Allowed

Melakath Alipathu v. the District Collector and Another

Kerala HC28 Jan 2011LA.App./1527/2007

Case brief

AI extract

What is this about?

The Court allowed the land acquisition appeal, refixing the land value at Rs.11,100 per cent based on Category III rates adjusted for area. The Court held the doctrine of merger did not bar the claimants. They were granted statutory benefits excluding interest for the condoned delay period.

What did the court decide?

Land value refixed at Rs.11,100 per cent; appeal allowed to that extent with statutory benefits excluding delay interest.

Melakath Alipathu Vs the District Collector and Another — Land Acquisition | Kerala HC (2011)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN

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FRIDAY, THE 28TH JANUARY 2011 / 8TH MAGHA 1932

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LA.App..No. 1527 of 2007() ----------------------------------LAR.71/1997 of SUB COURT, MANJERI ....................

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APPELLANT(S)/CLAIMANT :-

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----------------------------------------

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MELAKATH ALIPATHU, D/O. MELAKATH AHAMMED, MELANGADI, KONDOTTY, MALAPPURAM DISTRICT.

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BY ADV. SRI.BABU S. NAIR

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RESPONDENT(S)/RESPONDENTS :-

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------------------------------------------------

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1. THE DISTRICT COLLECTOR, MALAPPURAM.

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2. THE AIRPORT DIRECTOR, AIRPORT AUTHORITY OF INDIA, CALICUT AIRPORT, KARIPOOR P.O., MALAPPURAM DISTRICT.

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GOVERNMENT PLEADER SMT.T.T.JOSEPHINA SRI.N.N SUGUNAPALAN(SR) SMT.T.N.GIRIJA

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THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 28/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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jvt

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PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ.

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L.A.A. No.1527 of 2007

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Dated this the 28^th day of January 2011

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J U D G M E N T

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N.K.Balakrishnan, J.

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The claimant is in appeal. His property measuring 0.1340 hectares was acquired by the Air Port Authority of India for the purpose of expansion of run way of Calicut Air Port. The notification under Section 4(1) of the Act was published on 15.11.1993. The L.A.Officer fixed the land value at the rate of Rs.7,351/- per cent and compensation was determined accordingly.

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The appellant contends that the court below without assigning reason did not consider Ext.A1 sale deed which was in respect of a land similar in nature and similarly situated. The sale consideration shown therein was arrived at on the basis of open tenders. Thus, the appellant contends that he is entitled to get compensation refixing the land value atleast at Rs.25,000/-

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L.A.A. No.1527 of 2007

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per cent.

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The learned senior counsel appearing for the Air Port Authority has raised serious objections pointing out that when the appeal filed by the Requisitioning Authority (Air Port Authority), the claimants were also heard and it was held :

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“Having considered the rival submissions and having scanned the judgment of the Reference Court in the light of the evidence which was available on record, we are of the view that the market value of the properties under acquisition as re-fixed by the Reference Court under judgments cannot be said to be excessive. In fact, the evidence on record would justify re-fixation of market value at the rates now fixed by the Reference Court under the judgment. Thus, according to us, there is no warrant for interference with the impugned judgments at the instance of the requisitioning authority since according to us, the value presently fixed under the judgments is by no standards more than the correct market value of the property at the relevant time.”

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It was making the observations as mentioned above the appeal filed by the Requisitioning Authority was dismissed and as such the doctrine of merger applies in this case. The learned counsel for the claimant on the other hand contends that the appeals preferred by the claimant were actually then pending before this

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L.A.A. No.1527 of 2007

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Court. What was considered in L.A.A.No.122/2005 and connected cases was whether the Requisitioning Authority could have any genuine grievance in the land value fixed by the Reference Court. It was considered only to see whether the appeals filed by the Requisitioning Authority have any merit. According to the learned counsel for the claimant this Court was not considering whether the enhancement claimed by them in their respective appeals require reconsideration or not. If doctrine of merger applies then certainly it will not be open to this Court to grant any enhancement on the appeals preferred by the claimants.

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The learned Senior counsel in support of his argument has relied on the decision of the Apex Court in Chandi Prasad & others v. Jagdish Prasad & others [(2004) 8 SCC 724]. The

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facts dealt with in that case are not identical to the fact situation of the present case.

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Going through the judgment of this Court of which the relevant portion has been quoted above it can only be seen that this Court only found that there is no warrant for interference with the impugned judgment at the instance of the

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L.A.A. No.1527 of 2007

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Requisitioning Authority. True that it was not mentioned in the judgment that the said judgment will not preclude the claimants to pursue their contentions in the appeals preferred by them. Only because that observation was not made it cannot be said that the judgment in L.A.A.No.122/2005 series would preclude the claimants from prosecuting these appeals. As such the objections raised by the learned senior counsel for the Requisitioning Authority cannot be sustained.

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The court below after considering the oral and documentary evidence refixed the land value in respect of different categories of land. The land under acquisition in this case falls in category No.III. In respect of the land shown in category No.III the land value was refixed by this Court in the connected appeals, L.A.A.No.911/2003 etc. at Rs.12,000/- per cent. It was also observed that considering the largeness of the area, the land value has to be reduced by 7.5%. In this case, the land acquired from the possession of the appellant was 0.7016 hectares. Hence, the land value has to be refixed at Rs.11,100/per cent. Accordingly the land value is refixed at Rs.11,100/- per cent. The appeal is allowed to that extent. The claimant is

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L.A.A. No.1527 of 2007

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entitled to all statutory benefits admissible under Sections 23(2), 23(IA) and Section 28 of the L.A.Act. But the claimant is not entitled to such statutory interest for the period of 614 days of delay condoned by this Court as per C.M.Appln.No.1831 of 2007. The Registry will also see that while drafting the decree full court fee is paid. The conditions mentioned in the order passed in C.M.Appln. should also be taken note of.

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PIUS C. KURIAKOSE, JUDGE.

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N.K.BALAKRISHNAN,

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JUDGE.

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Jvt

Melakath Alipathu v. the District Collector and Another

Case brief

What is this about?

What did the court decide?

Melakath Alipathu v. the District Collector and Another

Case brief

What is this about?

What did the court decide?

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