T.R. RAMACHANDRAN NAIR, J
All these are cases relating to acquisition of properties for construction of Kannur Power Project.
2. In L. A. Appeal No.455 of 2012 as well as L.A. Appeal No.1324 of 2010, apart from the enhancement of land value claimed at the rate of 5,000/- per cent, the claimants have raised another claim namely compensation for loss of earnings towards the profit they were making by conduct of shrimp farm.
3. Except in L.A. Appeal No.455 of 2012, in all other cases, the Land Acquisition Reference Court has granted land value at the rate of Rs.2,500/- per cent where as, in L.A. Appeal No.455 of 2012, the land value has been adopted at the rate of Rs.3,000/- per cent.
4. We heard learned counsel for the appellants Sri. Prem Chand and learned Senior Government Pleader Sri. Aloysius Thomas.
5. First we will take L.A. Appeal No.1324 of 2010. Therein, the property acquired is having an extent of 564 cents. The notification under Sec.4(1) was on 5/9/1997 and the award was passed on 04.07.2000. The claimants raised a contention that the acquired land is classified as ‘Kaipad’ land but, infact, there was a shrimp farm in the name and style ‘Amrutha Acqua Farm’ which was developed according to specification and direction of Central and State agencies of Acqua Culture. The claimants have availed loan from several agencies and spent huge amount in the year 1995 for converting the ‘Kaipad’ land into shrimp farm. They have availed a loan of Rs.4,31,000/- from the ADAK for the purpose of carrying on business of shrimp farming in the acquired property.
6. It was contended that the acquired lands are situated near to the Pappinissery Railway Station and several other business establishments like Purushotham Gokuldas Plywood Company, several saw-mills, Co- operative Tile factory etc. are situated near to the acquired land. Pappinissery Co-operative Rural Bank, Pappinissery Vanitha Bank, the branch of North Malabar Gramine Bank are the financial institutions situated very near to the acquired land. It was also contended that the Pappinissery Higher Secondary School, Government Upper Primary School , Irinavu Upper Primary School and other educational institutions are also situated near to the acquired land.
7. It is seen that the reference was earlier answered by judgment dated 5/1/2005 by enhancing amount of Rs.707/- to Rs.1000/-per cent. The claimant filed L.A. Appeal No.1089 of 2007 and the judgment was set aside and the matter was remanded for fresh consideration. After remand, Exts.A11 to A17 were marked on the side of the claimants and Exts.B1 to B5 were marked on the side of the respondents and AW5 was also examined.
8. In Paragraph 14 of the judgment, the Land Acquisition Reference Court has considered various aspects. It is stated that the Kannur Power Project was proposed from the year 1980 onwards. The claimants purchased the property in 1994 and availed loan from ADAK and erected a bund and did other preliminary work for converting the property as a shrimp farm. The land acquisition officer has awarded an amount of Rs.4,70,934/- towards the value of structures including sluice, inlet, draingate, dives etc. The evidence showed that the claimants could not develop the acquired land into a cultivable shrimp farm.
9. In paragraph 15, the contents from the report of the commissioner, have been discussed. The report of the commissioner also did not give any indication that the acquired properties can be used as a profitable shrimp farm. The report will show that the acquired properties are adjacent to back waters connected to Valapattanam river and the nature of the property is waterlogged marshy area. The commissioner could find only the remnants of shrimp farm. It is also reported that the acquired land was covered with bund constructed by using granite stones which has a width of 4 metres and height of 3 metres. A pump set was also seen which was used for the purpose of inflow of water to the acquired property for the purpose of shrimp farming, which was seen in a rusted stage. The remnants of pump used was also noted by the commissioner on the south- east corner of the property. Therefore, the court below has found that the evidence does not give any indication as to support the claim of the claimants that it was being used as a fully developed shrimp farm.
10. Learned counsel for the appellant Sri.
Premchand submitted that the evidence of AW5 will show that there was a shrimp farm in the acquired property. He was the Joint Director of Fisheries, who was holding the additional charge of Regional Executive of ADAK during 1996-1997. The letter issued by him dated 27.03.1996 was marked as T2(h). Ext.T2(i) is another letter dated 9.7.1996 showing that Rs.6,45,000/- is sanctioned as loan. Even though, various other documents were also produced, finally, he deposed that he has no knowledge of cultivation of prawn in the acquired land. In the cross examination he could not say the year from which the first instalment was released also. The claimant was examined as AW5 and T2(h) to T2(m) documents have been marked through him. It was found by the Court below that he could not prove that the acquired land was converted as a shrimp farm and that the farm was functioning.
11. Learned counsel for the appellant, by relying upon the additional evidence produced in this appeal along with I.A No.1647 of 2013, submitted that Annexures 1 to 6 will show that the shrimp farm was being conducted by him. Even though very vehemently he contended that actually there was a shrimp farm, as rightly found by the Court below evidence is lacking as to the actual loss of earnings. The documents produced by him will show that the loan was sanctioned and he had made certain works also. In a matter like this, there should be positive evidence to show the earnings atleast per year, of the claimant for assessing the claim raised by the appellant. What is claimed is compensation for depriving him the loss of earnings. The Court may have to assess the compensation only if there is positive evidence to show the quantity sold and earnings as on the date of acquisition. The same is lacking in this case. In that view of the matter, we cannot find fault with the Court below in denying the claim towards loss of earnings.
12. Next item is the claim for enhancement of the land value. The claimants have produced Exts.A1 to A5 and A11 to 12 documents to prove the market value. Ext.A1 is in respect of a document of the year 1997 for 15 cents of land namely Nanja wherein, the rate per cent is Rs.14,333/-. Ext.A2 is of the year 1995 which relates to 12 cents of land and the rate per cent Rs.2,916/-, Ext.A3 is of the year 1995 which relates to 11 cents of land and the rate per cent is Rs.3,000/-, Ext.A4 relates to a transaction of property having an extent of 6 cents of land for an amount of Rs.61,000/- and Ext.A5 relates to 8 cents of land for a total amount of Rs.61,000/-. We find that Exts.A2 and A3 are of the year 1995 and A4 and A5 are of the year 1996 and Ext.A1 is of the year 1997.
13. Two important documents produced by the appellants/claimants are Exts.A11 and A12 which are of the year 1998. The rate per cent therein is Rs.5,000/-. A11 relates to 16 cents of property and A12 relates to 56.75 cents. Both these documents are in respect of transactions effected nine months after the notification under Sec.4(1). Therefore they were not considered by the Reference Court. Learned counsel for the claimants submitted that Ext.A12 is the transaction undertaken by a Co-operative institution and therefore that can give a clear idea about the land value of the locality.
14. Learned Senior Government Pleader submits that the evidence is to the effect that the Co- operative Society purchased a property which is located very near to its own properties and therefore, it cannot be taken.
15. The nature of the acquired property is clearly ‘Kaipad’ property. There is no road access to the property also. The Reference Court, after considering the comparative lesser extent of property covered by various documents produced by the petitioner fixed it at the rate of Rs.2,500/-. Reliance was also placed on the judgment in L.A.R. Nos.23 of 2002 and 59 of 2002.
16. Learned counsel for the appellant vehemently submitted that Ext.A3 will show that the land value reflected therein is Rs.3,000/- per cent, which is a document which has come into existence two years before the period of acquisition. Of course, as far as transactions covering smaller extent of land is concerned, the Court will have to bear in mind that since the extent is small, there will be more appreciation in respect of the price as well as the property. The locational importance of the property also may be a consideration. If a 10% increase is given to A3, in 1997 it will be around Rs.4,000/- rupees.
17. After considering various aspects and in the light of the fact that there is no road access to the property but certain attempts were made by the appellants to have a shrimp farm, a slight increase in the value of the land fixed by the Land Acquisition Reference Court can be given. Accordingly, we refix the land value by giving a further enhancement by Rs.500/- per cent for the property involved in L.A. Appeal No.1324 of 2010.
18. In L.A. Appeal No.594 of 2013 also, the Reference Court has granted enhanced land value at the rate of Rs.2,500/-, in which, the nature of the property and the evidence adduced are the same. The extent of property therein is 235 cents. Therein also, we grant an enhancement at the rate of Rs.500/- per cent from the amount awarded by the Land Acquisition Reference Court.
19. In L.A. Appeal No.609 of 2013 also, the properties are similar and the land value fixed is at the rate of Rs.2,500/- per cent. We adopt the same method as in the other two appeals and re fix the land value at the rate of Rs.3,000/- per cent.
20. In L.A. Appeal Nos.574 of 2011, 135 and 668 of 2011 also, on the same set of evidence, the Reference Court has refixed the land value at the rate of Rs.2,500/- each which we re fix at Rs.3,000/- per cent.
21. As far as L.A. Appeal No. 455 of 2012 is concerned, the learned counsel for the appellant submitted that there also a shrimp farm was functioning and no amount has been granted towards the loss of earnings therein.
22. We find from the judgment of the Reference Court in paragraph 19 that the court was of the view that even going through the report of the Commissioner he could not see any shrimp farm. In Ext.A16 is the report of the Commissioner prepared in L.A.R. Nos.57 of 58 of 2002. The Deputy Director of Fisheries, Kannur was examined as AW4. His evidence was also considered in paragraph 20 of the judgment. He could not confirm that there was any shrimp farm in the acquired land. Accordingly the Court was of the view that the evidence of AW4 also will not help the claimants.
23. The claimants could not really adduce any evidence to show the loss of earnings. Therefore rightly, the compensation claimed under the said claim was rejected. As far as the land value is concerned, the Court adopted the value shown in Ext.A14 which is a Kaipad’ land wherein, the land value reflected is Rs.2,916/-. It is stated that those properties are also situated close to the acquired land. Accordingly, the same value was adopted.
24. We have already discussed about the document which was produced as Ext.A3 in L.A. Appeal No. 1324 of 2010. The transactions are of the year 1995, two years back to the date of Sec.4(1) notification. Therefore, in the light of the marginal increase given by us in the earlier cases, we adopt the same method and we refix the land value at Rs.3,500/- per cent.
25. All the appeals are allowed to that extent. In L.A. Appeal No.455 of 2012, the land value is fixed at Rs.3,500/- per cent in other appeals it will be at Rs.3,000/- pre cent. It is made clear that the appellants will be entitled for the statutory benefits as granted by the Reference Court. In all these cases, the appeals were filed with petitions for condoning the delay and, while allowing the applications for condoning delay, this Court had made it clear that the claimants will not be entitled for interest under Sec.28 of the Land Acquisition Act for the period covered by the delay and the said direction is confirmed. No cost.
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T.R. RAMACHANDRAN NAIR JUDGE Sd/-
P.V. ASHA JUDGE NS