SMT. SINI THOMAS v. STATE OF KERALA

## **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** **MONDAY, THE 11TH DAY OF JUNE 2012/21ST JYAISHTA 1934** ## **LA.App..No. 1163 of 2009 ( )** **---------------------------LAR.3/2005 of SUB COURT,THODUPUZHA** **----------------** ## **APPELLANT/CLAIMANT :** **------------------------------------** **SMT.SINI THOMAS, W/O.THOMAS, MANAYANIKKAL HOUSE, ALAKODE.** **BY ADV. SRI.K.K.CHANDRAN PILLAI (SR.)** ## **RESPONDENT/RESPONDENT :** **--------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, IDUKKI.** **BY SR. GOVT. PLEADER SRI. ALOYSIUS THOMAS** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 11-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **Mn** ## **PIUS C. KURIAKOSE & A.V.RAMAKRISHNA PILLAI, JJ.** -------------------------------------------------------------LAA. No. 1163 of 2009 ----------------------------------------------Dated this the 11[th] day of June, 2012 ## **J U D G M E N T** ## **Pius C.Kuriakose, J.** The claimant is the appellant. His property in Thodupuzha Village was acquired for the improvement of the Mangattukavala Junction at Thodupuzha pursuant to Section 4(1) Notification published on 15-7-2003. As against his claimant his claim for land value at the rate of `5 lakhs per cent. the land acquisition officer awarded only `90,923/- per cent. Before the reference court the appellant relied on Ext.A3 and A4 documents, apart from Ext. X-1 commissioner's report submitted by Advocate Incent Sebastian who had made a comparison of the property under acquisition and the property covered by Ext.A3 and reported that the property under Acquisition is more valuable and important than the property covered by A3. The learned Subordinate Judge discarded A3 and A4 LAA.1163 of 2009 -2- which were two sale deeds relied on by the appellant in support of his claim for enhanced land value. Finally what the learned Subordinate Judge did was to notice his own award in LAR. No. 11 of 2005 and to award the land value which had been awarded to the claimant in that case, i.e., `1,44,450/- per cent. The appellant had a claim for compensation for injurious affection. The Advocate Commissioner in X-1 had reported that the unacquired property of the appellant extending to 22 cents had been reduced to an irregular shape on account of the acquisition in the present manner and therefore the value of that property had become reduced considerably. The learned Subordinate Judge was not impressed by the report of the Commissioner or by Ext.X-1(a) which shows that the shape of the unacquired property had become irregular, unlike the original property was a perfect rectangle. The learned Subordinate Judge did not award any compensation towards LAA.1163 of 2009 -3- injurious affection. 2. In this appeal grounds are raised regarding the correctness of the land value re-fixed and also regarding the non award of any compensation towards injurious affection. Sri. K.K.Chandran Pillai, senior counsel for the appellant would argue that the learned Subordinate Judge went wrong in not relying on A3. In Ext.A3 the vendee was the Indian Oil Corporation and therefore A3 should have been presumed to be a document recording a very normal transaction. The Commissioner reported that the acquired property had more locational advantages than A3 property. The value reflected in Ext. A3 plus addition for passage of two years at the rate of 15% per annum should have been granted. No reason has been stated by the learned Subordinate Judge for discarding A3. The learned senior counsel submitted that the court below erred seriously in not awarding any compensation towards injurious affection LAA.1163 of 2009 -4- of the remainder unacquired property. He submitted that for minimising the litigational costs claim for injurious affection is limited to `30,000/-, which has to be awarded, requested the senior counsel. 3. All the submissions of Mr. Chandran Pillai, senior counsel were resisted by Sri. Aloysius Thomas, senior Govt. Pleader. He drew our attention to the judgment of this Court in LAA. No. 411 of 2009 and submitted that the learned Subordinate Judge relied on the judgment in LAR. 11 of 2005. The reliance placed on that LAR was perfectly justified as the acquisition was the same. This court dismissed the above appeal and confirmed the rate fixed under LAR. 11/05. On account of the finality attained by the judgment in LAR. 11 of 2005 there is no scope for enhancing the land value awarded in favour of the appellant. If it is so done, the same is likely to open floodgate of review petitions and appeals. LAA.1163 of 2009 -5- 4. Coming to the claim for compensation for injurious affection the learned senior Government Pleader would read over to us the discussions of the learned Sub Judge and submit that it is very sound reason which is given by the learned Subordinate Judge for not accepting the recommendations of the commissioner regarding compensation for injurious affection 5. We have given our anxious consideration to the rival submissions addressed at the Bar. The first question to be decided is as to what is the correct market value to be fixed for the lands under acquisition. The learned Subordinate Judge found that the property involved in LAR. No. 11 was comparable as the land acquisition officer had awarded the same rate for that property which was acquired for the same purpose. But then the appellant relied on Ext.A3. The Advocate Commissioner very clearly reported the proximity between A3 property and the property under acquisition. LAA.1163 of 2009 -6- He in fact reported that in terms of locational advantages and value the acquired property stands on a higher footing than A3 property. The State through the Government filed statement of objections to the Commissioner's report. Though statement of objections filed no endeavour was made by the State to substantiate those objections by adducing any evidence. We find that as against the voluminous evidence adduced on the side of the claimant appellant the State did not adduce even any formal counter evidence. We notice the recent judgment of the Supreme Court in Mehrawal Kherwaji Trust v. State of Punjab, 2012 (2) KLT 542 (SC) wherein their Lordships of the Supreme Court have laid down that when there are several exemplars with reference to similar lands, the highest of the exemplars take if it is satisfied that the bonafide transaction has to be considered first. The question is whether Ext.A3 is a bonafide transaction. Even in the LAA.1163 of 2009 -7- statement of objections filed by the Government Pleader before the court below it is not contended that Ext. A3 is not a bona fide transaction. What was contended was only that the more dependable and reliable document is the basis document. We take it that Ext.A3 executed in favour of the Indian Oil Corporation, a Government of India undertaking records a normal transaction. But we are given to understand that A3 property was purchased by Indian Oil Corporation for accomplishing its purpose of establishing its own petroleum outlet in Thodupuzha municipal town. We feel that the vendee became inclined to pay a price little higher than the market value which the vendor had demanded from the vendee for the enthusiasm of the vendee for the purchase under A3 which would go to accomplishing a long felt need of the vendee in Thodupuzha town. We deduct 10% from the value reflected in Ext.A1 for that reason. At the same time we LAA.1163 of 2009 -8- must make additions for passage of time. Even though Mr. Chandran Pillai, senior counsel argued that there is every justification for adding at the rate of 15% per year we in this case are inclined to add only at the rate of 10% per year. This means that 20% has to be added. Making deductions and additions in that way on the basis of A3 the market value of land under acquisition can be re-fixed at `1,60,500/- per cent. We re-fix value of land under acquisition at `1,60,500/-. 6. The surviving question is the question of compensation payable towards injurious affection for the unacquired property. We are convinced that the value of the unacquired property has been slightly diminished on account of irregularity in its shape resulting directly from the acquisition in the present way. The appellant has limited his claim to `30,000/-. We award to the appellant `20,000/- towards compensation for injurious affection. The LAA.1163 of 2009 -9- appellant will be entitled for all statutory benefits on the compensation for which he becomes eligible by virtue of land value enhancement. He will become eligible for statutory interest under Section 28 on the compensation which is being awarded to him towards injurious affection. Appeal is allowed to the above extent only. Appellant will be entitled for proportionate cost also. We make it clear that this judgment to the extent it deals with fixation of land value will not be a precedent for any other case pertaining to acquisition of land in Thodupuzha. ## **(PIUS C.KURIAKOSE, JUDGE)** ## **(A.V.RAMAKRISHNA PILLAI, JUDGE)** ksv/-