IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 19TH FEBRUARY 2008 / 30TH MAGHA 1929 LA.App..No. 788 of 2006() ------------------------- LAR.120/2001 of PRINCIPAL SUB COURT,PARAVUR .................... APPELLANT: IST RESPONDENT ------------------------- STATE OF KERALA, REP. BY THE DISTRICT COLLECTOR, ERNAKULAM. BY GOVERNMENT PLEADER SRI.K.V.MANOJ KUMAR RESPONDENTS: CLAIMANTS AND ADDITIONAL 12TH RESPONDENT ---------------------------------------------------------------------- 1. MOONEY, S/O.MATHAI, POONALI HOUSE, MATTOOR, REP. BY POWER OF ATTORNEY HOLDER, PAUL THOMAS. 2. KOCHI INTERNATIONAL AIRPORT SOCIETY, REP. BY ITS MANAGING DIRECTOR. BY ADV. SRI.N.N.SUGUNAPALAN, SC, KIAS LTD. SMT.T.N.GIRIJA, SC, COCHIN I AIRPORT LT SRI.PIUS C.MUNDADAN SMT.ANJU DIVAKAR THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 18/12/2007, ALONG WITH L.A.A. No.212/2007 AND CONNECTED CASES THE COURT ON 19-02-2008 DELIVERED THE FOLLOWING: KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ------------------------------------------ L.A.A. Nos. 788 of 2006 and L.A.A. Nos. 8, 137,145, 194 212, 934 of 2007 and Cross Objection Nos. 54,55, 73 & 74 of 2007 ------------------------------------------- Dated this the-------- th day of January 2008 JUDGMENT Harun-Ul-Rashid ,J All the above appeals are filed by the State of Kerala against the common decree and judgment dated 31-10-2005 passed by the Sub court North Paravur in LARs 116, 117 118 119, 120 172 & 173 of 2001. The claimants in L.A.R. Nos. 116, 117 & 173 of 2001 filed cross objections . The parties herein are referred to as parties arrayed in the L.A.Rs. 2. The lands covered under all the references are situated in Nedumbassery Village Aluva Taluk. The acquisition was for the construction of approach road for Kochi International Airport. Section 4(1) notification was published on 27-8-1998. The details regarding the L.A.R. Nos., L.A.A. Nos, Survey Nos, Land value fixed by the Land Acqusition Officer, Compensation awarded, amount claimed are as follows. Sl No. LAR. No. L.A.A.No Extent inAres Sy.No Land Value Fixed (per Are) Compensation Awarded Amount Claimed (per Cent) 1 116/2001 8/2007 20.55 257/43 36,000/- 11,75,213/- 70,000/- 2 117/2001 145/2007 31.75 257/45 36,000/- 18,22,148 70000 3 118/2001 212/2007 11.73 261/1 63,000/- 40,47,682/- 2,50,000/- 4 119/2001 194/2007 11.73 261/1 63,000/- 40,47,682/- 2,50,000/- 5 120/2001 788/2006 15.64 261/10 63,000/- 40,47,583 2,50,000/- 6 172/2001 137/2007 3.20 3.65 257/3 257/40 54,000/- 36,000/- 7,08,754/- 3,00,000/- 7 173/2001 934/2007 7 257/41 63,000/- 7,15,294/- 3,00,000/- L.A.A. 788 of 2006 & -2- Connected cases 3. Besides the land value, the claimants in L.A.R. Nos. 116 , 117, 172 & 173 of 2001 claimed compensation for injurious affection and severance. The claimants in L.A.R. Nos. 118 119 & 120 of 2001 have claimed value for the improvements and structures. In L.A.R Nos 116 & 117 of 2001 the Land Acquisition Officer awarded Rs. 36,000/- per Are . ( Rs. 14,569/- per cent) The reference court enhanced the compensation and re-fixed it at Rs. 1,72,920/- per Are ( Rs. 70,000/- per cent) In L.A.R Nos. 118 119 & 120 of 2001 the Land Acquisition Officer awarded Rs. 63,000/- per Are ( Rs.25,495.75 per cent). The court below enhanced and re-fixed the amount at Rs. 3,70,650/- per Are. ( Rs.1,50,000/- per cent). The properties covered by L.A.R. 120/2001 is facing National Highway and the properties covered by L.A.R. Nos 118 & 119 of 2001 are lying on the rear side of the properties covered by L.A.R. No 120/2001. The three plots are categorised as same category and awarded the same amount towards land value. In L.A.R. No 172/2001 for an extent of 3.20 Ares, the Land Acquisition Officer fixed Rs.54,000/- per Are and for the balance land viz. 3.65 Ares at Rs. 36,000/- The court below granted enhanced land value at the rate of Rs. 1,00,000/- per cent for 3.20 ares and Rs. 70,000/- per cent for 3.65 ares. In L.AR. No. 173/2001 Rs. 63,000/- per Are fixed by the Land Acquisition Officer was enhanced to 1,50,000/- per cent by the court below. 4. The court below granted Rs.50,000/- for injurious affection in L.A.R. No. 116/2001 and Rs. 75,000/- in L.A.R. No. 117/2001 respectively. L.A.A. 788 of 2006 & -3- Connected cases Apart from the land value. In L.A.R. Nos. 118 119, 120 of 2001 in addition to the land value, Rs. 1,10,000/- 75,000/- & 75,000/- respectively are awarded towards the value for the improvements and structures. According to the appellants the land value awarded by the court below in all the above mentioned appeals are totally exorbitant, excessive and arbitrary. The percentage of enhancement in L.A.R. Nos. 116 & 117 of 2001 was 380.47% in L.A.R. Nos. 118, 119 & 120 of 2001 was 488.33% in L.A.R. No. 172/2001 it is 357.6% & 380.5% respectively and in L.A.R. No. 173/2001 it is 488.33%. According to the appellants the grant of exorbitant percentage of enhancement in land value is without any basis. 5. The counsel for the appellants have pointed out that the land measuring a total extent of 1250 acres was acquired for the construction of Cochin International Airport based on various notifications published under Section 4 (1) of the Land Acquisition Act ( Central act 1 of 1894) out of which 470 acres were acquired for the construction of runway and 780 acres for the terminal , rehabilitation of evictees, signal stations and for the approach road from NH 47 to the Airport. Totally there were 3825 holdings. Out of them, land acquisition reference under section 18 were filed only in 967 cases and in the remaining case agreed awards were passed. Out of the 967 cases, in 42 cases no enhancement was granted by the Sub court Paravur and in 36 cases enhancement in land value at 30% more than that awarded by the Land Acquisition Officer was granted L.A.A. 788 of 2006 & -4- Connected cases and no appeals were filed either by the claimants or by the requisitioning authoirty. In 172 cases, the Principal Sub court, North Paravur granted enhancement at 45% more than that awarded by the Land Acquisition Officer and no appeal was filed by the requisitioning authority or by the appellant against the enhancement. In L.A.R. No. 294/1996 reference case relating to acquisition for the runway and in L.A.R. No. 134/1998 relating to acquisition for the Terminal, enhancement in land value at 96% more than that awarded by the Land Acquisition Officer was granted by the Additional Sub court, North Paravur, Thereafter, the Principal Sub court and Additional Sub court granted enhancement at 96% in the connected cases relying on the judgment in L.A.R. No. 294/1996 and 134/1998. Appeals as L.A.A. No. 865/2000 against the judgment in L.A.R. No. 294/1996 and L.A.A. No. 412/2001 against L.A.R. No. 134/1998 are filed by the requisitioning authority, Airport. Appeals were also filed against all other judgments where 96% enhancement was granted relying on the judgment and decree L.A.R Nos. 294/1996 and 134/1998. This Hon'ble High Court as per common judgment dated 16.6.2003 in L.A.A No. 865/2000 and L.A.A 412/2001 and connected cases, reduced the enhancement from 96% to 45%. The landowners in 114 such cases approached the Hon'ble Supreme Court with SLPs against the judgment of this Court reducing/limiting the increase to 45% and all the SLPs including the SLP No. 19824/2003 filed against the judgment in L.A.A. 865/2000 and SLP No. 15977/2003 filed against L.A.A 412/2001 were dismissed. In two L.A.A. 788 of 2006 & -5- Connected cases L.A.Rs ( L.A.R No. 174/2001 and L.A.R. No. 175/2001) relating to the acquisition of the land for the approach road, the enhancement granted by the same Reference Court on 31.8.2005 is at 50% more than that awarded by the Land Acquisition Officer and no appeal was preferred by the Requisition Authority Airport or by the claimants against such judgment. However, the appellants contended that in the judgment and decree under challenge herein, the rate of enhancement is 488.33% above the land value awarded by the Land Acquisition Officer which is clearly exorbitant and arbitrary and highly excessive. Apparently to save the court fee, only the State has come up in appeal. 6. The claimants in all the above said appeals relied on the same sets of documents in evidence for enhancement in land value and therefore the court below heard all the cases together. The claimants have relied on four sets of documents to prove the market value of the acquired lands. The court below noticed that all the acquired lands are situated 250 meters away from Athany Junction in the National Highway in between Aluva and Angamaly. The court below also noticed the fact that a number of commercial establishments, Public offices,education institutions, places of worships etc are situated near the acquired properties. The first set of documents relied on by the claimants are sale deeds obtained by Mary Matha Provincial House. These sale deeds are marked as Exts A2 to A7. In L.A.R. No. 120/2001. This land is lying by L.A.A. 788 of 2006 & -6- Connected cases the side of Thuruthissery Panchayath road lying 300 meters away from the National Highway. As per the Sale deed of 1997 the said lands are purchased by the said provincial House for Rs.40,000/- per cent. According tot he claimants this property was reclaimed after purchase and there is no comparison between this property with the acquired lands. The counsel for the appellants and the second respondent who is the Requisitioning Authority submitted that the Mary Matha Povincial House's property is lying near to Kariyad junction. According to them, the Kariyad Junction is more important than Athany junction. Till the formation of V.I. P road to the International Airport, Kariyad junction was the nearest junction on the National Highway as far as the International Airport is concerned and therefore Kariyad junction is more important than Athany Junction, and that the land value for the properties near to Kariyad Junction has fetched more land value than the properties near to Athany junction. 7. The second set of documents relied on by the claimants were Exts A19 award and A24 judgment passed in the year 2001 & 2003 respectively for the land acquired for Idamalayar Project. The publication date of section 4(1) notification was 26-2-1998. The land acquired under Ext.A19 award is also a land touching the National Highway and is lying nearer to Angamaly town. The extent of property acquired in Ext.A19 award is 22.15 Ares. The Land Acquisition Officer awarded Rs. 98,811/- per are ( Rs.39,988 per cent). This was enhanced to Rs. 1,67,979/- per L.A.A. 788 of 2006 & -7- Connected cases are ( Rs. 67,980 per cent) Ext.A24 is the judgment passed in L.A.R. No. 4/2003 granting Rs. 67,980/- per cent. According to the appellants the property acquired for Idamalayar Irrigation Project facing the National Highway and lying nearer to Angamaly town is more important than the acquired lands and therefore the value fixed should have been below the amount fixed for these lands under acquisition. The distance from A19 property to Angamaly town in 4 kilometers. 8. The third set of document relied on by the claimants is A25 award. The land was acquired for widening the National Highway. The proceedings for acquisition was commenced in July 2000. Rs.85,000/- per cent was awarded to the lands acquired under Ext.A25 award. 9. The fourth set of documents relied on by the learned counsel for the claimants is the sale deed in respect of the property of Dr.Krishnan. . Exts. A16, A17 & A18 are the sale deeds executed in the year 1995. This property is 250 meters away from Athany Junction on the side of P.W.D. Road by name Manjali road. The total extent of land is 6.5 Cents and the sale consideration per cent is Rs. 46,153/-. This land is lying interior to National Highway at a distance of 275 meters 10. The court below has discussed all the aforesaid four sets of documents. All these documents are produced by the claimants in support of their claim for enhanced land value. In all the above said four sets of L.A.A. 788 of 2006 & -8- Connected cases documents relied on by the claimants the land value per cent is Rs.40,000/- per cent , Rs.68,000/- per cent, 85,000/- per cent ( After Section 4 (1) notification ) and 46,153 per cent ( The extent is 6.5 cents) After discussing these documents the court below did not say any reason for fixing 1.5 lakhs, 1 lakh and 70,000/- respectively for category Nos. 1, 2, &3. It is not stated in the judgment that any of the documents relied on by the claimants is similar and similarly situated. No reasons are stated by the court below for granting 4 to 5 times increase than that awarded by the Land Acquisition Officer. After narrating the details of the aforesaid sets of documents the court below in paragraph 31 of the judgment simply re- fixed the land value as aforesaid. The materials available on record would not support the reason for granting enhancement as awarded by the court below. 11. The contention on the side of the appellants and the requisitioning authority is that Kariyad Junction is more important than Athany junction. Till the formation of the V.I.P road to the International Airport, Kariyad junction was the nearest junction on the National Highway as far as the international Airport is concerned. According to them, till the inauguration of the Airport in 1999 the Kariyad junction has got more importance than the Athany junction. The Commissioner in L.A.R. No. 173/2001 also reported that the property acquired for the Idamalayar Irrigation Project ( Exts. A19 & A24) situated near to Kariyad Junction has equal importance like that of the acquired property facing the National L.A.A. 788 of 2006 & -9- Connected cases Highway near Athany Junction. The fact that Ext.A24 property is lying near to Angamaly town is also a factor which should have been taken note of by the court below in assessing the relative importance of the acquired lands and the lands acquired for the Idamalayar Irrigation Project. 12. We have also noticed the fact that the property acquired in L.A.R. 120/2001 is facing National Highway and the properties acquired in L.A.R. Nos. 118 & 119 of 2001 are lying on the rear side of the property covered by L.A.R. 120/2001 . In view of the lie and location of properties in L.A.R. Nos. 118 & 119 of 2001 as not facing the National Highway there is no reason for the court below to grant the same value as that of properties facing National Highway. Properties covered by L.A.R.Nos. 116, 117 118 119 & 172 of 2001 are properties not facing National Highway and therefore these properties can be grouped together and market value can be fixed taking into account the documents produced by the claimants in support of their claim for enhancement. The only properties that touch the National Highway are the properties acquired in L.A.R. Nos. 120 & 173 of 2001. Therefore the categorisation also requires reconsideration. The properties in L.A.R. 118 & 119 & 120 of 2001 pertains to three different persons. The fact that the properties are enjoyed in common by the owners is not a reason for granting the same land value for the entire land. Therefore the award of compensation by the Land Acquisition Officer treating the property as a single plot is not correct. There is dispute as to the compensation awarded for structures in L.A.A. 788 of 2006 & -10- Connected cases L.A.R. Nos 118 , 119 & 120 of 2001. The commissioner inspected the properties in all the reference cases in 2004 whereas the properties were acquired in the year 1998. The Commissioner deputed in L.A.R. Nos. 118 119 and 120 of 2001 had not valued the structures in the property. The age of the structures, the value of the materials used, depreciation of value etc are matters to be proved by the claimants for getting enhanced value for the structures. The said question also has to be reconsidered by the court below 13. The notified extent of the property in L.A.R. Nos. 118 , 119 & 120 is 11.7 ares, 11.73 Ares & 15.64 Ares respectively. For the purpose of acquisition the lands under acquisition are measured and notified . The claimants are entitled to value of the property acquired under the notification. In the sketch attached to Commissioner's report also, the extent noted is the same. According to the appellants Ext.R14 basic tax receipt produced by the claimants will also show that the total extent of three plots together is only 39.10 ares. If more extent is taken possession than the extent notified under the Act, the remedy available for the claimants is to sue for damages in a suit to be instituted by them. If such a case is filed it is for the Civil court to enquire into as to whether there is proof in support of the contention that the property taken possession of, is more than what is acquired under the notification. The court below simply accepted the extent shown in the documents of title and granted land L.A.A. 788 of 2006 & -11- Connected cases value for additional area. This fact also requires re-consideration by the court below. The Commissioner in all the cases inspected the property in the year 2004 where as Section 4(1) notification in these cases is in the year 1998. 14. The Airport road was opened subsequently and there is a complete change of value position of the land in and around the area under acquisition. The importance of the locality was spoken to by the Commissioner in the year 2004 shall not have any bearing on the claim of the claimants whose properties are acquired in the year 1998. By the mere inspection of the properties, it is not open to the Commissioner to fix the value of the land. The Commissioners can only state the relative importance of the acquired lands and other lands sought for comparison. The Commissioners are justified in assessing the value of lands without perusing the records relating to the value of the properties which are comparable and similar in nature. In the absence of any such data it may not be appropriate for the Commissioner to fix the land value of the properties. 15. The issue regarding the claim in L.A.R. Nos 116 & 117 of 2001 for injurious affection for their balance lands left out of acquisition is also to be re-considered. The court below had not applied its mind as to whether the remaining property has become unworthy of any use or any damages caused to it or that there is any reduction in value caused due to L.A.A. 788 of 2006 & -12- Connected cases the acquisition. All these aspects are to be considered and only if there is reduction in value for the rest of the land the claimants are entitled to compensation for injurious affection. The cross objectors in L.A.A. Nos. 8,145, 947 of 2001 contended before us that their properties are having 54meteres road frontage of Thuruthissery -Athany tarred Panchayahth road whereas the properties in L.A.R. Nos. 118 & 119 of 2001 had no road frontage and it was lying behind the property of L.A.R. 120/2001 . According to them if the properties in L.A..R Nos. 118 & 119 of 2001 Rs.1.5 lakhs per cent can be granted as land value, they too are entitled for such fixation. Their properties are more valuable than the other referred properties. The said contention also requires evaluation. In the result, the judgment and decree in the aforesaid L.A.R. Cases are set aside. The cases are remanded for denovo consideration in accordance with law. There is no order as to costs. KURIAN JOSEPH, JUDGE HARUN-UL-RASHID, JUDGE es L.A.A. 788 of 2006 & -13- Connected cases