Kerala High Court
State Of Kerala vs Mathew on 26 September, 2018
Author: A.Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
WEDNESDAY,THE 26TH DAY OF SEPTEMBER 2018 / 4TH ASWINA, 1940
LA.App..No. 378 of 2012
AGAINST THE JUDGMENT & DECREE DATED 31-08-2011 IN LAR 201/2007 of
SUB COURT, MUVATTUPUZHA
APPELLANTS/RESPONDENTS :
1 STATE OF KERALA
REPRESENTED BY THE SPECIAL TAHSILDAR(LA)
MUVATTUPUZHA.
2 THE EXECUTIVE ENGINEER
K.S.T.P. MUVATTUPUZHA.
BY ADV.LATHA THANKAPPAN, GOVERNMENT PLEADER
ADV.B.R.MURALEEDHARAN, SENIORGOVERNMENT PLEADER
RESPONDENT/CLAIMANT :
MATHEW
S/O. THOMAS KOCHUMUTTATH, ENANALLOORKARA,
MUVATTUPUZHA-686661.
BY ADV. SRI.V.M.KURIAN
THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON
26.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
LA.App..No. 378 of 2012
2
JUDGMENT
Heard the learned Government Pleader appearing for the State and the learned counsel for the claimant/respondent.
2. Aggrieved by the quantum of compensation granted by the Court of Subordinate Judge, Muvattupuzha in L.A.R. No.201 of 2007, in respect of acquisition of 0.98 Ares of land comprised in Survey No.30/4-8 of Muvattupuzha Village belonging to the claimant for a public purpose, the State has preferred this appeal.
3. Notification for acquisition under Section 4(1) of the Land Acquisition Act, 1894 (in short, the Act) was published on 10.12.2002. An award was passed on 31.1.2005. Land Acquisition Officer granted a compensation at the rate of Rs.29,522/- per Are. Improvement value was determined at Rs.1,175/-. Value of the structure (compound wall) was determined at Rs.40,822/-. Dissatisfied with the amount, the claimant approached the Sub Court under Section 18 of the Act. Learned Sub Judge re-determined the land value at the rate of Rs.50,000/- per cent and awarded additional compensation with LA.App..No. 378 of 2012 3 30% solatium. It is also found by the Sub Judge that the claimant is entitled to Rs.45,49,000/- as compensation for structures and improvements.
4. Learned Government Pleader contended that the method adopted by the court below is thoroughly wrong and illegal. It is seen from the judgment that the claimant had approached this Court at least on two occasions by filing a writ petition and a writ appeal. It is the case of the learned counsel for the claimant that the notification was published with a defective survey number and it was not known to the claimant if his property would be taken for a public purpose. Therefore, by way of abundant caution, he sent a notice to the requisitioning authority and the officers of the State, asking them to determine the value of improvements in the property. When that was not heeded to, they sought the help of an expert and after due inspection, he prepared a detailed report, which is marked as Ext.A8 in the proceedings. According to the learned counsel for the claimant, the court below rightly relied on Ext.A8 to find the value of improvements in the acquired property as well as the value of improvements in the property, which was allegedly LA.App..No. 378 of 2012 4 trespassed upon by the officers of the State subsequent to construction of a compound wall.
5. Exts.A5 and A6 are the documents relied on by the court below to determine the land value at the rate Rs.50,000/- per cent.
6. Learned Government Pleader strongly contended that apart from the oral evidence of AW-1, there is no material placed before the Court to show that the properties involved in Exts.A5 and A6 were similar and similarly situated to the property under acquisition. No commission was taken out to prove this point. It is true that the Sub Judge went wrong in placing reliance on Exts.A5 and A6 to arrive at the market value of the property at the time of acquisition without relying on any acceptable material to find that similarity of them. However, in respect of the same claimant and in respect of the same property, Ext.A12 proceedings had been issued by the Deputy Collector (Land acquisition) agreeing to pay Rs.50,000/- as value per cent of the acquired property. Therefore, the State is precluded from disputing correctness of the determination of land value by the court below, although it unduly placed reliance on Exts.A5 and LA.App..No. 378 of 2012 5 A6. Ext.A12 will cut at the root of the State's case that the land value determined by the court below is incorrect. Hence, I approve the determination of land value of the property at the rate of Rs.50,000/- per cent.
7. Another contested issue is regarding the compensation for demolished structures and improvements in the property. It is seen from Ext.A8, which was proved by AW-4, that 7 bearing nutmeg trees have been assigned with a total value of Rs.8,40,000/-. Obviously this valuation was done by adopting a capitalization method. AW-4 has determined the cost of the new compound wall at the rate of Rs.13,18,000/-.
8. On a perusal of Ext.A8 and the testimony of AW-4, it is evident that the bearing nutmeg trees and other fruit bearing trees were valued by adopting a capitalization method. It is to be remembered that nearly two cents of land was acquired from the claimant. The compensation for bearing nutmeg trees and cost of a structure was determined at Rs.45,49,000/-. This amount, if granted, will be a wind fall for the claimant because actual market value has already been awarded for land by relying on Ext.A12. It is a well settled proposition in law that LA.App..No. 378 of 2012 6 once capitalization method is adopted for valuing the yielding trees and compensation is determined, market value of the land too cannot be given to the claimant as it will amount to giving a double benefit. Therefore, grant of compensation for structures and improvements have to be reworked. Since this is a question of fact, this Court sitting in appeal do not want to decide that aspect as it may cause prejudice to the parties on account of denying an opportunity to adduce evidence to substantiate their contentions. It is submitted by the learned counsel for the claimant that as directed by this Court, 50% of the compensation amount has been deposited before the court below and the claimant has availed that amount. This should be re-worked at the time of final disposal of the case.
In the result, the appeal is partly allowed. Determination of market value of the land acquired at the rate of Rs.50,000/- per cent is confirmed. The determination of compensation for structures and improvements is hereby set aside. The matter is remitted solely for the purpose of redetermining value of the demolished structures and improvements in the property. The parties shall appear before the court below on 15.10.2018. The LA.App..No. 378 of 2012 7 parties are allowed to adduce evidence to substantiate their contentions. The value of improvements and value of structures shall be determined strictly in adherence to the legal principles applicable in the matter. It is made clear that either actual market value of the property or value of the land redetermined on the basis of capitalization method with reference to yielding trees whichever is beneficial to the claimant alone shall be granted.
Sd/-
A.HARIPRASAD
jv JUDGE