State of Kerala v. P. Santhamma & The Secretary, TRIDA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU MONDAY, THE 14TH DAY OF NOVEMBER 2016/23RD KARTHIKA, 1938 LA.App..No. 615 of 2014 () --------------------------- AGAINST THE JUDGMENT AND DECREE DATED 31.7.2013 IN LAR 957/2009 of II ADDL.SUB COURT,TRIVANDRUM. APPELLANT/1ST RESPONDENT IN LAR.: --------------------------------- STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. BY SR.GOVERNMENT PLEADER SMT.K.AMMINIKUTTY RESPONDENTS/CLAIMANT & 2ND RESPONDENT IN LAR.: --------------------------------------------- 1. P.SANTHAMMA, D/O.PARUKUTTY AMMA, T.C.36/252(4), HARI PRIYA, THAKARAPARAMBU, VANCHIYOOR VILLAGE, THIRUVANANTHAPURAM-695001. 2. THE SECRETARY, TRIDA. R1 BY ADV. SRI.BASANT BALAJI R BY SRI.K.A.JALEEL, SC., TRIDA THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 14-11-2016 ALONG WITH LAA NO.615/2014 & CONN.CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **P.N.RAVINDRAN & DAMA SESHADRI NAIDU, JJ. -------------------------------------------------L.A.A Nos.618, 644, 615 and 680 of 2014 ---------------------------------------------------Dated this the 14[th] day of November, 2016** ## **JUDGMENT** ## _**P.N.Ravindran, J.**_ These appeals arise from the common judgment delivered by the Court of the Second Additional Subordinate Judge of Thiruvananthapuram on 31.07.2013 in L.A.R. Nos.934, 945 and 957 of 2009 and 48 of 2010. The lands involved in L.A.A No.618 of 2014 were acquired pursuant to the notification dated 19.8.2007, the lands involved in L.A.A No.615 of 2014 and 644 of 2014 were acquired pursuant to the notification dated 21.11.2007 and the lands involved in L.A.A No.680 of 2014 were acquired pursuant to the notification dated 20.5.2005, all of which are issued under section 4(1) of the Land Acquisition Act, 1894. The Land Acquisition Officer awarded land value at the rate of `4,44,600 per Are. As regards L.A.R No.48 of 2010 from which L.A.A No. 680 of 2014 arises, the acquisition was pursuant to the notification dated 20.05.2005 and in that case, the Land Acquisition Officer awarded land value at the rate of `3,70,500 per LAA No.615 of 2014 & connected cases 2 Are. In respect of the structures standing in the acquired lands, the Land Acquisition Officer awarded `10,95,395 in L.A.R.No.934 of 2009; `1,42,155 in L.A.R No.945 of 2009; and `3,52,734 in L.A.R No.48 of 2010. Dissatisfied with the compensation awarded by the Land Acquisition Officer, the land owners received the compensation awarded by him under protest and prayed for a reference of the dispute regarding compensation to the civil court. References were accordingly made to the Court of the Subordinate Judge of Thiruvananthapuram. 2. Before the reference court, the land owners claimed land value at the rate of `90,00,000 per cent. They also claimed enhanced compensation for the structures as also compensation for injurious affection. By the impugned award, the reference court enhanced the land value to `34,45,650 per Are, relying on Ext.A1 judgment in L.A.A No. 1330 of 2005 of this court, which, it is stated, was affirmed by the Apex Court. The reference court awarded the sum of `15,86,371 in L.A.R No.934 of 2009, the sum of `4,33,661 and `3,11,740 in L.A.R No. 945 of 2009 and the sum of `1,14,07,103 in L.A.R No. 48 of 2010 towards the value of the structures. In L.A.R No.934 of 2009, the reference court also awarded the sum of `1,00,000 as compensation for injurious affection and the sum of `3,00,000 under that head in L.A.R. LAA No.615 of 2014 & connected cases 3 No.48 of 2010. The State of Kerala has, aggrieved thereby, filed these appeals. 3.We heard Smt.Amminikutty, learned Senior Government Pleader appearing for the State of Kerala and Sri.Basant Balaji, learned counsel appearing for the claimants. We also heard Sri.K.A.Jaleel, learned counsel appearing for the second respondent. Learned Government Pleader appearing for the appellants contended, relying on the judgment delivered by a Division Bench of this court on 9.12.2014 in L.A.A.No.556 of 2014 and connected cases that, in respect of comparable lands which were acquired for the very same purpose, this court has fixed the land value at `27,57,000 per Are and therefore, the land value awarded by the reference court is liable to be scaled down and re-fixed accordingly. Learned Government Pleader also contended that the enhanced compensation awarded towards value of the structures and under the head 'injurious affection' is also liable to be interfered with. Learned Government Pleader contended that apart from the reports submitted by the Advocate Commissioner, there is no material on record to LAA No.615 of 2014 & connected cases 4 substantiate the claim made by the land owners in that regard. 4. Per contra, Sri.Basant Balaji, learned counsel appearing for the land owners contended, relying on Ext.A1 judgment in L.A.A.No.1330 of 2005 of this court that the land value awarded by the reference court in the instant case cannot be said to be exorbitant or excessive. Learned counsel contended that the lands involved in L.A.A.No.1330 of 2005 are situated within a distance of 50 metres from the lands involved in the instant appeals, that it was acquired pursuant to the notification dated 14.5.1997 issued under Section 4(1) of the Land Acquisition Act, 1894, for widening the very same road, across which an over bridge has now been constructed and that land value for that parcel of land was fixed by this court at `9,00,000 per cent, having regard to its location and importance. Learned counsel submitted that in the light of the decisions of the Apex Court in _**(Krishi Utpadan Mandi Samiti**_ v _**Bipin Kumar**_ ) 2004(2) SCC 283, _(_ _**ONGC**_ v _**Rameshai Jivanbai Patel)**_ 2008(14) SCC 745 and ( _**Haryana Industrial Corpn. Ltd. V Udal**_ ) AIR 2013 SC LAA No.615 of 2014 & connected cases 5 311, the land value awarded by the reference court in the instant case cannot be said to be exorbitant. Learned counsel contended that if the land value fixed by this court in Ext.A1 judgment in respect of lands acquired in the year 1997 is increased by 10% per annum on a flat rate, the land value in the instant case will have to be fixed as `44,00,000 per Are, but the reference court has fixed it at `34,05,650 per Are, and therefore, no interference is called for with the impugned judgment. 5. As regards the compensation awarded for the structures standing in the property, learned counsel contended that the buildings were valued by the Advocate Commissioner with the assistance of expert engineers and therefore, the State cannot contend that the compensation awarded for the structures that stood in the acquired land is exorbitant or excessive. Learned counsel also contended that apart from examining the Advocate Commissioner, the expert engineers were also examined and that nothing was brought out when they were cross examined to discredit their testimony. Learned counsel contended that the compensation LAA No.615 of 2014 & connected cases 6 awarded for the structures and for injurious affection cannot, therefore, be said to be exorbitant or excessive. Referring to L.A.A.No.680 of 2014, learned counsel contended that as a result of the acquisition, the hotel had to be closed down and that extensive renovation is necessary to restart the hotel. Learned counsel contended that it was having regard to the totality of the facts and circumstances, that the reference court has awarded enhanced compensation for the structures and also for injurious affection. 6. We have considered the submissions made at the Bar by learned counsel appearing on either side. We have also gone through the pleadings and the materials on record. The lands involved in these cases are situate within close proximity to each other. They are also situate within 50 metres from the lands involved in Ext.A1 judgment. As a matter of fact, the lands involved in L.A.A.No.680 of 2014 are situated in the immediate vicinity of the lands involved in Ext.A1 judgment. The land value awarded by this court in Ext.A1 judgment is `9,00,000 per cent. The said lands were acquired pursuant to the notification issued on 14.5.1997. Though the land involved in Ext.A1 judgment is situate by the side of M.G.Road, it has come out in evidence that LAA No.615 of 2014 & connected cases 7 the lands involved in the instant cases are also situate in an equally if not more important locality, than the lands involved in Ext.A1 judgment. It is not in dispute that the lands are situate in a commercially important part of Thiruvananthapuram city. It has also come out in evidence that a large number of commercial establishments including textile show rooms are situate within a distance of 100 metres from the acquired lands. The reference court has, in the case on hand, relying on Ext.C1 report submitted by the Advocate Commissioner, held that the lands involved in these appeals are situated at Pazhavangadi, an important commercial area in Thiruvananthapuram city. The reference court has held that the famous Sree Padmanabha Swami temple and Pazhavangadi Ganapathi temple, Chalai Market, Thampanoor and East Fort KSRTC Bus Stands, Thiruvananthapuram Railway Station, Transport Bhavan, District Registrar's Office, Taluk Office, shopping centres etc. are all situated in and around the acquired lands. The materials on record disclose that the southern entry to Thiruvananthapuram Railway Station is only 50 metres away from the lands involved in L.A.A.No.680 of 2014, that the KSRTC Bus stand is only about 25 metres away and that two movie threatres are also situate adjacent to the acquired lands. The distance to Chalai market is stated to be 125 metres and to the famous Sree LAA No.615 of 2014 & connected cases 8 Padmanabha Swami temple, 200 metres. 7. In such circumstances, notwithstanding the persuasive submissions of learned Senior Government Pleader that the land value is liable to be fixed at `27,50,000 as was done in L.A.A.No.556 of 2014, we are not persuaded to hold that the land value awarded is exorbitant and excessive. That apart it has not been shown that the lands involved in L.A.A.No.556 of 2014 are situated in close proximity to the lands involved in these appeals. Learned counsel appearing for the respondent land owners submitted that the land involved in L.A.A.No.556 of 2014 is situated by the side of another road which leads from Pazhavangadi-Thakaraparambu road and therefore, the land value fixed in that case cannot be adopted and applied in the case on hand. 8. The Apex Court has, in the decisions relied on by the learned counsel appearing for the respondents held that an increase in the market value in urban and semi urban areas by providing an appropriate escalation on the true market value of nearby lands, evidenced by sale transactions in the previous years or acquisitions, in the range of 10 to 15% per annum is acceptable. It has also been held in _**Haryana Industrial Corporation Ltd.**_ v _**Udal**_ (supra) and other decisions that the LAA No.615 of 2014 & connected cases 9 percentage of increase has to be calculated on a cumulative basis and not by applying a flat rate. 9. In the instant case, there is material on record to show that the lands situate within a distance of 50 metres from the acquired lands were acquired in the year 1997 and in respect of those lands, this court had fixed the land value at `9,00,000 per cent as per Ext.A1 judgment in L.A.A.No.1330 of 2005. If one were to re-fix the land value on that basis by applying a flat rate increase of 10% per annum instead of on cumulative basis, the land value will have to be fixed at `44,00,000 per Are. The reference court has in these cases fixed the land value at `34,35,650 per Are. In such circumstances, we find no reason or justification to hold that the land value awarded by the reference court is excessive or exorbitant. 10. As regards the challenge to the compensation awarded by the reference court for the structures, we are of the opinion that no interference is called for with that as well. The reference court has held that though the State of Kerala had pressed into service the valuation certificates relied on by the Land Acquisition Officer, no attempt was made to examine the officials who had valued the buildings. In the light of the evidence on record which includes the valuation reports prepared by expert engineers who LAA No.615 of 2014 & connected cases 10 have been examined, we find no reason or justification to interfere with the compensation awarded by the reference court for the buildings that stood in the acquired lands. It is relevant in this context to note that apart from examining the Advocate Commissioner who submitted Ext.C1 report, the expert engineers were examined as AW3 and AW4. In L.A.A.No. 618 of 2014, the compensation awarded for injurious affection is `1,00,000. The said sum was awarded for the reason that consequent on the demolition of the staircase which stood in the acquired lands, the upstairs portion of the commercial building standing in the unacquired lands had become unfit for use and a steel stair case had to be constructed to provide access to the upstairs portion. In L.A.A.No.680 of 2014, the compensation awarded under the head injurious affection is `3,00,000 was really not awarded under the head injurious affection, but towards the expenses required to carry out the necessary structural alterations to the building for the purpose of re-starting the hotel business. It has come out in evidence that the hotel which is the subject matter of L.A.R.No.48 of 2010 had to be closed down on account of the acquisition. The claimant in L.A.R.No.934 of 2009 was examined as AW1. He had deposed to the fact that the staircase had to be re-constructed to provide access to the first and second floor of his building. It has LAA No.615 of 2014 & connected cases 11 also come out in evidence that the entry to the hotel was affected and that access to the main road was also lost. In such circumstances, it cannot be said that the sum of `3,00,000 awarded as compensation for carrying out maintenance works to the building to restart the hotel business is exorbitant or excessive. For the reasons stated above, we hold that there is no merit in these appeals. The appeals fail and are accordingly dismissed, but without any order as to costs. **Sd/-P.N.RAVINDRAN JUDGE** **sd/- DAMA SESHADRI NAIDU JUDGE** rv/css **/ true copy** **P.S.TO JUDGE**