RP.No.670/2004 in L.A.A.No.1609/1998 (Review Petition)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR &** **THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN** **THURSDAY, THE 28TH FEBRUARY 2008 / 9TH PHALGUNA 1929** **RP.No. 670 of 2004()** - **-----------------------------** **AGAINST THE JUDGEMENT/ORDER IN LAA.1609/1998 Dated 20/12/2002 LAR.284/1994 of ADDL.SUB COURT,PARAVUR ....................** ## **REVIEW PETITIONER/ APPELLANT** **-------------------------------** **1. GEORGE, S/O.THOMAS ACHAI, ARTHIKULAM HOUSE, MATTANCHERRY P.O., NAZARATH, KOCHI-2.** **2. LILLY FRANCIS, W/O.FRANCIS ACHAI, KANAKKASSERY HOUSE, H.NO.V/451, CHIRAKUZHI ON THE SOUTHERN SIDE OF E.S.I. DISPENSARY, PATHALAM,ELOOR.** **3. JACOB, S/O.FRANCIS, DO. DO.** **4. MARY PAUL, D/O.FRANCIS, AMBATTU HOUSE, OPPOSITE POST OFFICE, NORTH KANAKKASSERY P.O.** **5. SHAIJAN, S/O.FRANCIS,KANAKKASSERY HOUSE, H.NO. V/451, CHIRAKUZHI ON THE SOUTHERN SIDE OF E.S.I. DISPENSARY, PATHALAM, ELOOR.** **6. BESSY JIMMY, D/O.FRANCIS, PANAKKAL HOUSE, C/O.LINSY BEAUTY PARLOUR, NAYARAMBALAM.** **7. THOMAS, S/O.THOMAS ACHAI, KANAKKASSERY, PUTHEN PALLY MURI, VARAPUZHA VILLAGE, PARUR TALUK.** **8. CLEETUS, S/O.THOMAS ACHAI, DO. DO.** **R.P. NO.670/2004** **9. SR.AMBROSSIYA, D/O.THOMAS ACHAI, DO. DO.** **10. SR.MARY MARTIN, D/O.THOMAS ACHAI, DO. DO.** ## **11. ELEZABATH ANTONY, D/O.THOMAS ACHAI,** - **DO. DO.** ## **12. MARIYA TREESA, D/O.THOMAS ACHAI,** - **DO. DO.** ## **BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)** ## **RESPONDENTS:** **-----------------------** **1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF KERALA SECRETARIAT, TRIVANDRUM.** ## **2. F.A.C.T.REPRESENTED BY ITS** **COMPANY SECRETARY, UDYOGAMANDAL.** **BY GOVERNMENT PLEADER SRI.A.M.SHAFFIQUE SRI.E.K.NANDAKUMAR** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 28/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Pius C.Kuriakose & P.N.Ravindran, JJ. ======================== R.P.No.670 of 2004 in L.A.A.No.1609 of 1998 ========================** ## **Dated this the 28th day of February, 2008.** ## **ORDER** ## **Ravindran,J.** The appellant in L.A.A.No.1609 of 1998 has in this review petition sought a review of the judgment dated 20.12.2002 passed by this Court in the said appeal. 2. An extent of 17.20 Ares of land situated in Sy.No.61/8-2 and Sy.No.61/7-5 of Eloor Village was acquired for the peripheral road to FACT Caprolactum Project. The notification under Section 4(1) of the Land Acquisition Act, 1894, hereinafter referred to as "the Act" for short, was issued on 1.8.1990. Advance possession of the land was taken on 26.4.1991. By award No.133/1992 passed on 13.11.1992, the Land Acquisition Officer awarded land value at the rate of Rs.7,605/- per Are as against the review petitioner's claim for award of land value at the rate of Rs.49,400/- per Are. The dispute regarding the RP 670/04 -: 2 :- compensation was referred under Section 18 of the Act to the Court of the Addl. Sub Judge, N. Parur where it was taken on file and numbered as L.A.R.No.284 of 1994. In L.A.R.No.284 of 1994, the petitioner claimed enhanced land value at the rate of Rs.20,000/- per cent (Rs.49400/- per Are), Rs.60,000/- as the value of improvements and Rs.6,00,000/- as value of the building situated in the acquired property. By judgment delivered on 31.3.1997 in L.A.R.No.284 of 1994, the court below enhanced the land value from Rs.7,605/- to Rs.14,450/- per Are, thereby awarding an increase of Rs.6,845/- per Are in the land value. The court below also awarded 30% solatium on the enhanced land value, 12% additional market value on the enhanced land value under Section 23(1-A) of the Act for the period from 1.8.1990, the date of the Section 4(1) notification to 26.4.1991, the date on which possession of the land was taken. The court below also awarded interest at the rate of 9% per annum on the enhanced land value for a period of one year commencing from 26.4.1991 and thereafter at 15% per annum. Interest was not granted on the solatium. The court below also awarded Rs.1,25,734/- as value of the building. RP 670/04 -: 3 :- 3. Dissatisfied with the land value awarded by the court below, the petitioner filed L.A.A.No.1609 of 1998 in this Court. The State of Kerala had filed L.A.A.No.764 of 1998 challenging the award of enhanced land value by the court below in L.A.R.No.284 of 1994. L.A.A.No.1609 of 1998 and L.A.A.No.764 of 1998 which arose from L.A.R.No.284 of 1994 were heard and disposed of along with 10 other appeals relating to the very same acquisition by a common judgment delivered on 20.12.2002. The court below had in L.A.R.No.284 of 1994 relied on Ext.A4 judgment dated 7.1.1997 delivered by that court in L.A.R.No.501 of 1994 and connected cases to enhance the land value. A Division Bench of this Court to which one of us (Pius C. Kuriakose,J.) was a party, dismissed L.A.A.No.764 of 1998 filed by the State of Kerala and L.A.A.No.1609 of 1998 filed by the petitioner. L.A.A.No.1186 of 1998 filed by the claimant and L.A.A.No.758 of 1994 filed by the State of Kerala from the judgment of the court below in L.A.R.No.501 of 1994 were also heard and disposed of by this Court by judgment delivered on 20.12.2002. The Division Bench of this Court after upholding Ext.A4 judgment, disposed of all the appeals holding that no RP 670/04 -: 4 :- interference is called for with the judgments under challenge. The claim of the petitioner herein for enhanced land value was however not independently considered or adjudicated upon when L.A.A.No.1609 of 1998 was disposed of along with the other connected appeals. 4. The learned counsel for the review petitioner contended that the petitioner's claim for enhancement of the land value was not independently considered by this Court when the appeal filed by the petitioner was heard and disposed of. He submitted that the acquired properties are situated close to the lands involved in L.A.R.No.263 of 1994 on the file of the Subordinate Judge's Court, N. Paravur and L.A.R.No.208 of 1996 on the file of the Additional Sub Court, N. Parur. The learned counsel appearing for the review petitioner pointed out that the review petitioner had in L.A.A.No.1609 of 1998 claimed land value at the rate of Rs.24,000/- per Are on the ground that the acquired land was dry land with tarred road frontage and had more advantages than the lands involved in L.A.R.No.501 of 1994. 5. The learned counsel for the review petitioner also relied on the judgments of this Court in L.A.A No.322 of 1998 which RP 670/04 -: 5 :- arose from L.A.R.No.263 of 1994 on the file of the Subordinate Judge's Court, N. Parur and L.A.A.No.1448 of 2002, which arose from L.A.R. No.208 of 1996 on the file of the Additional Sub Court, N. Parur. In L.A.R.No.263 of 1994, the Sub Court, N. Parur had considered the claim for enhancement of land value in respect of a parcel of land acquired for the very same purpose as per Section 4(1) notification issued on 14.8.1989. The Land Acquisition Officer had by award passed on 25.7.1992 awarded land value at the rate of Rs.4,455/- per Are. The Reference Court had in L.A.R. 263 of 1994 enhanced the land value from Rs.4,455/- to Rs.8,287/- per Are, awarding an increase of Rs.3,832/- per Are. The Reference Court had, in fixing the land value in the aforesaid case, relied on the judgment dated 27.10.1994 passed by the said court in L.A.R.No.9 of 1993. By judgment delivered on 25.9.1999 in L.A.A.No.322 of 1998, a Division Bench of this Court enhanced the land value to Rs.14,460/- per Are, an increase of Rs.6,173/- per Are over and above the land value awarded by the Reference Court. The appellants in L.A.A.No.322 of 1998 were also held entitled to all the statutory benefits under the Land Acquisition Act, 1894 as RP 670/04 -: 6 :- amended by Act 68 of 1984. 6. In L.A.R.No.208 of 1996, which arose out of an acquisition for the very same purpose following a Section 4(1) notification dated 23.12.1991, the Land Acquisition Officer awarded Rs.7,694/- per Are for category 'C' lands, which are dry lands having tarred road frontage. In determining the land value at Rs.7,694/- per Are, the Land Acquisition Officer had relied on a sale deed dated 14.8.1989. The Reference Court enhanced the land value to Rs.20,194/- per Are. The enhancement of land value in L.A.R.No.208 of 1995 was challenged by the F.A.C.T., the requisitioning authority in L.A.A.No.1448 of 2002. By judgment delivered on 7.7.2005, a Division Bench of this Court dismissed the said appeal. The claimants in L.A.R.No.208 of 1995 had filed cross objections in L.A.A.No.1448 of 2002 filed by the F.A.C.T. In the light of the decision of the Apex Court in **Sunder** v. **Union of India** - 2001(3) K.L.T. 489, the claimants were held entitled to interest on solatium in terms of Sections 28 and 34 of the Act. 7. The learned counsel for the review petitioner, relying on the aforesaid decisions of this Court contended that when RP 670/04 -: 7 :- L.A.A.No.1609 of 1998 was disposed of, the review petitioner's claim for enhanced land value was not independently considered and that the Division Bench of this Court had disposed of the appeal upholding the land value fixed in Ext.A4 judgment relied on by the Reference Court. The learned counsel for the petitioner pointed out that the acquisition in the case on hand was as per notification dated 1.8.1990, that the property covered by Ext.A4 judgment in L.A.R.No.501 of 1994 lies adjacent to the lands belonging to the petitioner, that the lands that belonged to the petitioner had more advantages and importance than the lands involved in L.A.R. No.501 of 1994 and that going by the nature and the lie of the land, it had more potential than the land involved in L.A.R.No.501 of 1994. The learned counsel for the petitioner submitted that though both the parcels of land were acquired pursuant to the notification dated 1.8.1990, the review petitioner is entitled to an increase in the land value than what was awarded by the Reference Court in Ext.A4 judgment. He also relied on the decision of a Division Bench of this Court in L.A.A.No.1448 of 2002 in support of his claim for enhanced compensation on the ground that in the said case, the Land RP 670/04 -: 8 :- Acquisition Officer himself had awarded land value at the rate of Rs.7,694/- per Are for category 'C' lands and the Reference Court enhanced it to Rs.20194/- per Are based on a sale deed dated 14.8.1989. The learned counsel for the review petitioner submitted that though the notification involved in L.A.A.No.1448 of 2002 is one issued on 23.12.1991 (more than one year after the notification relating to the case on hand) it would certainly justify an increase in the land value though not at the rates awarded by this Court in the said appeal. 8. We have considered the submissions made by the learned counsel appearing for the review petitioner and the learned counsel appearing for the respondents. The Reference Court had, in its judgment dated 31.3.1997 in L.A.R.No.284 of 1994, noticed that the lands involved in the case on hand are situated at the same place as the lands involved in Ext.A4 judgment and that both have equal importance. After hearing the counsel on either side and on perusing the judgment dated 20.12.2002 passed by this Court, we are satisfied that there has been no independent examination of the review petitioner's claim for enhanced land value in L.A.A.No.1609 of 1998. The learned RP 670/04 -: 9 :- counsel for the review petitioner also brought to our notice that as per Ext.A1 sale deed dated 19.5.1988 produced before the Reference Court, an extent of 12 1/2 cents (5.15 Ares) of land was sold for a sale consideration of Rs.85,800/- and that based on the sale consideration therein, the land value would work out to Rs.16,660/- per Are. Though as noticed by the Reference Court in its judgment dated 31.3.1997 in L.A.R.No.284 of 1994, the land described in Ext.A1 is situated in a different survey number and is not close to the acquired land, having regard to the fact that in the locality, in the year 1988, a conveyance had been effected in respect of 12 1/2 cents (5.15 Ares) of land for a total sale consideration of Rs.85,800/-, we are of the opinion that the review petitioner is entitled to a 10% increase in the land value over and above the land value awarded by the Reference Court. We find no reasons to discard Ext.A1 and the land value fixed therein can certainly be taken note of by us as the yardstick for fixing the land value payable in the instant case, where the property was acquired pursuant to the notification dated 1.8.1990, issued nearly two years after Ext.A1 sale deed. 9. We therefore review and set aside the judgment dated RP 670/04 -: 10 :- 20.12.2002 in L.A.A.No.1609 of 1998 and hold that the review petitioner, the appellant in L.A.A.No.1609 of 1998 (the claimant in L.A.R.284 of 1994 on the file of the Sub Court, N. Parur) is entitled to enhanced land value at the rate of Rs.1,445/- per Are over and above the land value awarded by the Reference Court in L.A.R.No.284 of 1994. Accordingly, we enhance the land value from Rs.14,450/- per Are awarded by the Reference Court and fix the land value payable by the respondents to the review petitioner at Rs.15,895/- per Are. Though no cross objection had been filed in L.A.A.No.1609 of 1998 or in this review petition seeking interest on the solatium, in the light of the authoritative pronouncement of the Apex Court in **Sunder** v. **Union of India** - 2001 (3) K.L.T. 489, we hold that in respect of the enhanced land value awarded by us the review petitioner will be entitled to solatium and interest on the solatium at 9% per annum for a period of one year from 26.4.1991 and at 15% per annum thereafter, till the date of deposit. The review petitioner will also be entitled to the compensation payable under Section 23(1-A) of the Act from 1.8.1990, the date of the Section 4(1) notification to 26.4.1991, the date on which possession of the acquired land RP 670/04 -: 11 :- was taken. The review petitioner will also be entitled to interest on the enhanced land value and ordered by us at 9% per annum for a period of one year from 26.4.1991 and at 15% per annum thereafter, till the date of deposit. The Review Petition is allowed as above. However in the circumstances of the case, we make no order as to costs. Pius C.Kuriakose, Judge. P.N.Ravindran, Judge. ess 29/1