K.V.AMBU and others v. District Collector Kannur and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 4TH DAY OF DECEMBER 2012/13TH AGRAHAYANA 1934 LA.App..No. 728 of 2011 ( ) --------------------------LAR.73/2009 of SUB COURT, PAYYANNUR APPELLANTS/PETITIONERS: -------------------------------------- 1. K.V.AMBU - (NEAR) RAILWAY GATE, PAYYANNUR. 2. K.V.KANNAN (DIED) - (NEAR) RAILWAY GATE, PAYYANNUR. 3. K.V.GOPALAN - 'LAL VIHAR', KELOTH,RAMANTHALI P .O. 4. K.V.YESODA - (NEAR) RAILWAY GATE, PAYYANNUR. 5. K.V.LAKSHMANAN - (NEAR) RAILWAY GATE, PAYYANNUR. 6. K.V.KUNHIKANNAN - (NEAR) RAILWAY GATE, PAYYANNUR. 7. K.V.SAROJINI - (NEAR) RAILWAY GATE, PAYYANNUR. 8. K.V.PADMINI - (NEAR) RAILWAY GATE, PAYYANNUR. 9. K.V.RADHA - (NEAR) RAILWAY GATE, PAYYANNUR. 10. K.SASIKALA - (NEAR) RAILWAY GATE, PAYYANNUR. 11. K.SAJINA - (NEAR) RAILWAY GATE, PAYYANNUR. 12. K.SAJITHKUMAR - (NEAR) RAILWAY GATE, PAYYANNUR. 13. P.KALLYANI PULIKKOOL HOUSE, KELOTH, PAYYANNUR. 14. P.RAJAN PULIKKOOL HOUSE, KELOTH, PAYYANNUR. 15. P.KAMALA PULIKKOOL HOUSE, KELOTH, PAYYANNUR. 16. P.NANDINI PULIKKOOL HOUSE, KELOTH, PAYYANNUR. 17. P.MURALEEDHARAN PULIKKOOL HOUSE, KELOTH, PAYYANNUR. 18. P.GANGADHARAN PULIKKOOL HOUSE, KELOTH, PAYYANNUR. ## 19. PARU M W/O.LATE K.V.KANNAN,MATTAMMAL HOUSE KIZHAKKE VEETTIL,THRIKKARIPUR KADAPPURAM VALIYAPARAMBA GRAMA PANCHAYAT, HOSDURG TALUK KASARGOD DISTRICT. 20. LAKSHMI M MATTAMMAL HOUSE, KIZHAKKE VEETTIL THRIKKARIPUR KADAPPURAM VALIYAPARAMBA GRAMA PANCHAYAT, HOSDURG TALUK KASARGOD DISTRICT. 21. SAVITHRI M MATTAMMAL HOUSE, KIZHAKKE VEETTIL THRIKKARIPUR KADAPPURAM VALIYAPARAMBA GRAMA PANCHAYAT, HOSDURG TALUK KASARGOD DISTRICT. 22. MOHANAN M MATTAMMAL HOUSE, KIZHAKKE VEETTIL THRIKKARIPUR KADAPPURAM VALIYAPARAMBA GRAMA PANCHAYAT, HOSDURG TALUK KASARGOD DISTRICT. 23. SASIDHARAN M MATTAMMAL HOUSE, KIZHAKKE VEETTIL THRIKKARIPUR KADAPPURAM VALIYAPARAMBA GRAMA PANCHAYAT, HOSDURG TALUK KASARGOD DISTRICT. 24. BABU M MATTAMMAL HOUSE, KIZHAKKE VEETTIL THRIKKARIPUR KADAPPURAM VALIYAPARAMBA GRAMA PANCHAYAT, HOSDURG TALUK KASARGOD DISTRICT. BY ADVS.SRI.SERGI JOSEPH THOMAS SRI.K.M.AUGUSTINE RESPONDENTS/RESPONDENTS: ------------------------------------------- 1. THE DISTRICT COLLECTOR KANNUR 679 002. 2. THE SPECIAL TAHSILDAR - LAND ACQUISITION (NATIONAL HIGHWAY) KANNUR 679 002. 3. THE MANAGING DIRECTOR - R.B.D.C OF KERALA LTD, 2ND FLOOR, PREETHI BUILDING M.V ROAD, PALARIVATTOM, KOCHI 682 025. - R1 BY ADV. SHYSON P.MANGUZHA,SC.RBDCK R1 BY ADV. GOVERNMENT PLEADER, SMT. ROSE MICHEAL THIS LAND ACQUISITION APPEAL HAVING COME UP FOR ADMISSION ON 04-12-2012, ALONG WITH L.A.A.758 OF 2011. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.T.SANKARAN & M.L.JOSEPH FRANCIS JJ.,** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** L.A.A. Nos.728 and 758 of 2011 **- - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 4[th] day of December, 2012 ## **JUDGMENT** ## K.T. Sankaran J., These Land Acquisition Appeals arise out of L.A.R. Nos.73 of 2009 and 67 of 2009 on the file of the Court of Subordinate Judge of Payyannur. The Land Acquisition Court disposed of the aforesaid L.A.Rs by a common judgment dated 14.3.2011. The claimants are the appellants in the L.A.As. 2. The lands involved in these two cases were acquired for the purpose of construction of a Railway Over bridge at Payyannur. Notification under Section 4(1) of the Land Acquisition Act was published on 24.4.2005. Award was passed on 17.4.2007. An extent of 0.0131 hectares of land (1.31 Ares) belonging to the claimants in L.A.R. No.73 of 2009 and an extent of 0.04 Ares of land belonging to the claimant in L.A.R. No.67 of 2009 were _L.A.A. Nos.728 and 758 of 2011_ **==> picture [14 x 9] intentionally omitted <==** acquired. In both the lands there were buildings. In the land involved in L.A.R. No.73 of 2009 a double storied commercial building was in existence while in the land in L..A.R. No.67 of 2009 a residential building having a plinth area of 132 Sq.mtrs. was in existence. 3. The Land Acquisition Officer, as per the award dated 17.4.2007, fixed the land value at `30,817/- per cent for the acquired land. The building in L.A.R. No.73 of 2009 was valued at `2,76,201/-. The building involved in L.A.R. No.67 of 2009 was valued at `5,54,329/-. 4. The claimants were not satisfied with the amounts awarded. They filed applications under Section 18 of the Land Acquisition Act. Accordingly the references were made to the Sub Court, Payyannur. 5. Before the Land Acquisition Court, the claimants claimed a sum of `1,00,000/- per cent for the land acquired. The claimants in L.A.R. No.73 of 2009 claimed a total sum of `8,00,000/- for the building. The claimants in L.A.R.No.67 of 2009 claimed a sum of _L.A.A. Nos.728 and 758 of 2011_ :3: `12,00,000/- for the building. 6. The Land Acquisition Court enhanced the land value to `50,000/- per cent of land in both the cases. However, no enhancement was granted in respect of the buildings. 7. The sole claimant in L.A.R. No.67 of 2009 who is also one of the claimants in L.A.R. No.73 of 2007 was examined as AW1. Ext.A1 to 6 sale deeds were produced on behalf of the claimants. On the respondents' side Exts.B1 to 10 were marked. The Commissioner, who was appointed by the Court, submitted Ext.C1 report. 8. Exts.A1, A2 and A6 are documents executed prior to the date of notification under Section 4(1) of the Act. Ext.A1 was executed in 1998, much prior to the date of notification. However, the Court below did not rely on Ext.A1 on the ground that the land therein is situated far away from the acquired land and it is on the opposite side of the Payyannur Bus Stand. As regards Exts.A2 and A6, the Court below did not rely on the same only on the ground that they are post notification documents, while in fact Ext.A2 and _L.A.A. Nos.728 and 758 of 2011_ **==> picture [14 x 9] intentionally omitted <==** A6 are documents executed before the notification. Ext.A2 is a registered assignment deed dated 17.2.2005 executed in favour of Payyannur Co-operative Hospital Society Limited. As per Ext.A2, an extent of 24.75 cents of land was sold for a total consideration of `25,41,500/- which will work out to centage value of `1,02,686.86. There is no case for the respondents that Ext.A2 is a manipulated document or that it was executed before issuing the notification under Section 4(1) with calculated object. The purchaser under Ext.A2 is a registered Co-operative Society. From the description of property in ExtA2, it is clear that there is no building in that property. The Commissioner in his report stated that the acquired land has more potential than Ext.A2 property. The Commissioner stated in the report that the acquired land is situated in a more important area than the area in which Ext.A2 property is situated. As stated earlier, the Court below rejected Ext.A2 on the sole ground that Ext.A2 is a post notification document. This finding is absolutely incorrect. 9. As regards the value of the buildings, the Court below was _L.A.A. Nos.728 and 758 of 2011_ **==> picture [14 x 9] intentionally omitted <==** not inclined to accept the valuation given by the Commissioner in Ext.C1 report. In Ext.C1, the Commissioner valued the building involved in L.A.R. No.67 of 2009 at `15,34,027.50 and after depreciation it was valued at `13,03,508.50. The Land Acquisition Officer valued the building on the basis of the reports submitted by KITCO. It is stated that the valuation made by the Land Acquisition Authorities was based on P.W.D. rates. It is well known that Government contracts are awarded much above the P.W.D. rates. In **State of Kerala v. Sushama Kumari** [2010(2) KLT 972], a Division Bench of this Court held: _“At the same time, the compensation fixed by the Land Acquisition Authority for the building placing reliance solely on the valuation prepared by the Engineers of the PWD Department cannot be approved. The PWD engineers have valued the building adopting the published schedule of rates of the PWD. These rates are not realistic and the PWD itself tenders out their civil works at rates above their own rates. We cannot justify the action of the learned Subordinate Judge in having rejected the Advocate Commissioner's report regarding the quality of the materials used and the class of construction. ”_ _L.A.A. Nos.728 and 758 of 2011_ **==> picture [14 x 9] intentionally omitted <==** 10 **.** We are of the view that the Court below was not justified in fixing the land value at the low rate of `50,000/- and in not granting enhancement for the value of the building. We are also of the view that the Court below was not justified in discarding Ext.A2. 11. For the aforesaid reasons, the judgment and decree passed by the Court below are set aside and the cases are remanded to the Court below for fresh disposal. Both the parties will be entitled to adduce such other evidence as they wish to adduce. The Court below shall consider all the relevant aspects and pass a reasoned judgment. 12. The entire Court fee paid on the memorandum of appeal shall be refunded to the appellant. However, the appellant in L.A.A. No.758 of 2011 would be entitled to refund the Court fee only after payment of the balance Court fee. The Registry will ensure that copies of judgment and decree will be issued only after payment of the entire Court fee. The parties shall appear before the _L.A.A. Nos.728 and 758 of 2011_ **==> picture [14 x 9] intentionally omitted <==** Court below on 14.1.2013. 13. While condoning the delay of 131 days in filing L.A.A. No.728 of 2011, a Division Bench of this Court held that the appellants therein would not be entitled to claim interest under Section 28 of the Land Acquisition Act on the enhanced compensation, if any. Likewise, while condoning the delay in filing the restoration application in L.A.A. No.758 of 2011, a Division Bench had directed that the appellants therein would not be entitled to claim interest under Section 28 of the Land Acquisition Act on the enhanced compensation during the period from 16.1.2012 till 10.8.2012. These directions shall follow while computing the interest under Section 28 of the Land Acquisition Act on the enhanced compensation, if any. ## Sd/ **K.T. SANKARAN, (JUDGE)** Sd/ ## **M. L. JOSEPH FRANCIS, (JUDGE)** dl/