IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 4TH AUGUST 2009 / 13TH SRAVANA 1931 LA.App..No.1453 of 2002 (C) -------------------------------- LAR.358/1993 of SUB COURT, MAVELIKKARA .................... APPELLANT(S): CLAIMANT ----------------------------- DANIEL GEORGE, KOCHALUMOOD, CHEPPAD EAST. BY ADV. SRI.VPK.PANICKER SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SMT.SREELEKHA PUTHALATH SRI.SAJAN PHILIP MATHEW RESPONDENT(S): RESPONDENTS ------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SPECIAL THASILDAR (L.A.NO.III) SUPER THERMAL POWER STATION, HARIPAD. 2. NTPC LTD, REPRESENTED BY ITS ADDITIONAL GENERAL MANAGER, HARIPPAD. ADV. SRI.K.ANAND (A.201) FOR R2 SMT.LATHA KRISHNAN FOR R2 GOVERNMENT PLEADER SMT.LATHA T. THANKAPPAN THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 04/08/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & P. Q. BARKATH ALI, JJ. ------------------------------------------------ L. A. A. No.1453 of 2002 ------------------------------------------------ Dated this the 4th day of August, 2009 JUDGMENT Pius C. Kuriakose, J This is an appeal filed by the claimant whose properties were acquired by the second respondent/ NTPC for the purpose of construction of township at Kayamkulam. The relevant Section 4(1) notification was published on 30/12/1989. The Land Acquisition Officer despite finding that 9.40 Ares from out of the property under acquisition was reclaimed land became inclined to grant a uniform rate of land value i.e. at Rs.2600/- per Are for the entire extent under acquisition namely 16.85 Ares. Of course, for that portion which was found to be reclaimed land, he awarded a sum of Rs.19,016.57 towards reclamation L. A. A. No.1453 of 2002 -2- charges. The Reference Court awarded enhanced land value of Rs.2,600/- per Are. Thus, the land value was re-fixed at Rs.5,200/- per Are. 2. It is being aggrieved that the present appeal is filed raising various grounds. We have heard submissions of Sri.George Varghese (Perumpallikuttiyil), the learned counsel for the appellant and those of Smt.Latha Krishnan on behalf of the Requisitioning Authority. We heard the submissions of Smt.Latha T. Thankappan, learned Senior Government Pleader. Sri.George Varghese argued that the court below was not justified at all in awarding a uniform rate of value for lands which were found to be reclaimed and for lands which were found to be wet. He placed strong reliance on the Mahazar prepared by the Land L. A. A. No.1453 of 2002 -3- Acquisition Officer at the time of acquisition in support of his argument that at least 9.40 Ares forming part of the land under acquisition was reclaimed land whereupon valuable improvements like yielding coconut trees and other trees stood. The learned counsel referred to Ext.A2 judgment of the Reference Court in another land acquisition case for the same purpose in the same village pursuant to the same notification which were less than one month subsequent to the notification in the case. He submitted that the above judgment was confirmed by a Division Bench of this Court by judgment dt.07/07/04 in LAA.425/2000. He pointed out that the Land Acquisition Officer had awarded value at the rate of Rs.3050/- per Are for the properties covered by that L. A. A. No.1453 of 2002 -4- judgment and hence, he requested that since this Court had re-fixed the value of those lands at Rs.18,000/- per Are, the value of the reclaimed lands in this case be re-fixed proportionately. He pointed out that if the value of the reclaimed lands is re-fixed proportionately, it will come out to Rs.12,600/- per Are. According to him, there is every justification for following the ratio fixed under that judgment between the value of wetlands and dry lands. Hence, the value of wet lands should be fixed at Rs.6,300/- per Are. 3. The above submission is resisted by Smt.Latha. She submitted that the properties in the cases covered by the judgment of this Court in L.A.A.425/2000 were situated close to the National Highway and hence, there will be no justification for L. A. A. No.1453 of 2002 -5- granting the same rate to the properties in the present case. Smt.Latha drew our attention to the judgment of another Division Bench of this Court to which myself [PCK(J)] was party. She submitted that in that case the Land Acquisition Officer had awarded land value at Rs.2,200/- per Are and Rs.2,400/- per Are and this Court had re-fixed the land value of reclaimed lands at Rs.12,000/- per Are and that of corresponding wetlands at Rs.6,000/- per Are. She submitted that the judgment in L.A.A.300/02 if it comes to that, may be a more comparable precedent. 4. We have very anxiously considered the rival submissions addressed at the Bar. We have gone through the records and we have scanned them, particularly the Mahazar and the award passed by the L. A. A. No.1453 of 2002 -6- Land Acquisition Officer. 5. Having considered the materials, we are of the view that the Land Acquisition Officer and the Reference Court were not justified in awarding a uniform rate of land value for the 9.40 Ares of land treated under the award to be reclaimed. Upon these lands even according to the Mahazar there existed several yielding coconut trees and other trees. This means that the reclamation was undertaken several years ago. The reasons stated by the Land Acquisition Officer and the Reference Court for treating these reclaimed lands as wetlands only appears to be that the reclamation was undertaken without obtaining permission from the statutory authorites under the Land Utilisation Order. The above reason in our L. A. A. No.1453 of 2002 -7- opinion cannot be a valid reason for denying adequate compensation based on ground realities. Whether or not the reclamation was undertaken with permit from the statutory authorities need not have been a concern for the requisitioning authority. Till this moment no action has been taken against the owners of the land for any unauthorised reclamation. We cannot shut our eyes to ground realities. We take the view that 9.40 Ares from out of the property under acquisition were reclaimed lands slightly inferior to the original dry lands. We are in agreement with Smt.Latha who submits that the judgment of this Court in LAA.300/02 may be a better precedent than the judgment in LAA.425/00. But then interestingly, when the land value of reclaimed land is re-fixed L. A. A. No.1453 of 2002 -8- based on either of these judgments, there will not be much difference. We prefer LAA.300/02 and re-fix the value of 9.40 Ares of reclaimed land at Rs.12,000/- per Are. Similarly, we re-fix 7.45 cents of wetlands at Rs.6,000/- per Are. 6. The amount of Rs.19,016.57/- paid to the appellant towards reclamation charges by the Land Acquisition Officer will be deducted from the total enhanced compensation to which he becomes eligible by virtue of the re-fixation done by us under this judgment. 7. Appeal allowed as above, but in the circumstances, without any order as to costs. Appellant will be entitled for all statutory benefits admissible under Section 23(2), 23(1A) and under L. A. A. No.1453 of 2002 -9- Section 28 of the Land Acquisition Act on the total enhanced compensation to which he becomes eligible by virtue of the re-fixation done under this judgment. PIUS C. KURIAKOSE JUDGE P. Q. BARKATH ALI JUDGE kns/- The word “cents” occurring in line 4 at Page 8 of the judgment in L.A.A.1453/2002 dated 04/08/2009 is corrected as “Ares” vide order dated 12/01/2011 in I.A.2404/2010. Sd/- Registrar (Judicial)