Single Judge upheld Section 10(4) compensation as diminution in land value. Modified compensation calculation for rubber trees to 60% net yield. Ordered Petronet to pay balance amount with interest.
Company ordered to pay ₹37,318/- with interest at 6% per annum pending payment to the lapsed owner.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
FRIDAY, THE 19TH DAY OF SEPTEMBER 2014/28TH BHADRA, 1936
CRP.No. 83 of 2009 ( )
AGAINST THE ORDER/JUDGMENT IN OP 13/2001 of DISTRICT COURT, PALAKKAD
REVISION PETITIONER(S)1ST RESPONDENT IN OP:
PETRONET CCK LTD., IRIMPANAM INSTALLATION OF BPCL, IRIMPANAM KOCHI-682309, REP. BY ITS COMOPANY SECRETARY S.RAMESH.
BY ADVS.SRI.M.PATHROSE MATTHAI (SR.) SRI.SAJI VARGHESE SMT.MARIAM MATHAI
RESPONDENT(S)PETITIONER/RESPONDENT:
*** 1. K.V.VARGHESE, S/O.GEEVARGHESE R/AT.KALLUVETTUKUZHIYIL NADATHIPARA PANNIYANKARA PO., ALATHUR TALUK, PALAKKAD. (DEAD & R3 TO R9 IMPLEADED)**
2. DEPUTY COLLECTOR, COMPETENT AUTHORITY (KERALA), COCHIN-COIMBATORE-KARUR PIPELINE, PROJECT RENJISHA BUILDING, ALINCHUVADU , EDAPPALLY PO. KOC HI-682024.
ADDL. R3: MARIAMMA VARGHESE W/O LATE K.V.VARGHESE, KALLUVETTUKUZHIYIL NADATHIPARA PANNIYANKARA PO., ALATHUR TALUK, PALAKKAD.
ADDL. R4: MARIAMMA D/O LATE K.V.VARGHESE, -DO- -DO-
ADDL. R5: ELIYAMMA D/O LATE K.V.VARGHESE, -DO- -DOADDL. R6: ANNAMMA, D/O LATE K.V.VARGHESE, -DO- -DO-
CRP NO. 83/2009
-2-
ADDL. R7: BABY, D/O LATE K.V.VARGHESE, -DO- -DOADDL. R8: JOLLY D/O LATE K.V.VARGHESE, -DO- -DOADDL. R9: JEENA, D/O LATE K.V.VARGHESE, -DO- -DO-
ADDL R3 TO R9 ARE IMPLEADED AS LRS OF THE DECEASED R1, AS PER ORDER DATED 22.7.14 IN IA 1985/12 IN CRP 83/09.
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19-09-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.KEMAL PASHA, J.
................................................................ C.R.P. No. 83 of 2009
............................................................... Dated this the 19th day of September, 2014
O R D E R
The 1st respondent in O.P.13/2001 on the file of the District Court, Palakkad has come up in revision challenging order dated 30.09.2008 passed by the learned District Judge in the said O.P. awarding an enhanced compensation of ₹75,598/- with interest at 6% per annum from the date of petition till the date of payment to the petitioner in the O.P.
under Petroleum and Minerals Pipe Lines (Acquisition of right of user in land) Act, 1962(hereinafter referred to as 'Act 52 of 1962).
CRP No.83 of 2009
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Out of the said property, the petitioner herein had acquired 0.1195 hectares of land which is scheduled as 'B' in the O.P., for the purpose of laying pipe lines and for other connected activities. 65 yielding rubber trees, one teak tree, three cashew trees and other valuable trees of different varieties were cut and removed from the 'B' schedule property. Though the petitioner in the O.P. had submitted a claim form for compensation, the competent authority, who is the 2nd respondent, had awarded an amount of ₹83,211/only as compensation, which according to the petitioner in the O.P. is too low. According to the petitioner in the O.P., an amount of ₹50,000/- ought to have been granted towards diminution in land value and further a higher amount ought
to have been awarded towards the loss sustained on account of cutting and removing of the valuable trees. As the petitioner in the O.P. was dissatisfied with the compensation awarded by the competent authority under Section 10(1) of Act 52 of 1962, he approached the learned
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District Judge through the O.P. under Section 10(2) of Act 52 of 1962. The learned District Judge through the impugned order awarded enhanced compensation of ₹49,023/- payable in respect of yielding rubber trees cut and removed. Over and above it, the learned District Judge has granted an amount of ₹26,575/- being diminution in land value.
CRP No.83 of 2009
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of the gross yield. According to the learned counsel for the petitioner, only 40% of the gross yield could have been considered as net yield by the learned District Judge.
“ Compensation - (1) Where in the exercise of the powers conferred by Sec. 4, Sec.7, or Sec.8 by any person, any damage, loss or injury is sustained by any person interested in the land under which the pipeline is proposed to be, or is being, or has been laid, the Central Government, the State Government or the Corporation, as the case may be, shall be liable to pay compensation to such person for such damage, loss or injury, the amount of which shall be determined by the competent authority in the first instance.”
Section 10(1) for such 'damage, loss or injury' to the person
CRP No.83 of 2009
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interested in the land. The said compensation has to be arrived at by the competent authority. If there is any dispute with regard to the said compensation arrived at by the competent authority, the aggrieved party can have recourse to the provisions of Section 10(2) of the Act, by applying before the District Judge within the limits of whose jurisdiction the land or any part thereof, is situated, and in such case, the compensation has to be determined by the District Judge.
“(i) the removal of trees or standing
crops, if any,
(ii) the temporary severance of the land and
(iii) any injury to any other property, whether movable or immovable or the earnings of
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such persons caused in any other manner”.
As per the scheme of Section 10, it seems that guidelines for fixing the compensation on account of damage or loss sustained to any person interested in the land are noted in sub-section (3) to Section 10. At the same time, Section 10 (3) does not show the manner in which the compensation on account of 'injury' as mentioned in Section 10(1) has to be determined. It does not give any guidelines for fixing the compensation with regard to the 'injury' part contained in Section 10(1) of the Act. As far as compensation on account of damage or loss is concerned, specific guidelines are given in Section 10(3).
CRP No.83 of 2009
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under Section 10(1) read with sub-Section 10(3). On going through the scheme of Section 10 of the Act, it is evident that the said payment as contemplated under Section 10(4)
is towards the compensation payable on account of the limited user of the land.
the attention of this Court to the decision of the Division Bench of this Court in an identical matter through
CRP No.83 of 2009
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W.A.No.2038/05 wherein it was held in paragraph 10 as
follows:
“In our view, the compensation payable under Section 10(4) is for the diminution in value of the land on account of disabilities attached to it under Section 9(1) and (2) of the Act. The compensation provided under this provision is 10% of the market value. In our view, styling of the compensation as equivalent to solatium payable under the Land Acquisition Act by the learned single Judge does not give any new dimension to the compensation payable under Section 10(4). In this view of the matter, clause (3) of paragraph 42 of the judgment above extracted can only mean that the compensation payable under Section 10(4) is over and above the compensation payable under Section 10(1) read with sub-section (3). We therefore hold that besides the compensation provided for actual damage and injuries sustained by the land owners or the person interested in the land under Section 10(1) read with sub-section (3) thereof, the only compensation payable is 10% of the market value payable under Section 10(4)
CRP No.83 of 2009
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of the Act to the land owners which is compensation payable for the restrictions in regard to use and enjoyment of land under Section 9(1) and (2) of the Act.”
that the compensation payable under Section 10(4) of the Act is nothing but the compensation aimed at diminution in land value for the acquired land. I am of the view that it will be a serious heart-burn on the part of the person interested in the land to continue with the property in his possession without any practical use of it by accepting a meagre amount equal to 10% of the land value. Of course, the owner of the property can show the property to others by saying that, “ this is my property, but the the concerned company will decide as to how I should use this property ”. This Court is of the view that there is severe injury on account of the acquisition of such portions of property from the persons interested. Such injury seems to be independent of the damage or loss as contained in Section
CRP No.83 of 2009
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10(1) of the Act. In a case wherein the acquired property can be made use of for 90% of its use, it can be said that the person can be compensated by paying 10% towards that injury or diminution in land value. But acquisition of this kind does not take away mere 10% of the user, whereas it takes away more than half of its user from the person interested. This Court is of the view that the question requires reconsideration.
CRP No.83 of 2009
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CRP No.83 of 2009
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the District Judge have to be modified by adopting 60% of the gross yield as the net yield. In the case of 55 yielding rubber trees, the learned District Judge has taken the gross yield as 7.5 kg per year and the net yield as 5 kgs. On a calculation the net yield comes to 4.5 kgs only. Therefore, in the case of 55 rubber trees, the calculation should be 4.5 x 32 x 12.085 x 55 = 95,713. The learned District Judge has calculated the amount as ₹1,06,370/-.
CRP No.83 of 2009
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In the result, this CRP is allowed in part by modifying
the impugned award as follows:
The petitioner in the O.P., who is the first respondent
herein, is entitled to an amount of ₹37,318/- with interest at the rate of 6% from the date of petition from the first respondent. The petitioner herein shall make the payment. There is no order as to costs.
Sd/- B.KEMAL PASHA, JUDGE
ul/-
[True copy] P.S. to Judge
3 issues framed by the court
Whether compensation for diminution in land value under Section 10(4) is distinct from the separate award under Section 10(4) for limited user.
Whether the net yield calculation for rubber trees should be based on 60% of gross yield rather than two-thirds.
Whether the enhanced compensation awarded by the District Judge regarding diminution in land value and tree cutting should be modified.
Colour shows how this judgement treated each authority
W.A.No.2038/05Followed¶8
2 provisions across 1 enactments
Petronet CCK Ltd.
K.V.Varghese
Deputy Collector
B. Kemal Pasha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
