Thomas Samuel v. State of Kerala and Deputy Chief Engineer (C), Railways

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 10TH JUNE 2010 / 20TH JYAISTHA 1932 LA.App..No. 562 of 2009 & C.O.No.93 of 2009(A) ------------------------LAR.182/2007 of III ADDL.SUB COURT, ERNAKULAM .................... APPELLANT(S): CLAIMANT ---------------------- THOMAS SAMUEL,VELIYATH HOUSE, KODUMAN,ADOOR TALUK,PATHANAMTHITTA DISTRICT, REP.BY HIS POWER OF ATTORNEY HOLDER KOSHY MATHEW, S/O.T.M.KOSHY,THAVALATHIL HOUSE,PONNURUNNI,VYTTILA BY ADV. SRI.M.A.ABDUL HAKHIM SRI.JYOTHISH.J.KALLINGAL RESPONDENT(S): RESPONDENTS -------------------------- 1. STATE OF KERALA, REP.BY SPECIAL TAHSILDAR, RAILWAYS,ERNAKULAM. 2. DEPUTY CHIEF ENGINEER (C), RAILWAYS,ERNAKULAM. BY SR.GOVT. PLEADER SMT.LATHA T.THANKAPPAN ADV. SRI.M.C.CHERIAN,SR.SC.,RAILWAYS FOR R2 THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 10/06/2010, ALONG WITH LAA NO.618 OF 2009 AND CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ.** **--------------------------------------------------------------------L.A.A.Nos.562, 618 & 702 of 2009, 20 & 123 of 2010 And C.O.Nos.93, 98 & 85 of 2009 -------------------------------------------------------------------** Dated this the 10[th] day of June, 2010 **J U D G M E N T ----------------------** ## **Pius C.Kuriakose,J.** All these appeals are preferred by the claimants and they pertain to acquisition of land in Poonithura Village for the purpose of doubling the Railway line from Ernakulam to Mulanthuruthy at Ponnurunni area. LAA.Nos.618/09, 702/09 and 562/09 corresponding respectively to LAR.Nos.179/07, 180/07 and 182/07 are acquisitions pursuant to Section 4(1) notification published on 1.2.2007. In that acquisition, the Land Acquisition Officer categorised lands under acquisition under 3 categories. Included in category 1 were properties having direct frontage of Palarivattom-Thammanam road. For these properties the Land Acquisition Officer awarded land value at the rate of Rs.3,26,563/- per Are corresponding to Rs.1,32,158/- per cent. Included in category 2 were properties with the frontage of Narayanan Asan road which unlike the main road from Palarivattom-Thammanam road is a narrow road. For these properties the Land Acquisition Officer made deduction of 15% from the value of properties in category 1 **2** L.A.A.562/09& connected cases and awarded Rs.2,77,579/- per Are corresponding to Rs.1,12,335/- per cent. Included in category 3 were properties situated on the side of railway track and for these properties what the Land Acquisition Officer did was to deduct 5% from the value of properties in category 2 and awarded land value of Rs.2,63,699/- per Are corresponding to Rs.1,06,718/- per cent. The reference court consolidated these three LA reference cases and another LAR.183/07 in which the lands were included in category 2 and jointly tried these 4 cases. On the basis of the evidence adduced by the parties the reference court re-fixed the value of the properties included in category 2 at Rs.5,82,611/- per Are corresponding to Rs.2,35,779/- per cent. Similarly the value of properties included in category 1 was re-fixed by the court at Rs.6,85,425/- per Are corresponding to Rs.2,77,388/- per cent. The reference court maintained the same ratio that was maintained by the Land Acquisition Officer between the values of properties and accordingly the learned Subordinate Judge would re-fix the value of properties in category 3 involved in LAR.Nos.180/07 and 182/07 at Rs.5,53,480/- per Are corresponding to Rs.2,23,990/- per cent. 2. In LAA.Nos.618/09, 702/09 and 562/09 various **3** L.A.A.562/09& connected cases grounds have been raised by the claimants alleging that the market value re-fixed by the court is inadequate. In fact against the award of the reference court in LAR.183/07 the claimant therein had preferred LAA.719/09 before this court. A learned Single Judge of this court considered that LAA, allowed the same in part and re-fixed the value of the properties involved in that case at Rs.6,25,665/- per Are corresponding to Rs.2,53,206/- per cent. 3. LAA.Nos.20/2010 and 123/2010 corresponding respectively to LAR.235/08 and 236/08 are in respect of acquisition pursuant to a subsequent notification dt.5.12.2007. Category 1 in the acquisition pursuant to this subsequent notification corresponds to category 2 in the earlier notification dt.1.2.2007. But category 3 in the above subsequent notification corresponds to category 3 in the earlier notification. In the cases pursuant to the subsequent notification the Land Acquisition Officer awarded land value at the rate of Rs.1,38,165/- per cent for properties included in category 1 and Rs.2,76,540/- per Are corresponding to Rs.1,11,914/- per cent for properties included in category 3. The reference court under the judgments which are impugned in LAA.Nos.20/2010 and 123/2010 has re-fixed the **4** L.A.A.562/09& connected cases value of the properties included in category 1 at Rs.6,29,220/- per Are corresponding to Rs.2,54,642/- per cent. Similarly reference court re-fixed value of properties included in category 3 in the subsequent notification at Rs.5,97,758/- per Are, corresponding to Rs.2,41,909/- per cent. 4. In these cases also the appellants/claimants have raised grounds alleging that the compensation re-determined by the court is inadequate. Memoranda of cross-objections are preferred by the Railway the requisitioning authority in LAA.Nos.618/09, 702/09 and 562/09. The grounds uniformly raised in these memoranda are that market value redetermined is excessive. Particular grounds are raised as regards LAA.No.618/09 regarding the award of Rs.1 lakh as compensation for injurious affection. It is pertinent to note that in LAA.Nos.618/09, 702/09 and 562/09 the appellants have raised grounds that the court below erred in not awarding any additional compensation towards value of buildings. In LAA.No.123/2010 corresponding to LAR.No.236/08 it is urged that the court below was not justified in awarding only 20% towards compensation for injurious affection for the land which remains unacquired. **5** L.A.A.562/09& connected cases Extent of the land remained unacquired is only 34 Sq.mtrs. That land, it is urged, has become practically valueless and compensation for injurious affection should have been at least at 80%. 5. We have heard the submissions of the learned counsel for the parties namely, Sri.M.A.Abdul Hakhim for appellants, Sri.M.C.Cherian for Railway and Smt.Latha T. Thankappan, Senior Government Pleader for the State. The submissions of Mr.Hakhim were based on the various grounds raised in the appeal and he argued that enhancement granted by reference court is grossly inadequate. Particular reliance was placed by Mr.Hakhim on the judgment of this court in LAA.No.719/2009. He submitted that at any rate proportionate enhancements based on that judgment will have to be granted towards land value in all these cases. As regards claim for injurious affection in LAA.123/2010 Mr.Hakhim submitted that the appellant is ready to surrender the unacquired portion extending to 34 Sq.mtrs. unless this court is not inclined to award at least 80% towards compensation for injurious affection. Learned counsel would assail the decision of the reference court in not awarding any additional compensation **6** L.A.A.562/09& connected cases towards value of land under acquisition. 6. Mr.M.A. Abdul Hakhim would argue that the Cross Objections prepared by the requisitioning authority in LAA.No.702/2009 and 562/2009 cannot be entertained since this court has already dismissed LAA.No.173/2001, an appeal preferred by the Government, on merits. The judgment in LAA.No.173/2001 will operate as res judicata even as against the requisitioning authority. In support of this argument, Mr.Hakhim placed strong reliance on the judgment of the Supreme Court in Hoshnak Singh v. Union of India and Others (AIR 1979 Supreme Court 1328). The learned counsel would highlight before us the observations of the Supreme Court in paragraphs 9 and 10 of the judgment and argue that even when the earlier appeal is dismissed in limine without notice to the respondent in the appeal, then also if the dismissal is after considering the merits of the appeal, the judgment in the appeal will operate as res judicata. 7. We are unable to accept the above arguments of Mr.Hakhim. True, the dismissal of LAA.No.173/2001 was after considering the merits of the appeal. But, we find that it was without notice to the requisitioning authority that the **7** L.A.A.562/09& connected cases above appeal was dismissed. The question is whether the present Cross Objections filed by the requisitioning authority are maintainable in law. It has to be held that, in view of Order 41 Rule 22 CPC, cross objections are maintainable. The Cross Objectors have got a right to have cross objections considered on merits and it will not be just at all to accept the contention that the above cross objections duly entertained by this court will have to be rejected as not maintainable on the strength of an earlier judgment regarding which the cross objectors did not serve notice. 8. Sri.M.C.Cherian, learned standing counsel for Railway would oppose the submissions of Mr. Hakhim on merits very stiffly. Apart from challenging land value redetermined by the court as excessive, Mr.Cherian would submit particularly that at any rate the compensation for injurious affection awarded in LAA.No.618/09 is without any basis. Smt.Latha T.Thankappan, learned Senior Government Pleader drew our attention to the judgment of this court in LAA.No.173/2010 and submitted that by judgment in that appeal, which was preferred by the Government, this court has indirectly approved the value of Rs.5,53,480/- per Are fixed for properties in category 3. **8** L.A.A.562/09& connected cases 9. We have very anxiously considered the rival submissions addressed at the bar. We have made a reappraisal of the entire evidence. We have gone through the impugned judgments. We have also noticed the judgment of the learned Single Judge of this court in LAA.719/09 which we see is in respect of acquisition of properties included in category 2 by the Land Acquisition Officer in the acquisition pursuant to the notification dt.1.2.2007. It is not disputed that the above judgment has become final. Having gone through that judgment we feel that the market value determined by the learned Single Judge for properties included in category 2 which comes to Rs.6,25,665/- per Are is more or less the correct market value of the property at the relevant time. We are therefore proceeding on the basis that the proper value to be awarded for properties included in category 2 and acquired pursuant to notification dt.1.2.2007 is Rs.6,25,665/- per Are. 10. We shall immediately state that while we are able to approve the action of the Land Acquisition Officer in having categorised the properties acquired pursuant to the notification dt.1.2.2007 into 3 categories on the parameters set out in his award. We are finding it difficult to approve the **9** L.A.A.562/09& connected cases ratio maintained by him between the values of the properties in the three categories. According to us, the proper ratio to be maintained between the value of properties in categories 1, 2 and 3 is 100:80:70. We notice that under the judgments which are impugned in LAA.Nos.20/2010 and 123/2010 which are in respect of acquisitions 10 months after the acquisition in the other three appeals, what the court below has done is to add 8% from the value awarded by him in the three earlier cases. We do not find much infirmity in what is done by the learned Subordinate Judge. We are of the view that based on the decisions to be taken in LAA.Nos.618, 702 and 562 of 2009 market value in the other two cases can be fixed giving additions at 8%. 11. Re-determining the market value of the lands acquired pursuant to the notification dt.1.2.2007 on the approval granted by us to the decision of the learned Single Judge in respect of properties in category 2, applying the ratio found by us to be the correct ratio between the three properties, the market value of properties included in category 1 acquired pursuant to the notification dt.1.2.2007 will have to be re-fixed at Rs.7,82,080/- per Are. When the value of properties included in category 3 (corresponding to **10** L.A.A.562/09& connected cases LAA. Nos:702/09 & 562/09) is re-fixed on that basis, the value will have to be re-fixed at Rs.5,47,454/-. But then, as pointed out by the learned senior Government Pleader this court by dismissing the Government's appeal LAA.173/2010 have virtually approved the value of Rs.5,53,480/- per Are fixed for properties in category 3. 12. Hence we are of the view that in LAA.Nos.702 and 562 of 2009 the appellants claimants should be awarded land value at the rate of Rs.5,53,480/- per Are itself. In LAA. No.20/2010 land value will have to be re-fixed at Rs.6,75,750/-. In LAA. No.123/2010 if we were to re-fix the land value on the reasoning adopted in this judgment, the same will have to be reduced to Rs.5,91,155/-. However, we are not doing so in this appeal preferred by the claimant as there is no memorandum of cross objections filed by the Railway. 13. We find element of genuineness in the claims raised by the claimants regarding the structure value awarded to some of them. We hold that the appellant in LAA.No.618/2009 is eligible for award of additional structure value of Rs.5,700/-. Similarly we hold that additional structure value of Rs.7,360/- is to be awarded to the claimant **11** L.A.A.562/09& connected cases in LAA.No.702/2009. Similarly, we hold that the appellant in LAA. No.562/2009 is eligible for additional structure value at Rs.3,300/-. We notice genuineness in the grievance of the appellant in LAA.No.123/2010 that he was not paid adequate compensation for injurious affection. We award an additional amount of Rs.20,320/- to the appellant in LAA.No.123/2010 as additional compensation for injurious affection. We find genuineness in the grievance of the requisitioning authority that the claimant in LAA.No.618/2009 has been awarded excessive amount as compensation for injurious affection. In that case we reduce the amount of Rs.1 lakh awarded by the court below to Rs.80,000/-. Result of the above discussion is therefore as follows: LAA.No.702/2009 is allowed to the extent of awarding a further amount of Rs.7,360/- towards additional structure value. LAA.No.562/2009 is allowed to the extent of awarding further structure value of Rs.3,300/-. LAA.No.20/2010 is allowed by re-fixing the market value of the land at Rs.6,75,750/- per Are. LAA.No.123/2010 is allowed to the extent of awarding additional amount of Rs.20,320/- towards injurious affection. LAA.No.618/2009 is allowed re-fixing the market value of the land at Rs.7,82,080/- and by awarding **12** L.A.A.562/09& connected cases Rs.5,700/- towards structure value. However, in that case the compensation awarded towards injurious affection is reduced to Rs.80,000/-. The claimants will be entitled for statutory benefits admissible under Section 23(1A), 23(2) and Section 28 of the Land Acquisition Act on the total enhancement to which they become eligible by virtue of this judgment. However, we clarify that the compensation awarded towards injurious affection will not be eligible for the benefit under Section 23(2) and 23(1A). Both sides are directed to suffer their respective costs. ## **PIUS C.KURIAKOSE, JUDGE.** ## **C.K.ABDUL REHIM, JUDGE.** ## okb/dpk/ksv In the first sentence of paragraph 12 in page 10 of the judgment, the figure and words “ **Rs.5,53,480/- per Are** itself” are corrected and modified as “ **Rs.5,47,454/- per Are** ” as per order dated 20/08/2010 in I.A. 3084/2010 in L.A.A. 562/2009 and I.A. 3081/2010 in L.A.A. 702/2009. Sd/- **Registrar (Judicial)**