Kerala High Court
Koshy Varghese @ Geevarghese Koshy vs State Of Kerala on 30 September, 2013
Author: P.N. Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
&
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
MONDAY, THE 19TH DAY OF DECEMBER 2016/28TH AGRAHAYANA, 1938
LA.App..No. 506 of 2014 ()
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AGAINST THE ORDER/JUDGMENT IN LAR 12/1997 of SUB COURT, PATHANAMTHITTA
DATED 30-09-2013
APPELLANT/CLAIMANT:
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KOSHY VARGHESE @ GEEVARGHESE KOSHY
THAVALATHIL HOUSE, VETTIPURAM MURI, PATHANAMTHITTA
BY ADV. SRI.T.K.KOSHY
RESPONDENT/RESPONDENT:
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STATE OF KERALA
REPRESENTED BY THE DISTRICT COLLECTOR,
PATHANAMTHITTA, PIN - 689 645.
R, BY ADV. SRI. K.M. RESHMI, GOVERNMENT PLEADER
THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON
19-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P.N. RAVINDRAN & DAMA SESHADRI NAIDU, JJ.
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L.A.A. No. 506 of 2014 ( )
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Dated this the 19th day of December, 2016.
JUDGMENT
P.N. Ravindran,J.
This appeal arises from the judgment delivered by the Court of the Subordinate Judge of Pathanamthitta on 30.09.2013 in L.A.R. No. 12 of 1997. The brief facts of the case are as follows:
2. The appellant owned a parcel of land, 42 cents in extent (corresponding to 17 Ares) in Survey No. 110/11-4 of Pathanamthitta Village, Kozhencherry Taluk, Pathanamthitta District. It was situate to the south of Vettipuram- Vanchipoyka road. In other words, the said road runs along its northern boundary. A portion thereof having an area of 11.50 Ares (corresponding to 28.42 cents) was acquired for the construction of Subala complex pursuant to a notification dated 20.02.1996 issued under section 4(1) of the Land Acquisition Act, 1894. The appellant did not appear before the Land Acquisition Officer.
His explanation is that notice under section 9(3) of the Act was not served on him. Since none appeared during the award enquiry, the Land Acquisition Officer determined the land value at the rate of `1,977/- per Are. By award passed on 27.06.1996, the Land Acquisition Officer awarded a total sum of `30520/- as compensation. Though the appellant had contended that notice under section 9(3) of the Act was not served on him, it is not in dispute that notice under L.A.A. No. 506/2014 -2- section 12(2) of the Act was served on him after the Land Acquisition Officer passed the award on 27.06.1996 awarding the sum of `30,520/- as compensation. Upon receipt of the said notice, the appellant filed an application under section 18 of the Act before the Land Acquisition Officer with a request to refer the dispute regarding compensation to the civil court. The Land Acquisition Officer, thereupon, made a reference under section 18 r/w section 31(2) of the Act to the Court of the Subordinate Judge of Pathanamthitta, where it was taken on file and numbered as L.A.R. No. 12 of 1997.
3. Before the reference court, the appellant did not file a written statement, though notice was served on him and he was also afforded several opportunities. When L.A.R. No. 12 of 1997 was listed for trial on 22.05.2003, there was no representation on his behalf. He was also not present in person. The reference court, thereupon, answered the reference holding that the appellant is not entitled to enhanced compensation. Challenging that judgment which was delivered on 24.05.2003, the appellant filed L.A.A. No. 794 of 2005 in this court accompanied by C.M. Application No. 1061 of 2005 to condone the delay of 319 days in filing the memorandum of appeal. The memorandum of appeal, which was presented on 06.04.2004 was returned as defective on 30.04.2004 to be re-presented within 15 days. It was re-presented only on 01.04.2005 with a delay of 320 days. The appellant had also L.A.A. No. 506/2014 -3- filed C.M. Application No. 902 of 2005 to condone the delay of 320 days in re-presenting the memorandum of appeal after curing the defects.
4. Even though the memorandum of appeal was re-presented on 01.04.2005, the Registry had noticed that it is not in a position to verify the valuation for the reason that a copy of the decree was not produced. Learned counsel appearing for the appellant thereupon submitted that the matter be placed before the court and the unnumbered appeal was accordingly placed before the court. A Division Bench of this court after considering the submissions made at the Bar directed the Registry to number the appeal, by order passed on 06.06.2005, with the observation that the adequacy of the court fee can be considered on production of the decree. The application to condone the delay in re- presenting the appeal thereafter came up for consideration and it was heard and allowed by the Division Bench by order passed on 20.06.2005. The application to condone the delay in filing the appeal thereafter came up for consideration on 21.07.2005. On that day, notice on the application to condone the delay was ordered to the respondent. When the application to condone the delay in filing the appeal came up for consideration before the Division Bench of this court on 28.07.2011, it was dismissed for default for the reason that there was no appearance on behalf of the appellant. The appellant thereupon filed M.J.C. No. 42 of 2012 accompanied by C.M. Application No. 56 of 2012 to condone the L.A.A. No. 506/2014 -4- delay of 135 days in filing the former application. M.J.C No. 42 of 2012 was heard and allowed by the Division Bench of this court by order passed on 18.01.2012, subject to payment of the sum of `1000/- as costs to the State Government and the further condition that in the event of the appeal being allowed and the appellant being awarded enhanced compensation, such enhanced compensation will not carry interest otherwise admissible under section 28 of the Act, during the said period of 135 days. The appellant did not pay the sum of `1000 awarded as costs within time. Instead, he filed I.A. No. 377 of 2012 for enlargement of time. That application was heard and allowed by order passed on 16.02.2012, subject to payment of a further sum of `250 as cost to the Kerala High Court Advocates' Welfare Fund Trust. The appellant thereafter paid the amount awarded as costs to the State of Kerala as also the Kerala High Court Advocates' Welfare Fund Trust.
5. It is relevant in this context to note that C.M. Application No. 1061 of 2005 to condone the delay of 319 days in filing L.A.A.No. 794 of 2005 was not heard and allowed by this court. Without noticing that fact, the Division Bench of this court heard and allowed L.A.A. No. 794 of 2005 by judgment delivered on 01.03.2012. By that judgment, the Division Bench set aside the impugned decree and judgment and remanded L.A.R.No. 12 of 1997 to the Sub Court, Pathanamthitta for fresh trial and disposal. This court held that the court fee paid on the L.A.A. No. 506/2014 -5- memorandum of appeal shall stand forfeited. In other words, the appellant was denied refund of the court fee in terms of section 67 of the Kerala Court Fees and Suit Valuation Act, 1959. The Division Bench also observed that in case the reference under section 18 of the Act is answered in his favour, the enhanced compensation will not carry interest under section 28 of the Act during the period from 24.05.2003, the date on which L.A.R.No. 12 of 1997 was disposed of, till 01.03.2012, the date on which L.A.A. No. 794 of 2005 was disposed of by this court. For the purpose of understanding the terms of the order of remand passed by this court in L.A.A. No. 794 of 2005, we deem it appropriate to extract the same in full:
"Under challenge in this appeal preferred by the claimant is the award of the reference court, by which references under Section 31(2) and under Section 18 is answered in the negative. On going through the award, we find that it was for the reason that no evidence whatsoever was adduced by the appellant claimant that the learned Sub Judge became complied to answer the references in the negative.
2. In the memorandum of appeal also, the prayer is there for passage of an order of remand. It was submitted by the learned senior Government Pleader that if the interest of the Government in the matter is taken care of, there will not by any serious objections for passing an order of remand.
3. Under the above circumstances, we feel that opportunity can be given to the appellant for substantiating his claim, both in the reference under Section 18 as well as in the reference under Section 31(2) subject to conditions.
Accordingly, the result of the appeal will be as follows:-
(1) The judgment and decree under appeal are set aside. LAR No. 12/97 is remanded to the Sub Court, Pathanamthitta. The learned Sub Judge is directed to pass a revised award after giving opportunity to the appellant to produce whatever further evidence he is desirous of for substantiating his claims in the references.
(2) The learned Sub Judge will pass a revised award in both the L.A.A. No. 506/2014 -6- references on the basis of the entire evidence which comes on record. This order of remand will be subject to following conditions:
(a) The appellant will forfeit the court fee remitted on the appeal memorandum to the Government.
(b) In case the reference under Section 18 is answered in favour of the appellant, the appellant becomes eligible for enhanced compensation, over and above what was awarded by the Land Acquisition Officer, such enhanced compensation will not carry interest under Section 28 of the Land Acquisition Act for the period from 24/05/2003 till date, that is, 1/3/2012."
6. After remand, the appellant filed a claim statement claiming land value at the rate of `1,00,000/- per cent. He also claimed the sum of `25,00,000/- as severance compensation. He contended that as only a portion of his lands lying by the side of the road has been acquired, he has been deprived of road access to the remaining portion having an area of 13.58 cents corresponding to 5.50 Ares. The respondent filed a written statement contending that just and fair compensation has been awarded. Before the reference court, the appellant examined himself as AW1 and produced and marked Ext.A1, the document of title and Ext.A2, a copy of the common judgment in L.A.R. No. 30 of 1997 and connected cases passed by the very same reference court. On an application filed by him, an Advocate Commissioner was appointed to inspect the acquired lands and to submit a report. The report submitted by the Advocate Commissioner was marked as Ext.C1 and the Advocate Commissioner was examined as AW2. On the side of the respondents, the Special Tahsildar was examined as DW1 and a copy of the group L.A.A. No. 506/2014 -7- sketch of the lands situate in Survey No. 101/2-3 prepared by the Special Tahsildar, Pathanamthitta was produced and marked as Ext.R1. After considering the rival contentions, the reference court held that the claimant has title to the acquired lands and therefore he is entitled to the compensation awarded by the Land Acquisition Officer. The court below thereafter proceeded to consider whether the appellant has made out a case for enhanced compensation and relying on Ext.A2 judgment in L.A.R. No. 30 of 1997 and connected cases, re-fixed the land value at `30,000/- per Are. While thus re-fixing the land value, the reference court took note of the fact that the lands involved in L.A.R.No.30 of 1997, which are situate immediately to the east of the acquired lands, lie 6 feet below the road level. The reference court also took note of the fact that the acquired lands have road frontage and lie only 3 feet below the road level. In that view of the matter, the reference court enhanced the land value fixed Ext.A2 judgment by `5000/- per Are. As regards the claim for severance compensation, the reference court held that after the acquisition the appellant has been denied access to the portion of the lands retained by him and therefore, he is entitled to the sum of `1,00,000/- as severance compensation. An award was accordingly passed entitling him to receive enhanced compensation at the rate of `30,000/- per Are as also the sum of `1,00,000 towards severance compensation. The reference court, however, held that in the light of L.A.A. No. 506/2014 -8- the order of remand passed by this court, the appellant/claimant will not be entitled to interest under section 28 of the Act during the period from 24.05.2003 (the date on which L.A.R. No. 12 of 1997 was first disposed of) to 01.03.2012 (the date on which L.A.A. No. 794 of 2005 was disposed of by this Court). The appellant has, aggrieved thereby, filed this appeal.
7. We heard Sri. T.K. Koshy, learned counsel appearing for the appellant and Smt. K.M. Reshmi, learned counsel appearing for the respondent. We have also gone through the pleadings and materials on record as also the order of remand passed by this court in L.A.R No. 794 of 2005. The materials on record, more particularly Ext.C1 report submitted by the Advocate Commissioner, disclose that the acquired lands lie to the south of a public road. Though the lands lie 3 feet below the road level, the Advocate Commissioner has in Ext.C1 report stated that as on the date of inspection, the acquired lands were dry lands. He had also noticed the existence of six coconut palms approximately 40 years old on the western side of the acquired lands. He had also identified the lands involved in L.A.R. No. 30 of 1997 and reported that the said lands lie 6 feet below the road level and to the east of the lands acquired in the instant appeal. He had also reported that on the date of inspection, namely 01.02.2013, the lands covered by Ext.A2 judgment in L.A.R. No. 37 of 1997 were found to be waterlogged. The inspection was L.A.A. No. 506/2014 -9- on 01.02.2013, when there is hardly any rain fall in the State. The reference court, taking note of all these aspects, re-fixed the land value for the acquired lands by giving a 20% increase over and above the land value awarded by the reference court in Ext.A2 judgment. The reference court, however, failed to take note of the fact that at the time of inspection by the Advocate Commissioner in February, 2003, the lands covered by Ext.A2 judgment were water logged. Such being the situation, we are of the considered opinion that on a modest estimate, the reference court ought to have given 25% increase over and above the land value fixed in Ext.A2 judgment. Consequently, we hold that the land value in the instant case is liable to be fixed at `31,250/- i.e, 125% of `25,000/-. Though the learned counsel appearing for the appellant contended that a proportionate increase should be given to the compensation awarded for severance, we find that even if the re-fixed land value was taken into account, the appellant cannot claim anything in excess of `1,00,000/- as compensation. We, therefore, find no good ground to enhance the compensation awarded under that head.
8. We shall now consider whether, as contended by the appellant, the reference court erred in denying interest under section 28 of the Act to him during the period from 24.05.2003 to 01.03.2012. As stated earlier, this was done pursuant to and in terms of the order of remand passed by this court on 01.03.2012 in L.A.A. No. 794 of 2005. The L.A.A. No. 506/2014 -10- learned counsel, relying on the decision of the Apex Court in Susamma Baby v. State of Kerala and another1, contended that this court could not have imposed such a condition in the order of remand. We are of the opinion that having regard to the stipulations contained in sub- section (2) of section 105 of the Code of Civil Procedure, this court cannot, in an appeal from the revised award passed pursuant to the order of remand, take a contrary view and hold that the appellant is entitled to interest under section 28 of the Act even during the said period. A Division Bench of this court has in Cherian v. Kochuvareed2 held that if a final decision is rendered on any point in the order of remand, which could have been appealed against, that decision is binding on the parties and is not open to challenge before the same court in a subsequent appeal. In the light of the binding decision of the Division Bench with which we concern, we are of the opinion that this court cannot in this appeal, notwithstanding the law laid down by the Apex Court in Susamma Baby, re-visit the terms and stipulations in the order of remand and hold that the appellant is entitled to interest during the period from 24.05.2003 to 01.03.2012. The remedy of the appellant, in our opinion, lies in moving the Apex Court for the reason that section 105(2) of the Code of Civil Procedure has no applicability when the jurisdiction of the Apex Court under Article 136 of the Constitution of 1 (2014) SCC 640 2 AIR 1975 Kerala 197 L.A.A. No. 506/2014 -11- India is invoked vide Krishna Pillai v. Padmanabha Pillai3.
We, accordingly, allow the appeal in part and in modification of the decree and judgment passed by the reference court, re-fix the land value at `31,250/- per Are in respect of the acquired lands. Needless to say, the appellant will also be entitled to all statutory benefits on that basis, except interest under section 28 of the Act during the period from 24.05.2003 to 01.03.2012. The appellant will also be entitled to proportionate costs in this court.
P.N. RAVINDRAN, JUDGE.
DAMA SESHADRI NAIDU, JUDGE.
Rv 3 2004(2) KLT 61 L.A.A. No. 506/2014 -12-