K. Lakshman Lal v. State of Kerala and Managing Director, International Airport Development Society

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **FRIDAY ,THE 05TH DAY OF OCTOBER 2018 / 13TH ASWINA, 1940** **LA.App..No. 224 of 2011** **AGAINST THE JUDGMENT IN LAR 129/2008 DATED 23-02-2010 of I ADDL.SUB COURT,THIRUVANANTHAPURAM.** ## **APPELLANT/CLAIMANT :** **K.LAKSHMAN LAL, TC 30/1219, ARAMAM, PALKULANGARA, PETTAH P.O., THIRUVANANTHAPURAM.** **BY ADVS. SRI.R.S.KALKURA SMT.KVP.JAYALEKSHMY SRI.HARISH GOPINATH SRI.M.AJAY (IRUMPANAM) SRI.M.S.KALESH SRI.V.VINAY MENON & SMT.A.V.PRIYA.** ## **RESPONDENTS/RESPONDENTS :** - **1 STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM.** **2 MANAGING DIRECTOR, INTERNATIONAL AIRPORT DEVELOPMENT SOCIETY, GOVERNMENT SECRETARIAT, STATUE, THIRUVANANTHAPURAM-695 001.** **BY SENIOR GOVERNMENT PLEADER SRI.B.R.MURALEEDHARAN.** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 05.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** L.A.A No.224 of 2011 2 ## A.HARIPRASAD, J. -------------------------------------- L.A.A No.224 of 2011 -------------------------------------- Dated this the 05th day of October, 2018 ## J U D G M E N T Heard the learned counsel for the appellant and the learned Government Pleader. 2. Aggrieved by the judgment passed by the Ist Additional Sub Judge, Thiruvananthapuram in L.A.R No.129 of 2008, the claimant has preferred this appeal. An extent of 2.74 Ares of land comprised in Survey No.191/1 of Pettah Village in Thiruvananthapuram Taluk, was acquired for the purpose of developing the International Airport, Thiruvananthapuram. A notification under Section 4(1) of the Land L.A.A No.224 of 2011 3 Acquisition Act, 1894, (in short 'the Act') was published on 10-08-2004. Possession of the property was taken on 07-05-2007. Award was passed by the Land Acquisition Officer on 09-03-2007 determining Rs.1,21,507/- per Are as the land value. Since the claimant was not satisfied with the compensation amount awarded by the Land Acquisition Officer, he preferred a reference under Section 18 of the Act. 3. After considering the materials on record, the learned Sub Judge redetermined the land value by enhancing 40% of Rs.1,21,507/per Are. The claim for enhanced value of the building in the acquired property was turned down by finding that no material was produced by the claimant. 4. Learned counsel for the appellant contended that the method adopted by the court below in determining the land value and value of the building are incorrect. The appellant sustained great loss on account of the wrongful method adopted by the court below. First issue raised by L.A.A No.224 of 2011 4 the learned counsel for the appellant is regarding the categorization of the property. It is seen from the award and the judgment of the court below that the land has been included by the Land Acquisition Officer in category No.3. Learned counsel would contend that category No.3 is in respect of marshy lands and the acquired property was having a building thereon and therefore it can never fall in category No.3. 5. In opposition to this submission, learned Government Pleader contended that form No.15 sent to the reference court by the Collector itself makes things clear that the property was a wet land converted to dry land. From the note of award seen in the file, it can be seen that category No.1 contained lands having road frontage and the land which lost road frontage for being partly acquired in the first phase of acquisition. Category No.2 took in lands lying behind category No.1, which had no direct road access, except pathways. Category No.3 were lands lying on either side of byroads and the lands lying on the western L.A.A No.224 of 2011 5 bank road of Parvathy puthanar. The evidence adduced by AW1 does not show that the land did not fall under category No.3. The classification has not been seriously challenged before the court below. Therefore, upgradation of land from category No.3 to Category No.2 may not be possible with the available evidence. However, it is brought to my notice by the learned counsel on both sides that in respect of lands acquired under the said notification, a Division Bench of this Court has enhanced the land value from Rs.1,21,507/- per Are to Rs.10,00,000/- per Are. This judgment is also in respect of properties falling in category No.3. Therefore, the contention of the appellant to the extent that there is incorrect determination of land value has to be rectified by relying on the judgment in L.A.A No.310 of 2010, disposed by the Division Bench of this Court on 03-02-2011 in respect of properties included in the same notification. 6. Another contention raised by the learned counsel for the L.A.A No.224 of 2011 6 appellant is that the court below was under a misapprehension that the exercise of jurisdiction under Section 18 of the Act is an appellate jurisdiction. In order to canvass a position that the land acquisition proceedings should be considered as an original proceeding, reliance is placed by the learned counsel for the appellant on a decision in Bhavani Ramalakshmy v. State of Kerala (1990(2) K.L.T 581) . The observations by a learned Single Judge in paragraph 4 reads thus : " 4 . The claimant in a land acquisition reference is in the position of a plaintiff in a civil suit, who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in court. The materials produced and proved by the opposite side also could be taken into account for the purpose, as held in Chimanlal v. Special Land Acquisition Officer, Poona (AIR 1988 S.C. 1652). But the trial court proceeded as if it was sitting in appeal over the decision of the Land Acquisition Officer. The L.A.A No.224 of 2011 7 position is that a reference for enhancement of compensation is not an appeal against the award. The court cannot take into account the materials relied on by the Land Acquisition Officer in the award unless they are produced and proved before the court. The award of the Land Acquisition Officer is not to be treated as a judgment of the trial court open or exposed to challenge before the court hearing the reference. It is merely an offer made by the Land Acquisition Officer and the materials utilised by him for making his valuation cannot be utilised by the court unless produced and proved before it. It is not the function of the court to sit in appeal against the award, approve or disapprove its reasons, or correct its errors or affirm, modify or reverse the conclusions reached by the Land Acquisition Officer, as if it was an appellate court. The reference court has to treat the reference as an original proceeding before it and determine the market value afresh on the basis of the materials produced before it. " L.A.A No.224 of 2011 8 7. In so far as the valuation of the building is concerned, this Court in Bhavani Ramalakshmy 's case (supra), held thus : “ 6 . What is relevant for the purpose of valuing the building is not the schedule of rates of the Public Works Department. The claimant is entitled to get the market value of the building as on the relevant date. Where the subject to be valued is a building apart from the site, the principle of fixing value by ascertaining the cost of reproducing the building at the relevant time and then allowing for depreciation in consideration of the age of the building and for the costs of such repairs as might be required apart from depreciation is quite a well known and a recognised method of valuing buildings for the purpose of compensation. That method is not in anyway affected by the land acquisition. This principle was laid down by the Privy Council in Harichand v. Secretary of State (AIR 1939 P.C. 235) and Secretary of State v. Varain Khanna (AIR 1942 P.C. 35). These two decisions of the L.A.A No.224 of 2011 9 Privy Council were considered and approved by the Supreme Court in State of Kerala v C.L Palu (1979 (3) S.C.C. 780). So also, a Division Bench of the Travancore Cochin High Court in Abdulrahiman Kunju v. State (1954 KLT 798) considered the Privy Council decisions and held that in order to arrive at the present value of the building, the proper course would be to find out the cost of constructing a building of that type at the time of acquisition and then deduct from it the depreciation value on account of the age of the building and also the amount required for the repairs to keep the building in a fit condition. The natural way to look at the matter would be to find out the approximate number of years and deduct the quotient as depreciation for each year. In the case of first class buildings, no depreciation is to be deducted for the first five years and then 5/6% has to be deducted for every subsequent year. Due allowance has to be made for maintenance and repairs. In the case of second class buildings, 5/6% L.A.A No.224 of 2011 10 depreciation has to be deducted for each year." 8. It is seen from the records that the claimant as well as two witnesses (AW2 and AW3) deposed that the compensation determined by the Land Acquisition Officer is inadequate. AW3 inspected the property along with AW2, the Commissioner, and submitted Ext.A3 report. It has been proved by AW3 properly. It is seen from the report that the total value of the building assessed was Rs.6,71,720/-. Depreciation co-efficient for 20 years of the building has been calculated and the depreciated value of the building was determined at Rs.4,48,037/- 9. Learned Government Pleader opposed this determination of compensation for the building on the ground that AW3 has not produced any material to show that the value of the building is in accordance with the PWD rate. From the above quotation in Bhavani Ramalakshmy's case (supra), it can be seen that for determining a just and fair compensation, building has to be valued at the rate prevalent on the date of notification L.A.A No.224 of 2011 11 and depreciation value has to be deducted along with cost of repairs for the upkeep of the building. Therefore, the contention raised by the State against enhancement of the value of the building cannot be sustained. 10. Learned counsel for the appellant relying on Narendra and Others v. State of Uttar Pradesh and Others ((2017) 9 SCC 426), contended that the court is not precluded from awarding a higher compensation than the amount claimed by the claimant since what is to be granted is just and fair compensation for the acquired property. 11. Having regard to the submissions at the Bar and the materials produced, I am satisfied that the value of the building determined by the court below is insufficient. In the result, the appeal is allowed. The value of the land acquired is redetermined as Rs.10 Lakhs per Are. The appellant is entitled to compensation at the above rate for the land acquired. The value of the building is fixed at Rs.4,72,700/- (Rupees four lakhs seventy two L.A.A No.224 of 2011 12 thousand and seven hundred only). It is made clear that the enhanced amount will carry interest @ 12% only from 10-08-2004 till 09-032007 and 9% interest on the enhanced amount for a period of one year from 10-03-2007 and thereafter interest at the rate of 15% till the amount is paid in court. The appellant/claimant is entitled to get other statutory benefits and proportionate costs. All pending interlocutory applications will stand closed. ## A. HARIPRASAD, JUDGE. amk