L.A.A.No.1148 of 2009 & Cross Objection No.94 of 2014 (Kerala High Court) — Executive Engineer, Kerala State Electricity Board, Kozhikode v. N.R. Devassia and Special Tahsildar (LA), KSEB

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 30TH DAY OF SEPTEMBER 2014/8TH ASWINA, 1936** **LA.App..No. 1148 of 2009 ( ) -----------------------------** **AGAINST THE JUDGMENT IN LAR 41/2002 of PRL.SUB COURT, KOZHIKODE DATED 30-08-2008** **APPELLANT/2ND RESPONDENT:** **------------------------------------------------------** **EXECUTIVE ENGINEER KERALA STATE ELECTRICITY BOARD, KOZHIKODE.** **BY ADVS.SRI. ASOK M.CHERIYAN, SC, KSEB SRI.PULIKOOL ABUBACKER, SC, KSEB** **RESPONDENTS/CLAIMANTS @ 1 ST RESPONDENT:** **-------------------------** **1. N.R.DEVASSIA, S/O ROCKY NELLIKKATHERUVIL, KODENCHERY** **2. SPECIAL TAHSILDAR(LA), KERALA STATE ELECTRICITY BOARD, KOZHIKODE.** **BY ADV. SRI.S.SREEKUMAR (SR.) ADV. SRI.V.N.RAMESAN NAMBISAN SR.GOVT. PLEADER SRI.R.PADMARAJ** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 30-09-2014, ALONG WITH CO. 94/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **T.R.RAMACHANDRAN NAIR & P.V.ASHA, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **L.A.A.No.1148 OF 2009 & Cross Objection No.94 OF 2014** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30[th] day of September, 2014 ## **JUDGMENT** ## Ramachandran Nair, J. The appellant in L.A.A.No.1148/2009 is the requisitioning authority, namely the Kerala State Electricity Board ( for short as K.S.E.B.) and the Cross Objection is filed by the claimants. 2. The property was acquired for the purpose of KSEB, namely for construction of small Hydel scheme at stage II. The notification under Section 4(1) was issued on 28.4.1999. A total extent of 150 cents of land was acquired at the rate of Rs.1525/- per cent and the award was passed on 20.9.2001. The property was taken possession on 2.1.2001. The claimants sought enhancement of the land value @ Rs. 30,000/- per cent. The court below allowed the claim in part by fixing the land value at Rs. 20,000/- per cent. In the appeal, the Electricity Board has disputed the assessment made by the court below. In the cross objection filed by the claimants, they have claimed land value at Rs. 30,000/- per cent. L.A.A.Nos.1148/2009 & Cross Objection No.94/2014 2 3. We heard Sri.Pulikkool Aboobacker, the learned Standing Counsel for the Electricity Board and the learned Senior Counsel for the claimants Sri.S.Sreekumar. 4. At the outset, the learned Standing Counsel for the Board submitted, by referring to the documents produced before the Reference Court, that Exts.A1 to A4 are not comparable. Ext.A1 is only an agreement for sale. The learned counsel further submitted that Exts.A2 to A4 are sale deeds in respect of small extents of land, that also on the side of a public road namely Kodencherry -Thusharagiri road, whereas the acquired property is on the Chembukadavu-Vattachira road. It is submitted that the document Ext.B1 which is produced by the Electricity Board will show that it is a post notification document, where the land value reflected is only Rs. 5,000/- per cent which was also purchased for the same purpose in the year 2002. It is therefore submitted that there is no justification for enhancing the land value. 5. The learned Senior Counsel for the claimants submitted that coupled with the documents Exts.A2 to A4 there is report of the Commissioner Exts.C1 and C2 is the plan prepared by the Commissioner L.A.A.Nos.1148/2009 & Cross Objection No.94/2014 3 after visiting the property. The learned Senior Counsel submitted that the property of the claimants is practically divided by ChembukadavuVattachira road which is a tarred road. On one side of the acquired property there is Chalipuzha and the same is a garden land which has been improved at one level. It is submitted that Ext.B1 property is on the hilly side which is not comparable with the acquired property. It is also submitted that nobody has been examined on the side of the Electricity Board. With regard to Exts.A2 to A4 properties, the learned Senior Counsel submitted that they are only at a distance of 1 to 2 Km.from the acquired property and the acquired property is at a distance of 1 km. from the Chembukadavu town and therefore the advantages of the property as a residential plot cannot be lost sight of. It is submitted by the learned Senior Counsel on relying upon the decision of the Apex Court in **Mehrawal Khewaji Trust v. State of Punjab ( 2012 (2) KLT 542 (SC))** that the documents of small plots cannot be totally brushed aside and they can be relied upon by the court by giving appropriate reduction. Our attention was invited to paragraphs 15 and 17 of the judgment wherein the Apex Court after referring to the earlier decisions held that “ value of sale of small pieces of land can be taken into ## L.A.A.Nos.1148/2009 & Cross Objection No.94/2014 4 consideration for determining the value of large tract of land but with a rider that the Court while taking such instances into consideration has to make a reasonable deduction keeping in view of other attendant circumstances.” Therein the Apex Court has allowed reduction of 20%. The learned Senior Counsel therefore submitted that if the average sale price of Exts.A2 to A4 is taken, it will be around Rs. 75,000/- and even if 20% reduction is granted, it will be much more than the value claimed by the claimants. 6. True that Ext.B1 document is of the year 2002, which is executed on 25.10.2002, Going by the description of the property, the extent is 40 cents, but from the boundaries of the property it is seen that it is bounded by four sides by the properties of the Board and the road is vested with the Electricity Board. Except the document, no other details of the property are available and none of the officials of the Board has been examined to explain the transaction also. Therefore, we do not find any reason to accept the same. It is also seen that Ext.B1 property is on a hilly side where as the acquired property is on the bottom portion of the hill, going by the report of the Commissioner. The report of the Commissioner Ext.C1 gives the details regarding the lie of the land and the importance of ## L.A.A.Nos.1148/2009 & Cross Objection No.94/2014 5 the locality. The property is 1 km. away from Chembukadavu town which is situated on the western side of the river Chalipuzha. The road is tarred upto the property of the claimants. Power house is situated on the eastern side of the road and western side of the river. The claimant is residing in the remaining property on the western side of the road. It is reported that it appears to be fertile, well maintained and nourished. 7. We find from the report of the Commissioner also that Ext.B1 property is not having road access. It is also reported that the basic land is about 3 ½ Km. away from the acquired land and 350 metres away from Kodenchery-chembukadavu road which is on the steep side of a hill. There is no road frontage or motor access to this property, whereas there is tarred road access to the acquired property. The basic land is on the top portion of the hill, whereas the acquired property is at the bottom. Therefore, the Commissioner is of the opinion that the acquired property is not similar to the basic land. 8. The Commissioner has also inspected the properties Exts.A2 and A4. It is stated that all the properties are in Kodencheri town, on the eastern side of Kodancheri-Thamarassery road. These properties were ## L.A.A.Nos.1148/2009 & Cross Objection No.94/2014 6 purchased for construction of a Hotel and a road to it. Finally, the opinion of the Commissioner is that the acquired property will fetch a value of Rs. 23,000/- per cent. 9. We are of the view that in the light of the decision of the Apex Court mentioned above, merely because Exts.A2 to A4 are in respect of small extent compared to the acquired property, the same cannot be totally ignored. Of course it is on the other side of the town which is within 1 -2 Km. from the acquired property. The learned Standing Counsel submitted that it cannot be forgotten that the acquired property is having 150 cents in extent, whereas the properties covered by Exts.A2 to A4 are smaller in extent. The question is whether they could be totally ignored. We are of the view that in the light of the fact that the property acquired is also a level land and on the side of a tarred road, and Exts.A2 to A4 are on the side of another tarred road with similar advantages, those cannot be totally ignored. Then the question is how far the reduction could be made. Going by the report of the Commissioner he has assessed the value of the land at Rs. 23,000/-. As per Ext.A5 the valuer has assessed at Rs. 25,000/-, of course, the valuer has not referred to any of the documents also. The ## L.A.A.Nos.1148/2009 & Cross Objection No.94/2014 7 evidence of the claimant AW1 also points out the fact that the property is in an important locality on the side of public road and on the side of river. Considering all these aspects, we are of the view that the claimant will be entitled for land value at the rate of Rs. 22,000/0 per cent. 10. The learned Standing Counsel for the Board submitted that the benefit granted under Section 23(1-A) is not correct. We find from the operative portion that 12% is granted from the date of notification till the date of award. Going by Section 23(1-A) of the Act, the important dates will be the date of taking possession and the date of the award as the case may be . The earlier date among the two will have to be taken. Herein, the earlier date is the date of taking possession i.e. on 2.1.2001. The benefit under Section 23(1-A) is allowable only to that extent. We modify the operative portion of the judgment to that extent. 11. We find from the order passed in C.M.Appln.No.594/2014 in the Cross Objection that there was delay of 1731 days in filing the cross objection. This Court has made it clear that in the event of the cross objection being allowed enhancing the compensation, the claimant will not be entitled for interest for the said period of delay. In that view of the L.A.A.Nos.1148/2009 & Cross Objection No.94/2014 **==> picture [7 x 9] intentionally omitted <==** matter, the claimant will not be entitled for interest at the rate of 15% for the period of 1731 days. Accordingly, the appeal L.A.A.No.1148/2009 filed by the Electricity Board is dismissed, subject to the modification with regard to the amount awarded under Section 23(1-A). The Cross Objection filed by the claimant is allowed in part by fixing the land value at Rs.22,000/- per cent and the claimants will be entitled for all the statutory benefits. No costs. ## **T.R.RAMACHANDRAN NAIR, JUDGE** ## **P.V.ASHA, JUDGE** sv. L.A.A.Nos.1148/2009 & Cross Objection No.94/2014 9