IN THE HIGH COURT OF KERALA AT ERNAKULAM
LA.App..No. 248 of 2007()
1. ARCHDIOCESE OF VERAPOLY REP.BY ITS POWER
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
2. THE EXECUTIVE ENGINEER,KERALA WATER
For Petitioner :SRI.T.P.SAJAN
For Respondent :ADDL.ADVOCATE GENERAL
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :13/07/2009
O R D E R
PIUS.C.KURIAKOSE & P.Q.BARKATH ALI, JJ.
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L.A.A.No.248 OF 2007
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Dated this the 13th day of July, 2009
JUDGMENT
Pius.C.Kuriakose, J.
The claimant being aggrieved by the refixation of compensation
done by the land acquisition reference court is in appeal. The
properties were dry lands in Thrikkakara north village and were
acquired for the purpose of Augmentation of Water Supply to Kochi by
Kerala Water Authority. The relevant Section 4(1) notification was
published on 6-1-1999. The land acquisition officer categorised the
properties under acquisition into A and B. He included 56.80 Ares of
land in category A and awarded land value at the rate of Rs. 92370/-
per Are corresponding to Rs. 37382/- per cent. 12.60 Ares of land
were included in B category on the reason that over that portion of the
land High Tension Electricity lines were passing. The land acquisition
officer awarded only a nominal value of Rs. 100/- per Are for the above
portion of the acquired property.
2. The evidence before the reference court consisted of
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Ext.A1 sale deed dated 13-05-1996. Ext.A1 revealed a land value of
Rs. 66940/- per cent. The claimants also relied on Ext.A2 judgment
which was in respect of acquisition in the year 1992. Ext.A2 was in
respect of properties enjoying direct frontage of the National Highway
and the purpose of the acquisition under Ext.A2 was widening of the
National Highway. Under Ext.A2 land value of Rs. 98800/- per Are
was awarded by the reference court. Even though the Advocate
Commissioner who filed Ext.C1 report had reported that Ext.A1
property and the acquired properties were comparable , the learned
Subordinate Judge did not become inclined to accept the above report
of the Commissioner. According to the learned Subordinate Judge,
Ext.A1 property was having direct frontage of the National Highway
and hence the value in Ext.A1 will never be obtained for the acquired
property which enjoyed the frontage of the Kalamassery-HMT road
only. The learned Subordinate Judge to a certain extent relied on
Ext.A2. What was done by the learned Subordinate Judge was to treat
Ext.A2 property as properties having direct frontage of National
Highway and acquired for the purpose of widening of National
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Highway and add 75% towards passage of five year’s time and to
deduct 30% for the reason that Ext.A2 property and not the acquired
property enjoyed the direct frontage of National Highway. Thus the
value of properties in category A was refixed by the learned
Subordinate Judge at Rs. 120,080/- per Are corresponding to
Rs. 48595/- per cent. The learned Subordinate Judge would uphold the
claim of the claimant to a considerable extent in the case of properties
included in category B by the land acquisition officer. The learned
Subordinate Judge would fix 60% of the value fixed for properties in
category A as the value for properties in category B. Accordingly, the
value of properties in category B was fixed at Rs. 72048/- per Are.
3. In this memorandum of appeal, the appellant/claimant
assails the judgment of the learned Subordinate Judge on various
grounds and contends that enhancement granted is inadequate. We
have heard the submissions of Sri.Aloyisius Thomas, learned counsel
for the appellant and those of Sri.Basant Balaji, learned senior
Government Pleader for the government. We have also heard Sri.Babu
Varghese, standing counsel for the Kerala Water Authority. We have
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gone through the impugned judgment and have made a survey of the
evidence which was available on record before the reference court.
We are in agreement with the learned Subordinate Judge for having
taken the view that it was Ext.A2 judgment and not Ext.A1 sale deed
which had more relevance in the matter of determining the market
value of the property under acquisition. However, we find that the
learned Subordinate Judge went wrong in thinking that the time lag
between the relevant Section 4(1) notification in Ext.A2 and the
Section 4(1) notification in the present case is five years. In fact , it is
atleast seven years. Following the principles laid down by the Supreme
Court in G.M.Oil & Natural Gas Corporation Ltd. v. Rameshbhai
Jivanbhai Patel & Another. ( 2008 SAR (civil 894) and having regard
to the locality where the acquired property was situated, we are of the
view that the locality was urban in nature by all respects and percentage
of increase per year during the relevant period of seven years must
have been at the rate of 13%. Thus the 13% of the value revealed in
Ext.A2 has to be added to the said value every year for determining the
value of Ext.A2 as on the date of relevant Section 4(1) notification.
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We can also approve the action of the learned Subordinate Judge in
having made a deduction of 30% for the additional facility of National
Highway frontage enjoyed by Ext.A2 property. At the same time, we
notice that the acquired properties were from the point of view of
appellant/claimant part of a larger holding belonging to the claimant.
We also notice some merit in the submission of Sri.Aloysius Thomas
that the properties under acquisition in Ext.A1 were not enjoying
direct frontage of the National Highway. In fact the acquisition was for
formation of National Highway and not for widening of National
Highway as wrongly thought by the learned Subordinate Judge.
Taking these two aspects into account and having some regard to the
recommendations of the Advocate Commissioner regarding the market
value, we are of the view that on a better assessment of the evidence
available in the case, the market value of the properties in category A
will have to be refixed at Rs. 54,000/- per cent.
4. The learned Subordinate Judge has fixed 60% of the value
payable for the properties in category A as the value of properties in
category B. We feel that the learned Subordinate Judge was a little
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miserly while fixing the value of properties in category B. On a better
assessment, the value of properties in category B will have to be
refixed at 70% of the value of properties in category A. Thus fixing the
value of properties in category B will come to Rs. 93403/- per Are
corresponding to Rs. 37800/- per cent. The value of properties in
Categories A and B are refixed accordingly.
5. The compound wall which existed on the acquired property
was valued by the land acquisition authority obviously on the basis of
valuation supplied by the Executive Engineer of PWD. This valuation
is based on the PWD schedule of rates for materials and labour. It is a
matter of common knowledge that PWD itself tenders out its works at
an average of 30% above their own rates. The total value awarded
towards value of structures including compound wall is Rs.80,374/-.
We are of the view that there is justification for awarding a further
amount of Rs. 24,250/- to the appellant towards value of structures.
Accordingly we award that amount also.
It is needless to mention that the appellant/claimant will be
entitled for all statutory benefits admissible under Section 23(1A),
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23(2) and Section 28 of the Land Acquisition Act on the total enhanced
compensation to which he becomes eligible by virtue of our refixation
under this judgment. Appeal allowed as above. In the circumstances,
parties are directed to suffer their costs.
PIUS.C.KURIAKOSE
JUDGE
P.Q.BARKATH ALI
JUDGE
sv.
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