Dismissed

State of Kerala v. Kunjavara

Kerala HC27 Jan 2016LA.App./1269/2010

Case brief

AI extract

What is this about?

The Kerala High Court dismissed an appeal by the State against a land acquisition reference judgment. The court upheld the enhancement of land value and awarded compensation for injurious severance. It found no error in the reference court's reliance on comparable local properties or its assessment of business loss due to loss of road frontage.

What did the court decide?

Appeal dismissed; judgment and decree dated 09-04-2010 affirmed with compensation for injurious severance awarded 25% of land value.

State of Kerala Vs Kunjavara — Land Acquisition | Kerala HC (2016)

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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 C.T.RAVIKUMAR &

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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WEDNESDAY, THE 27TH DAY OF JANUARY 2016/7TH MAGHA, 1937

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LA.App.No. 1269 of 2010 ( )

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AGAINST THE JUDGMENT AND DECREE DATED 09-04-2010 IN LAR 46/2007 of ADDL.SUB COURT,NORTH PARAVUR

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APPELLANT(S)/RESPONDENT NO.1 IN LAR:

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STATE OF KERALA,

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REPRESENTED BY DISTRICT COLLECTOR, ERNAKULAM.

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BY SENIOR GOVERNMENT PLEADER SRI.K.K.SAIDALAVI

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RESPONDENT(S)/CLAIMANTS & RESPONDENT NO.2 IN LAR:

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KUNJAVARA S/O.OUSEPH, KOLENCHERRY HOUSE, KIZHAKKAMBALAM VILLAGE (DIED).

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GEORGE VARGHESE, S/O.VARGHESE, UDUPPAN HOUSE, KIZHAKKAMBALAM.P.O.-683562

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JOSEPH VARGHESE, S/O.VARGHESE, UDUPPAN HOUSE, KIZHAKKAMBALAM.P.O.-683562

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THOMAS, S/O.PAPPU, MAKKAMPARAMBIL, UDUPPAN HOUSE, KIZHAKKAMBALAM.P.O.-683562

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BABURAJ, S/O.THOMAS,THOTTATHIL HOUSE, DIRECTOR, CRYSTAL GRANITE COMPANY, MANJAPRA-683572

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GEORGE ANTONY, DIRECTOR, CRYSTAL GRANITE COMPANY, MANJAPRA.

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I.I.P, ANGAMALY-683572

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R2 TO 4 BY ADV. SRI.C.P.WILSON

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THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 27-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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C.T. RAVIKUMAR & MARY JOSEPH JJ.

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L.A.A.No. 1269 OF 2010

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--------------------------------------------- Dated this the 27^th day of January, 2016

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JUDGMENT

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Ravikumar, J .

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This appeal has been filed by the State against judgment and decree dated 9.4.2010 in LAR.No.46 of 2007 passed by the Court of Additional Sub Judge, North Paravur. An extent of 28.67 Ares of land comprised in Survey Nos.244/1-1-11, 244/1-2-13, 244/1-5-1-5 and 244/5-2-16 of Ayyampuzha village belonging to the respondents was acquired for the purpose of construction of a Link Canal Chainage. Section 4(1) notification in respect of the said properties under the Land Acquisition Act was published on 26.2.2005. The land acquisition officer fixed the land value for the acquired property at `11,520/- per Are. The respondents received the amount in protest

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L.A.A.1269/2010

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and sought for reference under section 18 of the L.A.Act. Consequently, it was referred to the Court of Additional Sub Judge, North Paravur and numbered as LAR.No.46 of 2007. The claimants/respondents herein have produced Exts.A1 to A25 before the reference court and the 6^th respondent herein was examined as AW1 on their side. On the side of the appellant/respondents therein, Exts.R1 to R9 were got marked. However, no oral evidence was adduced by the appellant herein. Exts.C1 to C2(a) are the court exhibits and one Paul Varghese, the Advocate Commissioner, was examined as court witness viz., CW1. After appreciating the evidence on record and hearing the arguments advanced, the reference court passed the impugned judgment whereby and whereunder the land value was enhanced from 11,520/- to 35,021/- and compensation for injurious severance equivalent to 25% of the land value was also granted besides all other statutory benefits. It is on being aggrieved by the said judgment and decree that this appeal has

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been preferred by the acquisition authority.

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2.We have heard the learned Senior Government Pleader and Sri.C.P.Wilson appearing for the respondents.

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3.A perusal of the memorandum of the appeal would reveal that the impugned judgment is challenged mainly on grounds raised as F, G and H. Under Ground F, the compensation awarded for injurious severance equivalent to 25% of the land value is challenged. It is contended that the court below ought to have taken that the claimants failed to prove the Commission Report and that the appellant did not get an opportunity to examine the Advocate Commissioner on the point as to how the claimant company was injuriously affected by the acquisition. The reference court went wrong in relying on the Commission Report without an expert opinion as to whether the remaining properties of the claimant company having an extent of 620.52 Ares had been injuriously affected and owing to that, there

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would be a chance of adversely affecting the business prospects of the company, it is further contended. On perusing grounds G and H with reference to Exts.A24 and A25 judgments relied on by the reference court, it is evident that a factual mistake has been crept in while taking up the said grounds. Ground G was couched on the premise that Ext.A25 judgment relied on by the reference court was one passed in LAR.No.38 of 2006 of Sub Court, North Paravur. We have perused the records. The records would reveal that the judgment in LAR.No.38 of 2006 of Sub Court, North Paravur is virtually Ext.A24 and not Ext.A25. It is in fact, a common judgment in LAR.Nos.38, 39 and 40 of 2006 that was passed by the Court of Additional Sub Judge, North Paravur. In ground H, obviously, the reference as Ext.A5 is a mistatement in place of Ext.A25. Therefore, ground H has to be read as one based on Ext.A25 document relied on by the court below for the purpose of assessing the land value of the property in the case on hand and Ext.A5 is only a tax receipt. A perusal of the impugned

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judgment would reveal that the reference court had actually relied on Exts.A24 and A25 documents. In fact, the misstatement of facts is evident from the latter limb of ground H wherein it is contended that the property acquired and the property covered by Exts.A24 and A5 documents are not similar and therefore, the properties covered by Ext.A24 and A5 documents ought not have been taken as the basis for fixation of the land value. When once it is clear that for the purpose of fixing the land value in respect of the properties acquired in the case on hand, the reference court had actually relied on Exts.A24 and A25, the document relied on by the appellant as Ext.A5 can only be taken as a mistake.

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4.Firstly, we will deal with the contentions raised in ground G. On going through the said ground and perusing the judgment of the reference court with reference to Exts.A24 and A25 judgments, we have no hesitation to hold that the said ground is taken up on

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misconception of facts. Ext.A25 is not the judgment in LAR 38 of 2006 from which L.A.A No.1814 of 2007 had arisen and which was remanded by this Court on 23.1.2008. In fact, it is Ext.A24 judgment. As noticed hereinbefore, LAR No.38 of 2006 was disposed of along with LAR Nos.39 and 40 of 2006. A perusal of Ext.A25 judgment would reveal that it is dated 31.3.2008 and the same was passed after L.A.A.No.1814 of 2007 was remitted by this Court. The said fact is evident from the recital in paragraph 18 of Ext.A24 judgment. It would reveal that earlier the reference court answered the reference in LAR. 38 of 2006 against the claimants after taking evidence. Further, Ext.A24 is a judgment rendered by the Court of Additional Sub Judge, North Paravur after the remand. The reference court answered the reference as per Ext.A24 judgment in favour of the claimants therein and evidently, as per the same, the land value was enhanced by 204%. There is no case for the appellant that Ext.A25 judgment in LAR No.41 of 2006 passed by the Court of Additional Sub Court, North

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Paravur was successfully challenged before this Court. A perusal of Ext.A24 judgment itself would reveal that for the purpose of assessing compensation in respect of land involved thereunder, Ext.A25 judgment was taken into account. As per Ext.P25 judgment, the claimants therein were granted 204% of enhancement over and above the land value fixed by the Land Acquisition Officer. As noticed hereinbefore, there is no case for the appellants that the judgment in LAR.No.41 of 2006 was interfered with in the appeal. In such circumstances, there is absolutely no merit in the contentions taken in ground G and on that ground, the impugned judgment does not call for any interference.

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5.Coming to the contentions in ground H, apart from the assertion that the properties in Ext.A24 judgment and Ext.A5 (sic.Ext.P25) document relied on by the court below and the acquired property are not similar in nature, nothing is stated in the appeal as to

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what exactly is the basis for such contention. True that the properties covered by Exts.A24 and A25 judgment were acquired based on 4(1) notification published on 24.3.2005. 4(1) notification in respect of the property involved in this case is dated 26.2.2005. A perusal of the impugned judgment and Exts.A24 and A25 would reveal that all the properties involved in all those cases lie in Ayyampuzha Village and it would reveal that virtually, the properties covered by the case on hand situates nearer to the properties covered by Exts.A24 and A25 judgments. This fact is discernible even by a mere perusal of the respective judgments. Indisputably, the properties involving in this case lie in Survey Nos.244/1-1-11, 244/1-2-13, 244/1-5-1-5 and 244/5-2-16 of Ayyampuzha village. The property covered by Ext.A25 judgment viz., in LAR. 41 of 2006 is having an extent of 11.35 Ares comprised in Survey No.237/4-20 of the same village. Thus it is evident that all those properties are lying almost in the same locality. A perusal of the impugned judgment would reveal that the document

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which was taken as the basis by the Land Acquisition Officer for awarding the compensation under section 7 of the L.A Act is one that lies about 7 kilometres away from the acquired property and it is lying adjacent to a cemetry. A perusal of paragraph 7 of the impugned judgment would reveal that the Commissioner has reported that the acquired land is more valuable than the land taken as the basis for awarding compensation and at no stretch of imagination they could be said to be similar. As noticed hereinbefore, a perusal of the impugned judgment as also Exts.A24 and A25 would reveal that the properties covered by those judgments lie in the same locality. Despite the bald averments to the effect that those properties cannot be said to be similar nothing has been stated specifically in the appeal as to why they are not similar and how the reference court went wrong in relying on Exts.A24 and A25 judgments for the purpose of assessing the land value in respect of the case on hand. Since the appellant is challenging the land value taking up the contention that the properties

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covered by the case on hand and Exts.A24 and A25 judgments are not similar, the onus is certainly on the appellant to show that they are not similar and therefore, the reference court went wrong in fixing the land value relying on Exts.A24 and A25. In the said circumstances, we do not find any reason to interfere with the findings of the reference court. In other words, we have no hesitation to hold that the contention raised in ground H is also having no merit at all.

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6.Now, what survives for consideration is ground F whereby a challenge was raised by the appellant with respect to the compensation awarded by the reference court for injurious severance. While considering the correctness of the said finding, certain aspects have to be borne in mind. The acquired properties are covered by Exts.A8 to A21 documents and all those properties were lying as single plot going by the report of the Advocate Commissioner. The fact that the properties involved in this case belonging to the claimants

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are covered by Exts.A8 to A21 and that he said properties are lying as a single plot is not at all disputed before us. In fact, there is no challenge against the said aspects in the appeal. The factual report made by the Advocate Commissioner to the effect that the claimants are conducting a granite crusher unit in their property is also not disputed. So also, the fact that the company properties that lie as a single plot were having 36 metres road frontage in relation to Manjapra-Chully PWD road is also not disputed by the appellant and in fact, it is indisputable in view of the evidence on record. Above all, the fact that owing to the acquisition, the company has lost the entire road frontage and it was left without any direct access to the said PWD road also remains undisputed. Paragraph 9 of the impugned judgment would reveal that certain aspects reported by the Advocate Commissioner in the aforesaid circumstances were given due consideration by the reference court. The Commissioner reported that the company, in the aforesaid circumstances, got no other way to run

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the business and due to the acquisition the company got no motorable road or access for it so as to continue with its business as before. It is in the said circumstances that the Commissioner has reported that due

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to acquisition the remaining properties of the company had been injuriously affected and there is likelihood of huge loss to its business prospects. Those relevant aspects were taken into consideration by the reference court for the purpose of assessing the compensation for injurious severance and the injurious severance was fixed as equivalent to 25% of the land value. Those factual aspects were not at all disputed as is obvious from the pleadings in the appeal. The learned Senior Government Pleader attempted to canvass the position that it will be possible for the respondents to construct a bridge over the canal to have direct access to the PWD road. We are afraid the said contention cannot be countenanced. It is common knowledge that when once a property was acquired by the State resorting to the provisions under the L.A.Act, the person from whom the land was

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acquired cannot retain any right over the said land and in such circumstances, without any specific consent from the acquisition authority as also the requisitioning authority in accordance with law, none can enjoy or use the property, in any manner. There is no case for the appellant/State that consent was given to the respondents to construct a bridge over the canal and even if such a consent is given, we are at a loss to understand how the State could call for the respondents to construct such a canal at their own expenses. Obviously, it is nothing but a claptrap. True that the right of eminent domain is a right which a Government retains over the estate of individuals to resume them for public use, subject of course, to the provisions of law. But at the same time, the State cannot be permitted to take up any such contention to avoid granting of just and reasonable compensation for the injurious severance of the property. In this case, after going through the impugned judgment and the manner in which the finding was arrived at by the reference court in

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respect of injurious severance of the property in question, we are of the considered view that the reference court has taken into account all the relevant aspects and granted only an appropriate compensation under the said head and certainly it is not an outcome of perverse appreciation. In other words, we find no reason to hold that granting 25% of the land value as compensation for the injurious severance taking into account the aforesaid aspects call for any interference. For all these reasons, this appeal is liable to fail and accordingly, it is

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dismissed.

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Sd/(C.T. RAVIKUMAR) JUDGE

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Sd/(MARY JOSEPH) JUDGE

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spc/

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L.A.A.1269/2010 15

State of Kerala v. Kunjavara

Case brief

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State of Kerala v. Kunjavara

Case brief

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