Allowed

M.K. Shyam Sundar v. Special Tahsildar(La), Railway, Kannur

Kerala HC5 Mar 2012LA.App./531/2011

Case brief

AI extract

What is this about?

In this Land Acquisition Appeal, the High Court of Kerala re-fixed the market value of the appellant's acquired land at Rs.40,000 per cent. The Court also awarded an additional Rs.1 lakh in structure value, limited to the appellant's claim of Rs.73,873, citing justification beyond the initial 20% increase.

What did the court decide?

Land value fixed at Rs.40,000 per cent; additional structure value of Rs.73,873 awarded.

M.K. Shyam Sundar Vs Special Tahsildar(La), Railway, Kannur — Land Acquisition | Kerala HC (2012)

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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 &

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THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI

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MONDAY, THE 5TH DAY OF MARCH 2012/15TH PHALGUNA 1933

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LA.App..No. 531 of 2011 ( )

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LAR.NO.148/2004 of ADDL.SUB COURT, THALASSERY

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APPELLANT(S)/CLAIMANT:

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M.K.SHYAM SUNDAR, 'SITHARA', P.O.CHOVVA, ELAYAVOOR AMSOM, CHOVVA DESOM, KANNUR DISTRICT, PIN-

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BY ADVS.SRI.C.VALSALAN

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SRI.GHOSH YOHANNAN SRI.K.RAKESH ROSHAN SMT.THUSHARA.V

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RESPONDENT(S)/RESPONDENTS:

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1. SPECIAL TAHSILDAR (LA), RAILWAY, KANNUR, PIN-670 001.

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2. THE DEPUTY, CHIEF ENGINEER (CONSTRUCTION) SOUTHERN RAILWAY, KANNUR, PIN-670 001.

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R1 & R2 BY ADV.SRI.V.K.MOHAMMED YOUSUF, CGC

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THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 05-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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PIUS C.KURIAKOSE & A.V.RAMAKRISHNA PILLAI, JJ

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LAA No.531 of 2011 --------------------------------------------Dated this the 5^th day of March 2012

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JUDGMENT

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Pius C.Kuriakose, J

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The claimant is the appellant. His land in Kannur-2 village, situated very near to the Kannur Railway Station together with a substantial building standing thereon, was acquired for the purposes of the Railway. The acquisition was pursuant to Section 4(1) notification published on 20.11.2002. The land was garden land and the land value was awarded at the rate of Rs.19,650/- per cent by the Land Acquisition Officer. For the building which stood on the property, the Land Acquisition Officer awarded a sum of Rs.7,38,734/- as compensation. Reliance was placed for land value mainly on the judgment in LAR No.35 of 2002 pertaining to acquisition of another

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LAA No.531 of 2011 2

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parcel of land in the same village, two years earlier. The learned subordinate judge re-fixed the land value based on that judgment at Rs.28,000/- per cent.

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As regards the claim for enhanced building value, the claimant relied on the report of valuation submitted by an Advocate Commissioner with the assistance of an engineer on the basis of the orders passed by a competent civil court. It was reported in Ext.A3 that the correct value of the building will be Rs.11,16,079/-. The reference court, however, became inclined to award only 20% increase over the original building value that was awarded by the Land Acquisition Officer. The claimant preferred an appeal as LAA No.78 of 2010 and the State preferred an appeal as LAA No.1196 of 2009. This Court, considering both these appeals together, remanded the LAR case to the reference court for a fresh decision. The remand order was passed mainly for the reason that the judgment of the reference court in

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LAA No.531 of 2011 3

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LAR No.35 of 2002 had, in the meanwhile, been set aside by this Court and remanded for a fresh award. Before the reference court, it was brought out that in LAR No.35 of 2002, a revised award was passed by

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the reference court fixing the land value at Rs.50,000/- per cent. An Advocate Commissioner in Ext.X1 report submitted by him reported that the distance between the acquired property under acquisition and the property involved in LAR No.35 of 2002 was only 140 metres. However, through the above report itself, it became clear that the Kannur Municipal Bus Stand was situated only 20 metres away from the property covered by LAR No.35 of 2002. Notwithstanding Ext.X1 report, the appellant mounted the witness box and gave evidence to the effect that there is no comparison between the property under acquisition and the property covered by LAR No.35 of 2002. According to him, the property under acquisition was much more superior. The

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learned subordinate judge took this as an admission from the mouth of the appellant that there is no comparison between the property under acquisition and the property covered in LAR No.35 of 2002. Even though the appellant pursued his claim for further compensation towards the building, the learned subordinate judge did not entertain the above claim for the reason that this Court had remanded only the issue of market value of the land and not the value of

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the building. Thus, no enhancement was granted by the reference court towards building value. Coming to the land value, the learned subordinate judge would re-fix the same without relying on Ext.X1 at 25,000/- per cent, i.e.Rs.3,000/- per cent less than what was originally awarded.

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We have heard the submissions of Mr.C.Vathsalan, the learned counsel for the appellant and Mr.C.R.Syam Kumar, the learned Senior Government Pleader. We notice that

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Sri.V.K.Mohammed Yousuf has entered appearance on behalf of the Railway in this case. Mr.Vathsalan's submission was that Ext.X1 Commissioner's report should have been relied on by the learned subordinate judge as the Government had neither filed any objections to the same nor adduced any evidence to show that the recommendations in Ext.X1 were not correct. Mr.Vathsalan also submitted that the court below erred in thinking that the issue of structure value had become final by the remand order passed by this Court in LAA Nos.78 of 2010 and 1196 of 2009. According to him, though reference is made to LAR No.35 of 2002, this Court ultimately passed an open remand giving an opportunity to both sides to adduce whatever evidence they want to.

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Mr.Syam Kumar, the learned Senior Government Pleader, per contra would support the impugned award. According to him, what was awarded by the reference court is reasonable. When

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the appellant himself stated that there is no comparison between his property and the property involved in LAR No.35 of 2002, the recommendations in Ext.X1 cannot have much relevance.

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We have given our anxious consideration to the rival submissions addressed at the Bar. We have carefully gone through the impugned award. We have also gone through the revised award passed by the reference court in LAR No.35 of 2002. We have before us the remand order passed by this Court earlier in LAA No.1196 of 2009 and 78 of 2010.

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The first question which arises to be decided by us is, what is the correct market value of the land under acquisition. We should notice in this context that the connection between the present case and LAR No.35 of 2002 was recognised by this Court, even at the time when the remand order was passed in LAA Nos.1196 of 2009 and 78 of 2010. Ext.X1 Commissioner's report clearly states that the distance

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between the two properties is only 140 metres. The Advocate Commissioner in Ext.X1 reported that the property under acquisition was superior to the property covered by LAR No.35 of 2002. Though such a report is there, we are not inclined to enter a finding that the property under acquisition is superior to the property involved in LAR No.35 of 2002. We find that the property involved in LAR No.35 of 2002 was situated just 20 metres away from the Kannur Municipal Bus stand. The property in LAR No.35 of 2002 was definitely superior to the property involved in this case. At the same time, we take into account the fact that the acquisition LAR No.35 of 2002 was at least two years earlier. The properties are in Kannur Municipal Town and we cannot be unmindful of the increase in the value in the passage of time.

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Taking all relevant inputs into account, we

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are of the view that the market value of the land under acquisition can reasonably and safely be fixed

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at Rs.40,000/- per cent. We re-fix the market value of the land under acquisition at Rs.40,000/- per cent.

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We find force in the submission of

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Mr.Vathsalan that the remand order passed by this Court in LAA No.1196 of 2009 and 78 of 2010 was an open remand under which the reference court had been directed to pass a revised award addressing the issues. The learned subordinate judge was not justified in not entertaining the appellant's claim for further structure value. Coming to the correct structure value to be awarded, we are not impressed by Ext.X1 Commissioner's report. At the same time, we find that there is justification for awarding some more compensation to the appellant towards structure value. It is applying rule of thumb that the learned subordinate judge at the first instance awarded 20% increase which comes to Rs.1,47,746/-, over what was awarded by the Land Acquisition Officer. But, then, it is clear that the Land Acquisition

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Authority fixed the value of the building by adopting the Public Works Department schedule of rates published from time to time. It is common knowledge that for the construction of buildings, the schedule of rates published by the Public Works Department is not a pragmatic proposition. Even the PWD tenders out its civil works at 30 to 32%, keeping that reality in mind, we are of the view that there is justification for awarding Rs.1 lakh more than what is awarded by the reference court in the first instance to the appellant as additional compensation for the building. We find that there is justification for awarding to the appellant Rs.1 lakh more. However, as the appellant's claim for additional structure value is limited to Rs.73,873/-, we are awarding only so much amount towards structure value. The result of the appeal is therefore as follows:

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The land value is redetermined at Rs.40,000/- per cent. Additional structure value of Rs.73,873/- is also awarded. The appellant will be

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entitled for all statutory benefits on the additional value awarded herein. Parties are directed to suffer

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their respective costs.

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Sd/- PIUS C.KURIAKOSE, JUDGE

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sd/- A.V.RAMAKRISHNA PILLAI, JUDGE

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css/ true copy

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P.S.TO JUDGE

M.K. Shyam Sundar v. Special Tahsildar(La), Railway, Kannur

Case brief

What is this about?

What did the court decide?

M.K. Shyam Sundar v. Special Tahsildar(La), Railway, Kannur

Case brief

What is this about?

What did the court decide?

What the court decided

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