Thomas Mathew, Mariamma Mathew and Pradeep Joseph v. State of Kerala, District Collector, Special Tahsildar (Land Acquisition), Kerala State Industries Development Corporation and the Director, Rubber Research Institute of India (Impleaded)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **WEDNESDAY, THE 11TH DAY OF MARCH 2020 / 21ST PHALGUNA, 1941** ## **WP(C).No.10869 OF 2019(G)** ## **PETITIONERS:** |**1**|**THOMAS MATHEW,**| |---|---| ||**NELLUVELIL HOUSE,**| ||**NADAKKAL P.O,**| ||**ERATTUPETTA,**| ||**KOTTAYAM DISTRICT.**| |**2**|**MARIAMMA MATHEW,**| ||**NELLUVELIL HOUSE,**| ||**NADACKAL P.O,**| ||**ERATTUPETTA,**| ||**KOTTAYAM DISTRICT.**| - **3 PRADEEP JOSEPH, VADAKKEPUTHENPURAYIL HOUSE, NADACKAL P.O., ERATTUPETTA, KOTTAYAM DISTRICT.** **BY ADVS. SRI.GEORGE MECHERIL SRI.JUSTINE JACOB** ## **RESPONDENTS:** |**1**|**THE STATE OF KERALA,**| |---|---| ||**REPRESENTED BY ITS SECRETARY TO GOVERNMENT,**| ||**REVENUE DEPARTMENT, SECRETARIAT,**| ||**THIRUVANANTHAPURAM, PIN - 695 001.**| |**2**|**THE DISTRICT COLLECTOR,**| ||**KOZHIKODE, PIN - 673 001.**| |**3**|**THE SPECIAL TAHSILDAR(LAND ACQUISITION),**| ||**KOYILANDY,**| ||**KOZHIKODE, PIN - 673 305.**| |**4**|**THE KERALA STATE INDUSTRIES DEVELOPMENT CORPORATION,**| ||**TC.11/266, KESTON ROAD, KOWDIAR,**| ||**THIRUVANANTHAPURAM, PIN - 695 003,**| ||**REPRESENTED BY ITS MANAGING DIRECTOR.**| **WP(C).No.10869 OF 2019** **-2-** ***ADDL.R5 THE DIRECTOR, RUBBER RESEARCH INSTITUTE OF INDIA, KOTTAYAM, PIN-686 001.** ***IS IMPLEADED AS PER ORDER DATED 02-08-2019 IN IA 1/19.** **R4 BY SRI.P.U.SHAILAJAN, SC, KSIDC R5 BY ADV. SRI.V.ABRAHAM MARKOS R5 BY ADV. SRI.ABRAHAM JOSEPH MARKOS R5 BY ADV. SRI.ISAAC THOMAS R5 BY ADV. SRI.P.G.CHANDAPILLAI ABRAHAM R5 BY ADV. SRI.VIPIN ANTO H.M. R5 BY ADV. SRI.ALEXANDER JOSEPH MARKOS R5 BY ADV. SRI.SHARAD JOSEPH KODANTHARA SRI.Y JAFARKHAN, GP TO AAG** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-032020, THE COURT ON 11-03-2020 DELIVERED THE FOLLOWING:** **WP(C).No.10869 OF 2019** **-3-** ## **JUDGMENT** ## **Dated this the 11th day of March 2020** The short issue in this writ petition, calls for an interpretation of Clause 7.7 of Ext.P12 Government Order dated 5.11.2004, issued for acquisition of land under Fast Track Projects in Kerala. Clause 7.7 reads thus: _“7.7. Compensation for trees will also be based on their market value in case of timber bearing trees and replacement cost in case of fruit bearing trees as per the rates decided by the competent authority in consultation with Deptt. Of Agriculture, Forest, Horticulture, Sericulture etc. as the case may be.”_ The plantation belonged to the petitioners was acquired for the purpose of Coconut Industrial Park Project. The parties entered into an agreement with open eyes based on the Government Order as referred above. 2. Later, there arose a dispute between the parties. The petitioners approached this Court in W.P.(C) **WP(C).No.10869 OF 2019** **-4-** No.32066/2013 seeking direction to pass an award under Section 11(1) of the Kerala Land Acquisition Act, 1961 as the petitioners appear to have disputed the agreement, that was allowed by this Court by judgment dated 7.10.2015. The requisition authority as well as the State filed separate writ appeals as W.A.No.1327/2016 and W.A.No.977/2016. The writ appeals were disposed of on 16.12.2016, noting that there was an agreement between the land owners and the Acquisitioning Authority and that there was no vagueness in the agreement entered between the parties, the writ appeals were allowed. 3. There was some dispute in regard to the compensation calculated for improvements. Noting that the compensation was not calculated in accordance with the Government Oder, the Division Bench ordered compensation for improvements in accordance with the Government Order as above. There was a considerable **WP(C).No.10869 OF 2019** **-5-** delay in disbursing the compensation. Accordingly, Division Bench ordered payment of interest at 12% towards the unpaid portion of the compensation from the date of taking possession till the date of payment. 4. Perhaps, this Court needs to consider the facts only in respect of the compensation, claimed by the petitioners for the improvements. The compensation was originally paid by calculating the timber value alone. Thereafter, based on the Division Bench order, the compensation payable to the petitioners was calculated on the value of the improvements confining to 3 years yield. Since, the trees are rubber trees, by such calculation, the timber value of the trees have been excluded as a component of the compensation. The petitioners claim that they are entitled for both timber value as well as value of improvements. 5. The learned Senior Counsel appearing for the **WP(C).No.10869 OF 2019** **-6-** petitioners also challenged the calculation on the ground that the calculation was based on the agricultural income tax return and not based on the market value. It was also argued that the yield will have to be calculated based on the actual loss suffered and not confined to the period as mentioned in the Government Order. 6. The learned Counsel appearing for the requisition authority argued that the issue is concluded by the Division Bench judgment and it cannot be re-opened through this writ petition. It is pointed out that the Division Bench only ordered the compensation based on produce value and not the timber value and therefore, the petitioners cannot claim the timber value in addition to the value of yield. The learned Counsel specifically pointed out that the Clause 2C under Annexure II of the Government order, which reads thus: **WP(C).No.10869 OF 2019** **-7-** “ ||**_CATEGORY_**|**_TYPE OF LOSS_**|**_UNIT OF_**<br>**_ENTITLEMENT_**|**_ENTITLEMENT_**|**_DETAILS_**| |---|---|---|---|---|---| |_2C_||_Perennial crops_<br>_such as fruit_<br>_trees_|_Family_|_Compensation_<br>_at “market_<br>_value”_|_Compensation for_<br>_perennial crops and_<br>_trees, calculated as_<br>_annual produce value_<br>_for last three years._| |“|||||| 7. The first and foremost question to be answered is whether the petitioners are entitled for timber value along with the value of yield. The Clause 7.7 as referred above, shows both the market value of the timber as well as replacement cost will have to be awarded in case of fruit bearing trees. This has to be fixed in consultation with the Department of Agricultural, Forest, Horticulture etc. Originally, the timber value alone was fixed. Noting that, it was not in accordance with the Government Order, the Division Bench of this Court has directed to calculate the compensation in accordance with the Government Order. The Clause 2C as noted above, only refers to the method of **WP(C).No.10869 OF 2019** **==> picture [23 x 9] intentionally omitted <==** calculation of compensation for perennial crops such as fruit trees. This Clause 2C has to be understood based on the Clause 7.7. If the fruit bearing trees have both the timber value as well as the crop value, both will have to be calculated. However, the produce value of the fruit bearing trees will be restricted for last three years. The Clause 2C in the Annexure cannot be read in isolation of Clause 7.7. The Clause 7.7 clearly states that both timber value and replacement cost can be claimed in case of fruit bearing trees. The replacement cost is the produce value. The produce value has to be calculated in accordance with Clause 2C. For example, the timber value may be Rs.10 lakhs but, annual produce value for the last three years may be 2 lakhs. One party to the contract cannot take advantage by referring to Clause 2C alone and stating that the land owner is not entitled for timber value. There is nothing in the Clause 2C in Annexure to indicate this calculation is **WP(C).No.10869 OF 2019** **-9-** excluding the timber value. In the absence of any provisions in the Government Order to the effect to that the calculation referred under 2C for annual produce value is by excluding the timber value, it has to assume that Clause referable under 7.7 is applicable for the determination of compensation for both timber value as well as produce value of such fruit bearing trees. Therefore, the exclusion of the timber value, while recalculating the compensation for the improvements will have to be considered as illegal. 8. It is submitted that the market value has not been considered for the annual produce for the last three years. It is further submitted that the respondent simply relied on the annual agricultural income tax return. The annual agricultural return can be taken along with the other component that could be a factor for determining the market value. The Clause 7.7 clearly laid down that such **WP(C).No.10869 OF 2019** **-10-** determination will have to be done in consultation with the Departments of Agricultural, Forest, Horticulture etc. Therefore, necessary input from an expert body have to be obtained for determining the market value for that period. In such circumstances, annual produce value now calculated will have to be reworked based on the market value as referred in Clause 2C in consultation with an expert body. 9. Next point is that whether issue has been concluded by judgment of the Division Bench or not. The learned counsel for the 4[th] respondent heavily relies upon paragraph 17 of the Division Bench judgment, which reads thus: _“17. Learned Senior Counsel for the land owners would contend that even assuming that there was an agreement entered into between the land owners and the Acquisitioning Authority, the terms of agreement are vague in so far as it relates to compensation for “Kuzhikkoors” (income from cultivation). According to him, regarding_ **WP(C).No.10869 OF 2019** **-11-** _compensation relating to improvements in the land, capitalization method has to be followed. It is contended that presently only timber value has been awarded and the same is not acceptable to the land owners. Learned Senior Counsel placing reliance on decision reported in_ _**Nutakki Sesharatnam v. Sub-Collector, Land Acquisition, Vijayawada and Others ([1992] 1 SCC 114)** contended that the value suggested by the land owners was only an offer on their part and that they were entitled to withdraw the offer at any time before its acceptance by the Acquisitioning Authority. According to the learned Senior Counsel, their offer was not accepted in stricto senso by the Acquisitioning Authority and therefore, especially in the background of absence of consensus ad idem as regards fixation of value of improvements, the land owners were entitled to withdraw their offer. Therefore, according to the learned Senior Counsel, an award under Section 11(2) of the Act could not be passed. However, we feel that, it may not be correct to contend that terms of the agreement in relation to assessment of the value of improvements is vague or is not specific, or not discernible from the agreement between the parties. Exts.R2(a) and R2(b) are consent letters given by the land owners, writ petitioners 1 and 3, respectively. In Ext.R2(a) and R2(b) it is stated that land value payable is at_ **WP(C).No.10869 OF 2019** **-12-** _the rate of Rs.10,750/- per cent and additional value will be paid for kuzhikkoors (income from cultivation). In Ext.R2(a), there is a further recital to the effect that compensation for the value of kuzhikkoors (income from cultivation) will be 'as per provision only'. Such a clause is absent in Ext.R2(b). Exhibit R2(g) is the Government Order accepting fixation of compensation. As noted supra, land value was fixed at Rs.10,750/- per cent and regarding compensation for structures and trees, it was provided that it will be “...in accordance with G.O(Rt.) No.331/2004/RD dated 05.11.2004 and as per the existing guidelines....”. The said Government Order has been produced and marked as Ext.P16. However, it is seen that the said document is not complete. The learned State Attorney has made available a copy of the entire Government Order along with Annexures thereto. Annexure-2 to the said Government Order is titled as: “Fast Track Projects Rehabilitation & Resettlement: Principles and Policy Framework”_ _Clause 7.7 of the same reads as under:_ _“7.7. Compensation for trees will also be based on their market value in case of timber bearing trees and replacement cost in case of fruit bearing trees as per the rates decided by the competent authority in consultation with Dept. of Agriculture, Forest, Horticulture, Sericulture, etc., as the case may be.”_ _Clause 2C of Annexure-2 provides as follows:_ **WP(C).No.10869 OF 2019** **-13-** _“2C. Compensation for perennial crops and trees, calculated as annual produce value for last three years”._ _Therefore, it is evident that for perennial crops and tress, the compensation is to be calculated based on the annual produce value for the last three years. Therefore, the mode of calculation of compensation for the trees has been specifically provided and agreed to between the parties. It cannot be said that there is any manner of vagueness in that regard. Therefore, the contention that the agreement between the parties is vague falls to the ground. ”_ 10. It is to be noted that before the Division Bench, it was contended by the petitioners that the agreement was vague in as much as that there was no mode of calculation for compensation for improvements specifically agreed between the parties. Answering to this contention, the Division Bench referred to the Clause 7.7 and 2C and concluded that there is a clear understanding between the parties on the mode of calculation of compensation of fruit bearing trees and therefore the argument of the petitioners **WP(C).No.10869 OF 2019** **-14-** in regard to the vagueness of the agreement must fail. The Division Bench had not interfered with the calculation of compensation of the timber value. The Division Bench only found that the calculation was not in accordance with the agreement. The matter was remitted to specifically consider this question on compensation in accordance with the agreement. 11. The term compensation has to be given normal meaning. One would be entitled to timber value as well as produce value as compensation in normal circumstances. In the contract if nothing indicates as to the contrary, such a compensation cannot be denied to the owner of the land. In regard to rubber tree after the age of yield is over, one would get timber value. 12. On interpretation of the agreement, this Court find as per the Government Order, that the petitioners are entitled for both the timber value as well as the annual **WP(C).No.10869 OF 2019** **-15-** produce value of the timber, on a conjoined reading of Clause 7.7 and Clause 2C in the Annexure II. In such circumstances, the writ petition has to be allowed. 13. The petitioners should be given the timber value as originally calculated. The annual produce value of the trees will have to be re-worked after obtaining necessary inputs from the competent authority. It shall be done within a period of two months. The compensation amount shall be re-worked and paid within a further period of two months. Accordingly, the impugned orders are set aside. Therefore, this writ petition is allowed and disposed as above. No costs. **Sd/A.MUHAMED MUSTAQUE JUDGE** akv/ 17.3.2020 **WP(C).No.10869 OF 2019** **-16-** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 05/10/2018 IN WP(C) NO. 7930/2018** - **EXHIBIT P2 TRUE COPY OF THE DOCUMENT REFERRED TO AS EXT.P31 REPRESENTATION IN EXT. P1 JUDGMENT** - **EXHIBIT P3 TRUE COPY OF THE ORDER DATED 22/03/2019 OF THE DISTRICT COLLECTOR** - **EXHIBIT P4 TRUE COPY OF THE EXPERT OPINION OF THE RUBBER BOARD FORWARDED TO THE DISTRICT COLLECTOR ON 09/08/2012** - **EXHIBIT P5 TRUE COPY OF THE ARGUMENT NOTES SUBMITTED BEFORE THE DISTRICT COLLECTOR AT THE TIME OF HEARING** - **EXHIBIT P6 TRUE COPY OF THE VALUATION REPORT AND SUBMITTED IT TO THE DISTRICT ADMINISTRATION ON 06.11.2009 OF THE VILLAGE OFFICER** - **EXHIBIT P7 TRUE COY OF THE CONSENT LETTER EXHIBIT P8 TRUE COPY OF THE COMMUNICATION NO.B43542/13 DATED 08.02.2013** - **EXHIBIT P9 TRUE COPY OF THE PROCEEDINGS OF THE DISTRICT COLLECTOR DATED 29.05.2013** - **EXHIBIT P9 A TRUE COPY OF THE COMMUNICATION DATED 31.05.2013 OF THE SPECIAL TAHSILDAR** - **EXHIBIT P9 B TRUE COPY OF THE COMMUNICATIONS DATED 30/10/2013 AND 22/10/2013 ADDRESSED TO THE PETITIONERS BY THE 3RD RESPONDENT** - **EXHIBIT P10 A TRUE COPY OF THE JUDGMENT DATED 07/10/2015 IN WP(C) NO. 32066/2013** - **EXHIBIT P11 TRUE COPY OF THE COMMON JUDGMENT IN W.A.NO.1327/2016 AND 977/2016.** **WP(C).No.10869 OF 2019** **-17-** **EXHIBIT P12** **A TRUE COPY OF THE GOVT. ORDER G.O.(MS) NO.331/2004/RD DATED 05/11/2004 REFERRED TO IN EXT.P11 JUDGMENT** **EXHIBIT P13 TRUE COPY OF THE ORDER OF THE HONOURABLE SUPREME COURT IN SLP(C) NO.12459-60/17 DATED 04/05/2017** - **EXHIBIT P14 TRUE COPY OF THE COMMON ORDER DATED 05/01/2018 IN R.P.NO.574/2017 AND 580/17** - **EXHIBIT P15 TRUE COPY OF THE ORDER DATED 17.05.2018 IN S.L.P.(C)NO. 13914/2018 THE HONOURABLE SUPREME COURT** - **EXHIBIT P16 TRUE COPY OF THE RELEVANT PORTION OF THE REVISED AWARDS ON 21.02.2017 AND COMMUNICATED THE SAME THROUGH REGISTERED POST ON 01.04.2017 TO THE 1ST PETITIONER** - **EXHIBIT P17 TRUE COPY OF THE RELEVANT PORTION OF THE REVISED AWARDS ON 21.02.2014 AND COMMUNICATED THE SAME THROUGH REGISTERED POST ON 01.04.2017 TO THE 2ND PETITIONER** - **EXHIBIT P18 TRUE COPY OF THE RELEVANT PORTION OF THE REVISED AWARDS ON 21.02.2017 AND COMMUNICATED THE SAME THROUGH REGISTERED POST ON 01.04.2017 TO THE 3RD PETITIONER** - **EXHIBIT P19 TRUE COPY OF THE REPORT OF THE RUBBER RESEARCH INSTITUTE SUBMITTED TO THE SPECIAL TAHSILDAR LA ON 9.8.2012.** **EXHIBIT P20 TRUE COPY OF THE G.O. (MS) NO.235/2011/ID DATED 30.12.2011.** **EXHIBIT P21 TRUE COPY OF THE AWARD PASSED IN FAVOUR OF MARIAMMA MATHEW DURING 2013. EXHIBIT P22 TRUE COPY OF THE AWARD PASSED IN FAVOUR OF PRADEEP JOSEPH.** **WP(C).No.10869 OF 2019** **-18-** ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R4(A) TRUE COPY OF THE AWARD PASSED BY THE LAND ACQUISITION OFFICER WITH RESPECT TO THE PROPERTY OF THE 1ST PETITIONER DATED NIL.** - **EXHIBIT R4(B) TRUE COPY OF THE AWARD PASSED BY THE LAND ACQUISITION OFFICER WITH RESPECT TO THE PROPERTY OF THE 2ND PETITIONER DATED NIL.** - **EXHIBIT R4(C) TRUE COPY OF THE AWARD PASSED BY THE LAND ACQUISITION OFFICER WITH RESPECT TO THE PROPERTY OF THE 3RD PETITIONER DATED NIL.** - **EXHIBIT R4(D) TRUE COPY OF THE AWARD DATED 21.2.2017 PASSED BY THE LAND ACQUISITION OFFICER WITH RESPECT TO THE PROPERTY OF THE 1ST PETITIONER.** - **EXHIBIT R4(E) TRUE COPY OF THE AWARD DATED 21.2.2017 PASSED BY THE LAND ACQUISITION OFFICER WITH RESPECT TO THE PROPERTY OF THE 2ND PETITIONER.** - **EXHIBIT R4(F) TRUE COPY OF THE AWARD DATED 21.2.2017 PASSED BY THE LAND ACQUISITION OFFICER WITH RESPECT TO THE PROPERTY OF THE 3RD PETITIONER.** **EXHIBIT R4(G) TRUE COPY OF THE OBJECTIONS SUBMITTED BY THE PETITIONERS 2 AND 3 BEFORE THE 4TH RESPONDENT AND OTHERS DATED 28.6.2018.** //TRUE COPY// PA TO JUDGE