IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1931 LA.App..No. 451 of 2004() ------------------------- LAR.254/1999 of SUB COURT, MUVATTUPUZHA .................... APPELLANT(S): CLAIMANT: ----------------------- M/S. PERIYAR & PAREEKANNI RUBBERS LTD., PALAI, REP. BY ITS DIRECTOR, MR.JOHN THOMAS. BY ADV. SRI.JOSEPH MARKOSE, SENIOR ADVOCATE SRI.MITHUN MARKOS SRI.MATHEWS K.UTHUPPACHAN RESPONDENT(S): RESPONDENT: -------------------------- STATE OF KERALA, REP. BY DISTRICT COLLECTOR, ERNAKULAM. GOVERNMENT PLEADER SRI.BASANT BALAJI THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 16/10/2009, ALONG WITH LAA NO. 452 OF 2004 AND CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ L.A.A.Nos.451,452,453,488 & 489 OF 2004 ------------------------ Dated this the 16th day of October, 2009 JUDGMENT Pius C.Kuriakose, J. All these appeals are preferred by the claimant company, which owned an extensive rubber plantation by name Periyar Estate. Different portions of Periyar Estate were acquired pursuant to the same notification and the Land Acquisition Court registered different LARs viz L.A.R. Nos.432/88, 463/1988, 254/1999. 255/1999, 256/1999,257/1999 & 258/1999 in respect of the appellant's claim for redetermination of compensation. The notification under Section 3(1) of the Land Acquisition Act was published on 10/10/1978. The Land Acquisition Officer fixed the land value at the rate of Rs.250/- per Are. The rubber trees were valued by method of capitalisation of yield. For the rubber trees, which stood on the property covered by LAR No. 432/1988, the Land Acquisition Officer fixed the value at Rs.321.3 per tree. Similarly for the trees which stood on the property covered by L.A.R. No.463/1988, the value of tree was fixed at Rs.317.65 L.A.A.No.451/2004 & con.cases 2 per tree. Similarly, for the rubber trees standing on the property covered by L.A.R. No.254/99, value was fixed by the Land Acquisition Officer at Rs.255.8 per tree. Similarly, value of the trees standing on the properties covered by L.A.A Nos.255/99, 256/99, 257/99 & 258/1999 were respectively fixed at Rs.307.53, 461.21, 338.55 and 329.7 per tree. All the references were sent by the LAO to the Subordinate Judge's Court, Ernakulam which at the relevant time was having territorial jurisdiction. Two Reference Cases (L.A.R. Nos.432/88 and 463/1988) were answered by that court refixing the land value at Rs.2,500/- per Are and value of trees at Rs.1802/- per tree. The Government preferred L.A.A. Nos. 209/1995 and 213/1995 against the above judgments. This court allowed L.A.A. No.209/1995 in part by judgment dated 25/3/1999 and the value of land was reduced to Rs.1000/- per Are. This court did not interfere with the re fixation of value of rubber trees standing on the land under acquisition. Similarly L.A.A. No. 213/95 was allowed by this court by a separate judgment dated 9/10/1998 refixing the land value to Rs.1000/- per Are. Under that judgment also this court did not interfere L.A.A.No.451/2004 & con.cases 3 with the increased tree value given to the claimant. There was delay in sending the references which were ultimately numbered as L.A.R. Nos. 254/99, 255/99,256/99, 257/99 & 258/99. In the meanwhile a Sub Court was established at Muvattupuzha. Therefore, the references were transferred to that Sub Court. Under the impugned judgment, the Sub Court Muvattupuzha has answered the references refixing the land value at Rs.1,000/- per Are following the judgment of this court in L.A.A. Nos.209/95 & 213/95. However, when it came to redetermination of the value of the rubber tees standing on the properties under acquisition, that court did not become inclined to follow the judgment of this court. According to that court, the rubber trees in L.A.R.Nos.254/99,255/99 & 256/99 were of bud variety. The trees in L.A.R. No.257/99 were of clonnel varieties and the trees in L.A.R. No.258/99 were of both clonnel and bud varieties. That court found that the income from bud variety rubber trees and clonel variety rubber trees will not be the same. It was noticed that the clonel variety is the lowest yielding variety. The learned Sub Judge concluded on that basis that yield from the rubber tees in the properties involved in the five LAR cases was not L.A.A.No.451/2004 & con.cases 4 uniform and hence, according to the learned Sub Judge, without sufficient data regarding yield income from the trees cannot be calculated. The learned Sub Judge relied in this context, on the judgment of this court in State of Kerala v. Geevarghese Kathanar(1980 KLT 880 at page 886) . In fact, Ext.A4, the Advocate commissioner's report which was relied on by the Ernakulam Sub Court in L.A.R. Nos.432/88 & 463/88 was very much relied on by the claimant before the Reference Court. The Reference Court, however, did not become inclined to place reliance on Ext.A4 for the reason that the advocate commissioner was not examined as a witness and also for the reason that the test taping conducted by the advocate commissioner, who submitted Ext.A4, was not properly proved in these cases. Accordingly, the learned Sub Judge did not grant any enhancement over the value awarded by the LAO in respect of the rubber trees. It is being aggrieved by the judgment of the Reference Court, that the claimant is in appeal before this court. 2. We have heard the submissions of Sri.Joseph Markose, learned senior counsel for the appellant/claimant and Sri.Basant Balaji, learned senior Government Pleader. Sri.Joseph Markose L.A.A.No.451/2004 & con.cases 5 drew our attention to the judgments in L.A.R. Nos. 209/95 and 213/95 corresponding to L.A.A. Nos.463/88 & 432/88 of the Ernakulam Sub Court. Sri.Joseph Markose submitted that the judgment of this court in those two appeals are binding on both the parties. The court below did follow the judgment of this court when it came to re fixation of the market value of the land under acquisition. Having followed the judgment of this court in the matter of refixation of land value, the Reference Court ought to have followed the same judgment for determining the value of trees. Though there were seven separate LARs, the fact remained is that the lands under acquisition in all these seven cases were part and parcel of one single rubber estate by name Periyar Estate belonging to the appellant company. When a plantation with yielding rubber trees or any other fruit bearing trees is valued by adopting the method of capitilisation of income, the land owners are not awarded any compensation towards the value of the space upon which the trees are standing. Relevant considerations for determining the value of rubber estate can only be the prospective yield from the trees and the proper multiplier to be adopted. In the instant case, the L.A.A.No.451/2004 & con.cases 6 Ernakulam Sub Court and this court has adopted multiplier of 16 in modification of multiplier of 20 adopted by the Land Acquisition Officer and found that the value of each rubber trees of bud variety, which existed on the properties covered by L.A.R. Nos. 432/88 & 463/88, is Rs.1802/-. That being so, there is every justification for valuing all the rubber trees of bud variety, which were standing on the properties under acquisition in these appeals, also at Rs.1802/-. The learned counsel would agree that there may be some justification for making some slight reduction in the matter of trees of clonnel variety. 3. All the submissions of the learned senior counsel Sri. Joseph Markose were very forcefully resisted by Sri.Basant Balaji, who drew our attention to the observations of the learned Sub Judge in paragraphs 30, 31, 33 and 34 of the impugned judgment. The learned Government Pleader submitted that the reasoning of the learned Sub Judge is quite sound and there is no warrant for interference at all. 4. Having anxiously considered the rival submissions addressed at the Bar and having carefully gone through the impugned judgment, the judgment of the Reference Court which L.A.A.No.451/2004 & con.cases 7 was subject matter of L.A.A.Nos.213/95 & 209/95, we are of the view that there is considerable merit in the submissions of the learned senior counsel for the appellant that most of the rubber trees, which were standing on the properties under acquisition in all these appeals, ought to have been given value at the rate of Rs.1802/- per tree. After all, all these trees were standing on parts of one and the same rubber estate by name Periyar Estate and most of the trees were of bud variety. We are, therefore, of the view that all the rubber trees, which were of bud variety, are liable to be awarded value at the rate of Rs.1802/- per tree. But, when it comes to L.A.R. No.257/99 corresponding to L.A.A. No. 488/2004, there is justification for a slightly different treatment. The trees standing on the property under acquisition in that case, were of clonnel variety. We are of the view that value of the rubber trees standing on the properties under acquisition in that case could not have been more than Rs.1,200/- per tree. We notice that L.A.R. No.258/99 corresponding to L.A.A. 489/2004 trees were of bud and clonnel varieties. According to us, the average value of trees standing on the property under acquisition in that case can be fixed at L.A.A.No.451/2004 & con.cases 8 Rs.1300/- per tree. The result of the above discussion is that the appeals will stand allowed to the following extent; 5. In L.A.A. No. 451/2004 the appellant/claimant will be entitled for enhanced compensation towards value of rubber trees at the rate of Rs.1546/- per tree for 145 trees. We, therefore award a total amount of Rs.2,24,170/- as enhanced compensation in the above appeal. Similarly the appellant in LAA. No. 452 of 2004 will be entitled for enhanced compensation towards value of rubber trees at the rate of Rs.1494/- per tree for 791 trees. The amount will come to Rs.11,81,754/- and we award that amount as enhanced compensation in that appeal. The appellant in LAA. 453 of 2004 will also thus become entitled for enhanced compensation towards all rubber trees at the rate of Rs.1341/- per tree. For 805 trees, the total amount will come to Rs.10,79,505/- and we award that amount to the appellant in that case. The appellant in LAA. No. 488 of 2004 will similarly become entitled for enhanced compensation at the rate of Rs.861/- per tree. For 435 trees, the total amount comes to Rs.3,74,535/- and we award that amount to the appellant in that case. Similarly, the appellant in LAA. No. 489 of 2004 will L.A.A.No.451/2004 & con.cases 9 become entitled for enhanced value of rubber trees at the rate of Rs.970/- per tree. For 290 trees, the total amount comes to Rs.2,81,300/- and we award that amount to that appellant. The appeals are allowed to the extent indicated above, but without any order as to costs. It is clarified that on the total enhanced compensation to which the appellants become eligible, they will be eligible for statutory solatium under Section 23(2) of the Act. Solatium will be calculated on the total enhanced compensation to which the appellants become eligible by virtue of the re-fixation of value of rubber trees made under this judgment and also by the re-fixation of the value of land made under the judgment of the reference court. Apart from that, the total enhanced compensation will carry interest under Section 28 of the Land Acquisition Act, i.e., at 9% per annum during the first year and thereafter at the rate of 15% per annum till date of payment. PIUS C.KURIAKOSE,JUDGE K.SURENDRA MOHAN, JUDGE dpk/ksv