Partly allowed

The State of Kerala v. Saji Markose

Kerala HC3 Jul 2019LA.App./30/2017

Case brief

AI extract

What is this about?

The court allowed the State's appeal to reduce the awarded land value to Rs. 11,10,675/- per Acre, consistent with a prior common judgment. Simultaneously, the cross-objection was allowed to enhance compensation for injurious affection to Rs. 3,50,000/- after rejecting the claimant's excessive estimates for retaining walls and retaining only the cost of earth filling.

What did the court decide?

Land value reduced to Rs. 11,10,675/- per Acre; compensation for injurious affection enhanced to Rs. 3,50,000/-. Interest on enhanced amount deferred for 574 days due to delay in filing.

The State of Kerala Vs Saji Markose — Land Acquisition | Kerala HC (2019)

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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.K.ABDUL REHIM

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THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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WEDNESDAY, THE 03RD DAY OF JULY 2019 / 12TH ASHADHA, 1941

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LA.App..No.30 of 2017

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AGAINST THE JUDGMENT & DECREE DATED 01-06-2015 IN LAR 78/2011 of SUB COURT, MUVATTUPUZHA

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APPELLANTS/RESPONDENTS IN LAR:

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1 THE STATE OF KERALA REP. BY THE DISTRICT COLLECTOR, ERNAKULAM.

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2 THE EXECUTIVE ENGINEER PWD ROADS DIVISION,MUVATTUPUZHA.

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GP-SRI. SYAMJI RAM

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RESPONDENTS/CLAIMANTS IN LAR:

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1 SAJI MARKOSE S/O MARKOSE, VETTINAL PUTHENPURAYIL (ANUGRAH) KOTTATTUKULAM KARA, PIN-686 662.

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2 ELIZABETH

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W/O SHAJI MARKOSE, VETTINAL PUTEHNPURAYIL (ANUGRAH) KOTTATTUKULAM KARA, PIN 686 662.

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BY ADV. SMT.P.DEEPTHI

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OTHER PRESENT:

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GP-SRI. SYAMJI RAM

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THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 03.07.2019, ALONG WITH CO.85/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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LAA No.30/2017 & C.O. No.85/2019 -2-

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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.K.ABDUL REHIM

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THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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WEDNESDAY, THE 03RD DAY OF JULY 2019 / 12TH ASHADHA, 1941

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CO.No.85 of 2019 IN LA.App.. 30/2017

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CROSS OBJECTION FILED IN LAA No.30/2017 PENDING BEFORE THIS COURT)

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CROSS OBJECTORS/RESPONDENTS:

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1 SAJI MARKOSE S/O.MARKOSE, VETTINAL PUTHEPURAYIL, (ANUGRAPH), KOOTHATTUKULAM KARA,KOOTHATTUKULAM VILLAGE, MUVATTUPUZHA. REPRESENTED BY POWER OF ATTORNEY, MARKOSE S/O.KURIAKOSE, VETTINAL PUTHENPURAYIL(ANUGRAH), KOOTHATTUKULAM KARA, KOOTHATTUKULAM VILLAGE, MUVATTUPUZHA.

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2 ELIZABETH

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W/O.SAJI MARKOSE, VETTINAL PUTHEPURAYILIANUGRAH), KOOTHATTUKULAM KARA, KOOTHATTULKULAM VILLAGE, MUVATTUPUZHA. REPRESENTED BY POWER OF ATTORNEY DR.K.P.JACOB, MALEKKUDIYIL(KURAVANKUDIYIL) HOUSE, KOOTHATTUKULAM KARA, KOOTHATTULKULAM VILLAGE, MUVATTUPUZHA.

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BY ADV. SMT.P.DEEPTHI

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RESPONDENTS/APPELLANTS:

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1 STATE OF KERALA REPRERSENTED BY THE DISTRICT COLLECTOR, ERNAKULAM-682 030.

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2 THE EXECUTIVE ENGINEER PWD ROADS DIVISION, MUVATTUPUZHA-686 661.

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GP-SRI. SYAMJI RAM

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THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 03.07.2019, ALONG WITH LA.App..30/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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LAA No.30/2017 & C.O. No.85/2019 -3-

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C.K. ABDUL REHIM, J. &

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R. NARAYANA PISHARADI, J.

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L.A.A No. 30 OF 2017 & C.O. No. 85 OF 2019

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DATED THIS THE 3^rd DAY OF JULY, 2019

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J U D G M E N T

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Abdul Rehim, J:

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The above Land Acquisition Appeal is filed by the State, challenging the judgment of the Sub Court, Muvattupuzha in LAR No.78/2007, mainly contending that the enhancement of the land value and compensation for injurious affection awarded are excessive. The Cross Objection is filed seeking further enhancement with respect to the compensation awarded for injurious affection.

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An extent of 2.68 Ares of property comprised in Sy. No.380/5/18 in Marady Village in Muvattupuzha Taluk was acquired for the purpose of improvement of Ernakulam – Thekkady State Highway. The date of publication of notification under Section 4 (1) of the Land Acquisition Act was on 15-032008. The Land Acquisition Officer awarded compensation by fixing the land value @ Rs.2,88,756/- per Are. The reference court enhanced the land value to Rs.13,88,342/- per Are, relying

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LAA No.30/2017 & C.O. No.85/2019 -4-

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upon the judgment in LAR 18/2010. Learned Government Pleader appearing for the appellant pointed out that the judgment in LAR 18/2010 of the Sub Court, Muvattupuzha was taken up in appeal before this court in LAA 346/2012. Through a common judgment of this court dated 6^th November 2014, the land value was reduced and refixed @ Rs.11,10,675/- per Are. Therefore it is argued that the appeal need to be allowed by reducing the land value to Rs. 11,10,675/- per Are.

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We take note of the fact that the acquisition in the present case as well as the acquisition in LAA 18/2010 were for the same purpose through the same notification published under Section 4 (1). There is no case that the acquired land in the present case is situated in a better position than the land covered under LAR 18/2010. Therefore we are of the considered opinion that the appeal can be allowed by modifying the land value as decreed in LAA 346/2012.

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The cross objection is filed seeking enhancement of the compensation awarded with respect to injurious affection of the remaining property belonging to the claimant. It was contended before the reference court that, when the road was constructed in the acquired property, its level was considerably elevated by filling up with huge quantity of earth. Therefore the level of the

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LAA No.30/2017 & C.O. No.85/2019 -5-

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remaining property from the road was lowered considerably, thereby its free access was obstructed and natural drainage of water from the said property was also affected injuriously. The claimant have taken out a commission who examined the property with the assistance of an expert, who is the Assistant Executive Engineer of PWD, Muvattupuzha. The expert was examined before the reference court as AW2 and her report was marked as Ext.X1. On a perusal of Ext.X1 it is evident that a detailed estimate was prepared with respect to the cost of the construction of retaining walls on all the four sides of the remaining property, with rubble masonry and reinforced cement concrete along with laying of foundation with cement concrete. The cost for earth filling was also seen added in the estimate prepared. The reference court found that the injurious affection with respect to the remaining property has been proved through Ext.C1, C2 and X1 reports. But, while fixing the quantum of compensation, the reference court had taken note of the contentions raised on behalf of the State that the land value in the area was increased after formation of the new road and therefore there occurred an appreciation in the value of the remaining property. It was also contended by the State that, the property in question before the acquisition was not of

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LAA No.30/2017 & C.O. No.85/2019 -6-

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commercial importance. But after formation of the road the commercial potential of the remaining land was increased. However, by applying the rule of thumb, the reference court fixed the compensation for injurious affection at a lump sum amount of Rs.2,00,000/- against the claim raised for Rs.7,00,000/-.

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It is pertinent to note that, the claimant had limited the claim in the cross objection at Rs.5,00,000/- with respect to compensation for the injurious affection. We are of the considered opinion that the contention that the land value in the area has increased after acquisition due to formation of the road, is not a matter which can be taken into consideration while fixing compensation for the injurious affection. The quantum of compensation for the injurious affection need to be determined on the basis of factual situation prevailing on a reasonable assessment of the diminution in value which may occur to the remaining property by virtue of the acquisition and accomplishment of the purpose for which the acquisition was made. However, we take note of the fact that the estimation made under Ext.X1 report is excessive, because it is an estimate prepared for construction of compound wall on all the four sides of the remaining property, using concrete and rubble masonry.

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LAA No.30/2017 & C.O. No.85/2019 -7-

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Of course, earth filing for elevating the level of the land may be an inevitable work, need to be done for convenient usage of the remaining extent of land. Probably there may be necessity to put up retaining walls in order to prevent erosion of such earth filled. But the estimate as such cannot be accepted, because it includes works in excess than what is required. On a reasonable estimation, taking into consideration of the details of the works narrated in Ext.X1, we are of the opinion that the minimum cost required for the necessary works can be considered as a total sum of Rs.3,50,000/-. Therefore this court is inclined to grant enhancement of Rs.1,50,000/- on the quantum of compensation of this count.

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Under the above mentioned circumstances the above Appeal and the Cross Objection are disposed of as follows;

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(i) The appeal is allowed in part by modifying the impugned judgment in LAR 78/2011 to the extent of reducing and refixing the land value to be paid, at Rs.11,10,675/- per Are. The claimants will be entitled for the statutory benefits only on the refixed land value.

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(ii) The cross objection is allowed to the extent of modifying the impugned judgment by enhancing the compensation for

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LAA No.30/2017 & C.O. No.85/2019 -8-

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injurious affection to Rs.3,50,000/-. The cross objector/claimant will be entitled for all statutory benefits on the said amount, except interest on the enhanced compensation for the period of 574 days, for which delay in filing the cross objection was condoned by this court.

Sd/-

C.K.ABDUL REHIM

JUDGE

Sd/-

R. NARAYANA PISHARADI

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JUDGE

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AMG

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LAA No.30/2017 & C.O. No.85/2019 -9-

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APPENDIX OF CO 85/2019

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APPELLANTS' ANNEXURES:

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ANNEXURE R1 SERIES: CERTIFIED COPY OF THE COMMISSION REPORT AND PLANS BEFORE THE COURT BELOW MARKED AS EXHIBITS C1 AND C2 AND THE RESPECTIVE PLANS C1(A) AND C2(A) IN LAR NO.78/2011.

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RESPONDENTS' EXHIBITS

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NIL

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AMG

The State of Kerala v. Saji Markose

Case brief

What is this about?

What did the court decide?

The State of Kerala v. Saji Markose

Case brief

What is this about?

What did the court decide?

What the court decided

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