Petronet CCK Limited v. T.S. Joseph & Deputy Collector, Palakkad

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN THURSDAY, THE 23RD DAY OF FEBRUARY 2012/4TH PHALGUNA 1933 ## **CRP.No. 318 of 2009** OP.155/2000 ON THE FILE OF THE DISTRICT COURT, PALAKKAD REVISION PETITIONER/IST RESPONDENT IN THE OP: ----------------------------------------------- PETRONET CCK LIMITED, IRIMPANAM INSTALLATION OF BPCL, IRIMPANAM, KOCHI-682 309 REPRESENTED BY ITS COMPANY SECRETARY SHRI.S.RAMESH. BY ADVS.SRI.M.PATHROSE MATTHAI (SR.) SRI.SAJI VARGHESE SMT.MARIAM MATHAI SRI.P.THOMAS GEEVERGHESE RESPONDENTS: PETITIONER & 2ND RESPONDENT: -------------- 1. T.S.JOSEPH, S/O.DEVASYA ALIAS SEBASTIAN, THENGUMPALLIL HOUSE, PANNIANKARA (PO) KALLINGALPADAM, ALATHUR TALUK, PALAKKAD DISTRICT. 2. DEPUTY COLLECTOR, THE COMPETENT AUTHORITY (KERALA) COCHIN-COIMBATORE-KARUR PIPELINE PROJECT RENJISHA BUILDING, ALINCHUVADU, EDAPPALLY P.O. KOCHI-682 024. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **I.A.NO.1265/2009 IN C.R.P.NO.318/2009** DISMISSED 23/2/2012 SD/- **K.T.SANKARAN, JUDGE** //TRUE COPY// AHZ/ ## **K.T.SANKARAN, J.** ## **-----------------------------------------------------C.R.P. NO. 318 OF 2009 A -----------------------------------------------------Dated this the 23[rd] day of February, 2012** ## **O R D E R** The petitioner is the requisitioning authority for whose benefit land belonging to the first respondent was acquired for drawing petroleum pipelines under The Petroleum and Minerals, Pipelines (Acquisition of Right of User in Land) Act, 1962 (Act No.50 of 1962) (hereinafter referred to as 'the Act'). The competent authority granted a compensation of `84,886/- to the first respondent. For laying the pipelines, fruit bearing coconut trees, yielding rubber trees, pepper wines, coffee plants, mango trees, teak trees and some other trees were cut and removed. An extent of 14.33 cents was used for laying the pipelines. Claiming enhanced compensation of `3,90,487/-, the first respondent filed O.P.No.155 of 2000 before the Court of the District Judge, Palakkad. 2. The first respondent claimed enhancement on all counts including compensation for cutting of trees. The court below held that an enhanced compensation of `4,330/- should be granted to the C.R.P. NO.318 OF 2009 :: 2 :: first respondent for the rubber trees cut and removed from the property. The competent authority had granted `6,494/- on that count, taking 60% of the yield as expenses for rubber cultivation. The court below relying on the decision of the Division Bench in A.S.No.299 of 1973 (1977 KLT SN 24 Case No.63), held that 30% can be fixed as the expenses for cultivation of rubber. Accordingly, it was held that the first respondent is entitled to get an enhanced compensation of `4,330/-. 3. In C.R.P.No.82 of 2009, I had held that the uniform deduction of 40% was granted as expenses for rubber cultivation in other cases where trees were cut for drawing electric lines. If 40% is taken as the expenses for rubber cultivation, there would be a difference of `1,084/-. However, I do not think that for this amount it is necessary to set aside the order passed by the court below. Interest was awarded by the court below from the date of filing of the Original Petition. The first respondent was entitled to interest on the enhanced compensation from the date of cutting of trees, as held by the Division Bench in **K.S.E.B.** v. **Maranchi Matha** (2008 (1) KLT 1038). However, since the first respondent has not challenged the C.R.P. NO.318 OF 2009 :: 3 :: order passed by the court below, there is no scope for altering the date of granting of interest. 4. The court below awarded a sum of `47,465/- as compensation for diminution of land value. An extent of 14.33 cents of land was used for laying the pipelines. The market value of the land (26.72 cents) was fixed at `1,58,217/-. Under Section 10(3) of the Act, the competent authority awarded 10% of the land value as compensation. It was contended by the first respondent before the court below that over and above the said compensation of 10% under Section 10(3) of the Act, he was entitled to compensation for diminution of land value. That contention was accepted by the court below and a sum of `47,465/- was awarded as compensation for diminution of land value, taking 30% of the land value as diminution of land value. ## 5. In C.R.P.No.82 of 2009, I had held thus: _“8. Sub-section (1) of Section 10 provides that the Central Government, State Government or the Corporation, as the case may be, shall be liable to pay compensation to the person interested in the land for_ ## C.R.P. NO.318 OF 2009 :: 4 :: _the damage, loss or injury sustained by him. The competent authority has to fix the compensation payable to the person interested in the land. If the amount of compensation determined by the competent authority is not acceptable to any party, he can approach the District Judge claiming enhancement and the District Judge shall determine the compensation payable. Sub-section (3) of Section 10 provides as to how the competent authority has to fix the compensation on account of the damage or loss or injury sustained by the person interested in the land in respect of the matters mentioned in clauses (i) to (iii) therein. Sub-section (4) provides for payment of compensation calculated at 10% of the market value of the land on the date of notification, if the right of user of the land has vested in the Central Government, State Government or the Corporation, as the case may be. The compensation at 10% of the market value of the land shall be in addition to the compensation, if any, payable under sub-section (1). Sub-section (1) speaks of the compensation for the damage, loss or injury sustained by a person, where such damage, loss or injury was sustained due to the exercise of powers conferred by Sections 4, 7 and 8._ _9. Section 18 of the Act provides that the provisions of the Act shall be in addition to, and not in_ C.R.P. NO.318 OF 2009 :: 5 :: _derogation of, any other law for the time being in force relating to acquisition of land. This is a provision enabling the Government or the Corporation to acquire the land, if it becomes necessary. If such acquisition is made, the compensation payable to the owner of the land shall be computed in accordance with the provisions of the Land Acquisition Act. In such a situation, the owner of the land will be entitled to the market value of the land and all other items of compensation including compensation for diminution of land value. However, in the case of acquisition of the right of user of the land under the Act, there is no divestiture of the right or title of the land owner in respect of the whole of the land used for the purpose of laying pipelines. The land owner has to suffer only the restrictions imposed under the Act. For that purpose, he is paid compensation in accordance with the Scheme of Section 10 of the Act. There is no scope for importing into Section 10 of the Act, the provisions of the Land Acquisition Act and the principles governing the award of compensation under the Land Acquisition Act, so long as the land has not been acquired invoking Section 18 of the Act and only the right of user of the land has vested in the Central Government, State Government or the Corporation under the Act._ _10. A Division Bench of this Court in_ C.R.P. NO.318 OF 2009 :: 6 :: _W.A.No.2038 of 2005 and connected cases, while dealing with the appeals filed against upholding the constitutionality of the Act, held thus:_ **“In our view, the compensation payable under Section 10(4) is for the diminution in value of the land on account of disabilities attached to it under Section 9(1) and (2) of the Act. The compensation provided under this provision is 10% of the market value. In our view, styling of the compensation as equivalent to solatium payable under the Land Acquisition Act by the learned single Judge does not give any new dimension to the compensation payable under Section 10(4). In this view of the matter, clause (3) of paragraph 42 of the judgment above extracted can only mean that the compensation payable under Section 10(4) is over and above the compensation payable under Section 10(1) read with sub-section (3). We therefore hold that besides the compensation provided for actual damage and injuries sustained by the land owners or the person interested in the land under Section 10(1) read with sub-section (3) thereof, the only compensation payable is 10% of the market value payable under Section 10 (4) of the Act to the land owners which is compensation payable for the restrictions in regard to use and enjoyment of land under Section 9(1) and (2) of the Act.”** C.R.P. NO.318 OF 2009 :: 7 :: _11. Clause (3) of paragraph 42 in the judgment rendered by the learned single Judge, from which the Writ Appeals arose, reads as follows:_ **“(3) The competent authority and the District Judge while determining compensation under Section 10(1) or 10(2) as the case may be, shall apart from the aspects mentioned in Section 10(3)(i), 10(3)(ii) and 10(3)(iii) also take into account the diminution in the value and utility of the acquired land inclusive of the subsoil on account of the interdicts imposed upon the land and the land owners under the proviso to Section 9.”** _12. Compensation for diminution of land value also would be taken in by the compensation at ten per cent of the market value payable under sub-section (4) of Section 10 of the Act. Apart from the compensation payable under sub-section (4) of Section 10 of the Act, no other compensation is payable under the Act for diminution of land value. Section 18 of the Act would not apply, so long as the land is not acquired as contemplated under the Land Acquisition Act. The acquisition under the Act (Act 50 of 1962) is only an acquisition of right of user in land. The title of the land remains with the owner. Only some restrictions are imposed under the Act for the user of the land by the_ ## C.R.P. NO.318 OF 2009 :: 8 :: _owner thereof. For the purpose of the acquisition of such right of user, Act 50 of 1962 is self contained. Compensation payable to the owner of the land should be as provided under the Act. Over and above the compensation payable under the Act, there is no scope for granting compensation under any other head, so long as the acquisition is only for the purposes provided and in the manner provided under the Act.”_ 6. For the aforesaid reasons, the award of `47,465/- as compensation for diminution of land value granted by the court below is liable to be set aside. Accordingly, the order passed by the court below to that extent is set aside. The Civil Revision Petition is allowed and the order passed by the court below is modified deleting the compensation of `47,465/awarded by the court below as compensation for diminution of land value. In all other respects, the order passed by the court below will stand. **(K.T.SANKARAN) Judge** ahz/