M.L. Anto v. District Collector, Thrissur & Executive Engineer, T.C. Division, Cherpu

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **FRIDAY, THE 29TH DAY OF JUNE 2012/8TH ASHADHA 1934** **LA.App..No. 648 of 2007 ( )** **--------------------------LAR.26/2004 OF ADDITIONAL SUB COURT, IRINJALAKUDA .................** ## **APPELLANT/CLAIMANT:** **-----------------------------------** **M.L. ANTO, AGED 41, S/O.LONAPPAN, MUNDANMANI HOUSE, VELLOORKARA, THRISSUR.** **BY ADVS. SRI.P.N.RAMAKRISHNAN NAIR, SRI.P.VISWANATHAN, SRI.AJU MATHEW.** ## **RESPONDENTS/RESPONDENTS:** **-----------------------------------------------** **1. THE DISTRICT COLLECTOR,** **THRISSUR .** **2. THE EXECUTIVE ENGINEER, T.C. DIVISION, CHERPU.** **R1 BY SR. GOVT. PLEADER SRI.S. JAMAL. R2 BY SRI.P.SANTHALINGAM, (SR.), SC, KSEB. ADV. SRI.S.SHARAN, SC, K.S.E.B.** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 29-06-2012, ALONG WITH LAA NO.1752 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** ## **PIUS C. KURIAKOSE & A.V.RAMAKRISHNA PILLAI, JJ.** -------------------------------------------------------------LAA. No. 648 & 1752 of 2007 ----------------------------------------------Dated this the 29[th] day of June, 2012 ## **J U D G M E N T** ## **Pius C.Kuriakose, J.** LAA. No. 1752 of 2007 is preferred by the requisitioning authority the Kerala State Electricity Board. LAA. No. 648 of 2007 is preferred by the claimant. The land was in Pariyaram Village. The acquisition was on the basis of Section 4 (1) notification published on 23-1-2001. The purpose of the acquisition was construction of an Electrical Sub Station. The nature of the land was garden. The land acquisition officer relying on Ext.B5 basis document would fix the land value at `6390/- per cent. This was done by making deductions from the value of `8000/- reflected in Ext.B5. Before the Reference Court the claimant relied mainly on Exts. A1 and A2. Ext. A1 was a post notification document dated 31-12-2001 executed in favour of the Kerala State Horticultural Programme. Under Ext.A1, land LAA. 648/07 & 1752/07 -2- situated in the same village was purchased by the Kerala State Horticultural Programme for a sum of `15,000/- per cent. Ext. A2 was again a post notification document dated 13-2-2002 reflecting a land value of `18590/-. The learned Subordinate Judge did not become inclined to place reliance on Ext.A1 and A2 as they were post notification documents. Finally what the learned Subordinate Judge did was to place reliance on Ext.B5 itself. The learned Subordinate Judge found that the deduction by the L.A. Officer on the value reflected in Ext. B5 was not justifiable. What was done was to do away with those deductions and to add `800/- more and to arrive at the market value of the land at `8800/-. In the appeal preferred by the Kerala State Electricity Board they contend that the rate presently fixed is excessive. In the appeal preferred by the claimant he contends that the rate presently fixed is inadequate. 2. We have heard the submissions of Mr. P.Viswanathan, learned counsel for the claimant and Sri. LAA. 648/07 & 1752/07 -3- P.Santhalingam, learned senior counsel for the Electricity Board. Mr. Viswanathan would draw our attention to various items of evidence and also to Ext. B4 notes to award. Mr. Viswanathan argued that the court below was not correct in taking the view that A1 is a post notification document. He submitted with reference to certain statements in Ext.B4 notes to award that Ext.A1 is not a post notification document. This according to him, was a pre notification document. He argued that Ext.A1 property was a comparable propeprty. He referred to Ext.C-1 commissioner's report. According to him, the reliance placed by the land acquisition officer and the reference court on Ext.B5 was not justified as Ext.B5 property was in Meloor Village. He pointed out that the commissioner reported in his report that the distance between Ext.B5 property and the acquired property is 16 kms. 3. Per contra Sri. P.Santhalingam, learned senior counsel for the Electricity Board submitted that the learned LAA. 648/07 & 1752/07 -4- Subordinate Judge has awarded reasonable compensation. He argued that A1 and A2 documents are both post notification documents. Hence could not be relied on at all. The only document to be relied on was Ext.B5 and the learned Subordinate Judge made reasonable additions to the value reflected in B5. The land in question was situated in a rural area, far away from Chalakudy Municipal Town. 4. We have given our anxious consideration to the rival submissions addressed at the Bar. We have made a reappraisal of the evidence. 5. We cannot accept the argument of Mr.Viswanathan is Ext. A1 is a pre notification document. ExtA1 is dated 13- 12-2001. We are convinced on a perusal of all the records in this case including the notes to award Ext.B4 that the last date of publication of notification under Section 4(1) (publication in the locality) was on 23-1-2001. The claimant did not have any complaint against the period during which the additional amount under Section 23(1A) was calculated LAA. 648/07 & 1752/07 -5- by the land acquisition officer. It is seen from the award passed by the land acquisition officer that the component under Section 23(1A) had been awarded to the claimant during the period starting from 23-1-2001 ( the last date of publication of the notification under section 4(1)). As Ext.A1 is a post notification document we are not inclined to rely on the same. For the same reason we are not inclined to rely on Ext.A2 either. 6. Then the question is which are the relevant documents on the basis of which market value of land under acquisition can be fixed. Ext. B5 is the one document which has been put in evidence. But apart from that Ext.B4 also has been put in evidence. It is trite law that as far as the Government or the court is concerned, documents which are discussed by the land acquisition officer in the notes to award which is placed on record can also be considered. On going through Ext.B4 notes to award we find that the land acquisition officer discussed document No.3358/89 of LAA. 648/07 & 1752/07 -6- the Chalakudy Sub Registry in the award enquiry. That document reflected a land value of `11,610/- per cent as on the date of the document 13-8-1999. That document was discarded by the land acquisition officer for the reason that in the property there was a 40 year old tiled house and a pond. But the discussion in Ext. B4 itself will show that the land acquisition officer himself has found that the value of the land itself covered by the document was `11,610/- per cent. We take into account the above document also for the purpose of arriving at the market value of the land under acquisition. Another document discussed by the land acquisition officer under serial No.5 in B4 is document No. 4106 dated 26-8-2009 of the Chalakudy Sub Registry. This document reflects value of `12,881/- per cent. This document pertains to property in the same village, Pariyaram Village. This document is discarded for the reason that this property is situated closer to Pariyaram Junction. We cannot approve the action of the land acquisition officer LAA. 648/07 & 1752/07 -7- in discarding the above document only on the reason of nearness to Pariyaram Junction. The land acquisition officer could have relied on that document and fixed marked value giving some deduction on account of the nearness to Pariyaram Junction. We find that the properties covered by document No.4358/99 and 4106/99 were both in Pariyaram Village which we treat as a rural area. When additions are made for passage of time at the rate of 8% per annum it will be seen that the value of the property covered by document No.4358/99 as on the date of of Section 4(1) Notification will come to `12,771/- per cent. It will be seen that the value of the property covered document No.4106/99 will come to `14,169/- per cent. B5 was a pre notification document. B5 reflected a value of `8000/-. Giving additions to the above value for passage of time, the value of B5 based on the value in the document can be refixed at `8800/- The average of these three values (14169, 12771 and 8800) will come to `11,913/-. We follow the LAA. 648/07 & 1752/07 -8- - principles laid by the Supreme Court in L.A.O. & Sub Collector, Gadwal v. Sreelatha Bhoopal (AIR 1997 SC 2552), Gafar & Ors. v. Moradabad Development Authority & another (2007(7) SCC 614), and State of J & K v. Mohammad Mateen Wani (AIR 1998 SC 2470) and deduct 15% of this amount for the largeness of the extent involved in the acquired property. When such deduction is made the amount will come to `10126/-. We round off the same to `10,250/-. We allow LAA. No. 648 of 2007 and dismiss LAA. No. 1752 of 2007. The market value of land under acquisition is re-fixed at `10,250/- 7. The evidence available in the case falls short of awarding any compensation to the appellant towards injurious affection. We find that the total extent of the original holding belonging to the appellant was 5 acres and odd and what has been acquired is only 1 acre and 3 cents. Ext.C1(a) does not support the claim of the claimant that the remainder extent has been injuriously affected. We LAA. 648/07 & 1752/07 -9- decline any compensation to the appellant towards injurious affection. The claimant will be entitled to all statutory benefits admissible under Section 23(1A), 23(2) and Section 28 of the Land Acquisition Act on the total re-fixed land value. The parties are directed to suffer their respective costs. Decree copy will be issued to the claimant only after ensuring that the full court fee is remitted. ## **(PIUS C.KURIAKOSE, JUDGE)** **(A.V.RAMAKRISHNA PILLAI, JUDGE)** ksv/-