Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR & THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 11TH DAY OF OCTOBER 2023 / 19TH ASWINA, 1945 L.A.APP. NO. 324 OF 2016 AGAINST THE DECREE AND JUDGMENT DATED 16.02.2016 IN LAR NO.34/2010 OF THE SUB COURT, ERNAKULAM APPELLANT/ADDITIONAL 2ND RESPONDENT: THE SECRETARY, MARADU MUNICIPALITY, PIN: 682 304. T.SETHUMADHAVAN (SR.) DEEPA NARAYANAN PREETHI. P.V. M.V.BALAGOPAL RESPONDENTS/CLAIMANT AND 1ST RESPONDENT:
1 E.J.ANAND, S/O.LATE JOACHIN, CC NO.1/1239, ELANJIKKAL (H), FORT COCHIN P.O., KOCHI 01, PIN: 682 001. 2 THE STATE OF KERALA, REPRESENTED BY THE SPECIAL TAHSILDAR (LA), COCHIN CORPORATION VYTTILA, PIN: 682 019. R1 BY SRI.K.S.BABU R1 BY SMT.N.SUDHA R2 BY SMT.SUDHADEVI, SPECIAL GOVERNMENT PLEADER THIS LAND ACQUISITION APPEAL HAVING COME UP FOR FINAL HEARING ON 11.10.2023, ALONG WITH L.A.App.333/2016 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR & THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 11TH DAY OF OCTOBER 2023 / 19TH ASWINA, 1945 L.A.APP. NO. 333 OF 2016 AGAINST THE DECREE AND JUDGMENT DATED 16.02.2016 IN LAR NO.32/2010 OF THE SUB COURT, ERNAKULAM APPELLANT/ADDL.2ND RESPONDENT: THE SECRETARY MARADU MUNICIPALITY, PIN-682304. T.SETHUMADHAVAN (SR.) DEEPA NARAYANAN PREETHI. P.V. M.V.BALAGOPAL RESPONDENTS/CLAIMANT AND 1ST RESPONDENT:
1 GRACE JOACHIN [DIED]* W/O. LATE JOACHIN, CC NO.1/1239, EALNJIKKAL (H), FORT COCHIN P.O., KOCHI-01, PIN-682001. 2 THE STATE OF KERALA REPRESENTED BY THE SPECIAL TAHSILDAR (LA), COCHIN CORPORATION, VYTTILA, PIN-682019. 3* E.J.SAMPATH S/O.LATE JOACHIM,C.C.NO.1/1239,ELANJIKKAL HOUSE,FORT KOCHI P.O.,. KOCHI-682 001, NOW RESIDING AT CC NO.41/1092, ELANKUKKAL HOUSE, ARANGATH CROSS ROAD, PULLEPADY, KOCHI-682 018.
4* E.J.ANAND S/O.LATE JOACHIM,C.C.NO.1/1239,ELANJIKKAL HOUSE,FORT KOCHI P.O., KOCHI-682 001. *ARE THE LEGAL HEIRS OF THE DECEASED FIRST RESPONDENT IMPLEADED AS ADDITIONAL RESPONDENTS 3 & 4 AS PER THE ORDER IN I.A.NO.1 OF 2022 DATED 11-01-2022. R1, R3 & R4 BY K.S.BABU R1, R3 & R4 BY N.SUDHA R2 BY SMT.SUDHADEVI, SPECIAL GOVERNMENT PLEADER THIS LAND ACQUISITION APPEAL HAVING COME UP FOR FINAL HEARING ON 11.10.2023, ALONG WITH LA.App..324/2016, DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR & THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 11TH DAY OF OCTOBER 2023 / 19TH ASWINA, 1945 L.A.APP. NO. 335 OF 2016 AGAINST THE DECREE AND JUDGMENT DATED 16.02.2016 IN LAR NO.33/2010 OF THE SUB COURT, ERNAKULAM APPELLANT/ADDL.2ND RESPONDENT: THE SECRETARY MARADU MUNICIPALITY, PIN - 682 304. T.SETHUMADHAVAN (SR.) DEEPA NARAYANAN PREETHI. P.V. M.V.BALAGOPAL RESPONDENTS/CLAIMANT & 1ST RESPONDENT: 1 E.J.SAMPATH S/O. LATE JOACHIN, CC NO 1/1239,ELANJIKKAL (H0,FORT COCHIN P.O KOCHI, PIN - 682 001. 2 THE STATE OF KERALA REPRESENTED BY THE SPECIAL TAHSILDR (LA), COCHIN CORPORATION VYTTILA, PIN - 682 019. R1 BY SRI.K.S.BABU R1 BY SMT.N.SUDHA R2 BY SMT.SUDHADEVI, SPECIAL GOVERNMENT PLEADER THIS LAND ACQUISITION APPEAL HAVING COME UP FOR ADMISSION ON 11.10.2023, ALONG WITH L.A.App.333/2016 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR & THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 11TH DAY OF OCTOBER 2023 / 19TH ASWINA, 1945 L.A.APP. NO. 212 OF 2018 AGAINST THE DECREE AND JUDGMENT DATED 16.02.2016 IN LAR NO.34/2010 OF THE SUB COURT, ERNAKULAM APPELLANT/CLAIMANT: E.J. ANAND AGED 58 YEARS, S/O.LATE JOACHIM, C.C.NO.1/1239, ELANJIKKAL HOUSE, FORT KOCHI P.O., KOCHI-682 001. K.S. BABU N. SUDHA BABU SHANKAR BOBBY U. NAIR RESPONDENTS/RESPONDENTS: 1 STATE OF KERALA REPRESENTED BY SPECIAL TAHSILDAR (LA), KOCHI CORPORATION, VYTTILA, PINCODE-682 019. 2 THE SECRETARY MARADU MUNICIPALITY, PINCODE-682 304. R1 BY SMT.SUDHADEVI, SPECIAL GOVERNMENT PLEADER R2 BY T.SETHUMADHAVAN (SR.) R2 BY DEEPA NARAYANAN R2 BY PREETHI. P.V. R2 BY M.V.BALAGOPAL THIS LAND ACQUISITION APPEAL HAVING COME UP FOR FINAL HEARING ON 11.10.2023, ALONG WITH L.A.App.333/2016 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR & THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 11TH DAY OF OCTOBER 2023 / 19TH ASWINA, 1945 L.A.APP. NO. 218 OF 2018 AGAINST THE DECREE AND JUDGMENT DATED 16.02.2016 IN LAR NO.33/2010 OF THE SUB COURT, ERNAKULAM APPELLANT/CLAIMANT: E.J. SAMPATH AGED 63 YEARS, S/O LATE JOACHIM, CC NO.1/1239, ELANJIKKAL HOUSE, FORT KOCHI PO, KOCHI-682001, NOW RESIDING AT 41/1092, ELANJIKKAL HOUSE, ARANGATH CROSS ROAD, PULLEPADY, KOCHI-682018. K.S. BABU N. SUDHA BABU SHANKAR BOBBY U. NAIR RESPONDENTS/RESPONDENTS: 1 STATE OF KERALA REPRESENTED BY SPECIAL THAHASILDAR (LA), KOCHI CORPORATION, VYTTILA, PINCODE-682019. 2 THE SECRETARY, MARADU MUNICIPALITY, PIN - 682304. R1 BY SMT.SUDHADEVI, SPECIAL GOVERNMENT PLEADER R2 BY T.SETHUMADHAVAN (SR.) R2 BY DEEPA NARAYANAN R2 BY PREETHI. P.V. R2 BY M.V.BALAGOPAL THIS LAND ACQUISITION APPEAL HAVING COME UP FOR FINAL HEARING ON 11.10.2023, ALONG WITH L.A.App.333/2016 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR & THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 11TH DAY OF OCTOBER 2023 / 19TH ASWINA, 1945 L.A.APP. NO. 226 OF 2018 AGAINST THE DECREE AND JUDGMENT DATED 16.02.2016 IN LAR NO.32/2010 OF THE SUB COURT, ERNAKULAM APPELLANTS/CLAIMANTS:
1 GRACE JOACHIM (DIED)* AGED 83 YEARS, W/O. LATE JOACHIM, C.C.NO.1/1239, ELANJIKKAL HOUSE, FORT KOCHI P.O., KOCHI - 682 001. 2* E.J SAMPATH, S/O.LATE JOACHIM,C.C.NO.1/1239 ELANJIKKAL HOUSE,FORT KOCHI P.O.,KOCHI-682 001. 3* E.J.ANAND, S/O.LATE JOACHIM,C.C.NO.1/1239 ELANJIKKAL HOUSE,FORT KOCHI P.O., KOCHI-682 001. *LEGAL HEIRS OF THE DECEASED APPELLANT NO.1 ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 & 3 AS PER
ORDER DATED 23.02.2022 IN I.A.NO.1/2022.
K.S.BABU SUDHA N. BABU SHANKAR BOBBY U. NAIR RESPONDENTS/RESPONDENTS: 1 STATE OF KERALA REPRESENTED BY SPL.THAHASILDAR(LA), KOCHI CORPORATION, VYTTILA, PINCODE - 682 019. 2 THE SECRETARY MARADU MUNICIPALITY, PINCODE - 682 304. R1 BY SMT.SUDHADEVI, SPECIAL GOVERNMENT PLEADER R2 BY T.SETHUMADHAVAN (SR.) R2 BY DEEPA NARAYANAN R2 BY PREETHI. P.V. R2 BY M.V.BALAGOPAL THIS LAND ACQUISITION APPEAL HAVING COME UP FOR FINAL HEARING ON 11.10.2023, ALONG WITH LA.App..333/2016 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.B. SURESH KUMAR & P.G. AJITHKUMAR, JJ. ----------------------------------------------------------------- ----------------------------------------------------------------- Dated this the 11th day of October, 2023
COMMON JUDGMENT
P.G.Ajithkumar, J.
These appeals arose from the common judgment of the Additional Sub Court-III, Ernakulam in L.A.R.Nos.32, 33 and 34 of 2010. 16.35 Ares of land comprised in Survey No.195/12 of Maradu Village was acquired for the expansion of Maradu Grama Panchayat Office. The claimants were the owners of a contiguous plot of 25.05 Ares of land from which 16.35 Ares of property (5.45 Ares each) was acquired. Notification under Section 4(1) of the Land Acquisition Act, 1894 was published on 24.07.2007. The Land Acquisition Officer awarded compensation fixing the land value at Rs.4,44,774/- per Are. The claimants protested. In the References, the Reference Court enhanced land value to Rs.11,89,512/-. L.A.A.Nos.622, 623 and 624 of 2011 were preferred by the claimants and L.A.A.No.545, 546 and 547 of 2011 were preferred by the Requisitioning Authority. Those appeals were disposed of by this Court on 21.01.2013. On setting aside the judgments of the Reference Court, remanded the matter for fresh consideration.
2. After remand, the claimants produced Exts.A15 to
A20 and took out a Commission. Exts.C2, C2(a) and C2(b) are the reports and the sketches attached to it. The evidence now comprises the oral testimonies of AWs.1 to 3 and RW1, and Exts.A1 to A20, R1 to R11 and C1 to C2(b). The Reference Court after considering the entire evidence came to the
conclusion that Ext.A19, which is a sale deed dated
16.07.2007 concerning an extent of 2.48 Ares of land that situates in the vicinity, but on the side of National Highway-47, was acceptable as the exemplar. The sale price for 2.48 Ares of property in Ext.A19 was Rs.63 lakhs; at the rate of Rs.25,40,322/- per Are. The Reference Court, after analysing
the comparability, potentiality and locational advantage, held
that the acquired property would fetch a value of 40% less than the value of Ext.A19 property. Accordingly, the land value of the acquired property was fixed as Rs.15,24,194/- per Are. The claimants also claimed compensation for injurious affection to 8.7 Ares of land left with them after acquisition. The Reference Court after taking into account the facts that access to the said property from the Panchayat road on the eastern side was lost, the two plots of the remaining property ended up with irregular shapes and incompatibility for convenient constructions concluded that the claimants were entitled to get compensation at the rate of 10% to 2.35 Ares of land. Accordingly, an amount of Rs.8,84,945/- was awarded as compensation for injurious affection.
3. The claimants would contend that the value fixed
by the Reference Court by reducing 40% from the land value of Ext.A19 property is not the real market value of the acquired land and that the whole of the remaining property was injuriously affected; whereas, the Reference Court allowed compensation under that head only to a portion of the property. The Requisitioning Authority in the appeals it had filed seeks to set aside the impugned judgment. The contention of the Requisitioning Authority is that the property covered by Ext.A19 or for that matter, Exts.A16, A17 or A18 is not comparable with the acquired land. It is also contended that while the properties covered by Exts.A16 to A19 abut NH-47, the acquired land is on the side of a Panchayat road, and is at a distance of more than 100 metres from the National Highway. Thus, the Requisitioning Authority would contend that comparison of the acquired property with Ext.A19 property is palpably wrong and therefore the enhancement in compensation is grossly unjust. Insofar as the compensation for injurious affection, the Requisitioning Authority contended that the two plots of land left with the claimants are quite convenient for carrying out construction and therefore there is no adverse impact on the said properties owing to the acquisition.
4. Heard the learned Senior Counsel for the Requisitioning Authority, the learned counsel for the claimants and also the Special Government Pleader.
5. While this Court set aside the judgment dated
12.04.2011 of the Reference Court by disposing of L.A.A. Nos.545, 546, 547, 622, 623 and 624 of 2011, it was observed that the Reference Court fixed the land value based on insufficient evidence. The remand of the matters was to allow both sides to adduce evidence to prove the market value of the property. The claimants produced Exts.A16 to A20 thereafter. A new report of a Commissioner was also obtained. AW1, one of the claimants, deposed regarding the commercial importance of the acquired property. AW2 is the Commissioner and AW3 is the Surveyor. RW1, the Secretary of the Maradu Panchayat (now Municipality) also gave evidence.
6. The learned Senior Counsel submitted that the
acquired property is situated on the side of a Panchayat road and therefore there cannot have a comparison of this property with the property covered by Exts.A16 to A19. It is pointed out that the properties covered by the said sale deeds have a greater commercial importance having regard to the proximity to not only NH-47, but also to Maradu-Kundannoor Junction where NH-47 and NH-49 joins. The learned counsel for the claimants opposed that and submitted that the distance between the acquired land and the National Highways is too short and considering the developments already had in the locality, the acquired land also would fetch a similar value. It is further submitted that the property was acquired for constructing a shopping complex and that itself demonstrates the commercial importance of the acquired land.
7. AW2, the Commissioner with the help AW3, the
Surveyor demarcated the acquired lands and also the land left with the claimants. Ext.C2(a) is the survey sketch. Ext.C2(b) is a rough sketch prepared by the Commissioner. From these documents as well as the description in the report, the distance between the acquired properties and the properties covered by Exts.A16 to A19 is ascertainable. As pointed out above, properties sold as per Exts.A16 to A19 are parts of one plot. The said property is 40 metres away from Maradu- Kundanoor Junction. Distance from the said junction to the acquired land is about 100 metres. Although the difference in the distance is not so long, the commercial importance of these two properties differs greatly. It is obvious that the commercial potential of the land abutting the National Highway shall not be available to an interior property as though the distance from the National Highway is only 100 metres. All the same, when the acquired property has easy access to the National Highway, its commercial potency cannot be underestimated. It is trite that the market value of an acquired land shall be reasonable, thereby to avoid unjust loss to its owner. The price of a property is what a willing vendor might reasonably expect to receive from a willing purchaser.
8. Although parts of a contiguous plot were sold vide
Exts.A16 to A19, the sales were for different prices. The price to the properties covered by Exts.A16 and A17 was Rs.46,33,470/- per Are. The price per Are of the land sold vide Ext.A18 was Rs.54,20,560/-. Whereas, the value of the land covered by Ext.A19 was Rs.25,40,322/- per Are. The court below accepted Ext.A19 as the exemplar. From the description given by the Commissioner, it cannot be ascertained which among the said properties abuts the National Highway. But from the boundary descriptions in Ext.A18 it is seen that this property is on the western side of NH-47 and therefore abutting the National Highway. The purchaser in Exts.A17 to A19 is the same person. When the purchases vide the said documents was for different prices, the probable inference is that depending upon the commercial viability, the price was fixed. In that view of the matter the view taken by the Reference Court that the acquired land is comparable to the land covered by Ext.A19 and fixation of the market value of the acquired land in comparison to that price cannot be said to be a wrong. Hence, we hold that the challenge of either the claimant or the Requisitioning Authority to the said findings of the Reference Court has no substance. The acquired lands are away from the National Highway by more than 100 metres. For that reason 40% deduction from the value of Ext. P19 property was made while fixing the value of the acquired lands. We find no infirmity to that also.
9. From a perusal of Ext.C2(b), it can be seen that the
two plots of property left with the claimants became irregular in shape. A portion of one of the plots elongates at a length of 12.8 metres. Its northern side has a width of only 4.5 metres. The said part of the property cannot ordinarily be used for any construction. Taking that and also the irregular shape to which the two plots were put to on account of the acquisition, the court below quantified the compensation for injurious affection. 10% of the land value of 2.35 Ares was awarded as compensation for injurious affection. We are of the view that said finding also does not require any interference. In the result, these appeals are dismissed. No costs. Pending Interlocutory Applications, if any, are dismissed. Sd/- P.B. SURESH KUMAR, JUDGE Sd/- P.G. AJITHKUMAR, JUDGE dkr