The General Manager, Telecom District, Kannur v. M.Kamalakshy Amma and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** # **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN WEDNESDAY, THE 12[TH] DAY OF OCTOBER 2022 / 20TH ASWINA, 1944 LA.APP. NO. 1257 OF 2010 AGAINST THE JUDGMENT AND DECREE DTD.4.3.2010 IN LAR 62/2002 OF SUB COURT, HOSDURG** ## **APPELLANT:** THE GENERAL MANAGER, TELECOM DISTRICT, KANNUR. BY ADV SRI.MATHEWS K.PHILIP,SC, BSNL ## **RESPONDENTS:** - 1 M.KAMALAKSHY AMMA,W/O.M.K.NAMBIRAR, DEVALAYAM, SHENOY ROAD,KALOOR.P.O.,KOCHI-17. - 2 MADHAVAN NAMBIAR ANANDASHARAM MAVUNGAL,KANHANGAD.P.O.-671315. - 3 KUNHAMBU NAMBIAR, MELANGOTT HOUSE BALLA VILLAGE, KANHANGAD.P.O.-671315. - 4 M.RATHNAVATHI AMMA (DIED),W/O.KONOTH RAMACHANDRAN NAMBIAR, SOMAPURAM, PALIKKARA, NILESHWAR.P.O, – 671 314. - 5 M.KUNHIKELU NAMBIAR, MELANGOT HOUSE, KANHANGAD.P.O. - 671315 - 6 M.GOPALAN NAMBIAR, C/O.DEVARKANATH AND COMPANY, CHARTERED ACCOUNTANT,39/733,IYYATTIL LANE,CHITTOOR ROAD,ERNAKULAM(S)P.O.,KOCHI-682011 - 7 M.RAMACHANDRAN NAMBIAR, MANAGER, ## **L.A.A.No.1257 of 2010** ## **:-2-:** ORIENTAL INSURANCE COMPANY LIMITED, N.H.ROAD, TALIPARAMBA.P.O., KANNUR DISTRICT - 670141 - 8 M.SHOBHA, W/O.VENUGOPAL C MENON VENGALATH MADOM, SPICES STREET,EKM.N.P.O.,COCHIN -682018. - 9 RAJMOHAN NAMBIAR, ADVOCATE, MELANKOT HOUSE, KANHANGAD.P.O.,PIN -671315. - 10 M.GOPIKRISHNAN NAMBIAR ADVOCATE, C/O.SRI.T.P.KELU NAMBIAR, SENIOR ADVOCATE, ANAMIKA KARAKKAT ROAD,EKM.S.P.O.,KOCHI-682016 - 11 SMT. M.NISHA DEVI W/O.NARENDRAN, PAPPINISSERY HEALTH CENTRE, PAPPINESSERY PO, KANNUR DISTRICT – 670 561 - 12 NAVANEETHA M, D/O.A.R.MELOTH, ADVOCATE, KANHAGAD SOUTH.P.O.-671 315. - 13 K.SAVITHRI AMMA, W/O.LATE M.K.NAMBIAR, KOTTACHERRY, KANHANGAD.P.O.-671 315. - 14 SMT. NIRMALA V NAIR, W/O.DR.N.V.NAIR HOSDURG, GENERAL POWER OF ATTORNEY HOLDER, HER MOTHER K.SAVITHRI AMMA, W/O.LATE M.K.NAMBIAR, KOTTACHERRY, KANHANGAD.P.O.-671315 - 15 K.VENUGOPALAN NAMBIAR - S/O.LATE N.K.NAMBIAR, - KOTTACHERRY,KANHANGAD.P.O.-671315. - 16 SMT.VIMALA K NAMBIAR - W/O.M.KUNHIRAMAN NAMBIAR, MANIKYAM,, - KOTTACHERRY,KANHANGAD.P.O.-671315. - 17 DR.K.VINODKUMAR - S/O.LATE - M.K.NAMBIAR,KOTTACHERRY,KANHANGAD.P.O.671315 ## **L.A.A.No.1257 of 2010** ## **:-3-:** - 18 MRS. SHEELA S MENON, - W/O.SURESH MENON, CANADA, GENERAL POWER OF ATTORNEY HOLDER, HER MOTHER SAVITHRI, W/O.LATE M.K.NAMBIAR,KOTTANCHERRY,KANHANGAD.P.O.-671315 - 19 MAVILA MEENAKZHI AMMA (DIED) D/O.KODOTH KUNHAMBU NAIR, CHANDRAPURAM, KOTTACHERRY, KANHANGAD. **[LEGAL HEIRS OF THE DECEASED 19TH RESPONDENT ARE IMPLEADED AS ADDITONHAL R25 VIDE ORDER DATED 19.7.2013 IN I.A.568/2013 AND ADDITIONAL RESPONDENTS 'R26 TO R37' VIDE ORDER DATED 28.10.2013 IN I.A.1462/2013.]** - 20 SRI.M.KUNHIRAMAN NAMBIAR (DIED) - EX.M.L.A,S/O.KODOTH KUNHAMBU NAIR, OLAKKARA HOUSE,ODAYANCHAL PO,PADIMARUTHU.P.O., ANANDASRAM iVIA), KANHANGAD 671531 ## **[LEGAL HEIRS OF THE DECEASED 20TH RESPONDENT IS IMPLEADED AS ADDITIONAL RESPONDENT R38 TO R41 AS PER ORDER DATED 12.10.22 IN I.A.1/2021]** - 21 DISTRICT COLLECTOR, VIDYA NAGAR, KASARAGOD.P.O. 671123. - 22 M.KUNHIRAMAN NAMBIAR - S/O.LATE M.RATHNAVATHI AMMA, AND KONOTH RAMACHANDRAN NAMBIAR, RESIDING AT SOMAPURAM,, PALLIKKARA NEELESWAR VILLAGE, HOSDURG TALUK, NEELESWAR.P.O. 671314. - 23 M.SATHEESAN NAMBIAR - S/O.LAE M.RATHNAVATHI AMMA AND KONOTH RAMACHANDRAN NAMBIAR, RESIDING AT SOMAPURAM,, PALLIKKARA NEELESWAR VILLAGE, HOSDURG TALUK, NEELESWAR.P.O. 671 314. - 24 STATE OF KERALA REPRESENTED BY THE ## **L.A.A.No.1257 of 2010** ## **:-4-:** SPECIAL TAHSILDAR, LAND ACQUISITION, KASARAGOD 671 121. - 25 ADDL.R-25.DR.M.R.NAMBIAR, C/O.K.P.KRISHNAN NAIR, KRISHNA NURSING HOME, KOTTACHERY,KANHANGAD,KASARGOD. - 26 M.CHANDRAVATHI NAMBIAR, D/O.MAVILA MEENAKZHI AMMA,A-34,VRINDAVAN COLONY, - CHEVAYUR,CALICUT - 27 M.DAKSHAYANI NAMBIAR, D/O.MAVILA MEENAKZHI AMMA,UDAYA NEAR AIR - QUARTERS,KARAPARAMBA,CALICUT (DIED) ## **[LEGAL HEIRS ARE IMPLEADED AS ADDL.R42 AND R43 VIDE ORDER DTD.12.10.2022 IN IA 1/2022.]** - 28 M.PANKAJAKSHI NAMBIAR , D/O.MAVILA MEENAKZHI AMMA,A-34,VRINDAVAN COLONY,CHEVAYUR, CALICUT. - 29 M.NARAYANAN NAMBIAR, S/O.MAVILA MEENAKZHI AMMA, MEENAKSHI,RARICHAN ROAD,CALICUT. - 30 M.KUNHAMBU NAMBIAR, S/O.MAVILA MEENAKZHI AMMA,KODOTH - HOUSE,ADIYAMBOOR,KANHANGAD. - 31 M.KUNHIKRISHNAN NAMBIAR, S/O.MAVILA MEENAKZHI AMMA,MANIKYAM,KOTTACHERY,KANHANGAD. - 32 M.RAJAKRISHNAN NAMBIAR, S/O.MAVILA MEENAKZHI AMMA,MARUDOTH ESTATE, - P.O.CHULLY,ANANDASHRAM VIA,KANHANGAD. - M.RAVINDRAN NAMBIAR, ## **L.A.A.No.1257 of 2010** ## **:-5-:** - 33 S/O.MAVILA MEENAKZHI AMMA,NEAR DURGA HIGH SCHOOL,KANHANGAD. - 34 M.LAKSHMI JAYARAJ, - D/O.MAVILA MEENAKZHI AMMA 7B,SHOBHA EMARALD,JAKKUR,BANGALORE. - 35 M.HARI NAMBIAR, - S/O.MAVILA MEENAKZHI AMMA,7B,SHOBHA - EMARALD,JAKKUR,BANGALORE. - 36 LAKHSMIKUTTY NAMBIAR, - W/O.RAMACHANDRAN NAMBIAR,6 C, - PLATINUM VISTA,SASTHA TEMPLE ROAD,KALOOR,KOCHI17. - 37 SINDHU NAMBIAR, D/O.RAMACHANDRAN NAMBIAR,6 C, - PLATINUM VISTA , SASTHA TEMPLE ROAD, KALOOR,KOCHI-17. - 38 ADDL. R38. SANTHA KODOTH,W/O.LATE M.KUNHIRAMAN NAMBIAR (EX.M.L.A),OLAKKARA HOUSE, ODAYANCHAL.P.O, VELLARIKUNDU TALUK, KANHANGAD, KASARAGOD DISTRICT, PIN – 671 531. - 39 ADDL. R39. JAYAPRASAD KODOTH,S/O.LATE M.KUNHIRAMAN NAMBIAR (EX.M.L.A), OLAKKARA HOUSE,ODAYANCHAL.P.O., VELLARIKUNDU - TALUK,KANHANGAD, KASARAGOD DISTRICT,PIN-671531. - 40 ADDL. R40. PRAMILA KODOTH,D/O.LATE M.KUNHIRAMAN NAMBIAR (EX.M.L.A.), OLAKKARA HOUSE, ODAYANCHAL.P.O., VELLARIKUNDU - TALUK,KANHANGAD,KASARAGOD DISTRICT,PIN -671 531. ## **L.A.A.No.1257 of 2010** ## **:-6-:** - 41 ADDL. R41. PRAVEENA KODOTH,D/O.LATE M.KUNHIRAMAN NAMBIAR (EX.M.L.A),OLAKKARA HOUSE,ODAYANCHAL.P.O.,VELLARIKUNDU TALUK, KANHANGAD,KASARAGOD DISTRICT,PIN- 671531. - 42 ADDL.R42. M.SUNIL NAMBIAR,FLAT NO.8B, PROSPECT POINT,A1 APARTMENTS, WEST HILL.P.O., CALICUT673 005 - 43 ADDL.R43. MRS.SUJATHA NAMBIAR,B/44,VRINDAVAN COLONY, CHEVAYUR, CALICUT – 673 017. BY ADVS. SRI.PUSHPARAJAN KODOTH FOR R30,R38 TO R41 SRI.K.JAYESH MOHANKUMAR FOR R30,R38 TO R41 SMT.VANDANA MENON FOR R38-R41 SRI.M.RAMESH CHANDER FOR R13 TO R18 & R20 SRI.VIMAL VIJAY FOR R38 TO R41 SMT.K.A.SANJEETHA-GOVT.PLEADER FOR R24 SRI.T.SETHUMADHAVAN FOR R10. By SR.GOVT.PLEADER SRI.S.GOPINATHAN FOR R24 THIS LAND ACQUISITION APPEAL HAVING COME UP FOR ADMISSION ON 12.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **L.A.A.No.1257 of 2010** ## **:-7-:** ## **JUDGMENT** ## Shoba Annamma Eapen, J. The General Manager, Telecom District, Kannur filed this appeal under Section 54 of the Land Acquisition Act, 1894 and Order XLI Rule 1 of the Code of Civil Procedure, 1908, challenging the judgment and decree in L.A.R.No.62 of 2002 on the file of the Sub Court, Hosdurg. The L.A.R. arose on the reference under Section 18 of the Act. During the pendency of the proceedings, 19[th] respondent died and her legal heirs are impleaded as additional respondents 25 to 37 as per order dated 19.7.2013 in I.A.No.568/2013 and order dated 28.10.2013 in I.A.No.1462/2013, 20[th] respondent died and his legal heirs are impleaded as additional respondents 38 to 41 as per order dated 12.10.2022 in I.A.No.1 of 2021 and additional 27[th] respondent died and her legal heirs are impleaded as additional respondents 42 and 43. The respondents 1 to 18 and the above impleaded respondents are the claimants. The Respondent No.24 is the acquisition authority. ## **L.A.A.No.1257 of 2010** ## **:-8-:** 2. Heard the learned Standing Counsel for the appellant and the learned counsel appearing for the respondents. 3. An extent of 127.106 cents of land comprised in re-survey No.95/14, 97/14 and 96/8 of Balla Village, Hosdurg Taluk jointly belonging to the respondents were acquired for the purpose of construction of Telephone Exchange Building. The notification under Section 4(1) of the Act was published in the local dailies and in the Kerala Government Gazette Extra Ordinary dated 31.08.1990. An award was passed on 29.06.1993 fixing an amount of Rs.9,09,187.56. The claimants challenged the acquisition proceedings before this Court by filing O.P.No.8612/1993 and the petition was dismissed. Possession of the property was taken over on 12.04.2002. The claimants protested against the sufficiency of compensation and filed reference application under Section 18 of the Land Acquisition Act. On the basis of the reference made to the Sub Court, Hosdurg, L.A.R.No.62 of 2002 was initiated. Twice, the reference application was dismissed for ## **L.A.A.No.1257 of 2010** ## **:-9-:** default and restored to file. Five references were made by the Referring Officer on the premise that all the claimants have filed different applications for reference separately and hence five reference were made as LAR 63/02, 65/02, 66/02 and 68/02 and as per order in I.A.No.321/04, all these reference applications were treated as a single reference and merged with the present LAR No.62/2002. After trial, the Reference Court fixed the land value at Rs.25,000/- per cent as against Rs.7152.97 per cent awarded by the Acquisition Officer and ## answered the reference as follows:- - _“a) It is hereby declared that the claimants A to T, V,W,X are entitled for Rs.22,68,462/- (Rupees Twenty Two Lakhs Sixty Eight Thousand Four Hundred and Sixty Two Only) towards enhanced compensation for land value;_ - _b) They are entitled for 30% as solatium on the amount mentioned in clause (a);_ - _c) They are further entitled for 12% interest of the enhanced compensation declared in clause (a) as additional market value from the date of Section 4(1) notification, that is from 31.8.1990 till 29.6.1993, the date of award which is earlier;_ - _d) Claimants A to T,V,W,X are entitled for interest at the rate of_ **L.A.A.No.1257 of 2010** ## **:-10-:** _9% per annum upon the aggregate amount covered by clause (a) to (c) above for one year from the date of possession, tht is from 12.4.2002 onwards and thereafter at the rate of 15% per annum until realisation excluding the period from 18.1.2007 till 2.7.2009 vide order in I.A.No.282/07;_ - _e) Considering the circumstances, parties are left to suffer their respective costs, less process fee which shall be deducted from the enhanced compensation so awarded.”_ 4. Aggrieved by the fixation of the land value at Rs.25,000/- per cent, the General Manager, Telecom District, Kannur has filed this Land Acquisition Appeal. It is contended that the Reference Court went wrong in fixing such a value for the land merely on the basis of guesswork. It is contended that the value of the land involved in Ext.R1 is the actual value of the property in the locality and the property in Ext.R1 is situated nearer to the Highway than the acquired property. It was also contended that the court below erred in taken in to consideration the value shown in Ext.A2 and A3, while fixing the value of the property on the basis of a guess work. ## **L.A.A.No.1257 of 2010** ## **:-11-:** The properties in Ext A2 & A3 are pertaining to one cent and the subject property is 127.107 cents and that smaller extent of property will fetch more value when compared to larger extent of property and the consideration of the court below is not justifiable. It was further contended that the court below ought to have rejected the interest on the enhanced amount for the period during which the reference was dismissed for non prosecution. It was also the contention of the appellant that the court below erred in granting enhanced compensation to the claimants who remained _ex parte_ and further that the amount fixed by the acquisition officer was fair and reasonable. Accordingly, the appellant sought to set aside the judgment and decree passed in LAR No.62/2002 of the Sub Court, Hosdurg. 5. It is pointed out by the learned Counsel appearing for the claimants that the acquired property situates in the heart of Kanhangad town and was the only access to the highway from town during the time of acquisition. It was further submitted that the property, which ## **L.A.A.No.1257 of 2010** ## **:-12-:** was situated in a very busy commercial locality, has worth more than Rupees one lakh at the time of Notification and the prayer was for a compensation of Rs.2,00,000/- per cent. But the court below has fixed the amount at Rs.25,000/- per cent which is much less than the actual value. The appeal filed by the appellant is only to be dismissed. 6. We have considered the rival contentions put forth by both parties. The award was passed on 29.06.1993, by the acquisition officer fixing Rs.7152.97 per cent, totaling to an amount of Rs.9,09,187.56. Aggrieved by the fixation of the amount, the claimants filed reference application under Section 18 of the Land Acquisition Act. The Sub Court, Hosdurg, after elaborate consideration, has fixed the amount at Rs.25,000/- per cent, totaling to an amount of Rs.31,77,650/- and thus the enhanced amount was Rs.22,68,462.44. The court below, in order to arrive at that finding, relied upon Ext.A2 and A3 documents both dated 30.04.1984, which are in respect of a plot situated adjacent to the State Highway and the amount shown in the said deeds **L.A.A.No.1257 of 2010** ## **:-13-:** were Rs.50,000/- per cent. The witness AW1, has deposed that Ramnagar road which abuts the acquired property was the only convenient and shortest access to the National Highway which is situated on the eastern side of the Kanhangad town. The witness further deposed, that the property is having roads on three sides. It shows the importance of the acquired property. The contention of the appellant that the court below has taken Ext.A2 and A3 alone for arriving at a finding for fixation of the amount, is totally incorrect because the amount shown in these documents is Rs.50,000/- per cent. The amount shown in Ext.R1, which was relied on by the Referring Officer, is Rs.50,000/- for 7 cents which was executed in the year 1987. The notification was in the year 1990 and Ext.A2 and A3 were executed in the year 1984 whereas Ext.R1 document relied on by the acquisition officer is of the year 1987. The extent of property involved in Exts.A2 and A3 is one cent. But, the deed is six years prior to the notification. On a reading of the impugned judgment, it is seen that for arriving at a conclusion for ## **L.A.A.No.1257 of 2010** ## **:-14-:** fixation of the amount, the court below has considered Exts.A2, A3 and R1. No other evidence was adduced by the appellant, other than Ext.R1. 7. The Hon'ble Supreme Court has held that there can be situations where documents relating to sale of smaller extents can be relied on and applied with some modifications/deductions. (See **Land Acquisition Officer v. Nookala Rajamallu & others** reported in **(2013) 12 SCC 334 and Special LAO & another v. M.K.Rafiq Saheb** reported in **(2011 KHC 4582** ). We are of the view that the court below has granted enhanced compensation on a proper appreciation of facts and evidence in the case. 8. The further contention of the appellant is that the court below ought not to have allowed the interest on enhanced compensation fixed during which the reference was dismissed for non-prosecution as well as the acquisition proceedings were stayed upon the application by this Court. Regarding the payment of interest, during the period for non-prosecution of the reference, the court below has not ## **L.A.A.No.1257 of 2010** **:-15-:** granted interest from 18.01.2007 till 02.07.2009 as ordered in I.A.No.282/2007. We find that the approach of the court below is reasonable. We do not find any reason to allow the prayer for disallowing the interest for the period when the acquisition proceedings were stayed by this court, because the claimants were bonafidely litigating. 9. Hence, we are of the view that the appellant is not entitled to get any relief as prayed for. In the result, the Land Acquisition appeal is dismissed. There will be no order as to costs. Sd/- **A.MUHAMED MUSTAQUE, JUDGE** sd/- ## **SHOBA ANNAMMA EAPEN,** **JUDGE** MBS/ **L.A.A.No.1257 of 2010** **:-16-:** The following clarification forms a part of the judgment dated 12/10/2022 in LAA 1257/2010 as per order dated 30/11/2022 in IA No.2/2022 in LAA 1257/2010. “We clarify the judgment to the effect that we have upheld, disallowing the interest for the period, when the acquisition proceedings were stayed by this Court.” **==> picture [284 x 32] intentionally omitted <==** sd/JOINT REGISTRAR