R4 SMT.T.N.GIRIJA, SC, COCHIN I AIRPORT LT FOR R4 SRI.PIUS C.MUNDADAN FOR R1,2,3 SMT.ANJU DIVAKAR FOR R1,2,3 THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 11/02/2011, ALONG WITH LAA. 568 OF 2009 ETC. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ. -------------------------------------------------------------- LAA. Nos. 568, 569, 570, 1566 of 2009, 9, 15, 23, 577 of 2010 & C.O. No. 18 of 2010 in LAA. No. 15 of 2010 & C.O. No. 21 of 2010 in LAA. No. 23 of 2010 ------------------------------------------------------------------- Dated this the 11th day of February, 2011 J U D G M E N T Pius C.Kuriakose, J. L.A.A.No.1566/2009 is preferred by the Government and L.A.A.No.570/2009 is preferred by the claimants against the judgment and decree in L.A.R.No.118/2009 of the Subordinate Judge's Court, N.Paravur. L.A.A.No.9/2010 is preferred by the Government and L.A.A.No.568/2009 preferred by the Claimants against the judgment and decree in L.A.R.No.120/2001. Similarly L.A.A.No.577/2010 is preferred by the Government and L.A.A.No.569/2009 is preferred by the claimants against the judgment and decree in L.A.R.No.119/2001. These three L.A.Rs are decided by a common judgment. L.A.A.No.23/2010 is the appeal preferred by the Government and cross objection No.21/2010 is the cross objection filed by the claimants in LAA. 568/09 etc. -2- respect of the judgment and decree of the Reference Court in L.A.R.No.173/2001. These four cases pertain to properties included in category-I by the L.A.Officer. L.A.A.No.15/2010 is preferred by the Government and cross objection No.18/2010 is filed by the claimants in respect of the judgment and decree in L.A.R.No.172/2001. These cases pertain to acquisition of land in Nedumbassery Village for the purpose of construction of a road from Airport junction on the National Highway to the Kochi International Airport. presently known as VIP road. The acquisition in these cases is pursuant to Section 4(1) notification published on 27.8.1998. The L.A. Officer divided the total extent of 83.3 Ares acquired for the above purpose into as many as 6 categories. The properties included in category-I were dry lands having frontage of National Highway. For these properties the L.A. Officer awarded land value at the rate of Rs.63,000/- per Are corresponding to Rs.25,496/- LAA. 568/09 etc. -3- per cent. The properties included in category-II were wet lands fully converted as dry land having Panchayat road frontage. For these properties the L.A. Officer awarded land value at the rate of Rs.54,000/- per Are corresponding to Rs.21,584/- (85% above the land value awarded by the L.A. Officer for the properties in category-I). The properties included in category-III by the L.A. Officer were wet lands reclaimed having Panchayat road frontage. For these lands the L.A. Officer awarded Rs.36,000/- per Are corresponding to Rs.14,569/- per cent which works out to 57% above the land value awarded for the properties in category-I. Barring L.A.A.No.15/2010 cross objection No.18/2010 is preferred, all the other appeals involve acquisition of lands in category- I. The properties involved in L.A.A.No.15/2010 were categorized in categories 2 and 3. 2. Even though the claimants had claims for enhanced land value and for compensation for injurious LAA. 568/09 etc. -4- affection and claims for additional value of improvements and structures, in these appeals we need be seriously concerned only with the correctness of the market value determined by the Reference Court for the land and our endeavour in these appeals is mainly to fix the correct market value payable for lands under acquisition. Though very fervent appeals were addressed before us by the learned counsel for the claimants for better compensation towards injurious affection and value of improvements in some of the cases, we are of the considered view that the evidence on record in these cases will not justify awarding further compensation to the claimants towards injurious affection or towards value of improvements. 3. The learned Sub Judge in the first instance would fix the market value of properties falling in category-I at Rs.1,50,000/- per cent. Similarly the learned Sub Judge awarded for properties falling in category-II value of LAA. 568/09 etc. -5- Rs.1,00,000/- per cent and for properties then falling within the third category, value was fixed at Rs.70,000/- per cent. Challenging the above award of the learned Sub Judge, L.A.A.Nos.788 of 2006, 8, 137, 145, 194, 212 and 934 of 2007 were preferred by the State and against those appeals the claimants preferred cross objection Nos.54, 55, 73 and 74 of 2007. A Division Bench of this Court on considering the above appeals and cross objections and on appreciating the various contentions raised by the State and the Requisitioning Authority and the claimants, would set aside the award of the Reference Court and remand all the L.A.R cases to the Reference Court for a de novo consideration in accordance with law. The remand judgment refers to the various arguments and contentions raised by the parties and directs the Reference Court to reconsider the enumerated contentions raised by the parties. The parties were given liberty to adduce fresh evidence. The judgments and decree LAA. 568/09 etc. -6- impugned in these appeals have been preferred against the awards passed by the Reference Court in pursuance to the above remand judgment of this Court. Inclusive of evidence which was adduced by the parties after the remand, the evidence available before the Reference Court consisted of Exts.A1 to A49, C1 to C4, X1 to X3 and the oral evidence of AWs.1 to 6 on the side of the claimants. On the side of the State and the Requisitioning Authority, the same consisted of Exts.R1 to R19 and the oral evidence of RWs.1 and 2. AW1 was the claimant in one of the L.A.Rs. AW2 was the Standing Council Chairman of the Nedumbassery Grama Panchayat. AWs.3 and 4 were examined to prove some of the documents produced by the parties in support of the claims for enhancement in land value. AW5 was the Advocate Commissioner who had inspected some of the properties and AW6 was examined for proving the claims of some of the claimants regarding higher compensation for LAA. 568/09 etc. -7- the structures. RW1 was the L.A.Officer, RW2 was an Assistant of the Requisitioning Authority. The learned Sub Judge on appreciating the evidence would refix the value of properties included by the L.A.Officer in category-I and acquired from the claimant in L.A.A.No.568/2009 (the claimants in L.A.R.No.120/2001) at Rs.1,20,000/- per cent. Whereas the value of properties belonging to the claimants in L.A.A.No.173/2001 corresponding to L.A.A.No.23/12010 and cross objection No.21/2010 though included by the L.A.Officer in category-I was awarded the value only Rs.1,10,000/- per cent. But interestingly for the claimants in L.A.A.Nos.1566/2009, 569/09, 570/2009, and 577/2010 whose properties were also included by the L.A.Officer in category-I the Court fix only a lesser value of Rs.1,00,000/- per cent as the value for the properties acquired. The claimant in L.A.A.No.15/2010 corresponding to cross objection No.18/2010 had properties in category-II as well LAA. 568/09 etc. -8- as in category-III. The extent of properties included in category- II is 3.2 Ares while the extent of properties included in category-III is 3.65 Ares. The learned Sub Judge would treat the entire properties involved in that case as falling within category-II itself and would refix the market value of the entire lands at Rs.90,000/- per cent. According to the learned Sub Judge there is no justification for differentiation between category Nos.II and III as both were originally wet lands at present reclaimed lands. It is in LAR. No. 172 of 2001 corresponding to LAA No. 15 of 2010 and Cross Objection No. 18 of 2010 that the learned Subordinate Judge considers the justifiability of having different categories II and III for reclaimed lands. The learned Judge has relied on C-1, C-2 and C-3 reports and plan submitted by the Advocate Commissioner and the notes to award as well as Ext. R3 group sketch to take a decision on the issue. According to the learned Judge, the properties LAA. 568/09 etc. -9- included in categories II and III are both reclaimed lands having enjoying Panchayat Road frontage and lying contiguously and it is on the basis of the survey number difference alone that the awarding officer included the properties in two different categories. The explanation put forth by RW-2, the Government witness that the properties in categories II and III were lying in two different levels was discarded by the Court below on the reason that the person who prepared the mahazar was not examined. According to us, the learned Subordinate Judge was not justified in treating the properties included in categories II and III by the L.A. Officer to be in one and the same category. True, both the properties were enjoying frontage of the Panchayat Road. True both the properties were originally wet lands and already reclaimed at the relevant time. But the L.A. Officer included them in two categories because it was noticed that a portion extending to 3.2 Ares had been LAA. 568/09 etc. -10- reclaimed to such a level and standard that for all practical purposes there was no difference between that land and any other dry land. But the other portion had not been reclaimed to the levels of pucca dry lands at the time of the relevant Section 4(1) notification. That the properties of the claimant in LAR. No. 172 of 2001 were lying contiguously within a compound wall was not of much consequence in this case as the entire property was under a common ownership. There has to be a difference between 'niloms' which are fully converted as dry land and 'niloms' which are not so fully converted. The properties were inspected and mahazars were prepared with notice to the claimants and the court below in our view is not justified in discarding the evidence of RW-2 regarding the level difference between the properties in categories II and III on the reason that the person who prepared the mazar was not examined. According to us, the categorization made by the awarding LAA. 568/09 etc. -11- officer was proper and the learned Sub Judge should not have done away with the same. 4. In the appeals preferred by the Government various grounds are raised assailing what is described as the excessiveness of the compensation awarded by the Reference Court. Whereas in those preferred by the claimants they assail what they describe as the insufficiency of the market value determined by the Reference Court. 5. Very extensive arguments were addressed before us by Sri.Pius C. Mundadan, the learned counsel for the appellants in L.A.A.Nos.568/2009, 569/2009 and 570/2009. The learned counsel would take us through the various documents produced by the appellants in support of their claim for enhancement in land value. Particularly the learned counsel would refer to Ext.A23 sale deed and would submit that A23 is to be appreciated in conjunction with A31, R11 and also with A34. The property covered by A23 LAA. 568/09 etc. -12- according to the learned counsel was far inferior to the property belonging to the appellants and the property description in the document itself will show that the properties are lying as “പകതഴയ ല ക ഴ യയ ക ടക ന വസത വകകള ”. Even for such an inferior property, the value fixed by the Government in proceedings under Section 45 of the Stamp Act is Rs.56,000/- per cent in 1996. Giving additions for passage of time at 10% per year the value will be Rs.78,000/- per cent. If additions are given at 15%, the value will come to Rs.86,962/-. A35 was another document which was relied on very much by the learned counsel. A35 is a court judgment in respect of acquisition of another item of property from one Jose pursuant to Section 4(1) notification published in July 2000. It was submitted and as per that judgment the market value of land situated 200 meters to the north of the Kariad Junction at NH-47 was fixed at Rs.1,48,303/- per cent. The argument of the LAA. 568/09 etc. -13- learned counsel was that even if deductions were made in view of the passage of time between the notification of the present case and the notification in that case, the value of that property will have found to be at 1,20,126/- per cent at the relevant time. Counsel pointed out that the judgment in A35 has attained finality as the Government did not prefer any appeal against the judgment. The argument of the learned counsel was that the property covered by A35 was situated in an unimportant area while the property under acquisition was situated in a very important area being in very close proximity to Athani Junction which according to the learned counsel on any day is a much more important junction than Kariad junction. 6. The learned counsel referred to Exts. A36, A37 and A38 in respect of property belonging to a person by name Kunchu. This is a document executed in March 1999. (post notification document) The property is at Kariyad, 400 LAA. 568/09 etc. -14- metres away from Kariyad Junction. According to the learned counsel there is not even a single shop or public institution anywhere near this property. Counsel's argument was that making deductions for the passage of time from the date of Section 4(1) notification, the value of this property will be Rs.90,000/- per cent. If value of this property is Rs.90,000/- per cent, value of the acquired property situated close to Athani Junction in Athani Town should be atleast Rs.1,50,000/- per cent, the learned counsel would argue. The counsel referred to Ext. A4 judgment relating to the property of Mar Ignatius Church, Cheriyavappalassery acquired for the Edamalayar Irrigation Project pursuant to Section 4(1) notification dated 26-2- 1998. Ext. A4 judgment has become final. It was so submitted. The value fixed as per A24 is Rs.67,980/- per cent. According to the learned counsel, this court should rely on the recommendations of the Advocate Commissioner who LAA. 568/09 etc. -15- had made a comparison of the acquired property and the property covered by EXt.A24. The value of the acquired property should be Rs.1,80,000/- per cent. Counsel referred to Ext.X-2 file and submitted that alterations have been made in X-2 so as to prejudice the interest of the claimants. Ext.A27and A47 orders of the District Collector were also referred to by the learned counsel who submitted that the District Collector had ordered to treat the property as a single plot and to award uniform rate. ( The submission was regarding the properties included by the awarding officer in category I). According to the learned counsel, the potentialities of the properties and the fact that on account of the emergence of the International Airport the value of the properties had rocketed during the three years prior to the date of Section 4(1) notification was not taken into account by the learned Sub Judge at all. 7. Mr. Mundadan was more emphatic in his LAA. 568/09 etc. -16- submissions challenging the award of different rates by the learned Subordinate Judge for properties which were awarded the same rate. (The properties which were included in category I and awarded the same rate by the awarding officer) He would argue that the appellants in LAA. No. 569 of 2009 corresponding to LAR. No. 119 of 2001 and the appellants in LAA. No. 570 of 2009 corresponding to LAR. No. 118 of 2001 were awarded only Rs.1 lakh per cent while the claimant in LAR. No. 120 of 2001 corresponding to LAA. No. 568 of 2009 was awarded Rs.1,20,000/- per cent. According to him, the awarding officer awarded the same rates for the claimants in LAR. Nos. 118, 119 and 120 of 2001 and included their properties in category I as it was noticed at the time of section 4(1) notification and at the time of dispossession (preparation of mahazar) the the entire property was being enjoyed by members of the same family as a common holding within LAA. 568/09 etc. -17- the same compound walls. The learned Subordinate Judge decided to award higher value of Rs.1,20,000/- for the properties in LAR. No. 120 of 2001 on the reason that those properties were abutting the National Highway and the properties in the other two cases did not abut the National Highway. According to the learned Sub Judge, though it is true that the parties are close relatives and were enjoying properties as a compact block within the same compound wall, the title to these properties were in the name of different persons under different title documents. According to the learned Sub Judge, the properties had to be treated as separate holdings. Once the properties are treated as separate holdings it could not be ignored that it was only the holding of the claimant in LAR. No. 120 of 2001 which touched the National Highway. 8. Sri. N.N. Sugunapalan, learned senior counsel for the requisitioning authority and Smt. Latha T.Thankappan, LAA. 568/09 etc. -18- learned senior Government Pleader for the Government would support the reasoning of the learned Subordinate Judge and justify the difference maintained by the learned Sub Judge in the values awarded to the claimants in these three appeals. They would argue that the values presently awarded by the learned Subordinate Judge for the properties involved in these appeals are excessive. The learned senior counsel referred to a petition filed by the claimant for reception of an additional document and submitted that even as per that document the maximum market value that could be fixed is Rs.80,000/-. All the claimants have been awarded more than that value. Mr. Sugunapalan also submitted that the court below has awarded a total enhancement in the value of improvements in the cases LAR Nos. 118, 119 and 120 of 2001 at Rs.2,60,000/-. However, while decree is drafted it is provided that the claimants in all the three cases will get LAA. 568/09 etc. -19- Rs.2,60,000/- as additional compensation for value of improvements and structures. This mistake ought to be corrected, according to the learned counsel. The learned senior Govt. Pleader also completely supported Mr. Sugunapalan in his submissions including the submission regarding the value of improvements and structures. 9. Before we proceed to determine the market value of the land, we shall resolve the issue as to whether the court below was justified in not awarding the same value as was awarded to the property in LAR. No. 120 of 2001 to the properties in LAR Nos. 118 and 119 of 2001. The inclusion of all these three properties in the same category and the award of the same rate by the LA Officer was as already indicated due to the reason that the property was being enjoyed as one compact block within common compound walls by the claimants in these cases who were close relatives. It was with the approval of the District Collector LAA. 568/09 etc. -20- that the L.A. Officer passed the award. The requisitioning authority never challenged the award in any respect. According to us, it is extremely doubtful whether it is open to the Government or to the requisitioning authority to challenge the correctness of the award of the LAO of the same rate for the properties in LAR Nos. 118, 119 and 120 of 2001. True, the three properties are covered by three different title deeds and in that way they were separate holdings of the parties to the three LAR cases. But the fact remains that the parties are close relatives and members of the same family. What is important is that they were enjoying the entire property extending to about an acre as a common compact holding within common compound wall. According to us, it was in view of the lie, nature, including nature of enjoyment of these three properties at the relevant time that the awarding officer included the properties in one and the same category, category No. I. LAA. 568/09 etc. -21- What the learned Subordinate Judge did virtually under the impugned award was to down grade the properties in LAR Nos. 118 and 119 to a category below the higher category in which LAR. No. 120 of 2001 is retained. According to us, the action of the learned Subordinate Judge was not justified. We are of the view that the same value should be awarded to all the properties which are included in category I by the LA Officer. This means that whatever is the correct value to be awarded for the property in LAR. No. 120 of 2001, the same should be awarded for all properties which were included by the LAO in category I. 10. Another issue which was very seriously raised before us by Mr.Mundadan, the learned counsel for the appellant in LAA. Nos. 568, 569 and 570 of 2009 (corresponding to LAR Nos. 118, 119 and 120 of 2001) was that the appellants in these cases were totally deprived of a total extent of 100 cents, the area covered by their title LAA. 568/09 etc. -22- documents while under the awards they have been given land value for slightly more than 96 cents only. According to the learned counsel, in the notification under Section 4 (1) as well as in the notice under Section 9(3), the correct extent as per the title documents were mentioned. But when the award was passed, the extent has been reduced. The appellants were deprived of opportunity to substantiate their claim regarding the correct extent taken over from them due to the illegal manner in which they were dispossessed of the properties. The counsel would passionately submit that the appellants were dispossessed in the thick of the mid-night and by the time the case reached the reference court, the nature of the properties had been altered, thereby disabling the appellants from proving the extent actually possessed by them at the time of dispossession. Counsel submitted that in a reference under Section 18 disputes regarding the extent acquired can LAA. 568/09 etc. -23- also be subject matter. The above dispute has not been correctly resolved by the court below. 11. We shall straight away proceed to answer the argument of Mr.Mundadan regarding the extent actually taken over from his clients. As stated elsewhere, the learned Subordinate Judge came to have fresh seizin of these cases by virtue of the remand order passed by this Court in LAA.No. 788 of 2006 and connected matters. The above judgment is placed on record as Annexure-III in LAA. No. 568 of 2009. The judgment contains a detailed enumeration of the various contentions raised before this Court and ultimately in paragraph 14 of the judgment we get the specific directions issued by the learned Bench. It will be seen that this contention based on the extent was never raised before the Bench and taking decision on the above contention is not one of the issues directed by the above judgment. In other words, the issue regarding extent LAA. 568/09 etc. -24- has become conclusive already. Then the question is, even assuming that it was open to the appellants to re-agitate the issue regarding the correctness of the extent in their possession, then also we find that barring oral evidence nothing concrete has been brought on record by the appellants to substantiate the claim. We are not very much impressed by the submission of Mr. Mundadan that as the property has already been taken over and has been converted as a road it will