Inland Waterways Authority of India v. K.V. Thomas and Molly Thomas and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN TUESDAY, THE 24TH DAY OF OCTOBER 2017/2ND KARTHIKA, 1939 LA.App..No. 633 of 2012 (C) ---------------------------- AGAINST THE JUDGMENT IN LAR 94/2001 of SUB COURT, ERNAKULAM DATED 31-03-2012 APPELLANT/ADDL. 2ND RESPONDENT: ------------------------------- INLAND WATERWAYS AUTHORITY OF INDIA NATIONAL WATERWAY ROAD, N.H-47, BYE PASS, KANNADIKADU AREA, MARADU.P.O, KOCHI-682 304, REPRESENTED BY ITS DIRECTOR. BY ADV. SRI.V.SANTHARAM RESPONDENT(S)/CLAIMANTS AND IST RESPONDENT: ------------------------------------------- 1. K.V.THOMAS IOB CONCORT 'O' CASTLE, PANAMPILLY NAGAR, COCHIN-36. 2. MOLLY THOMAS W/O.K.V.THOMAS, IOB CONCORT 'O' CASTLE, PANAMPILLY NAGAR, COCHIN-36. 3. STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, ERNAKULAM. R1 & 2 BY ADV. SRI.K.S.BABU R1 & 2 BY ADV. SMT.N.SUDHA R1 & 2 BY ADV. SRI.K.S.GOPI R1 & 2 BY ADV. SRI.BABU SHANKAR R1 & 2 BY ADV. SRI.VIPIN VISWAN R3 BY ADV. SR GOVERNMENT PLEADER SMT.AMMINIKUTTY K. THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 25-7-2017, THE COURT ON 24/10/2017 DELIVERED THE FOLLOWING: ## **LAA NO.633/12** ## **APPENDIX** ## **APPELLANT'S EXHIBITS** **ANNEXURE A1: TRUE COPY OF THE CHEQUE NO.022218 DATED 31.3.2014 DRAWN ON SYNDICATE BANK PAYABLE AT PAR ON ALL BRANCHES OF THE BANK IN FAVOUR OF DISTRICT COLLECTOR, ERNAKULAM FOR** `56,00,000/-. **ANNEXURE A2: TRUE COPY OF THE LETTER NO.IWAI/COCH/A&E/L/3213/06/Pt.2/12 DATED 2.4.2014 ISSUED TO THE 3RD RESPONDENT.** **ANNEXURE A3: TRUE COPY OF THE COVERING LETTER NO.S1114930/05 DATED 22/4/2014 OF THE DISTRICT COLLECTOR, ERNAKULAM.** **ANNEXURE A4: TRUE COPY OF THE COVERING LETTER NO.IWAI/COCH/A&E/L/3213/2013-14/97 DATED 29.4.2014.** **ANNEXURE A5: TRUE COPY OF THE COVERING LETTER NO.S1114930/2005 DATED 6.5.2014.** **ANNEXURE A6: TRUE COPY OF THE LETTER NO.IWAI/COCH/A&E/L/3213/2013-14/152 DATED 17/5/2014.** ## **RESPONDENTS' EXHIBITS: NIL** ## **//True Copy//** ## **PS to Judge** ## **Rp** ## **A.M. SHAFFIQUE & ANU SIVARAMAN, JJ.** ======================== LAA No.633 of 2012 ============ Dated this, the 24[th] day of October, 2017 ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal is filed by the 2[nd] respondent/requisitioning authority in LAR No.94/2001 challenging judgment dated 31/3/2012. 2. An extent of 39.21 Ares of land situated in Maradu Village was acquired pursuant to a notification issued under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as the LA Act) published in the Kerala Gazette on 21/7/1998 which was followed by publication in local newspapers as well. The acquisition was for purpose of construction of waterways terminal and widening of narrow stretches of National Waterway No.III. The property was acquired along with other lands involved in the acquisition. Land Acquisition Officer having classified the land coming under Category B fixed the land value at `85,543/- LAA No.633/2012 -:2:- per Are and also awarded `40,268/- as compensation towards the value of structures. 3. Claimants objected to the Award and the matter was referred under Section 18 of the LA Act. Before the Reference Court, 3 witnesses were examined as AWs1 to 3 and they relied upon A1. Respondents examined RW1 and RW2 and relied upon Exts.R1 to R3. The Advocate Commissioner's report, valuation report prepared by the Expert Engineer and sketch were marked as Exts.C1, C1(a) and C1(b). The Reference Court refixed the land value at `1,26,000/- per Are and also awarded enhanced value of structures at `2,50,000/-. 4. LAA No.259/2005 was filed by the appellant herein challenging the aforesaid enhancement. The claimants also filed LAA No.637/2005. As per common judgment dated 5/3/2010, this Court disposed of the appeals refixing the land value at `1,50,000/- per Are and remitted the matter back to the Reference Court to take a fresh decision with reference to the compensation payable for the structures which existed in the property. 5. After remand, the Reference Court granted enhanced LAA No.633/2012 -:3:- compensation for structures at `4,64,415/- which is under challenge in the present appeal. 6. It is contended by the learned counsel for the appellant that the Expert Engineer has prepared Ext.C1(a) based on surmises and guesswork. No valid material or documents were relied upon to substantiate the cost of construction of the structure at the time of acquisition, whereas Ext.B3 is a report of the Engineer who prepared the details regarding the value of structures at the time of acquisition which was completely ignored by the Reference Court. 7. Learned counsel also placed reliance upon the judgment of the Apex Court in _**Special Land Acquisition**_ ## _**Officer and another v. Siddappa Omanna Tumari and**_ _**others**_ (AIR 1995 SC 840) wherein the Apex Court held at paragraphs 15, 16 and 17 as under:- _“15. It has become a matter of common occurrence with the claimants who seek enhanced compensation for their acquired lands from court to produce the reports of valuation of their lands in court purported to have been prepared by the experts. No doubt, courts can act on such expert evidence in determining the market value of the_ LAA No.633/2012 ## -:4:- _acquired lands, but the court having regard to the fact that experts will have prepared the valuation reports in the court and will depose in support of such reports, at the instance of the claimants, must with care and caution examine such reports and evidence given in support thereof. Whenever valuation report made by an expert is produced in court, the opinion on the value of the acquired land given by such expert can be of no assistance in determining the market value of such land, unless such opinion is formed on relevant factual data or material, which is also produced before the court and proved to be genuine and reliable, as any other evidence. Besides, if the method of valuation of acquired land adopted by the expert in his report is found to be not in consonance with the recognised methods of valuation of similar lands, then also, the opinion expressed in his report and his evidence can be of no real assistance to the court in determining the market value of the acquired land. Since the exercise which will have been done by the expert in arriving at the market value of the land in his report on the basis of factual data bearing on such valuation, will be similar to that to be undertaken by the court. In determining the market value of the acquired land, it can no doubt receive assistance from such report, if it is rightly done and the data on which the report is based is placed before the court and its authenticity is established._ _**16** . Therefore, when the valuation report of an acquired land is made by an expert on the basis of_ LAA No.633/2012 ## -:5:- _prices fetched or to be fetched by sale deeds or agreements to sell relating to the very acquired lands or the lands in the vicinity need arises for the court to examine and be satisfied about the authenticity of such documents and the truth of their contents and the normal circumstances in which they had come into existence and further the correct method adopted in preparation of the report, before acting on such report for determining the market value of the acquired land. The opinion expressed in the report that the author of the report has made the valuation of the acquired lands on the basis of his past experience of valuation of such lands should never weigh with the court in the matter of determination of market value of the acquired lands, for such assertions by themselves cannot be substituted for evidence on which it ought to be based and the method or valuation adaptable in such report._ _**17** . Therefore, when a report of an expert is got produced by a claimant before the court giving market value of the acquired lands, the court may, choose to act upon such report for determination of the amount of compensation payable for the acquired lands, if the data or the material on the basis of which such report is based is produced before the Court and the authenticity of the same is made good and the method of valuation adopted therein is correct.”_ 8. On the other hand, learned counsel appearing for the LAA No.633/2012 -:6:- claimants supported the stand taken by the Reference Court and contended that there is no reason to interfere with the judgment. It is stated that Court has considered all the materials placed on record which does not warrant any interference. 9. AW1 is the Commissioner who has been assisted by the Expert Engineer, AW2 to ascertain the value of structures. On the other hand, RW2 is the Assistant Engineer of PWD who had valued the structure on behalf of the State. He proved Ext.B3, the valuation statement. The Court below did not rely upon Ext.B3 on the ground that RW2 was not the Engineer who had signed Ext.B3 and the PWD rate which is relied upon by the Engineer who prepared Ext.B3 is not produced and therefore it could not be ascertained as to how the valuation has been done before Court. Court below therefore relied upon the evidence of AW2 wherein he had given the details regarding the value of structures and accordingly fixed the value at `5,04,683/- and after deducting the amount already received, fixed the value at `4,64,415.20. 10. Therefore, the question to be considered would be whether the evidence of AW2 is to be accepted or whether the evidence of RW2 read with Ext.B3 can be relied upon. Ext.C1 is LAA No.633/2012 -:7:- the Advocate Commissioner's report. According to him, he visited the property along with Civil Engineer Sri.R.Viswanathan Achari at 2 p.m on 01/02/2003. None was present on the side of the respondent. Nothing has been stated about the manner in which the Engineer had inspected the property. He enclosed along with his report, the report of the Civil Engineer. The report of the Civil Engineer is marked as Ext.C1(a) and a diagram showing cross section of the retaining walls is marked as C1(b). In Ext.C1(a) it is is stated that there are four rubble masonry retaining walls on the four boundaries of the property owned by the claimant. The length of the wall on the northern side is 102 metres, on the southern side 105 metres, eastern side 41.1 metre and western side 43.15 metres. He had valued the retaining walls with reference to the date of preliminary notification. He had also attached a drawing showing the cross sections of all the four retaining walls with dimensions. According to him, rates of labour and materials prevailing in the locality during 1998 are used to work out the data for the estimate and the depreciation is based on the judgment reported in _**Bhavani Ramalakshmy v. State of Kerala**_ [1990 (2) KLT 581]. As per the worksheet given by LAA No.633/2012 -:8:- him, the total value including contractor's profit would come to `5,04,683/- and since it is a first class construction and age of the structure is only 4 years, no depreciation has been calculated. 11. An objection has been filed by the appellant to the commission report. It is stated that no notice was served on the 2[nd] respondent and therefore it is contended that the report is not binding on the 2[nd] respondent. In the objection, it is further stated that the valuation report prepared by the Civil Engineer is not based on any material. He had neither inspected the property nor taken any measurement. The Commission report and valuation report have no basis and therefore the report should not be considered as evidence in the case. After the matter was remitted back to the Trial Court, AW2 Expert Engineer was recalled and examined. He was cross examined by the counsel for 2[nd] respondent. According to him, he had taken the measurements after digging the property in order to find out the depth of the foundation, but he admitted that he had not stated that the property was dug in his report. RW1 is the valuation Assistant at the time of acquisition. In his evidence, he deposed that the valuation is in respect of retaining wall on three sides. LAA No.633/2012 -:9:- There was no retaining wall on the western side. However, it is not stated in Ext.B1. He also deposed that in the valuation statement, the length and height of the wall has not been mentioned nor is the details mentioned regarding the manner in which cost of construction was worked out or regarding the quantity of rubble used. He deposed that the Assistant Executive Engineer, PWD, Building Sub Division has valued the structures. 12. RW2 is the Assistant Engineer, PWD at the time of Acquisition. He deposed that there was a foundation of compound wall in the property. He had measured three foundation and value was fixed as per PWD norms. Ext.B3 was prepared by him showing the length, width, height, the materials used, nature of work etc,. As per Ext.B3, depreciation cost has also been calculated. As on the date of valuation, the structure was 5 years old. In cross examination, he deposed that other than the certification in Ext.B3, he had not put his signature or seal. Ext.B3 is signed by Assistant Engineer, Elizabeth Thomas, Assistant Executive Engineer and Special Tahsildar. Ext.B3 does not show which PWD rate has been incorporated. It will not contain labour rate. `584.30 per cubic metre of rubble mentioned in Ext.B3 is LAA No.633/2012 -:10:- inclusive of labour. He reiterated that there was no compound wall on four sides. On one side, it was the river. Ext.B3 is seen signed by the Assistant Engineer, Building Section countersigned by the Assistant Executive Engineer and also the Special Tahsildar. It gives the manner in which the foundation for compound wall has been calculated. For earth work excavation the total quantity shown as 81.73m[3] and computed at `191.70/10m[3] , the value was `1,567 for random rubble masonry in cubic metre 1:6 for foundation, total cubic metre is 65.73 m[3] which is valued at `584.30/m[3] and for plastering 108.75 m[2] at `438.57/m[2] . When the Engineer who had prepared the statement has been examined before Court and he had stated that he is the person who had calculated the details, there was no reason to discard the said evidence in toto. The fact that he had not put his signature in the worksheets does not make the document unacceptable. Further, RW1 and RW2 categorically has stated that there was a compound wall only on three sides. The Advocate Commissioner in his report also does not state regarding the manner in which the Expert Engineer had measured the property. Though a cross section of the retaining walls has LAA No.633/2012 -:11:- been prepared, there is no mention either in the report of the Advocate Commissioner or in the report of the Engineer as to how he has measured the construction. How the value of the structures has been arrived at is also not discernible from the report. There is now dispute between the parties regarding the existence of the wall on one side of the property. Taking into account the over all facts, it was not proper for the Reference Court to have blindly accepted the report of the Expert Engineer. 13. However, taking into account an overall consideration of the factual circumstances and the disparity between the valuation prepared by the PWD authorities and the Expert Engineer, we are of the view that the value of the structures can be fixed by giving an appropriate deduction to the value fixed by AW2. According to us, deducting 1/3[rd] of the value as fixed by the Expert Engineer would meet the ends of justice. Therefore the value of the structures can be assessed at `3,36,455/-. The decree of the court below is liable to be modified accordingly. In the result, this appeal is partly allowed as under:- The decree of the court below in respect of value of structure is refixed at `3,36,455/- (Rupees Three lakh thirty six LAA No.633/2012 **==> picture [27 x 9] intentionally omitted <==** thousand four hundred and fifty five only) and the claimant shall be entitled for the aforesaid amount after deducting the amount already awarded by the Land Acquisition Officer. Claimant shall also be entitled for statutory benefits and interest as decreed by the Court below. Sd/- ## **A.M. SHAFFIQUE, JUDGE** Sd/- **ANU SIVARAMAN, JUDGE** Rp //True Copy// PS to Judge