State of Kerala v. Komalam, Rani and Kochi International Airport Society

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH** **MONDAY, THE 25TH DAY OF MARCH 2013/4TH CHAITHRA 1935** ## **LA.App..No. 6 of 2010 ( )** **-------------------------AGAINST THE ORDER/JUDGMENT IN LAR.117/2001 of ADDL.SUB COURT,PARAVUR DATED 25-10-2008** ## **APPELLANT(S)/IST RESPONDENT:** **------------------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, ERNAKULAM.** **BY ADV. GOVERNMENT PLEADER SRI.E.M.ABDUL KHADER** ## **RESPONDENT(S)/CLAIMANT AND ADDL.2ND RESPONDENT:** **---------------------------------------------------------------------------------------** **1. KOMALAM,W/O.ELIAS, KIZHAKKEDATH, THENGOTTUKARA, THRIKKAKARA VILLAGE.** **2. RANI, D/O.KOMALAM, KIZHAKKEDATH, THENGOTTUKARA, THRIKKAKARA VILLAGE.** **3. THE KOCHI INTERNATIONAL AIRPORT SOCIETY, REPRESENTED BY ITS MANAGING DIRECTOR NEDUMBASSERY, ANGAMALY.** **R3 BY ADV. SRI.N.N.SUGUNAPALAN, SC, KIAS LTD. R3 BY ADV. SMT.T.N.GIRIJA, SC, COCHIN AIRPORT LTD R1&2 BY ADV. SRI.SOMAN P.PAUL R1 & R2 ADV.SRI.P.P.THAMBI** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 25-032013, ALONG WITH CO. 13/2011 AND L.A.A.No. 67/2010 & C.O.NO.82/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** S.SIRI JAGAN & BABU MATHEW P.JOSEPH, JJ. ================== L.A.A.Nos. 6 & 67 of 2010 & Cross Objection Nos.13/2011 & 82/2010 ================== Dated this the 25[th] day of March, 2013 J U D G M E N T ## Siri Jagan, J. The State is the appellant in these appeals. They are challenging the common judgment passed by the Additional Sub Judge, North Paravur, in L.A.R.Nos.116 and 117 of 2001. Certain lands belonging to the respondents in these appeals were acquired for the purpose of the VIP Road from the National Highway to the Nedumbassery International Airport as per a notification dated 27.8.1998 issued under Section 4(1) of the Land Acquisition Act. These L.A.Rs. were originally disposed of, against which, appeals were filed and this Court, remanded the L.A.Rs. for fresh consideration. Thereafter, the impugned common judgment in these two appeals was passed by the Sub Judge, fixing land value for the lands acquired from the respondents at the rate of ` 95,000/- per cent. That is under challenge in these appeals. 2. According to the State, in respect of similar properties in the appeals against the judgment in L.A.R.Nos.118 and 119 of 2001 of the same Court, a Division Bench of this Court had in L.A.A.No.1566/2009 and connected cases, which was in respect L.A.A.6/10 etc. - : 2 :- of land in the same category, had fixed land value at ` 88,000/per cent as land value. Therefore, in this case also, the land value should be refixed at rate of ` 88,000/- per cent is the contention raised. 3. The respondents in these appeals have filed cross objections claiming enhancement of compensation for injurious affection. According to them, on account of the acquisition through the middle of their rectangular plot of land, on both sides, small bits of land have been left after the acquisition, which have diminished in land value considerably as a result of the acquisition. On the southern side 2.45 ares of land is left and on the northern side 5.05 ares is left. For the property on the north, extending to 5.05 ares, no compensation was awarded for injurious affection, whereas in respect of 2.45 ares on the south, a lump sum amount of only ` 50,000/- had been awarded towards injurious affection without fixing the percentage of diminution of land value. The contention of the respondents is that the Commissioner appointed by the court, who has inspected the lands, had filed a report stating that the remaining lands have diminished in land value to the extent of 35% and, therefore, the respondents should have been given compensation for injurious L.A.A.6/10 etc. - : 3 :- affection at the rate 35% of the land value fixed is the contention raised in the cross objections. 4. We have considered the rival contentions in detail. 5. The land acquisition officer had categorized lands in L.A.R.Nos.116, 117, 118 and 119 of 2001 as category III land. In L.A.A.No.1566/2009 and connected cases, for category III lands, this Court had fixed ` 88,000/- per cent as the land value. For the same category of land, ordinarily, the same land value should be fixed. Therefore, at first blush, the contention of the State appears attractive to the effect that since, for the same category of land in L.A.A.No.1566/2009 and connected cases, this Court had fixed ` 88,000/- per cent as land value for the land, the same land value should be fixed for the land involved in these appeals also. But, on a reading of the impugned judgment, we find that the Sub Court has entered a specific finding that the lands involved in these appeals are better placed than the lands involved in L.A.R.Nos.118 and 119 of 2001 in terms of potential, insofar as the lands involved in these appeals have Panchayat road frontage, which is not available to the lands involved in L.A.R.Nos.118 and 119 of 2001. That finding of the Reference Court is not challenged in these appeals. Therefore, even though L.A.A.6/10 etc. - : 4 :- the lands in the earlier appeals and these appeals are in the same category, that does not essentially mean that the land value should be the same in both. In fact, the Supreme Court has in the decision of **Union of India v. Mangattu Ram** , AIR 1997 SC 2704, held that even in respect of the same category of lands, the land value can be differently fixed based on the nature of the land and its potential. We are of opinion that when the Sub Court has entered a specific finding that the lands involved in these appeals are better properties on account of an access to the Panchayat road, which the other lands do not have, naturally, the properties involved in these appeals should get a better land value. In the above circumstances, we are of opinion that land value for the lands involved in these appeals should be fixed higher than the lands involved in L.A.R.Nos.118 and 119 of 2001, in respect of which, this Court has fixed land value at the rate of ` 88,000/- per cent in L.A.A.No.1566/2009 and connected cases. In these appeals, the Sub Court has awarded ` 95,000/- per cent. We are satisfied that because of the difference in the importance of the land, an addition of ` 7,000/- per cent is justified. Therefore, we are not inclined to interfere with the land value fixed by the Sub Court in these two appeals. L.A.A.6/10 etc. - : 5 :- 6. But we find that the Sub Court has, in addition to the land value already fixed, granted additional compensation of ` 50,000/- in a lump sum as additional land value. There cannot be an additional land value over and above the land value already fixed. Therefore, we are satisfied that the award of the Sub Court to the extent of granting additional land value of ` 50,000/- in lump sum is unsustainable. Accordingly, the finding in respect of the same in the impugned judgment is vacated. Consequently, item 6 of paragraph 20 of the judgment of the Sub Court is deleted. Further, the Sub Court appears to have taken that the date of Section 4(1) notification is 8.8.1998. But Section 4(1) notification has been published on 27.8.1998. As such, land value and interest shall be fixed with reference to 27.8.1998 only. 7. We find some merit in the contention of the respondents regarding injurious affection in respect of the southern portion of the land. As far as the 5.5 ares of land on the northern portion is concerned, we are not satisfied that there is any diminution in land value on account of the acquisition, since that portion still lies on the side of the Panchayat road, to which, the property still has access. But in respect of the 2.45 ares on L.A.A.6/10 etc. - : 6 :- the southern side, we find that on account of the acquisition, the respondents have lost proper access to the Panchayat road. Their present access is only through a pathway leading to another Panchayat road. Consequently, the respondents are entitled to compensation for injurious affection in respect of the 2.45 ares. But, we are not inclined to adopt 35% recommended by the Advocate Commissioner. Taking into account the facts and circumstances of the case, we are of opinion that diminution in land value is only to the extent of 15%. Consequently, in respect of 2.45 ares, the appellants would be entitled to compensation for injurious affection to the extent of 15% of ` 95,000/- per cent. Needless to say, the ` 50,000/- already awarded in a lump sum by the Sub Court on account of the injurious affection to this land shall be deducted therefrom. The appeals and cross objections are disposed of as above. sdk+ Sd/S.SIRI JAGAN, JUDGE Sd/BABU MATHEW P.JOSEPH, JUDGE L.A.A.6/10 etc. - : 7 :- Judgment dated 25.03.2013 in L.A.A. Nos. 6/2010 and 67/2010 is clarified and modified as follows, vide order dated 25.07.2016 in I.A. Nos. 162 and 353 of 2016 in L.A.A. No. 6/2010 and I.A. Nos. 142 and 416 of 2016 in L.A.A. No. 67/2010: _“The claimants are entitled to get interest only from 27.08.1998 ie. the date of notification till 27.04.1999 ie. the date of taking possession”._ Sd/- **Registrar (Judicial)** ///True copy/// P.A. to Judge