Mother Superior, St. Teresa's Convent (Manager, St. Joseph's Schools), Koonammavu, Ernakulam v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **& THE HONOURABLE MRS. JUSTICE SHIRCY V.** **FRIDAY, THE 6TH DAY OF APRIL 2018 / 16TH CHAITHRA, 1940** ## **LA.App..No. 418 of 2014** **(AGAINST THE JUDGMENT AND DECREE DATED 31-10-2013 IN LAR 63/2009 of PRINCIPAL SUB COURT, NORTH PARAVUR)** ## **APPELLANT/CLAIMANT** **MOTHER SUPERIOR, ST. TERASA'S CONVENT, (MANAGER, ST. JOSEPH'S SCHOOLS), KOONNAMMAVU, ERNAKULAM.** ## **BY ADV.SRI.T.M.ABDUL LATHEEF** ## **RESPONDENT/RESPONDENT:** **STATE OF KERALA, REPRESENTED BY GOVERNMENT PLEADER, HIGH COURT OF KERALA, ERNAKULAM, COCHIN 682031.** ## **BY SR. GOVT. PLEADER SRI. K.B. RAMANAND.** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 06-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **AMG** ## **C.K. ABDUL REHIM, J. & SHIRCY V., J.** ------------------------------------------------- ## **L.A.A. No. 418 OF 2014** ------------------------------------------------- DATED THIS THE 6[th] DAY OF APRIL, 2018 ## **J U D G M E N T** Abdul Rehim, J. The appellant herein is the claimant in L.A.R.No.63/2009 on the files of the Principal Sub Court, North Paravur. An extent of 79.96 Ares of land and part of a school building situated therein, comprised in Kottuvally Village in Paravur Taluk, was acquired for the purpose of widening of NH-17, by virtue of the Notification u/s.4(1) of the Land Acquisition Act (hereinafter referred to as 'the Act' for short) published on 23.8.2004. The Land Acquisition Officer included the property in category No.1 and prepared the draft valuation statement by fixing land value at the rate of Rs.1,21,213/- per Are. Before passing of the award, the appellant herein had approached this court in a writ petition, O.P.No.12801/2000, contending that the proposed alignment for road widening cannot be permitted. Inter **LAA No.418/2014** -2- alia, relief was sought for to exclude the school buildings situated in the property of the appellant from the acquisition. The said writ petition was subsequently amended by incorporating a further relief by way of declaration that, the entire acquisition proceedings initiated against the property of the school, which is a minority institution, is illegal, unjust and arbitrary and will offend the constitutional rights guaranteed under Article 30(1A); for which the State Government is not competent. As born out from the records, the acquisition proceedings remained stayed till 20.6.2008, on which date the writ petition was disposed of by this Court. In the judgment in O.P.No.12801/2000, this court directed the Land Acquisition Officer (LAO) to hear the appellant with respect to the correct amount to be paid in exchange of the properties being acquired, and to pass an award which will be sufficient for enabling the appellant to continue the educational institution, as it existed prior to the acquisition. It was directed that, the determination of amount shall be **LAA No.418/2014** -3- made in terms of Article 30(1A) of the Constitution of India and in accordance with the parameters provided u/s.23 of the Land Acquisition Act. It was also observed that, the awarding officer will have to bear in mind that the compensation to be awarded should be special and that the same is to be determined not on the parameters of Section 23 alone. Observation made is that, apart from the parameters contained in Section 23, the LAO has to take into account the probable amount which may be necessary for the educational institution, if it were to construct another new building of the same specifications as that of the building which they are loosing on account of the acquisition. In other words, it was observed in the judgment that, the principle of 'reinstatement', which is not often followed in Indian law relating to land acquisition compensations, should also be kept in mind by the LAO, while passing the award. This Court had further observed that, if the Government wants to take possession of the properties immediately, even before the award is passed, **LAA No.418/2014** -4- the respondents are permitted to do so on condition that the appellant is paid tentative compensation for the property to be acquired, at two times of the basic value proposed as per the draft award. Further, with respect to the value of the building, it was directed that, the value assessed by the LAO is the basic value registered, which shall be given without any depreciation. 2. Pursuant to the judgment in O.P.No.12801/2000, the LAO passed an award fixing the land value at double the rate of the value originally proposed, i:e:, at Rs.2,42,426/per Are (Rs.1,21,213 x 2). A sum of Rs.11,970/- was awarded towards value of improvements and a sum of Rs.7,52,676.95 was awarded towards value of the building without making any depreciation from the value estimated in accordance with the PWD norms and guidelines provided under the Land Acquisition Manual. Being not satisfied with the compensation awarded a reference was sought for u/s.18 of the Act. The impugned judgment arises out of the reference made. **LAA No.418/2014** -5- 3. Before the reference court, the appellant placed reliance on Exts.A2 and A3 judgments of this court, passed in L.A.R.No.104/2007 and L.A.A.No.443/2010. But the reference court noticed that, the land value awarded by the LAO is higher than the value fixed by this court in that case. AW1, who was examined on behalf of the appellant, had conceded that, she has not seen any sale deeds executed with respect to any property in the locality having value as claimed by the appellant. She also conceded that, she had neither seen nor has any idea about the properties covered by the basic documents relied upon by the LAO. Even though the appellant had produced Exts.A4 and A5 Gazette Notifications for proving the 'fair value' fixed with respect to the acquired property, u/s.28A of the Kerala Stamp Act, 1959, the reference court has not placed any reliance on the said evidence, based on the decision of the Hon'ble Supreme Court in **Krishi Utpadan Mandi Samiti, Sahaswan District Badaun** v. **Bipin Kumar and another (2004(2) SCC 283)** . The reference court observed that, **LAA No.418/2014** -6- there is no acceptable evidence forthcoming for fixing the market value of the acquired property, which prevailed as on the date of the Section 4(1) notification. However, it was observed that, the acquired property lies on the western side of NH-17, which was originally known as 'ParavurEdappally' Road. It was found that the acquired property touches throughout its extent on the National Highway and is located at 'Chithira' junction, which is a very prominent and commercially important area. Having noticed that, several public and private institutions are located in and around the area and considering the importance of the locality, the court below decided to grant a reasonable enhancement through guess work. The land value was increased by 30% of what was awarded by the LAO. With respect to value of the building, the reference court had discarded the evidence adduced by the appellant through Exts.A9 to A11, which were purportedly produced as accounts of expenditure incurred for construction of a new building. The court below observed that, the new building **LAA No.418/2014** -7- was constructed admittedly for the purpose of starting the higher classes and that the acquired portion of the school building was only 1500 square feet. Exts.A15 to A20 documents produced as accounts of the construction undertaken was also discarded, being documents prepared by the claimant without any notice to the respondent. The evidence adduced through the report of the Advocate Commissioner was also not accepted in this respect. However, by noticing that the valuation was prepared by adopting the existing PWD schedule of rates and that the rates must have gone up during the period in between, it was held that the claimants will be entitled to get enhancement of 30% on the value of the building, over and above the value awarded by the LAO. 4. One among the claims raised by the appellant before the reference court was to compensate the injurious affection suffered to a piece of land left without acquisition, situated in between the acquired properties and the old public road. The court below observed that, from Ext.C2 **LAA No.418/2014** -8- Commission Report and in Ext.C2(a)sketch attached therewith, it is evident that an extent of 17.900 cents of property belonging to the claimants remained unacquired. It was found that, the claimant is not having any other properties touching with that small and narrow strip of land remaining unacquired, which cannot be used for any purposes. Referring to Ext.A8 mahazar and Ext.C2(a) sketch, it was observed that, the said extent of property remains in 4 pieces, two pieces each remaining contiguous in rectangular and triangular shapes. Considering the shape, lie and utility, the reference court found that 20% of the enhanced land value can be given as compensation for the injurious affection. Thus it was ordered that the claimant will be entitled to get Rs.1,05,604/- (Rs.14,546 x 7.26 Ares) as compensation for injurious affection. 5. The appellant is challenging the judgment of the reference court on various grounds and is seeking enhancement of compensation under different counts by contending that the amounts awarded are unreasonable and **LAA No.418/2014** -9- unjustifiable. Contention of the appellant on the enhancement of the land value is mainly based on the decision of this Court in O.P.No. 12801 of 2000. Learned counsel appearing for the appellant contended that, the specific direction issued by this court to base the award on the principle of 'reinstatement', which is not often followed in Indian law relating to land acquisition compensation, was omitted notice by the LAO and the reference court. It is pointed out that, such an observation of this court was made on taking into account of the probable amounts which may become required for the educational institution to construct another building with the same specifications as that of the size of the building which they are loosing on account of the acquisition. As already observed, the appellant had raised a contention in O.P.No.12801 of 2000 that the acquisition proceedings initiated against the school property is illegal and will infringe their constitutional rights guaranteed under Article 30(IA). Heavy reliance was placed by the appellant on the decision of a Constitution ## **LAA No.418/2014** -10- Bench of the Hon'ble Supreme Court in **Society of St.Joseph College V. Union of India [2002 (1) KLT 438 (SC)].** Referring to Article 30(IA) the hon'ble apex court observed that, after the date of its introduction, there must be a law which should specifically relate to compulsory acquisitions of properties of minority educational institutions and such law must make provisions and ensure that the amounts fixed or determined thereunder for the acquisition, do not restricts or abrogates the rights guaranteed under Article 30 (IA). It was found that, it is only appropriate that the Parliament and the State legislature must bring the law which specifically relates to compulsory acquisition of the properties of minority educational institutions. Accordingly, the apex court directed the Parliament and the State legislatures to make such law, if they so chose, for which time was granted upto 31.5.2002. Contention raised by the appellant in O.P.No.12801/2000 was that, since no law as directed by the Hon'ble Supreme Court was legislated, the acquisition **LAA No.418/2014** -11- proceedings initiated cannot be sustained legally. While appreciating the said contention, a learned Judge of this court observed that, a plain reading of the judgment of the Hon'ble Supreme Court will certainly show that the Supreme Court held that, proceedings for acquisition of properties belonging to minority educational institutions will lapse by 31.5.2002, unless the Land Acquisition Act is amended so as to incorporate provisions in tune with Article 30(IA) or any new law for acquisition of the properties of minority institutions is enacted. In the judgment in O.P.No.12801/2000 it was observed that, such a law as directed by the Supreme Court was not enacted. But on the factual matrix it was found that, materials in the case at hand would show that, it is only a small portion of the school building, having extent of 260 sq.mtr alone, was proposed to be acquired for widening the National Highway. Hence, on the facts of the case, the genuine and urgent need for widening of the NH was upheld. It was found that, it is enough that the amount which the appellant would **LAA No.418/2014** -12- receive in exchange of the acquisition is equal to the amount which they would have received if the same was determined under the legislation suggested by the Hon'ble Supreme Court, which ought to have been in confirmity with Article 30(IA) of the Constitution. This court explained that, such amount should be adequate as to enable the appellant to continue to enjoy the rights conferred on them under Article 30(IA), ie; an amount which is sufficient to conduct the educational institution in the same manner as they have been conducting the same, prior to the acquisition. It was held that, the awarding officer should bear in mind that the compensation should be special and the same is to be determined not on the parameters of Section 23 of the Act alone, but should also be on taking into consideration of the probable amount necessary for the educational institution, if it has to construct another new building of the same specifications. Based on the above said observations, the LAO was directed to fix the appropriate amount of value for the acquired properties, which should **LAA No.418/2014** -13- be sufficient for enabling the appellant to continue the educational institution as they used to it prior to the acquisition. In effect, the direction issued by this court in the writ petition to the LAO was, to determine the compensation taking note of provisions contained in Article 30(IA) of the Constitution, apart from applicability of the parameters contained under Section 23 of the Land Acquisition Act. But at the same time, this court directed that, if the Government wants to take over possession of the land immediately even before passing of the award, they have to make tentative payment of compensation at two times of the basic land value proposed by the LAO, which was reflected in the draft award prepared. So also it was directed that, for taking over possession of the property before passing of the award, the value of the building should be paid without deducting any depreciation. 6. It is pertinent to note that, in the judgment in O.P.No.12801/2000, this court specifically clarified that, the said judgment should not be understood as deciding the **LAA No.418/2014** -14- correct market value of the land in the area, prevailing at the relevant time of acquisition or that it should be two times the value determined in basic valuation report or in the draft award. It was further clarified that, the judgment shall not be understood as one deciding the correct amount to be paid to the petitioners as compensation of the building acquired. It was observed that, the award need to be passed having due regard to Article 30(IA) of the Constitution and having regard to the observations contained in the judgment of the Honourable Supreme Court in **Society of St. Joseph's College case** (supra). 7. It is in the above background we need to evaluate the impugned judgment of the reference court. The LAO had fixed land value at the rate of Rs.1,21,213/- per Are by placing reliance on two basic documents, Sale Deed Nos.4015/2001, dated 25.6.2001 and 7078/2002, dated 31.12.2002. But on the basis of the directions contained in the judgment in O.P.12801/2000, the appellant was granted compensation at Rs.2,42,426/- per Are, which is double the **LAA No.418/2014** -15- amount of the value of Rs.1,21,213/-, which was originally fixed by the LAO. Question to be considered is as to whether the appellant is entitled for further enhancement. The reference court found that, the value reflected under the exemplars of Exts.A2 and A3, is less than the value awarded by the LAO. Therefore, there was no other comparable sale instances available before the reference court for enhancing the land value. Still the reference court granted 30% increase in the land value taking note of the prominence of the locality and the potentiality with respect to the utility. Question to be considered is as to whether the land value awarded will be adequate and reasonable compensation, which would justify the mandates under Article 30 (IA) of the Constitution of India; as found by the apex court in **Society of St.Joseph's College case** (supra) and as found by this court in O.P.No.12801/2000. The parameters to be followed in the case of acquisition property of minority institutions is that, the LAO should take into consideration of the probable amount necessary for the **LAA No.418/2014** -16- educational institution, if it were to construct another new building of the same specifications of which they were losing on account of the acquisition. This court had clarified in the judgment that the principle of 'reinstatement' which is not often followed under the Land Acquisition Act, should also be kept in mind. 8. While considering the above said issue, we take note of the fact situation prevailed. The portion of land acquired is only a strip out of a vast compound of the school, along with a portion of the school building, a toilet complex and a portion of the compound wall. Eventhough the appellant had adduced evidence regarding construction of a new building in the unacquired property, the reference court observed that, the said building was actually constructed for starting the Higher Secondary Section. It is pertinent to note that, apart from the value of the acquired land, compensation was already awarded with respect to value of the building. For canvassing mandates of Article 30 (IA) and the benefits stipulated thereunder, the appellant **LAA No.418/2014** -17- ought to have adduced acceptable evidence to show that they were compelled to expend much amounts for construction of building in substitute of the demolished portion. What was produced in evidence is the valuation report with respect to the new building complex constructed. But there is nothing to show that, the entire new complex constructed was utilized for accommodating the class rooms which were demolished. So also, there is no specific data produced or proved to show the actual expenditure incurred for construction of the portion of the new building to accommodate the class rooms conducted in the demolished portion. As already observed, the LAO had already awarded double the amount of land value determined by him. The exemplars of Exts.A2 and A3 produced by the appellants are judgments passed by this Court, determining compensation with respect to other properties acquired under the very same notification. The rate fixed therein are considerably below the rate awarded in the case at hand. Still the reference court had taken a **LAA No.418/2014** -18- favourable view and enhanced the land value by 30%. Therefore we are of the considered opinion that the appellant is not entitled for any further enhancement on the land value awarded. 9. The next question to be considered is with respect to value of the building. The 'Notes to Award' would indicate that, valuation of the building was taken by relying on the PWD schedule of rates prevailed in the year 2008. The reference court observed that, the rates must have gone up during the period from 2008 to 2013. Therefore it was held that, the appellant is entitled to get a reasonable enhancement. Accordingly the reference court enhanced the value of the building by increasing 30% from the amount of Rs.7,52,676.95 fixed by the LAO. In this respect we take note of the principles underlying in the decisions of the Supreme Court in **Society of St.Joseph College's case** (supra) and in Ext.A1 judgment in O.P.No.12801/2000. It has to be taken note of that, the appellant was compelled to shift the classes conducted in the acquired portion of the **LAA No.418/2014** -19- building by making immediate alternate arrangements. So also they were compelled to construct another 'Toilet Block' in the place of the demolished one. Naturally, all these constructions might have been done on an urgent pace, in order to meet the immediate requirements. Therefore we are of the view that the theory of 'reinstatement' underlying in Article 30(IA), which was reiterated by the apex court, need to be considered. We are of the opinion that the enhancement of 30% awarded by the reference court in this count is insufficient. We are inclined to make an enhancement at 50%. Accordingly we refix the value of the building acquired at Rs.11,29,015/-. 10. Yet another point to be decided is with respect to claim for the injurious affection with respect to a strip of land left back unacquired. It has come out in evidence that, a new road was formed through the acquired land, at the relevant spot. A strip of land in between in the acquired property and the existing old road was left unacquired. From Ext.C2 commission report and Ext.C2 (a) sketch **LAA No.418/2014** -20- appended therewith, it was revealed that, the said strip of land is lying in 4 small bits, situated in between the new road and the old road. The Advocate Commissioner, with the aid of measured sketch had reported that, the extent of the said strip is 07.26 Ares. It is also reported that the appellant has no other properties touching that small strip of land. The report of the Advocate Commissioner is to the effect that, the said strip of land cannot be utilized for any purposes. It is also reported that the land in question is situated in small strips, extending through the entire length of the acquired property. The above fact is also evident from Ext.C2 (a) sketch and also from Ext.A8 mahazer prepared by the LAO. On a perusal of Ext.C2 (a) sketch it is revealed that, the strip of land which is divided into 4 pieces is having only very narrow width, varying from 0.0 to 7.3 Meters. In most of the places the width is less than 3 meters. Considering the fact that the said strip is abutting to the newly formed National Highway, no building permit can be obtained for any construction, after leaving statutory **LAA No.418/2014** -21- set back. The reference court had arrived at a finding that, the said extent of 07.26 Ares in full is left unutilized. But, by observing that, the land is situated in a place wherein commercial activities are possible, 20% of the enhanced value alone was awarded as compensation for the injurious affection. It seems that the reference court had calculated the 20% only on the enhanced land value and not on the entire land value, which apparently is a mistake. 11. We are of the considered opinion that the appellant was successful in proving that the utility of the strip of land having an extent of 7.26 Ares was seriously affected in an injurious manner. The utility of the said piece of land has become practically nil. Under such circumstances, we are of the opinion that a reasonable compensation need to be awarded. We feel that 50% of the land value as refixed by the reference court need to be awarded in this regard. Since the land value refixed is Rs.3,15,154/- per Are, 50% of the said amount need to be awarded for an extent of 7.25 Ares. Hence we award a sum **LAA No.418/2014** -22- of Rs.11,44,009/- on this count. (3,15,154 ÷ 2 x 7.26). 12. Learned counsel for the appellant had pointed out yet another irregularity in the impugned judgment. In the operative portion of the judgment in clause 4 of para 18 it is mentioned that, the additional market value at 12% per annum on the enhanced land value shall be given only from 20-06-2008 to 31-10-2008. This is by excluding the period during which the matter remained under stay before this court in O.P No.12801/2000. Learned counsel had produced a copy of the judgment rendered by this court in W.P (C) No.35376/2008. It is a writ petition filed by the appellant herein challenging the exclusion of the period, for the purpose of computing benefits under Section 23 (1A) of the Act. It is evident from the said judgment that, this court had directed release of the total amount payable under Section 23 (1A) being 12% of the market value from the date of Section 4 (1) notification (from 23-08-2004) till 18-12-2005. Therefore it is evident that, by virtue of the judgment of the reference court the benefit already granted in this regard, **LAA No.418/2014** -23- has been taken away. By rectifying the above mistake we hold that the appellant will be entitled for the benefits provided under Section 23 (1A) from the date of the Section 4 (1) notification, till 18-12-2005, apart from the period mentioned in clause 4 of para 18 of the impugned judgment. 13. In the result the above appeal is allowed in part; on the following terms. (i) The land value fixed by the reference court in the impugned judgment as well as the value for improvements fixed therein are hereby confirmed. (ii) Enhancement of the compensation with respect to value of the building is allowed by refixing the same at Rs.11,44,009/-. (iii) Compensation with respect to injurious affection for the remaining unacquired property is refixed and allowed at Rs.11,44,009/-. (iv) The impugned judgment is also clarified to the extent that the appellant will be entitled to the benefit **LAA No.418/2014** -24- under Section 23 (1A) for the period from 23-08-2004 to 1812-2005 and from 20-06-2008 to 31-10-2008. It is made clear that the appellant will be entitled for all other statutory benefits as ordered by the reference court, based on the enhanced compensation as refixed under this judgment. ## Sd/- **C.K. ABDUL REHIM, JUDGE** . Sd/- **SHIRCY V., JUDGE** . ## **acd/rp/Smm/AMG** True copy P.A. to Judge