State of Kerala v. M/S N.V. Padmanabhan and Co. Indian Oil Dealers, Nurani, Palakkad and M.D., Roads and Bridges Development Corporation of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 18TH DAY OF JULY 2013/27TH ASHADHA, 1935** **LA.App..No. 116 of 2012 () ---------------------------** **AGAINST THE ORDER/JUDGMENT IN LAR 32/2005 of ADDL.SUB COURT, PALAKKAD DATED 15.10.10** **APPELLANT(S)/RESPONDENT:** **----------------------------------------------** **THE SPECIAL TAHSILDAR, LA(GENERAL), NO.I, PALAKKAD.** **BY ADVS.GOVERNMENT PLEADER SRI.P.C.IYPE, ADDL. ADVOCATE GENERAL** **RESPONDENT(S)/CLAIMANT AND RESPONDENT NO.2 IN THE L.A.R.:** **-------------------------------------------------------------------------------------------------** **1. M/S.N.V.PADMANABHAN AND CO. INDIAN OIL DEALERS, NEW EXTENSION, NURANI, PALAKKAD - 678 014.** ## **2. M.D, ROADS AND BRIDGES DEVELOPMENT CORPORATION OF KERALA.** **R1 BY ADV. SRI.SAJAN VARGHEESE K. R1 BY ADV. SRI.LIJU. M.P R2 BY ADV. SRI.SHYSON P.MANGUZHA,SC,ROADS & BRI** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 18-072013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ================== ## L.A.A.No. 116 of 2012 ================== Dated this the 18[th] day of July, 2013 J U D G M E N T ## S.Siri Jagan, J.: The State is in appeal against the judgment of the Additional Subordinate Judge, Palakkad, in L.A.R.No.32/2005. Certain properties belonging to the 1[st] respondent were acquired as per a notification dated 17.10.2003 issued under Section 4(1) of the Land Acquisition Act. The land acquisition officer fixed land value at ` 30,000/- per cent. On reference, the Sub Court enhanced the land value to ` 50,000/- per cent. But, in addition to that, the Sub Court awarded an amount of ` 2,67,843/- alleged to be loss of profit suffered by the claimant on account of the shifting of the petrol bunk which was in existence, the property portion of which was acquired. Further, the Sub Court wrongly awarded solatium of 30% for the additional amount of ` 2,67,843/- as also for the lande value of ` 50,000/- per cent. Aggrieved by the same, the State has filed this appeal. 2. According to the appellant, the course adopted by the L.A.A.116/12 - : 2 :- Sub Court is totally erroneous. It is submitted that Section 23 does not envisage awarding of land value as well as loss of profit from the property. Therefore, the learned Government Pleader would argue for the proposition that the award of ` 2,67,843/over and above the land value of ` 50,000/- per cent is clearly unsustainable. It is also submitted that the land value fixed is also excessive insofar as, as per the Revenue records, the land acquired is wet land and, therefore, the compensation, which could have been awarded, was only as applicable for a wet land, whereas the court below awarded compensation taking the same as a dry land. 3. On the other hand, the learned counsel for the claimant would argue for the proposition that the amount of ` 2,67,843/- also forms part of the market value of the land itself. It is submitted that on account of the acquisition, the claimant was forced to shift the petrol bunk from the property, since continued conduct of the petrol bunk in that property was totally uneconomic on account of the fact that after acquisition, the petrol bunk became under the bridge constructed in the acquired land, whereas earlier the land was by the side of the national highway. Therefore, the loss of income from the L.A.A.116/12 - : 3 :- property on account of the shifting of the petrol bunk forms part of market value of the property itself and hence, the entire amounts of ` 2,67,843/- and ` 50,000/- per cent form part of the market value of the property itself. He relies on the decisions of the Supreme Court in **Ambya Kalya Mhatra v. State of Maharashtra** , 2011 (4) KLT 1(SC) and **Kerala State Industrial Development Corporation v. District Collector** , 2011 (4) KLT 890. On the same reasoning, The learned counsel for the 1[st] respondent would argue that insofar as ` 2,67,843/forms part of the market value of the property, there is nothing wrong in granting statutory benefits of solatium and interest on that amount also. 4. We have considered the rival contentions in detail. 5. For the purpose of Land Acquisition Act, what is relevant is the state of the land as on the date of the acquisition under Section 4(1) notification. Admittedly, as on the date of Section 4(1) notification, the land in question was being used as a petrol bunk. Therefore, simply because, in the Revenue records, the land was described as wet land, the claimant cannot be denied market value for the land taking the same as a wet land. In this case, neither the claimant nor the State adduced L.A.A.116/12 - : 4 :- sufficient evidence to prove the market value. The documents produced by both parties were rejected by the Sub Court for valid reasons and thereafter, the Sub Court made an educated guess taking into account the facts and circumstances of the case fixing the land value at ` 50,000/- per cent by giving 60% enhancement from the land value fixed by the land acquisition officer. We do not find any infirmity whatsoever in the course adopted by the Sub Court for fixing the market value of the land. Therefore, the land value of ` 50,000/- fixed by the Sub Court is confirmed. 6. The learned counsel for the 1[st] respondent made a valiant effort to sustain the additional amount of ` 2,67,843/awarded by the Sub Court as part of the market value by raising a contention that the loss suffered by the claimant on account of the shifting of the petrol bunk from the property forms part of the market value itself. It is submitted that depending on the use to which a property is being put, the market value can be determined by various methods, like capitalization method, multiplier method etc. Here, the nature of the property is such that it is very fit to be used for establishing a petrol bunk. The claimant has proved that during the years 2000 to 2002, the L.A.A.116/12 - : 5 :- claimant had earned an income of ` 2,67,843/- from the petrol bunk. On account of the shifting of the petrol bunk, the claimant lost that income. Therefore, that income forms part of the market value of the property itself is the contention raised. We are unable to agree with the contention of the learned counsel for the claimant. If his contention is accepted, market value of adjacent properties will not be the same and will depend on the income derived by the owner of the property using the same. For eg., if in 0.5 cents of land a commission agent puts up a building and uses that property for the purpose of conducting business, earning crores of income, the market value of the property will not be commensurate with the income derived by the commission agent from the business he conducts from that property. The contention of the claimant can be accepted only if that income is derived from the land itself like an agtricultural property or a plantation. In a petrol bunk the income is not derived from the land as such. The income is derived as commission by sale of petroleum products supplied by the oil company to the owner of the petrol bunk, which is not the income derived from the land itself. Apart from that, such a contention was never raised by the claimant before the Sub L.A.A.116/12 - : 6 :- Court at all. Therefore, we are of opinion that the amount of ` 2,67,843/- cannot be regarded as part of the market value of the property at all especially when the market value has been separately fixed as ` 50,000/- per cent taking into consideration the potentialities of the land itself. For determining that question, the two decisions referred to by the learned counsel for the claimant are not of any help at all. But we are inclined to sustain the said payment as compensation towards shifting charges, for injurious affection for the remaining land and the probable loss the claimant would have suffered on account of the shifting of the petrol bunk. But the said amount would not carry solatium as applicable to a market value of the land itself. This view is supported by the decision of the Supreme Court in **State of Punjab v. Amarjit Singh** , 2011 (1) KLT 845 (SC). With the above modification of the impugned award of the Sub Court, this appeal is disposed of. Sd/S.SIRI JAGAN, JUDGE Sd/- sdk+ ## K.RAMAKRISHNAN, JUDGE P.A. To Judge. L.A.A.116/12 - : 7 :-