The High Court of Kerala dismissed this writ appeal filed by a State Corporation against a judgment allowing a land acquisition compensation claim. The Court held that under the relevant Government Order, owners of rubber trees are entitled to compensation for both the timber value and the annual latex produce value.
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.
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' CR'
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 01ST DAY OF DECEMBER 2020 / 10TH AGRAHAYANA, 1942
WA.No.935 OF 2020
AGAINST THE JUDGMENT DATED 11.03.2020 IN WP(C) 10869/2019(G) OF HIGH COURT OF KERALA
APPELLANT/4TH RESPONDENT:
KERALA STATE INDUSTRIAL DEVELOPMENT CORPORATION LTD. T.C.11/266, KESTON ROAD, KOWDIAR, THIRUVANANTHAPURAM, PIN - 695 003, REPRESENTED BY ITS MANAGING DIRECTOR.
BY ADV. SRI.P.U.SHAILAJAN
RESPONDENTS/PETITIONERS & RESPONDENTS 1 TO 3 & ADDL. 5TH RESPONDENT:
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KOZHIKODE, PIN - 673 001.
R1 BY ADV. SRI.GEORGE MECHERIL R2 BY ADV. SRI.JUSTINE JACOB R4-6 BY SRI.K.V.SOHAN, STATE ATTORNEY
R1 TO R3 BY SRI.G.SHRIKUMAR, SR R4 TO R6 BY SRI.K.V.SOHAN, STATE ATTORNEY R7 BY SRI.ABRAHAM MARKOS
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01.12-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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Dated this the 1st day of December, 2020.
JUDGMENT
SHAJI P. CHALY, J.
This writ appeal is filed by the 4th respondent in W.P.(C) No. 10869 of 2019 challenging the judgment of the learned single Judge dated 11.03.2020, whereby the writ petition was allowed and held as follows at paragraphs 11 to 13:
Therefore, this writ petition is allowed and disposed as above. No costs.”
respondents 1 to 3/writ petitioners by the State Government on the
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requisition made by the appellant Corporation, in terms of ExtP12 Government Order dated 05-11-2004.
The property belonging to the writ petitioners having a total extent of 46.5944 hectares (115.13 acres) under different title deeds were acquired by the State of Kerala for establishing Kuttiyadi Coconut Industrial Park proposed by the appellant. The acquisition was under a negotiated purchase scheme as agreed by the parties and the land value was fixed at Rs.10,750/per cent and the value of improvements were to be calculated on the basis of G.O.(Rt.) No. 331/2004/RD dated 05.11.2004 produced as Ext. P12 in the writ petition. Immediately, 80% of the compensation amounting to Rs.9,90,15,896/- was paid to the writ petitioners on 15.12.2012 and accordingly, the possession of the property was taken. Admittedly, an award dated 06.09.2013 was passed and on the basis of the same, the balance amount that was to be paid to the writ petitioners with interest was Rs.4,86,01,035/-.
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aggrieved, the State of Kerala and the appellant filed separate writ appeals, W.A. Nos. 977 of 2016 and 1327 of 2016. According to the appellant, as per judgment dated 16.12.2016, writ appeals were allowed with a finding that there is an agreement between the parties by which the land value was fixed at Rs.10750/- per cent and directed to calculate the value of improvements on the basis of Ext. P12 Government Order dated 05.11.2004. The said common judgment is produced as Ext. P11 in the writ petition.
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into account Ext. P11 judgment of the Division Bench and it was dismissed by the District Collector as per Ext. P3 order dated 22.03.2019. It was thereafter that the writ petition leading to this appeal was filed challenging Ext. P3 order passed by the District Collector dated 22.03.2019 and Exts. P16 to P18 communications issued by the Special Tahsildar, Koyilandy dated 01.04.2017 informing the writ petitioners that awards were passed in regard to the land taken possession from the writ petitioners for the coconut Industrial Park and compensation amounts were transferred to the bank account of the respective parties in accordance with law. It is also stated in Exts. P16 to P18 that the said communications are accompanied by the award so passed.
awards passed by the Tahsildar were not produced along with the writ petition and therefore, the challenge made to the awards are not maintainable. However, the awards passed are produced by the appellant along with its counter affidavit as Exts.R4(a) to R4(f). In the writ petition, the following reliefs were sought for by the petitioners:
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judgment.
facts and figures and after interpreting the relevant provisions, clauses 7.7, and 2C of Annexure II of the Government Order dated 05-11-2004, found that the writ petitioners are entitled to get both the timber value as well as the annual produce value of the timber as compensation in normal circumstances. It was further held that in the contract, if nothing indicates as to the contrary, such a compensation cannot be denied to the owner of the land and further that, in regard to the rubber trees after the age of yield is over, it would get the timber value. It is, thus, challenging the legality and correctness of the said finding and the conclusions arrived at by the learned single Judge, the appeal is preferred.
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petitioners are entitled to get only compensation for the rubber trees in the acquired land as stated in clause 2C of Annexure II of Ext. P12 Government Order, which specifies that compensation for perennial crops and trees calculated as annual produce value for the last three years.
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Mecheril, learned State Attorney Sri. K.V. Sohan, and perused the pleadings and materials on record.
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Order is binding on the writ petitioners, that the value of the land agreed by and between the parties is final and binding, and further that the calculations for compensation are to be confined in terms of Ext. P12 Government Order.
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ultimately the judgment of the learned single Judge was set aside holding that there has been an agreement between the landowners and the Requisitioning Authority that the compensation for the land would be payable at Rs.10,750/- per cent and the compensation for the improvements on the land would be paid in accordance with the Ext. P12 Government Order dated 05.11.2004. True, other findings were rendered in respect of the delayed payment of compensation etc., which we are not concerned about. One thing is clear that the contention advanced by the appellant that the Division Bench in Ext. P11 judgment has sorted out the issue with respect to the compensation for timber and produce value, is not the correct proposition mooted by the appellant, because we do not think that such an issue was never raised by the writ petitioners in that round of litigation .
"7.7. Compensation for trees will also be based on their market value in case of timber bearing trees and replacement cost in case of fruit bearing trees as per the
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rates decided by the competent authority in consultation with Dept. of Agriculture, Forest, Horticulture, Sericulture, etc., as the case may be."
| Category | Type of Loss | Unit of Entitlement |
Entitlement | Details | |
|---|---|---|---|---|---|
| 2C | Perennial crops such as fruit trees |
Family | Compensation at “market value” |
Compensation perennial crops trees, calculated annual produce for last three years |
for and as value . |
appellant is that the writ petitioners are entitled only to get either the timber value or the annual produce value, since the afore-extracted provisions are independent in nature and both cannot operate together to the disadvantage of the appellant. Various judgments are relied upon by the learned counsel for the appellant in regard to the determination of compensation.
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herbaceous or pulpy. However, it was finally held that a banana plantation is not an orchard within the meaning of Act, 1954 since it is not a fruit tree.
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accordance with the Petroleum and Minerals, Pipelines (Acquisition of Right of User in Land) Act, 1962 and it was held that there is no scope for importing Section 10 of the Land Acquisition Act, 1894 and the principles governing thereunder, while determining compensation under the Act, 1962, for acquiring right of user in land.
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improvements in the land acquired as per the agreement by and between the parties. Therefore, in our considered opinion, the parties are strictly guided by the agreement executed by and between them and the Government Order specified above, and therefore the provisions of Land Acquisition Act, 1894 or any other Act in force have any bearing to the issues, in order to rely upon the judgments rendered by the Apex Court and this Court in the matter of fixation of the compensation. This is what has been exactly held in Ext. P11 judgment by a learned Division Bench of this Court .
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compensation for the land value fixed as per the agreement executed.
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'likewise, further' etc. Therefore, we find force in the said contention because if the Government intended the market value of the timber alone, it would not have employed the word 'also' in clause 7.7. Which thus means, in the context of the case at hand, not only the market value of the standing timber is to be calculated for compensation but also its annual produce value.
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of the Government Order. This we say so visualising a situation where the land was not acquired, a farmer/planter of rubber trees gets the latex for the entire harvest period and thereafter, gets the market value of the timber also. Though learned counsel for the appellant cited an example supposing that the farmer is cutting a rubber tree and selling it in the market, is he entitled to get the produce value of the latex, we are of the considered opinion that a rubber tree is grown mainly for extraction of latex and the timber of the rubber tree is sold only after the entire period of extraction is over and we are unable to think that a rubber tree would be cut and removed by a farmer while latex is being extracted. Therefore, the compensation for the timber value and the latex value are to be calculated separately for fixing the compensation from the farmers' point of view and not from the view of the Requisitioning authority or the Acquisition authority, and of course in accordance with law.
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direction given by the learned single Judge that the annual produce value is to be assessed on the basis of the actual valuation taken by a competent person and not on the basis of the agricultural income tax return provided by the writ petitioners. We do not find any reason to interfere with the said finding also, because it was done taking into account the method prescribed under clause 2C of the order dated 05-11-2004 and not on the basis of the income tax return as done by the awarding officer.
sd/-
S. MANIKUMAR, CHIEF JUSTICE.
sd/- SHAJI P. CHALY, JUDGE.
Rv
2 issues framed by the court
Whether a landowner is entitled to both timber value and annual produce value of rubber trees as compensation.
Whether the learned single Judge correctly interpreted clauses 7.7 and 2C of the Government Order dated 05-11-2004.
Colour shows how this judgement treated each authority
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2 provisions across 1 enactments
Kerala State Industrial Development Corporation Ltd.
Thomas Mathew
Mariamma Mathew
Pradeep Joseph
State of Kerala
District Collector, Kozhikode
S. Manikumar
Shaji P. Chaly
As recorded by the court registry
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