Dismissed

State of Kerala v. Jose

Kerala HC6 Sept 2013LA.App./345/2013

Case brief

AI extract

What is this about?

The Kerala High Court dismissed an appeal challenging the Sub Court’s land acquisition award. The Court held that the reference court’s fixation of land value and compensation for injurious affection was free from infirmity and did not warrant interference.

What did the court decide?

The appeal was dismissed in limine along with pending interlocutory applications.

State of Kerala Vs Jose — Land Acquisition | Kerala HC (2013)

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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 THOMAS P.JOSEPH

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FRIDAY, THE 6TH DAY OF SEPTEMBER 2013/15TH BHADRA, 1935

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LA.App..No. 345 of 2013 () --------------------------ORDER/JUDGMENT IN LAR 179/2009 of SUB COURT, MUVATTUPUZHA DATED 2910-2011

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APPELLANT(S)/RESPONDENTS 1 & 2: ------------------------------

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1. STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, ERNAKULAM.

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2. THE EXECUTIVE ENGINEER MUVATTUPUZHA VALLY IRRIGATION PROJECT, DIVISION NO.3 MUVATTUPUZHA.

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BY ADV. GOVERNMENT PLEADER: A J JOSE

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RESPONDENT(S)/CLAIMANT: -----------------------

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JOSE S/O. IYPE, KULAVELIPUTHENPURAYIL NAGAPUZHA. PIN-686668. R1 BY ADV. SRI.MATHEW JOHN (K) R1 BY ADV. SRI.DOMSON J.VATTAKUZHY

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THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 06-09-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P.JOSEPH, J.

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=========================

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L.A.A.No.345 of 2013

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============================ Dated this the 06^th day of September, 2013

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J U D G M E N T

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This appeal arises from the common judgment and decree dated 29.10.2011 of the Sub Court, Muvattupuzha to the extent it concerns L.A.R.No.179 of 2009.

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In that case extent of land acquired is 2.40Ares of wetland in survey No.859/2-7 of Kallorkad Village. Land was acquired for construction of Madakkathanam Distributory of the M.V.I.P pursuant to the notification dated 31.03.2006 under Sec.4 (1) of the Land Acquisition Act (for short, "the Act”). The Land Acquisition Officer (for short, "the LAO”) awarded land value at 2670/- per Are. On the request of the respondent, the claim for enhancement was referred to the Sub Court, Muvattupuzha. Learned Sub Judge, referred to Ext.X1, fair value notification and fixed land value at 4,940/- per Are. Compensation was awarded for the remaining portion of the acquired land at the same rate for injurious affection.

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Learned Government Pleader contends that redetermination of land value based on the fair value notification is not fair and has placed reliance on the decision in Krishi Utpadan

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L.A.A.No.345 of 2013

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Mandi Samiti Sahaswan, District Badaun Vs. Bipin Kumar & Anr. (2004(2) SCC 283) . The award for compensation for injurious affection at the same rate also has come under challenge.

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Ext.X1 is the fair value notification where, for the properties comprised in survey 859 (as in this case) fair value fixed in the year, 2009 was 10,000/- per Are. The notification in the present case was on 31.03.2006. Learned Sub Judge did not fix land value stated in Ext.X1 (10,000/- per Are) but, having regard to that fact that the notification was almost three years before Ext.X1, notification land value was fixed at `4,940/- per Are.

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In Krishi Utpadan Mandi Samiti Sahaswan, District Badaun Vs. Bipin Kumar & Anr. (supra) the claimant had sought land value as per the fair value notwithstanding the sale consideration mentioned in the assignment deed produced. It was contended that the consideration fixed in the assignment deed would normally be low as people have a tenancy to undervalue the document. The Supreme Court took the view that if there is such a tendency, it cannot be encouraged. In that situation it was held that value fixed in the Register maintained for the purpose of stamp duty cannot be relied on while

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L.A.A.No.345 of 2013

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determining the market value. In this case no such situation arises. Moreover the reference Court has not awarded the entire fair value fixed in Ext.X1. Instead, referring to that also the reference Court has fixed land value as on the date of notification under Sec.4(1) which do not suffer from any infirmity.

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So far as compensation awarded for injurious affection is concerned, the reference Court has relied on Exts.C1 to C1(b). It is pointed out in paragraph 14 of the judgment under challenge that property of the respondent (in L.A.R.No.179 of 2009) was severed into two plots by the acquisition and that the northern plot (plot No.3 in Ext.C1(b)) having an extent of 2.50Ares was rendered useless as no agricultural operation or construction of building was possible in that plot. In Ext.R1, mahazar (in L.A.R.No.179 of 2009), the property on southern side was shown to be of Kottarathil Pankajakshi Amma but, actually that property belonged to the respondent. Thus, it would appear from Ext.R1 that the LAO was not aware of severance of property of the respondent due to acquisition. Reference court from Ext.C1, report and Ext.C1(b), plan and the evidence of AW1 found that there is severance of the property which injuriously affected the remaining property left unacquired and that the said property was rendered useless. In that situation the respondent was

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L.A.A.No.345 of 2013

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entitled to get compensation for injurious affection.

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So far as amount payable is concerned, in the absence of other evidence, the reference Court has referred to Ext.X1 and fixed land value at `4,940/- per Are for the said 2.50 Ares. I am not inclined to think, on hearing the learned Government Pleader that there is any infirmity in the view taken by the reference Court. In that view of the matter, judgment and decree of the reference Court so far as L.A.R.No.179 of 2009 is concerned, does not call for any interference at the instance of the appellant.

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The appeal fails and it is dismissed in limine.

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All pending interlocutory applications will stand dismissed.

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Sd/-

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THOMAS P.JOSEPH, JUDGE

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Sbna

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True Copy

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P. A to Judge

State of Kerala v. Jose

Case brief

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State of Kerala v. Jose

Case brief

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