IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 13TH JULY 2009 / 22ND ASHADHA 1931 LA.App..No. 248 of 2007() ------------------------- LAR.73/2004 of III ADDL.SUB COURT, ERNAKULAM .................... APPELLANT/CLAIMANT -------------------------------- ARCHDIOCESE OF VERAPOLY REP.BY ITS POWER OF ATTORNEY HOLDER JEROME CHAMMANIKODATH, PROCURATOR LATIN ARCHBISHOP HOUSE, COCHIN-682031. BY ADV. SRI.T.P.SAJAN SRI.L.ALOYSIUS THOMAS RESPONDENTS/RESPONDENT ------------------------------------- 1. STATE OF KERALA 2. THE EXECUTIVE ENGINEER,KERALA WATER AUTHORITY,HOSPITAL ROAD,ERNAKULAM,KOCHI-11. SRI.BABU VARGHESE, SC, KWA FOR R2 GOVERNMENT PLEADER SRI.BASANT BALAJI FOR R1 THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 13/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - L.A.A.No.248 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of July, 2009 JUDGMENT Pius.C.Kuriakose, J. The claimant being aggrieved by the refixation of compensation done by the land acquisition reference court is in appeal. The properties were dry lands in Thrikkakara north village and were acquired for the purpose of Augmentation of Water Supply to Kochi by Kerala Water Authority. The relevant Section 4(1) notification was published on 6-1-1999. The land acquisition officer categorised the properties under acquisition into A and B. He included 56.80 Ares of land in category A and awarded land value at the rate of Rs. 92370/- per Are corresponding to Rs. 37382/- per cent. 12.60 Ares of land were included in B category on the reason that over that portion of the land High Tension Electricity lines were passing. The land acquisition officer awarded only a nominal value of Rs. 100/- per Are for the above portion of the acquired property. 2. The evidence before the reference court consisted of LAA.No.248/07 2 Ext.A1 sale deed dated 13-05-1996. Ext.A1 revealed a land value of Rs. 66940/- per cent. The claimants also relied on Ext.A2 judgment which was in respect of acquisition in the year 1992. Ext.A2 was in respect of properties enjoying direct frontage of the National Highway and the purpose of the acquisition under Ext.A2 was widening of the National Highway. Under Ext.A2 land value of Rs. 98800/- per Are was awarded by the reference court. Even though the Advocate Commissioner who filed Ext.C1 report had reported that Ext.A1 property and the acquired properties were comparable , the learned Subordinate Judge did not become inclined to accept the above report of the Commissioner. According to the learned Subordinate Judge, Ext.A1 property was having direct frontage of the National Highway and hence the value in Ext.A1 will never be obtained for the acquired property which enjoyed the frontage of the Kalamassery-HMT road only. The learned Subordinate Judge to a certain extent relied on Ext.A2. What was done by the learned Subordinate Judge was to treat Ext.A2 property as properties having direct frontage of National Highway and acquired for the purpose of widening of National LAA.No.248/07 3 Highway and add 75% towards passage of five year's time and to deduct 30% for the reason that Ext.A2 property and not the acquired property enjoyed the direct frontage of National Highway. Thus the value of properties in category A was refixed by the learned Subordinate Judge at Rs. 120,080/- per Are corresponding to Rs. 48595/- per cent. The learned Subordinate Judge would uphold the claim of the claimant to a considerable extent in the case of properties included in category B by the land acquisition officer. The learned Subordinate Judge would fix 60% of the value fixed for properties in category A as the value for properties in category B. Accordingly, the value of properties in category B was fixed at Rs. 72048/- per Are. 3. In this memorandum of appeal, the appellant/claimant assails the judgment of the learned Subordinate Judge on various grounds and contends that enhancement granted is inadequate. We have heard the submissions of Sri.Aloyisius Thomas, learned counsel for the appellant and those of Sri.Basant Balaji, learned senior Government Pleader for the government. We have also heard Sri.Babu Varghese, standing counsel for the Kerala Water Authority. We have LAA.No.248/07 4 gone through the impugned judgment and have made a survey of the evidence which was available on record before the reference court. We are in agreement with the learned Subordinate Judge for having taken the view that it was Ext.A2 judgment and not Ext.A1 sale deed which had more relevance in the matter of determining the market value of the property under acquisition. However, we find that the learned Subordinate Judge went wrong in thinking that the time lag between the relevant Section 4(1) notification in Ext.A2 and the Section 4(1) notification in the present case is five years. In fact , it is atleast seven years. Following the principles laid down by the Supreme Court in G.M.Oil & Natural Gas Corporation Ltd. v. Rameshbhai Jivanbhai Patel & Another. ( 2008 SAR (civil 894) and having regard to the locality where the acquired property was situated, we are of the view that the locality was urban in nature by all respects and percentage of increase per year during the relevant period of seven years must have been at the rate of 13%. Thus the 13% of the value revealed in Ext.A2 has to be added to the said value every year for determining the value of Ext.A2 as on the date of relevant Section 4(1) notification. LAA.No.248/07 5 We can also approve the action of the learned Subordinate Judge in having made a deduction of 30% for the additional facility of National Highway frontage enjoyed by Ext.A2 property. At the same time, we notice that the acquired properties were from the point of view of appellant/claimant part of a larger holding belonging to the claimant. We also notice some merit in the submission of Sri.Aloysius Thomas that the properties under acquisition in Ext.A1 were not enjoying direct frontage of the National Highway. In fact the acquisition was for formation of National Highway and not for widening of National Highway as wrongly thought by the learned Subordinate Judge. Taking these two aspects into account and having some regard to the recommendations of the Advocate Commissioner regarding the market value, we are of the view that on a better assessment of the evidence available in the case, the market value of the properties in category A will have to be refixed at Rs. 54,000/- per cent. 4. The learned Subordinate Judge has fixed 60% of the value payable for the properties in category A as the value of properties in category B. We feel that the learned Subordinate Judge was a little LAA.No.248/07 6 miserly while fixing the value of properties in category B. On a better assessment, the value of properties in category B will have to be refixed at 70% of the value of properties in category A. Thus fixing the value of properties in category B will come to Rs. 93403/- per Are corresponding to Rs. 37800/- per cent. The value of properties in Categories A and B are refixed accordingly. 5. The compound wall which existed on the acquired property was valued by the land acquisition authority obviously on the basis of valuation supplied by the Executive Engineer of PWD. This valuation is based on the PWD schedule of rates for materials and labour. It is a matter of common knowledge that PWD itself tenders out its works at an average of 30% above their own rates. The total value awarded towards value of structures including compound wall is Rs.80,374/-. We are of the view that there is justification for awarding a further amount of Rs. 24,250/- to the appellant towards value of structures. Accordingly we award that amount also. It is needless to mention that the appellant/claimant will be entitled for all statutory benefits admissible under Section 23(1A), LAA.No.248/07 7 23(2) and Section 28 of the Land Acquisition Act on the total enhanced compensation to which he becomes eligible by virtue of our refixation under this judgment. Appeal allowed as above. In the circumstances, parties are directed to suffer their costs. PIUS.C.KURIAKOSE JUDGE P.Q.BARKATH ALI JUDGE sv. LAA.No.248/07 8