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 5TH MARCH 2010 / 14TH PHALGUNA 1931 LA.App..No. 822 of 2004() ------------------------- LAR.63/2001 of III ADDL.SUB COURT, ERNAKULAM .................... APPELLANT(S): SECOND RESPONDENT ------------------------------- INLAND WATERWAYS AUTHORITY OF INDIA, PARAMARA SHOPPING COMPLEX, PARAMARA ROAD, KOCHI-682018, REPRESENTED BY ITS DIRECTOR. BY ADV. SRI.V.SANTHARAM, SC, IWAI RESPONDENT(S): CLAIMANT AND FIRST RESPONDENT -------------------------------------------- 1. INDUCHOODAN, S/O. CHANDRAN NAIR, REVI VIHAR, CHUTTUPADUKAR EDAPPALLY NORTH VILLAGE. 2. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, ERNAKULAM. ADV. SRI.K.S.BABU FOR R1 SMT.N.SUDHA FOR R1 GOVERNMENT PLEADER SRI.BASANT BALAJI THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 05/03/2010, ALONG WITH LAA NO.976/2007 & CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.NO.739/06 & 3889/04 IN L.A.A.NO.822/04 DISMISSED. 5.3.2010 SD/- PIUS C.KURIAKOSE, JUDGE. SD/- C.K.ABDUL REHIM, JUDGE. PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ L. A. A. Nos.822, 824, 825, 874, 950, 951, 1059 of 2004; 250, 259, 637, 1037, 1204 of 2005; 315, 754, 822, 834 of 2006; 975, 976, 977 of 2007, and 428 of 2009 ------------------------------------------------ Dated this the 5th day of March, 2010 JUDGMENT Pius C. Kuriakose, J All these appeals pertain to acquisition of land in Maradu village for the purpose of fixing Waterways terminal at Maradu by M/s Inland Waterways Authority of India. LAA Nos.822/04, 824/04, 825/04, 874/04, 250/05, 1037/05, 1204/05, 754/06, 975/07, 976/07, 977/07 and 428/09 are all preferred by the Requisitioning Authority, M/s Inland Waterways Authority of India. LAA Nos.950/04, 951/04, 1059/04, 637/05, 315/06 and 834/06 are filed by the claimants. LAA.822/04 & con. cases -2- LAA.259/05 and LAA.822/06 are also preferred by the Requisitioning Authority. Acquisition was on the basis of Section 4(1) notification published on 05/03/90. The Land Acquisition Officer categorised the lands under acquisition into six categories A, B, C, D, E and F. Included in category-A were dry lands having direct frontage of National Highway- 47. For these lands, the Land Acquisition Officer awarded land value of Rs.2,10,161/- per Are. Included in category-B were reclaimed lands with road frontage and access to river through reclaimed portions of the river. For these lands, the Land Acquisition Officer awarded land value at Rs.85,543/- per Are. Included in category-C were reclaimed wet lands having river frontage. For these lands, the Land Acquisition Officer awarded LAA.822/04 & con. cases -3- value at Rs.83,866/- per Are. Included in category-D were wet lands with Thodu and Chira having road frontage. For these lands the LAO awarded value at the rate of Rs.75,207/- per Are. Included in category-E were wet lands with Thodu and Chira having access to river through reclaimed portion of the river. For these lands the LAO awarded value at the rate of Rs.71,500/- per Are. Included in category-F were lands lying as private road for common drainage. For these lands LAO awarded only paltry rate of Rs.100/- per Are. The Reference Court enquired into the reference under Section 18 initiated at the instance of the claimants. The claimants relied mostly on Document No.2741/99 dated 05/08/1999 of Sub Registry, Maradu. It was LAA.822/04 & con. cases -4- marked as Ext.A1 in LAR No.66/01 corresponding to LAA.59/02 and Document No.1034/97 dated 17/09/97 of the Sub Registry, Maradu which was marked as Ext.A2 in the same case. Apart from those two documents there was Document No.1145/99 dated 31/03/1999 of the Sub Registry, Maradu which was marked as Ext.A3 in the same case. Apart from the above documents in most of the cases there was oral evidence adduced by the parties and witnesses. In most of the cases reports prepared by Advocate Commissioners, on the basis of local inspection conducted by them regarding the peculiarities and advantages of the lands under acquisition and their comparability with the documents, relied on also formed evidence. The Subordinate Judges LAA.822/04 & con. cases -5- who decided the reference cases did not become inclined to place reliance on any of the three documents Exts.A1, A2 and A3 in LAR.66/01. As for Ext.A4 and A3 in that cases we notice that both those documents were documents executed subsequent to the publication of the notification under Section 4(1) and even apart from the reasons stated by the Subordinate Judges in their judgments these documents could not have been relied on since they were post-notification documents. Ext.A2 in LAR.66/01 was a pre- notification document. Ext.A2 reflected a land value of Rs.1,80,343/- per cent corresponding to Rs.2,92,426/- per Are. Learned Sub Judge who decided LAR.66/01 found that Ext.A2 property was a property lying by the side of National Highway LAA.822/04 & con. cases -6- 47. It was certainly noticed that the distance between A2 property and the property under acquisition in that LAR was only 80 metres. The Commissioner had reported that but for the fact that National Highway is lying by the side of property covered by Ext.A2 and acquired property and A2 property are more or less similar lying on the same level with each other. The learned Sub Judge took the view that the existence of direct frontage of National Highway is an aspect which enhances the potential value of A2 property considerably. The learned Sub Judge also found that there was a distance of 80 metres. Taking into account these two reasons learned Judge concluded that Ext.A2 document was not at all a proper basis for fixing market value of the land LAA.822/04 & con. cases -7- covered by LAR.66/01. 2. Extensive submissions were addressed by the learned counsel for the parties viz. Sri. V.Santharam, Standing Counsel for the Requisitioning Authority, Sri.C.T.Joseph, Smt.Sudha Babu, Sri.George Varghese etc. for various claimants and also the learned Senior Government Pleaders Smt.Latha T. Thankappan and Sri.Basant Balaji for the Government. We have made a thorough re-appraisal of the evidence. The learned Standing Counsel for the Requisitioning Authority, Sri.Santharam would argue that it is an exorbitant enhancement that has been awarded by the Reference Court. According to him, on the basis of the legal evidence which came on record there was no warrant for granting any LAA.822/04 & con. cases -8- enhancement as the rates awarded by the Land Acquisition Officer itself were quite reasonable. He particularly, argued that the enhancement granted by the court for structures in LAR.94/01 (corresponding to LAA.259/05 filed by him) and LAA.637/05 filed by the claimants was exorbitant. As regards LAA.822/06 filed by him pertaining to LAR.93/01 (covered by LAA.315/06 preferred by the claimant) he submitted that the value awarded for structures was high that the court below should have made some deductions in the land value on account of the largeness of the properties involved and also that the court below was justified in not awarding any compensation in respect of 1.50 ares of land towards injurious affection. The learned counsel for the claimants LAA.822/04 & con. cases -9- per contra would argue that the enhancement granted by the court in their cases was low. According to them, the evidence adduced by them did justify awarding higher compensation. The learned counsel for the claimant in LAA.637/05 submitted that it is not the correct market value that has been awarded for the structures. Sri.C.T.Joseph appearing for the appellant in LAA.315/06 would forcefully argue that the decision not to award any compensation for injurious affection for 1.50 ares of land which was actually taken over from his client is not at all justified. 3. We have very anxiously considered the rival submissions addressed at the Bar. We have made a thorough re-appraisal of the entire LAA.822/04 & con. cases -10- evidence. We are of the view that the court below was a little miserly in re-fixing the market value of the land under acquisition. We are also of view that the ratio maintained by the Land Acquisition Officer as well as by the court below between values of the various categories of properties involved in these acquisition is not correct. The correct ratio between the values of categories-A, B, C, D and E will be approximately 10:52:48:43:39. On the basis of the re- appreciation of evidence, we are of the view that the correct market value of the properties included by the Land Acquisition Officer in category-B is Rs.1,50,000/- per Are. Similarly, we are of the view that the correct market value of the properties included in category 'C' is LAA.822/04 & con. cases -11- Rs.1,40,000/- per Are. As the present cases involve only the properties in category-B and C, we do not venture to re-fix value of lands in other categories. We find merit in the submission of the learned counsel for the appellant in LAA.637/05 that it is not the correct compensation that has been awarded for the structures which existed on the properties in that case (LAR.94/01). At the same time, as regards appeal Nos.822/06 and 315/06, we uphold the argument of the learned Standing Counsel for the Requisitioning Authority that the court below should have made some deduction in the land value of those properties in view of the largeness of the properties. Therefore, even though those properties are in category-B and would have been eligible for market value at LAA.822/04 & con. cases -12- Rs.1,50,000/- per Are, we make a deduction of 5% and fix the value of land under acquisition in those two cases at Rs.1,42,500/-. We are not impressed by the argument that the value of structures awarded in those two cases is excessive. We confirm the value of structures awarded in that case. We are unable to approve the action of the learned Subordinate Judge in not awarding any compensation for 1.50 ares of land in respect of which compensation is claimed in that case towards injurious affection. We confirm the finding of the court below that the claimant was unable to establish its title over the above extent of 1.50 ares but we hold that the claimant had possessory title over the same. It is not disputed by the Requisitioning Authority that the LAA.822/04 & con. cases -13- above portion also has been transferred to the possession of that authority. It has to be found that the percentage of injurious affection is cent percent. At the same time, since the claimant in that case was having only possessory title which had not ripened into absolute title, we are of the view that he can be awarded only 50% of the market value and hence, we award to him a total amount of Rs.1,06,875/- as compensation for injurious affection in respect of 1.50 Ares. We are not impressed by the argument that the value awarded by the court for the structures which existed on the property covered by LAA.834/06 is incorrect. We confirm the value of structures awarded in that case. Similarly, we do not find any infirmity about the compensation awarded in LAA.822/04 & con. cases -14- LAA.950/04 towards injurious affection. We confirm the award passed by the court towards injurious affection in that case. 4. The result of the above discussions therefore, is as follows:- LAA Nos.259/05 and 637/05 are disposed of in the following terms. Judgment and decree under appeal are set aside. Value of the land is re- fixed at Rs.1,50,000/- per Are. Enhancement in land value is awarded on that basis. LAR.94/01 is remanded to the Subordinate Judge's Court, Ernakulam for taking a fresh decision regarding the correct compensation payable for the structures which existed on the property. 5. LAA.822/06 and LAA.315/06 are disposed of in the following terms:- LAA.822/04 & con. cases -15- The value of the land under acquisition is re- fixed at Rs.1,42,500/- per Are deducting 5% from Rs.1,50,000/- towards largeness of the property. Enhancement granted by the court towards value of structures is confirmed. A total amount of Rs.1,06,875/- is awarded as compensation towards injurious affection in respect of 1.50 ares of land taken over from the claimants. 6. LAA.834/06 is allowed re-fixing the market value at Rs.1,50,000/- per Are. Value awarded by the court below towards structures is confirmed. 7. LAA.950/04 is allowed to the extent of re- fixing the market value of the land at Rs.1,40,000/- per Are. Land value is enhanced accordingly. Compensation awarded by the court below towards injurious affection is confirmed. LAA.822/04 & con. cases -16- 8. LAA.1059/04 is allowed to the extent of re-fixing the land value at Rs.1,40,000/- per Are and awarded enhancement for land value on that basis. Claim for further compensation towards injurious affection is declined. LAA.951/04 is allowed to the extent of re-fixing the value of the land at Rs.1,40,000/- per Are. 9. LAA Nos.822/04, 824/04, 874/04, 250/05, 825/04, 1037/05, 1204/05, 754/06, 975/07, 976/07, 977/07 and 428/09 are dismissed. Parties are directed to suffer their respective costs in the appeals. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/- The following sentence is incorporated as the last sentence in the common judgment in L.A.A.822/2004 and connected cases dated 05/03/2010:- LAA.822/04 & con. cases -17- “It is clarified in L.A.A.637/2005 that on the compensation to which the petitioners become eligible by virtue of enhancement in land value they will be entitled for statutory benefit admissible under Section 23(2), 23 (1A) and 28 of the Land Acquisition Act” vide order dated 29/03/2011 in I.A.650/2011 in L.A.A.637/2005. Sd/- Registrar (Judicial)