IN THE HIGH COURT OF KERALA AT ERNAKULAM
LA.App..No. 562 of 2009()
1. THOMAS SAMUEL,VELIYATH HOUSE,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. DEPUTY CHIEF ENGINEER (C),
For Petitioner :SRI.M.A.ABDUL HAKHIM
For Respondent :SRI.M.C.CHERIAN,SR.SC.,RAILWAYS
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :10/06/2010
O R D E R
PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ.
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L.A.A.Nos.562, 618 & 702 of 2009, 20 & 123 of 2010
And
C.O.Nos.93, 98 & 85 of 2009
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Dated this the 10th 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
L.A.A.562/09& connected cases 2
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
L.A.A.562/09& connected cases 3
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
L.A.A.562/09& connected cases 4
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 re-
determined 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.
L.A.A.562/09& connected cases 5
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
L.A.A.562/09& connected cases 6
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
L.A.A.562/09& connected cases 7
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 re-
determined 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.
L.A.A.562/09& connected cases 8
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
L.A.A.562/09& connected cases 9
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
L.A.A.562/09& connected cases 10
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
L.A.A.562/09& connected cases 11
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
L.A.A.562/09& connected cases 12
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