IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 27TH JULY 2011 / 5TH SRAVANA 1933 LA.App..No. 111 of 2006() ----------------------------- LAR.331/1998 of PRINCIPAL SUB COURT,PARAVUR .................... APPELLANT(S): CLAIMANTS --------------------------------------- 1. JOHN, S/O.VARGHESE, MARANGADAN, PUTHUSSERY, KOTHAKULANGARA. 2. SARAKUTTY, W/O.JOHN, IN DO. DO. 3. SARAMMA, W/O.CHAKKAPPAN, MARANGADAN, PUTHUSSERY, AVANAMCODE. 4. M.M.VARGHESE, IN DO. DO. 5. MARIYAMMA VARGHESE, IN DO. DO. 6. LISY POULOSE, IN DO. DO. 7. P.V.VARGHESE, IN DO. DO. BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE BY ADVS. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN RESPONDENT(S): -------------------------- 1. STATE OF KERALA. 2. KOCHI INTERNATIONAL AIRPORT SOCIETY, REPRESENTED BY THE MANAGING DIRECTOR. R2 BY ADV. SRI.N.N.SUGUNAPALAN,COCHIN INTERNATIONAL R2 BY ADV. SMT.T.N.GIRIJA, SC, COCHIN I AIRPORT LT THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 27/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------------- L.A.A.No.111 of 2006 ------------------------------- Dated this the 27th day of July, 2011. J U D G M E N T PIUS.C.KURIAKOSE, J. The appellants are aggrieved by the compensation refixed by the Land Acquisition Reference court for a substantial building which accommodated a tile factory existing in the lands which were acquired for the purpose of Kochi International Airport. It was submitted at the very outset by Mr.S.V.Balakrishna Iyer senior learned counsel for the appellants that, the claim in the appeal is confined to the claim for enhanced value for the building. For the building, the Land Acquisition Officer awarded a total sum of Rs.31,40,200/-. Before the reference court, reliance was placed by the appellants on the recommendations contained in Ext.A2 valuation report, submitted by an Engineer who assisted the Advocate Commissioner who has also assisted in O.S.No.198 of 1997 of the Sub court, N.Parur. To the 2 L.A.A.No.111 of 2006 above suit significantly the requisitioning authority, 2nd respondent herein, was not a party. The above suit was instituted obviously for perpetual injunction restraining the Land Acquisition Authority from dispossessing the appellants before a proper valuation of the property is taken. Ext.A2 is evidently based on inspection conducted pursuant to the appointment of the commissioner exparte. Under Ext.A2 it is reported that the correct value of the building is Rs.85,14,955/-. But importantly, the schedule of rates adopted for arriving at the above figure is not the schedule of rates published by the Public Works Department. The rates have been adopted by the Engineer on her own. Objection was taken to this before the Land Acquisition reference court and Land Acquisition reference court deputed the same commissioner and the same Engineer to conduct a further inspection and prepare a fresh valuation. Pursuant to that, Ext.A6 valuation report is submitted wherein the total value arrived at 3 L.A.A.No.111 of 2006 Rs.66,24,542/-. Mr.Balakrishna Iyer, learned senior counsel submitted that as it is the PWD's schedule of rates which is adopted under Ext.A6, there cannot be justifiable objection regarding the correctness of what is reported in Ext.A6. The learned senior counsel drew our attention to judgments of this Court in L.A.A.Nos.295 of 2002 and 932 of 2003 and cross objections. Senior counsel submitted that in L.A.A.No.295 of 2002, the court has accepted the recommendations of the Advocate Commissioner by making a deduction at 15% from the value that was recommended. He submitted that in L.A.A.No.932 of 2003 what has done was, a deduction of 30% has been made from the value assessed by the Advocate Commissioner. Hence learned senior counsel requested that, in this case we may deduct 30% from the value recommended by the Engineer and the commissioner in Ext.A6, and allow the appeal in full. 2. The submissions of Sri.Balakrishna Iyer, learned 4 L.A.A.No.111 of 2006 senior counsel were very stiffly opposed by Mr.N.N.Sugunapalan, learned senior counsel for the requisitioning authority. Mr.Sugunapalan submitted that the Advocate Commissioner and the Engineer who assisted Aws.2 and 3 have made recommendations regarding building value without disclosing the exact reason. He pointed out that the first inspection which is the basic one, in which the measurements were taken, was done behind the back of the requisitioning authority. It was well known to everybody concerned that the acquisition was for the Airport authority and the action of the claimant in filing the suit for injunction and getting commissioner appointed exparte without arraying the requisitioning authority, was malafide. Learned senior counsel submitted that, at any rate the valuation report prepared by the Engineer, whether it be Ext.A2 or Ext.A6, can not inspire any confidence in the mind of any conscientious court. Ext.A2 is prepared by adopting schedule of rates known to the 5 L.A.A.No.111 of 2006 Engineer only and Ext.A6 is the result of adoption of PWD schedule of rates to measurements taken behind the back of the requisitioning authority. According to Mr.Sugunapalan, the amount awarded by the Land Acquisition Officer towards the building value itself is exorbitant and hence rightly found to be quite sufficient by the reference court. 3. Mr.V.T.K.Mohanan, senior Government Pleader would support Mr.Sugunapalan, senior learned counsel for the requisitioning authority, in all his submissions. 4. We have anxiously considered the rival submissions of Mr.Balakrishna Iyer, Mr.Sugunapalan and Mr.Mohanan. We have made a reappraisal of the evidence on record. We are unable to accept the arguments of Mr.Balakrishna Iyer that, in all cases where suits are filed in anticipation of award of the reference court and commissioner's reports are obtained, it is obligatory for the reference court to accept the recommendations by the 6 L.A.A.No.111 of 2006 commissioner regarding the value of the structures which existed on the acquired property by making deduction at the rate of 15% or 30% as the case may be. The vital question to be decided in such cases will be to decide as to what extent the commissioner's recommendations are relevant and acceptable. According to us, the recommendations of the Advocate Commissioner in Exts.A2 and A6 which according to AW2 is based only on the valuation reports prepared by the Engineer, are not acceptable. A reading of judgments in L.A.A.No.295 of 2002 and 932 of 2003 will show that in those two cases, no seriuos dispute was raised regarding the correctness of the measurements taken by the commissioner, unlike the present case. Neither Ext.A2 nor Ext.A6 inspired confidence in the mind of learned Sub Judge who had occasion to record the oral evidence adduced by Aws.2 and 3 in support of them. We are also not impressed by A2 or A6. On a reappraisal of Exts.A2 and A6 and the oral 7 L.A.A.No.111 of 2006 evidence of Aws.2 and 3, we find that the recommendations in Ext.A2 for that matter in Ext.A6 are not acceptable. 5. But the view we have taken alone does not mean that the appellants are not entitled for any enhancement. Obviously the building value arrived at by the acquiring authority, the Land Acquisition Officer, was by adopting the PWD's published schedule of rates and it is a matter of common knowledge that construction of buildings strictly in accordance with the schedule of rates published by the PWD, is not a pragmatic proposition. The PWD itself tenders out its civil works at 30-35% above its own published rates. While we keep that principle in mind, there is justification for awarding to the appellant a minimum enhancement of 30% over what is awarded by the Land Acquisition Officer. 30% will come to Rs.9,42,060/-. We feel that taking into account the entirety of the evidence, which has come on record in this case and inputs which are relevant in determining the correct 8 L.A.A.No.111 of 2006 compensation payable to properties acquired in LA proceedings, the appellants can be granted a further award of Rs.9,50,000/- towards the building value, over and above what is awarded by the Land Acquisition Officer in this case. We allow this appeal and award to the appellants a further sum of Rs.9,50,000/- as compensation towards the building value. The appellant will be entitled for all statutory benefits admissible under Sections 23(2), 23(1A) and under Section 28 of the Land Acquisition Act, on the total refixed compensation. The parties are directed to suffer their respective costs. PIUS.C.KURIAKOSE, JUDGE C.K.ABDUL REHIM, JUDGE ami/