Geetha Viswanathan v State of Kerala & The Chief Executive Officer, Technopark

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY,THE 16TH DAY OF JANUARY 2019 / 26TH POUSHA, 1940** **LA.App..No. 267 of 2015** **AGAINST THE COMMON JUDGMENT AND DECREE DATED 23-07-2014 IN LAR 40/2010 of SUB COURT,ATTINGAL** ## **APPELLANT/CLAIMANT:** **GEETHA VISWANATHAN W/O.VISWANATHAN, RESIDING AT BHASKARA/SREEVALSAM, 37A, BELHAVEN GARDENS, KOWDIAR THIRUVANANTHAPURAM, REPRESENTED BY HER POWER OF ATTORNEY HOLDER S.VISWANATHAN, RESIDING AT BHASKARA/SREEVALSAM, 37A, BELHAVEN GARDENS, KOWDIAR, THIRUVANANTHAPURAM.** **BY ADVS. SRI.V.SURESH SRI.G.SUDHEER** ## **RESPONDENTS/RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, THIRUVANANTHAPURAM – 695 001 2 THE CHIEF EXECUTIVE OFFICER TECHNOPARK, THIRUVANANTHAPURAM – 695 001** **BY ADVS.** **SRI. A.K.SUKUMARAN, SR.GP FOR R1** SMT.RASHMI.K.V. FOR R2 **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 14.01.2019, ALONG WITH CO.97/2018, THE COURT ON 16.01.2019, DELIVERED THE FOLLOWING:** L.A.A.No.267/2015 & CO No.97/2015 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY,THE 16TH DAY OF JANUARY 2019 / 26TH POUSHA, 1940 CO.No. 97 of 2018 IN LA.App.. 267/2015** **AGAINST THE COMMON JUDGMENT AND DECREE DATED 23-07-2014 IN LAR 40/2010 of SUB COURT,ATTINGAL** ## **CROSS OBJECTOR/1ST RESPONDENT IN LAA** **STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, THIRUVANANTHAPURAM – 695 001** **BY SRI. A.K.SUKUMARAN, SR.GP** ## **RESPONDENTS/APPELLANT & 2ND RESPONDENT IN LAA:** > 1 **GEETHA VISWANATHAN W/O.VISWANATHAN, RESIDING AT BHASKARA/SREEVALSAM, 37A, BELHAVEN GARDENS, KOWDIAR THIRUVANANTHAPURAM, REPRESENTED BY HER POWER OF ATTORNEY HOLDER S.VISWANATHAN, RESIDING AT BHASKARA/SREEVALSAM, 37A, BELHAVEN GARDENS, KOWDIAR, THIRUVANANTHAPURAM. -695 003** **THE CHIEF EXECUTIVE OFFICER** 2 **TECHNOPARK, THIRUVANANTHAPURAM – 695 001** **BY ADVS. SRI.G.SUDHEER FOR R1 SMT.K.V.RESHMI FOR R2** **THIS CROSS OBJECTION HAVING BEEN FINALLY HEARD ON 14.01.2019, ALONG WITH LA.App..267/2015, THE COURT ON 16.01.2019 DELIVERED THE FOLLOWING:** L.A.A.No.267/2015 & CO No.97/2015 3 ## **V.CHITAMBARESH &** ## **R.NARAYANA PISHARADI, JJ.** ************************** L.A.A.No.267 of 2015 & Cross Objection No.97 of 2015 ---------------------------------------------Dated this the 16[th] day of January, 2019 ## **JUDGMENT** ## **R.Narayana Pisharadi, J** This appeal arises out of the judgment dated 23.07.2014 passed by the Sub Court, Attingal in L.A.R.No.40 of 2010. 2. An extent of 338.73 Ares of land, owned by the appellant, in Pallippuram Village was acquired for the purpose of development of Electronic Technology Park. Notification under Section 4(1) of the Land Acquisition Act was published on 05.12.2006. The Land Acquisition Officer fixed the value of the land at Rs.1,17,978/- per Are and granted compensation for land at the aforesaid rate. The Land Acquisition Officer also granted an amount of Rs.1,22,664/- towards value of improvements and an amount of Rs.3,26,822/- towards value of the structures in the acquired property. The reference court enhanced the value of the land by 65% and fixed it at the rate of Rs.1,94,664/- per L.A.A.No.267/2015 & 4 CO No.97/2015 Are. The reference court also enhanced the compensation towards the value of the improvements to Rs.7,00,000/-. The reference court did not allow any enhancement with regard to the value of the structures in the acquired property. Dissatisfied with the award passed by the reference court, the claimant has filed this appeal. 3. The State has field cross objection contending that the reference court should not have granted an amount of Rs.7,00,000/- as compensation for the value of the improvements (value of the rubber trees) in the acquired property. 4. We have heard learned counsel for the appellant and the learned Government Pleader and also the learned counsel for the second respondent. We have also perused the records. 5. The land acquired for the development of the Techno Park had been classified into several categories by the Land Acquisition Officer. The dry land lying adjacent to national highway was included in category No.1. The reclaimed land lying adjacent to national highway was included in category No.2. The land lying behind the property situated adjacent to the national highway was included in category No.3. The lands lying adjacent to certain public roads were included in category No.4. L.A.A.No.267/2015 & CO No.97/2015 5 6. The land acquired in the instant case was included in category No.4 for the purpose of fixation of market value of the land. The appellant had raised a plea before the reference court that her land should have been included in any of the other categories for which compensation was granted at a higher rate. This plea was negatived by the reference court finding that the land owned by the claimant had no facilities of such other properties. 7. Learned counsel for the appellant has contended that the land acquired in the instant case should have been atleast included in category No.2 though not in category No.1. Learned counsel has pointed out that the land acquired in the instant case is situated just behind the property lying adjacent to the national highway. Learned counsel would point out that there is a public road on the eastern side of the land acquired and that there is a panchayat road on its southern side which connects the aforesaid public road with the national highway on the western side. 8. Ext.C1 is the report filed by the Advocate Commissioner after inspecting the property acquired. Ext.C1 report and the sketch contained therein show that there is a public road on the eastern boundary of the property acquired and that there is a panchayat road on the southern side which L.A.A.No.267/2015 & 6 CO No.97/2015 connects the aforesaid public road with the national highway on the western side. The sketch contained in Ext.C1 report also shows that the property acquired in the instant case is situated just behind the property abutting the national highway. 9. Considering the proximity of the acquired land to the national highway and also the fact that there exists a panchayat road on the southern boundary of it which connects the public road on the eastern side to the national highway, we are of the considered view that the land acquired in the instant case should be granted compensation at the rate at which it is granted for lands included in Category No.2. 10. The compensation granted by the Land Acquisition Officer for the properties acquired and included in category No.2 is at the rate of Rs.49,063/- per cent which is equivalent to Rs.1,21,431/- per Are. L.A.A.Nos.637 of 2012 and 644 of 2012 relate to the land acquired for the same purpose under the same notification. This Court has refixed the value of the land in those cases based on the judgment of this Court in L.A.A.No.764 of 2011. The land involved in L.A.A.No.764 of 2011 was also in the same village and it was also acquired for the same purpose under the same notification. After evaluating the evidence in L.A.A.No.764 of 2011, this Court had found that the claimant L.A.A.No.267/2015 & 7 CO No.97/2015 therein was entitled to get compensation for land at Rs.1,98,600/- per Are, thereby fixing the value of the land at 98% over and above the rate at which the value of the land was fixed by the Land Acquisition Officer. Therefore, the value of the land in the present case also can be determined at the same rate, that is, at 98% over and above the value of the land fixed by the Land Acquisition Officer for the lands included in category No.2. 11. The value of the land fixed by the Land Acquisition Officer in respect of the lands included in category No.2 is Rs.1,21,431/- per Are. When the value of the land is refixed at 98% above it, it would come to Rs.2,40,433/- per Are. The appellant is entitled to get compensation for land at the aforesaid rate. 12. The appellant has also challenged the finding of the reference court that she is not entitled to get enhancement of compensation in respect of the structures in the acquired property. The appellant had not adduced any evidence before the reference court to substantiate the claim that the value of the building in the acquired property would be more than the amount awarded by the Land Acquisition Officer. In such circumstances, we do not find any ground to interfere with the finding made by L.A.A.No.267/2015 & 8 CO No.97/2015 the reference court that the appellant is not entitled to get enhancement of compensation in respect of the building in the property. 13. The State has filed cross objection contending that the amount of Rs.7,00,000/- awarded by the reference court as compensation for value of the improvements in the acquired property is excessive and exorbitant. On the other hand, the appellant has raised a plea that the rubber trees in the property would have fetched more income. 14. Learned Government Pleader would contend that when compensation is awarded for the land acquired, the owner of the land is entitled to get only the timber value of the trees standing in the property. Learned Government Pleader has relied upon the decision of the Apex Court in **State of Haryana v. Gurcharan Singh : 1995 Supp (2) SCC 637** in support of this contention. 15. In **Gurcharan Singh** (supra), the Hon'ble Supreme Court has held as follows: _“It is settled law that the Collector or the court who determines the compensation for the land as well as fruit-bearing trees cannot determine them separately. The compensation is to the value of the acquired land. The market value is determined on the basis of the yield. Then necessarily applying_ L.A.A.No.267/2015 & CO No.97/2015 9 _suitable multiplier, the compensation needs to be awarded. Under no circumstances the court should allow the compensation on the basis of the nature of the land as well as fruit-bearing trees. In other words, market value of the land is determined twice over; once on the basis of the value of the land and again on the basis of the yield got from the fruitbearing trees. The definition of land includes the benefits which accrue from the land as defined in Section 3(a) of the Act. After compensation is determined on the basis of the value of the land as distinct from the income applying suitable multiplier, then the trees would be valued only as firewood and necessary compensation would be given.”_ 16. However, in **Ambya Kalya Mhatre v. State of Maharashtra** : **(2011) 9 SCC 325** , the Hon'ble Supreme Court has taken note of the aforesaid dictum laid down in **Gurcharan Singh** (supra) and proceeded to hold as follows: _“We are afraid that the High Court has misread the said decision in regard to valuing the land and trees separately. If the land value had been determined with reference to the sale statistics or compensation awarded for a nearby vacant land, then necessarily, the trees will have to be valued separately. But if the value of the land has been determined on the basis of the sale statistics or compensation awarded for an orchard, that is land with fruit-bearing trees, then there is_ L.A.A.No.267/2015 & CO No.97/2015 10 _no question of again adding the value of the trees. Further, if the market value has been determined by capitalising the income with reference to yield, then also the question of making any addition either for the land or for the trees separately does not arise.”_ 17. In the instant case, the value of the acquired land is determined and compensation is awarded for the land only and not as an orchard. Therefore, the trees in the acquired land have to be valued separately. Considering this aspect, the amount of Rs.7,00,000/- awarded by the reference court as value of the rubber trees cannot be found to be excessive. We find that the amount awarded in this regard is just and reasonable. 18. Learned Government Pleader has contended that additional amount under Section 23(1A) and solatium under Section 23(2) of the Land Acquisition Act, 1894 are payable only on the market value of the land and not on any other amount. There is merit in this contention. In **State of Punjab v. Amarjit Singh : AIR 2011 SC 982** , the Apex Court has held so. 19. Consequently, the appeal is allowed in part. The value of the land acquired is refixed at Rs.2,40,433/- (Rupees two lakhs forty thousand four hundred and thirty three only) per Are. The appellant/claimant is entitled to get compensation for land at L.A.A.No.267/2015 & 11 CO No.97/2015 the aforesaid rate. The claim for enhancement of compensation for the improvements and structures in the property acquired is rejected. The appellant is entitled to get the statutory benefits under Sections 23(1A) and 23(2) of the Land Acquisition Act, 1894 but calculated in accordance with the decision of the Supreme Court in **State of Punjab v. Amarjit Singh : 2011(1) KLT 845 (SC)** : **AIR 2011 SC 982** . The cross objection is dismissed. No costs. 20. We make it clear that this judgment shall not be treated as a precedent or basis for claiming compensation for land in any other case. (sd/-) ## **V.CHITAMBARESH, JUDGE** (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr/15/01/2019