Kerala High Court
Kerala State Industrial Development ... vs Thomas Mathew on 1 December, 2020
Author: Shaji P. Chaly
Bench: S.Manikumar, Shaji P.Chaly
W.A. No.935/2020 :1:
'CR'
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 01ST DAY OF DECEMBER 2020 / 10TH AGRAHAYANA, 1942
WA.No.935 OF 2020
AGAINST THE JUDGMENT DATED 11.03.2020 IN WP(C) 10869/2019(G) OF HIGH COURT OF
KERALA
APPELLANT/4TH RESPONDENT:
KERALA STATE INDUSTRIAL DEVELOPMENT CORPORATION LTD.
T.C.11/266, KESTON ROAD, KOWDIAR, THIRUVANANTHAPURAM,
PIN - 695 003, REPRESENTED BY ITS MANAGING DIRECTOR.
BY ADV. SRI.P.U.SHAILAJAN
RESPONDENTS/PETITIONERS & RESPONDENTS 1 TO 3 & ADDL. 5TH RESPONDENT:
1 THOMAS MATHEW
NELLUVELIL HOUSE, NADAKKAL P.O., ERATTUPETTA, KOTTAYAM
DISTRICT, PIN - 686 121.
2 MARIAMMA MATHEW
NELLUVELIL HOUSE, NADAKKAL P.O., ERATTUPETTA, KOTTAYAM
DISTRICT, PIN - 686 121.
3 PRADEEP JOSEPH
VADAKKEPUTHENPURAYIL HOUSE, NADAKKAL P.O., ERATTUPETTA,
KOTTAYAM DISTRICT, PIN - 686 121.
4 THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT, REVENUE
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.
W.A. No.935/2020 :2:
5 THE DISTRICT COLLECTOR
KOZHIKODE, PIN - 673 001.
6 THE SPECIAL TAHSILDAR (LAND ACQUSITION)
KOYILANDY, KOZHIKODE, PIN - 673 305.
7 THE DIRECTOR, RUBBER RESEARCH INSTITUTE OF INDIA
KOTTAYAM, PIN - 686 001.
R1 BY ADV. SRI.GEORGE MECHERIL
R2 BY ADV. SRI.JUSTINE JACOB
R4-6 BY SRI.K.V.SOHAN, STATE ATTORNEY
R1 TO R3 BY SRI.G.SHRIKUMAR, SR
R4 TO R6 BY SRI.K.V.SOHAN, STATE ATTORNEY
R7 BY SRI.ABRAHAM MARKOS
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01.12-2020, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
W.A. No.935/2020 :3:
Dated this the 1st day of December, 2020.
JUDGMENT
SHAJI P. CHALY, J.
This writ appeal is filed by the 4 th respondent in W.P.(C) No. 10869 of 2019 challenging the judgment of the learned single Judge dated 11.03.2020, whereby the writ petition was allowed and held as follows at paragraphs 11 to 13:
11. The term compensation has to be given normal meaning. One would be entitled to timber value as well as produce value as compensation in normal circumstances. In the contract if nothing indicates as to the contrary, such a compensation cannot be denied to the owner of the land. In regard to rubber trees after the age of yield is over, one would get timber value.
12. On interpretation of the agreement, this Court find as per the Government Order, that the petitioners are entitled for both the timber value as well as the annual produce value of the timber, on a conjoined reading of Clause 7.7 and Clause 2C in the Annexure II. In such circumstances, the writ petition has to be allowed.
13. The petitioners should be given the timber value as originally calculated.
The annual produce value of the trees will have to be re-worked after obtaining necessary inputs from the competent authority. It shall be done within a period of two months. The compensation amount shall be re-worked and paid within a further period of two months. Accordingly, the impugned orders are set aside.
Therefore, this writ petition is allowed and disposed as above. No costs."
2. The subject issue relates to the acquisition of land belonging to respondents 1 to 3/writ petitioners by the State Government on the W.A. No.935/2020 :4: requisition made by the appellant Corporation, in terms of ExtP12 Government Order dated 05-11-2004.
3. Brief material facts for the disposal of the appeal are as follows:
The property belonging to the writ petitioners having a total extent of 46.5944 hectares (115.13 acres) under different title deeds were acquired by the State of Kerala for establishing Kuttiyadi Coconut Industrial Park proposed by the appellant. The acquisition was under a negotiated purchase scheme as agreed by the parties and the land value was fixed at Rs.10,750/-
per cent and the value of improvements were to be calculated on the basis of G.O.(Rt.) No. 331/2004/RD dated 05.11.2004 produced as Ext. P12 in the writ petition. Immediately, 80% of the compensation amounting to Rs.9,90,15,896/- was paid to the writ petitioners on 15.12.2012 and accordingly, the possession of the property was taken. Admittedly, an award dated 06.09.2013 was passed and on the basis of the same, the balance amount that was to be paid to the writ petitioners with interest was Rs.4,86,01,035/-.
4. Matters being so, writ petitioners filed W.P.(C) No. 32066 of 2013 before this Court contending that no award was passed by the authorities and sought to direct the appellant and the State to pass an award under Section 11(1) of the Land Acquisition Act, 1894, apart from the other reliefs sought for. The writ petition was allowed by the learned single Judge. Being W.A. No.935/2020 :5: aggrieved, the State of Kerala and the appellant filed separate writ appeals, W.A. Nos. 977 of 2016 and 1327 of 2016. According to the appellant, as per judgment dated 16.12.2016, writ appeals were allowed with a finding that there is an agreement between the parties by which the land value was fixed at Rs.10750/- per cent and directed to calculate the value of improvements on the basis of Ext. P12 Government Order dated 05.11.2004. The said common judgment is produced as Ext. P11 in the writ petition.
5. Aggrieved, the writ petitioners filed Special Leave Petitions, SLP Nos. 12459-12960 of 2017, before the Apex Court. However, the same were withdrawn. Thereafter, the writ petitioners filed R.P Nos. 574 of 2017 and 580 of 2017 before the Division Bench of this Court to review Ext. P11 judgment; but the same were dismissed on 05.01.2018. Being aggrieved, the writ petitioners filed SLP No. 13914 of 2018 before the Apex Court, however, the same was also dismissed.
6. In the meanwhile, the corrected awards were passed by the State as per the direction of the Division Bench in Ext. P11 writ appeals. Thereafter, W.P.(C) No. 7930 of 2018 was filed by the writ petitioners inter alia challenging the corrected awards passed by the Special Tahsildar, Koyilandy and seeking a direction to consider the objection filed by the writ petitioners before the District Collector, Kozhikode. On the basis of the directions, the objections were considered by the District Collector taking W.A. No.935/2020 :6: into account Ext. P11 judgment of the Division Bench and it was dismissed by the District Collector as per Ext. P3 order dated 22.03.2019. It was thereafter that the writ petition leading to this appeal was filed challenging Ext. P3 order passed by the District Collector dated 22.03.2019 and Exts. P16 to P18 communications issued by the Special Tahsildar, Koyilandy dated 01.04.2017 informing the writ petitioners that awards were passed in regard to the land taken possession from the writ petitioners for the coconut Industrial Park and compensation amounts were transferred to the bank account of the respective parties in accordance with law. It is also stated in Exts. P16 to P18 that the said communications are accompanied by the award so passed.
7. At the outset, it is stated that the appellant had a case that the awards passed by the Tahsildar were not produced along with the writ petition and therefore, the challenge made to the awards are not maintainable. However, the awards passed are produced by the appellant along with its counter affidavit as Exts.R4(a) to R4(f). In the writ petition, the following reliefs were sought for by the petitioners:
1. To issue a writ in the nature of certiorari or such other appropriate writ, order or direction calling for the records leading upto the issuance of Exts.P3, P16, P17 and P18 and quash the same.
2. To declare that the petitioners are entitled to get the value of the improvements to be calculated in accordance with the capitalization method taking the basis as clause 2C of Ext.P12 Government Order G.O.(Rt) No. 331/2004/RD dated 05.11.2004 in addition to the amount confirmed by the Division Bench in Ext.P11 W.A. No.935/2020 :7: judgment.
3. To declare that the petitioners are entitled to get the amount shown in Ext. P9 approved detailed valuation statement of the District Collector.
4. To declare that the District Collector is incompetent to reduce the amount from Ext. P13 series awards confirmed in Ext. P11 judgment.
8. The learned single Judge, after analysing the pros and cons and the facts and figures and after interpreting the relevant provisions, clauses 7.7, and 2C of Annexure II of the Government Order dated 05-11-2004, found that the writ petitioners are entitled to get both the timber value as well as the annual produce value of the timber as compensation in normal circumstances. It was further held that in the contract, if nothing indicates as to the contrary, such a compensation cannot be denied to the owner of the land and further that, in regard to the rubber trees after the age of yield is over, it would get the timber value. It is, thus, challenging the legality and correctness of the said finding and the conclusions arrived at by the learned single Judge, the appeal is preferred.
9. The paramount contention advanced in the appeal is that the learned single Judge failed to take note of the relevant fact that the writ petitioners have not produced the awards passed by the Awarding Officer and therefore, the challenge made to the award without the production of the same cannot be sustained under law. It was also contended that the issue raised by the writ petitioners are settled by a Division Bench of this Court in Ext. P11 judgment in writ appeals as specified above and the writ W.A. No.935/2020 :8: petitioners are entitled to get only compensation for the rubber trees in the acquired land as stated in clause 2C of Annexure II of Ext. P12 Government Order, which specifies that compensation for perennial crops and trees calculated as annual produce value for the last three years.
10. That apart, it is predominantly contended that as per the award passed by the Officer, compensation was granted on the basis of the agricultural income tax return submitted by the petitioners for the last three years immediately preceding the land acquisition, which was done in accordance with Ext. P11 judgment of the Division Bench of this Court. Therefore, according to the appellant, there was no illegality or arbitrariness in the awards passed by the third respondent justifying interference of the writ court. It is also the contention of the appellant that the judgment of the learned single Judge that in Ext. P11 judgment, the Division Bench had not interfered with the calculation of compensation of the timber value, and the Division Bench only found that the calculation was not in accordance with the agreement, was not correct. Other contentions are also raised relying upon clause 7.7 and other relevant provisions of Ext. P12 Government Order issued for the purpose of acquiring land for the fast track projects.
11. We have heard learned counsel for the appellant Sri. P.U. Shailajan at length and learned Senior Counsel appearing for writ petitioners/respondents 1 to 3, Sri. G. Sreekumar assisted by Adv. George W.A. No.935/2020 :9: Mecheril, learned State Attorney Sri. K.V. Sohan, and perused the pleadings and materials on record.
12. The factual discussions made above would undoubtedly make it clear that the land belonging to the writ petitioners were acquired on the basis of the agreement executed by and between the parties in terms of Ext. P12 Government Order dated 05.11.2004 and in terms of the guidelines issued for the purpose of accelerating the land acquisition so as to achieve the required results for the completion of projects conceived by the State and its Corporations. It is also an admitted fact that in terms of the agreement executed by and between the parties, an award was passed by which the value of the land was fixed at Rs.10,750/- per cent and in the awards passed originally, the compensation for rubber trees were calculated on the basis of its timber value and admittedly the produce value of the rubber trees in terms of clause 2C of Annexure II of Ext. P12 Government Order was not granted. Even though awards were passed in terms of the Government Order and the agreement executed by and between the parties, the writ petitioners were of the view that the award had to be passed in terms of the Land Acquisition Act, 1894 and it was accordingly that they filed a writ petition before this Court challenging the awards passed by the Awarding Officer. Even though the writ petition filed by the petitioners was allowed, the Division Bench interfered with the same holding that the agreement executed by and between the parties and Ext. P12 Government W.A. No.935/2020 : 10 : Order is binding on the writ petitioners, that the value of the land agreed by and between the parties is final and binding, and further that the calculations for compensation are to be confined in terms of Ext. P12 Government Order.
13. The appellant has a contention that the issue with respect to the market value of the timber bearing rubber trees and the annual produce value of the rubber trees was settled by the Division Bench. However, it is clear from the findings rendered by the Division Bench in Ext P11 Judgment that it did consider only whether, the land value fixed at Rs.10750/- per cent as per the agreement was binding on the writ petitioners, and whether the writ petitioners were guided by Ext. P12 Government Order dated 05.11.2004, which was produced therein as Ext. P16, in the matter of acquisition of land belonging to them and truly held in favour of the appellant. But at the same time, clause 7.7 of the said Government Order dated 05.11.2004 and clause 2C of Annexure II therein were considered by the Division Bench and it was held that it is evident that for perennial crops and trees, the compensation is to be calculated based on the annual produce value for the last three years and therefore, the mode of calculation of compensation for the trees has been specifically provided and agreed to between the parties. Accordingly, only it was held that, it cannot be said that there is any manner of vagueness in that regard. In fact, various other contentions were raised by the appellant regarding other issues; but W.A. No.935/2020 : 11 : ultimately the judgment of the learned single Judge was set aside holding that there has been an agreement between the landowners and the Requisitioning Authority that the compensation for the land would be payable at Rs.10,750/- per cent and the compensation for the improvements on the land would be paid in accordance with the Ext. P12 Government Order dated 05.11.2004. True, other findings were rendered in respect of the delayed payment of compensation etc., which we are not concerned about. One thing is clear that the contention advanced by the appellant that the Division Bench in Ext. P11 judgment has sorted out the issue with respect to the compensation for timber and produce value, is not the correct proposition mooted by the appellant, because we do not think that such an issue was never raised by the writ petitioners in that round of litigation .
14. Now, we come to the judgment of the learned single Judge in order to identify as to whether the findings rendered and the conclusions arrived at have any legal infirmity to be interfered in an intra court appeal. The learned single Judge has firmly arrived at the conclusion that the writ petitioners are entitled to get compensation for trees as well as the annual produce value in terms of Ext. P12 Government Order. Therefore, the controversy revolves around clause 7.7 of the Government Order dated 05.11.2004 and Clause 2C of Annexure II thereto, and they read thus:
"7.7. Compensation for trees will also be based on their market value in case of timber bearing trees and replacement cost in case of fruit bearing trees as per the W.A. No.935/2020 : 12 : rates decided by the competent authority in consultation with Dept. of Agriculture, Forest, Horticulture, Sericulture, etc., as the case may be."
Category Type of Loss Unit of Entitlement Details
Entitlement
2C Perennial crops such Family Compensation Compensation for
as fruit trees at "market perennial crops and
value" trees, calculated as
annual produce value
for last three years.
15. The basic contention advanced by the learned counsel for the appellant is that the writ petitioners are entitled only to get either the timber value or the annual produce value, since the afore-extracted provisions are independent in nature and both cannot operate together to the disadvantage of the appellant. Various judgments are relied upon by the learned counsel for the appellant in regard to the determination of compensation.
16. At first, he invited our attention to the judgment of the Apex Court in Mir Fakir Mohd. v. State of W.B[1978(2) SCC 36 = 1978 KHC 676, wherein the question considered was with respect to the acquisition of a banana plantation and whether it is an "Orchard" within the meaning of the West Bengal Estates Acquisition Act, 1954 and the calculation of compensation thereto and it was held that for a plant to come within the connotation of tree, it must have two essential characteristics: a) it must be perennial and not seasonal; and b) its main stem must be woody and not W.A. No.935/2020 : 13 : herbaceous or pulpy. However, it was finally held that a banana plantation is not an orchard within the meaning of Act, 1954 since it is not a fruit tree.
17. In State of Haryana v. Gurcharan Singh and another [1995 Supp (2) SCC 637 = 1995 KHC 625], the question considered by the Apex Court was the compensation awarded under the Land Acquisition Act, 1894 in a land planted with fruit bearing trees.
18. In Koyappathodi M. Ayisha Umma v. State of Kerala [(1992) 4 SCC 8] also, the question considered by the Apex Court was with respect to the valuation of the market value of the acquired property with fruit bearing trees standing thereon. So also, the learned counsel has invited our attention to a Division Bench judgment of this Court in State of Kerala v. Madhu Alias Madhavi Amma [1974 KHC 47= 1974 KLT 143], wherein the adjudication done was under the Kerala Land Acquisition Act, 1961 in respect of the mode of evaluation of trees in the land and it was held that the valuation has to be done either on the land value and timber value of trees or value based on the income from trees.
19. The learned counsel has also invited our attention to the judgment of a learned single Judge of this Court in Petronet CCK Ltd. v. Thresiamma and another [2012(1) KHC 741 = 2012(1) KLT 959], where the question considered was whether the principles under the Land Acquisition Act, 1894 are to be followed in the case of acquisition done in W.A. No.935/2020 : 14 : accordance with the Petroleum and Minerals, Pipelines (Acquisition of Right of User in Land) Act, 1962 and it was held that there is no scope for importing Section 10 of the Land Acquisition Act, 1894 and the principles governing thereunder, while determining compensation under the Act, 1962, for acquiring right of user in land.
20. Learned Counsel has further invited our attention to the judgment of the Apex Court in Malarvizhi and others v. United India Insurance Company Ltd., [AIR 2020 SC 90=2020 (1) KHC 526], a case considered by the Apex Court under the Motor Vehicles Act, 1988 vis-a-vis the computation of the income of the deceased based on the income tax return, wherein it was held that income tax return is a statutory document on which reliance may be placed to determine the annual income of the deceased.
21. In our considered opinion, the aforesaid judgments of the Apex Court and this Court have considered the question of payment of compensation taking into account the provisions of various statutes in regard to the Land Acquisition, and the calculation of compensation made in accordance with the methods prescribed thereunder also taking into account the factual circumstances therein. This is a case where the compensation with respect to the land was agreed to by and between the parties as per an agreement executed and further that the parties were guided by the Government Order dated 05.11.2004 for the purpose of calculating the W.A. No.935/2020 : 15 : improvements in the land acquired as per the agreement by and between the parties. Therefore, in our considered opinion, the parties are strictly guided by the agreement executed by and between them and the Government Order specified above, and therefore the provisions of Land Acquisition Act, 1894 or any other Act in force have any bearing to the issues, in order to rely upon the judgments rendered by the Apex Court and this Court in the matter of fixation of the compensation. This is what has been exactly held in Ext. P11 judgment by a learned Division Bench of this Court .
22. Insofar as the judgment in Malarvizhi and others (supra), the findings were rendered by the Apex Court taking into account the provisions of Section 166 of the Motor Vehicles Act, 1988, wherein the Motor Accident Claims Tribunal has given the liberty to fix the just compensation taking into account the relevant aspects relating to the income tax, dependency etc.
23. In our considered view, there is no scope for equating the principles of law laid down in a motor accident compensation case with that of the land acquisition in terms of a Government Order, which has got its own features for settling the land value as well as the improvements. Therefore, we have no hesitation to hold that the issue before us has got its own unique features for the purpose of calculation of improvements in the land which was agreed to be sold by the writ petitioners on the basis of the W.A. No.935/2020 : 16 : compensation for the land value fixed as per the agreement executed.
24. Looking from that angle, we are of the considered opinion that the learned single Judge adjudicated the issue taking into account the provisions of Ext. P12 Government Order dated 05.11.2004, which according to us was the correct procedure adopted by the learned single Judge. As we have pointed out earlier, the issue raised in the writ petition in regard to the market value of the timber was never a consideration before the Division Bench, which rendered Ext.P11 judgment. On the other hand, it was clearly held therein that the parties are guided by the agreement executed, and the above specified Government Order, in the matter of calculation of improvements, and nothing more and nothing less. Therefore, we are only concerned with the interpretation provided by the learned single Judge to the provisions of the Government Order dated 05.11.2004 extracted above.
25. Relying upon clause 7.7, learned Senior Counsel for the writ petitioners submitted that the employment of the phraseology 'also' therein is very meaningful in the sense that apart from the compensation of trees, it takes in something more. Therefore, we considered the said aspect in that angle and taking into account the entire gamut of the issue, we are of the view that the term 'also' is to be provided with a significant meaning to be read along with the words 'compensation for trees' contained under clause 7.7. In Chambers Concise 20 th Dictionary, the term 'also' is defined to mean W.A. No.935/2020 : 17 : 'likewise, further' etc. Therefore, we find force in the said contention because if the Government intended the market value of the timber alone, it would not have employed the word 'also' in clause 7.7. Which thus means, in the context of the case at hand, not only the market value of the standing timber is to be calculated for compensation but also its annual produce value.
26. That apart, in clause 2C of Annexure II, the manner in which the produce value of the trees to be calculated is prescribed and the words 'perennial crops and trees' are employed therein definitely with a laudable object for achieving a purpose. According to us, the word 'perennial' has also to be given a significant meaning, and as per the Chambers 20 th Concise Dictionary, it means 'lasting through the year, perpetual; never failing; growing constantly; and exceeding a period of two years. So far as a rubber tree is concerned, it gives a perennial produce value almost throughout the year and the latex is extracted tapping the bark and interstice of the tree alone without causing any damage to its timber. Which thus means, after the period of extraction of latex, the timber has a value and it is common knowledge that rubber wood is used for making value added products. Therefore, taking into account the terms 'also' and 'perennial' as contained in clauses 7.7 and 2C as above, it is clear that apart from the timber value, the value of the annual produce from the trees also will have to be taken into account, insofar as the perennial crops and trees are concerned in terms W.A. No.935/2020 : 18 : of the Government Order. This we say so visualising a situation where the land was not acquired, a farmer/planter of rubber trees gets the latex for the entire harvest period and thereafter, gets the market value of the timber also. Though learned counsel for the appellant cited an example supposing that the farmer is cutting a rubber tree and selling it in the market, is he entitled to get the produce value of the latex, we are of the considered opinion that a rubber tree is grown mainly for extraction of latex and the timber of the rubber tree is sold only after the entire period of extraction is over and we are unable to think that a rubber tree would be cut and removed by a farmer while latex is being extracted. Therefore, the compensation for the timber value and the latex value are to be calculated separately for fixing the compensation from the farmers' point of view and not from the view of the Requisitioning authority or the Acquisition authority, and of course in accordance with law.
27. Learned counsel for the appellant submitted that once the market value of the trees is taken in terms of clause 7.7, then the produce value cannot be given. The learned single Judge found that in terms of the provisions contained under the Government Order, the writ petitioners are entitled to get the market value of the timber and annual produce value, to which we agree absolutely. We are also of the firm opinion that there is no illegality or other legal infirmities in the matter of exercise of discretion by the learned single Judge. Above all, the appellant has also questioned the W.A. No.935/2020 : 19 : direction given by the learned single Judge that the annual produce value is to be assessed on the basis of the actual valuation taken by a competent person and not on the basis of the agricultural income tax return provided by the writ petitioners. We do not find any reason to interfere with the said finding also, because it was done taking into account the method prescribed under clause 2C of the order dated 05-11-2004 and not on the basis of the income tax return as done by the awarding officer.
28. Taking into account all the above aspects, we do not find any reason to interfere with the judgment of the learned single Judge there being no error in the matter of exercise of the discretion conferred under Article 226 of the Constitution of India, jusitfying interference in an intra court appeal filed under Section 5 of the Kerala High Court Act. Needless to say, the writ appeal fails and accordingly it is dismissed.
sd/-
S. MANIKUMAR, CHIEF JUSTICE.
sd/-
SHAJI P. CHALY, JUDGE.
Rv