IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 28TH OCTOBER 2011 / 6TH KARTHIKA 1933 LA.App..No. 1229 of 2010(B) -------------------------------- LAR.150/2008 of SUB COURT, PAYYANNUR .................... APPELLANT(S): PETITIONER/CLAIMANT ------------------------------------------- KAKKAMKOVVAL EASWARA VARRIAR, S/O.SARASWATHI AMMA, KODAKKAD P.O., KASARAGOD DISTRICT. BY ADV. SRI.SERGI JOSEPH THOMAS SRI.K.M.AUGUSTINE RESPONDENT(S): RESPONDENTS ------------------------------------- 1. THE DISTRICT COLLECTOR, KANNUR. 2. THE SPECIAL TAHSILDAR (LAND ACQUISITION), EZHIMALA NAVAL ACADEMY, PAYYANNUR. GOVERNMENT PLEADER SMT.K.T.LILLY THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 28/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C. R. PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ L. A. A. No.1229 of 2010 ------------------------------------------------ Dated this the 28th day of October, 2011 JUDGMENT Pius C. Kuriakose, J The short legal question which arises for decision in this appeal is whether, when the court award relied on by a party who applies under Section 28-A is modified in appeal and the land value awarded by the Reference Court is enhanced by the Appellate Court the applicant under Section 28-A is entitled to have his application decided in terms of the appellate judgment. In the instant case, the appellant/claimant relied on the award of the Reference Court in L.A.R.120/1987. At the time when the application under Section 28-A was filed, the claimant in LAR.120/87 had preferred an appeal to the High Court. The prayer in the application under Section 28-A was that the market value of the appellant's property be re-determined on the basis of the decision in L.A.R.120/1987. Significantly in the C. R. L. A. A. No.1229 of 2010 -2- application under Section 28-A the appellant had not mentioned the rate actually claimed by him. It appears that within a few months of filing of the application under Section 28-A, the appeal preferred against the award of the court in LAR.120/87 was allowed and the High Court passed Ext.A5 judgment re-fixing the market value of the land under acquisition at ` 1,500/- per cent enhancing the rate from ` 1,000/- to ` 1,500/-. The Land Acquisition Officer took the view that the appellant can be awarded only the rate of ` 1,000/- per cent which was awarded by the L.A. Court in LAR.120/87. However, the Land Acquisition Officer referred the question to the court under Section 28-A(3). In the reference, the appellant produced Exts.A1 to A7 and A5 was the appellant judgment. The learned Subordinate Judge did not become inclined to rely on Ext.A5. Instead the court took the view that the appellant's property was slightly inferior to the properties covered by various documents including Ext.A5 (the property involved in LAR.120/87). Accordingly, the court would make a cut of 20% and re-fix the land value L. A. A. No.1229 of 2010 -3- at ` 1,200/- per cent only. 2. In this appeal various grounds are raised and it is prominently urged that the Reference Court was bound to re-determine the market value in accordance with Ext.A5 appellate judgment as it was not open to the Government to urge that the appellant's property was inferior to the property covered by Ext.A5. Other grounds relating to the correctness of the computation of the total compensation are also raised. 3. Sri.K.M.Augustine, the learned counsel for the appellant addressed us in detail. All the arguments of Sri.Augustine were resisted by Smt.K.T.Lilly, the Government Pleader. Placing strong reliance on the judgment of the Supreme Court in Babua Ram v. State of U.P. (1995 (2) SCC 689) and connected cases (para 39 of the above judgment) it was forcefully argued by Sri.Augustine that when the court award relied on in the application under Section 28A is modified in appeal by the High Court, the trial court award would merge into the High Court award and it is the High L. A. A. No.1229 of 2010 -4- Court award which rules. It is the High Court decree which alone is executable. The principles of merger will and should operate. Sri.Augustine would place reliance also on the decision of Supreme Court in Union of India v. Pradeep Kumari (1995(2) SCC 736). Sri.Augustine also referred to the judgment of the Supreme Court in Union of India v. Munshi Ram (2006(2) KLT 992) and argued that in proceedings under Section 28-A, the award to be relied on is the award of the Reference Court as modified in appeal by the Superior Courts and not the award originally passed by the Reference Court. 4. Smt.K.T.Lilly, the learned Government Pleader per contra would refer to certain passages in Babua Ram's case itself (cited supra) and submit that it is not obligatory that the same amount of compensation is awarded to the applicant under Section 28-A as was awarded to the party in the award which is relied on. The court will be bound to take into account the differences in the nature, quality, situation and comparability of the land belonging to the applicants L. A. A. No.1229 of 2010 -5- and the land which is covered by the award relied on. Smt.Lilly would justify the impugned award submitting that there is a clear finding by the learned Subordinate Judge that unlike the property belonging to the appellant, the property of the party in Ext.A5 was enjoying access to main road. This was why the learned Subordinate Judge relied on the judgment in Raghava Pothuval v. Special Tahsildar (2004(3) KLT 261) and what has done by the learned Subordinate Judge is quite proper. 5. We have very anxiously considered the submissions addressed at the Bar. It will be found at the very outset that the argument of the learned Government Pleader Smt.Lilly that the property under acquisition in the present case belonging to the appellant was inferior to the property covered by Ext.A5 is not an argument which is available to the Government. The Land Acquisition Officer in his original award has found the value of the appellant's property and the property covered by Ext.A5 to be the same. The Raghava Pothuval's case (cited supra) does not have any L. A. A. No.1229 of 2010 -6- application in the present case. In that case it was not the same rate of land value which had been awarded to the applicant under Section 28-A and the party to the award which was relied on by the applicant. That was why this Court held that it is open to the Land Acquisition Officer and L.A. Court to re-determine the market value giving proportionate increase or decrease as the case may be. In the present case, the Land Acquisition Officer having found that the value of the appellant's property and the property covered by Ext.A5 is one and the same, it is not open to the Government to urge that appellant's property is inferior. The issue as to whether it is Ext.A5 award or the Reference Court's award which corresponds to Ext.A5 which should be relied on is no longer res integra. The issue is covered in favour of the appellants by judgment of the Supreme Court in Babua Ram's case (cited supra) and Munshi Ram's case (cited supra). The learned Subordinate Judge in our view was not justified in making a cut of 20% on the rate determined by the High Court under Ext.A5. We do away with that cut L. A. A. No.1229 of 2010 -7- and allow the appeal and re-fix the market value of the entire lands under acquisition at ` 1,500/- per cent. 6. Sri.K.M.Augustine, the learned counsel for the appellant would very fairly bring to our notice that the court below has committed the mistake of not deducting the compensation paid to the appellant in respect of a portion of the land which was valued adopting the method of capitalisation of income from fruit bearing trees. According to Sri.Augustine as the land value method is more advantageous to the appellant the appellant prefers to have compensation for all the lands under acquisition at the rate of ` 1,500/- per cent. We record the above submission. The entire land under acquisition will have to be paid value at the rate of ` 1,500/- per cent as compensation is being re- determined in that way. The total amount which was paid to the appellant as value for that portion of the land which was valued by adopting the method of capitalization of income will have to be deducted. The decree will be drawn up accordingly. L. A. A. No.1229 of 2010 -8- 7. The appeal is allowed. The parties are directed to suffer their respective costs. It is needless to mention that the total re-determined compensation will carry benefits admissible under Sections 23(2), 23(1A) and under Section 28 of the Land Acquisition Act. Sd/- PIUS C. KURIAKOSE JUDGE Sd/- C. K. ABDUL REHIM JUDGE kns/- //True Copy// P. A. to Judge