George, S/O Pathrose v State of Kerala and others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 LA.App..No. 1502 of 2009 ----------------------------LAR.291/2007 of ADDL.SUB COURT, NORTH PARAVUR .................... APPELLANT(S): ----------------- GEORGE, S/O.PATHROSE, AGED 52 YEARS, UTHUPPAN, HOUSE, ERUMELI KARA, KUNNATHUNADU VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.ALEXANDER JOSEPH SRI.M.V.SABU SRI.JOHNSON THOMAS SRI. C.H.ABDUL RASAC RESPONDENT(S): - ------------------- 1. STATE OF KERALA, REPRESENTED BY ADVOCATE GENERAL, HIGH COURT OF KERALA, ERNAKULAM. 2. THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA. 3. THE CHIEF MANAGER, POWER GRID CORPORATION OF INDIA LTD., KAKKANADU, ERNAKULAM. ADV. SRI.MILLU DANDAPANI SRI.K.P.DANDAPANI GOVT. PLEADER SMT.R.BINDU THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 28/07/2010,A/W LAA.1532/09 & CON. CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ.** **------------------------------------------------------L.A.A.Nos.1502, 1532, 1541 of 2009, 102, 104, 108, 148, 161, 162, 163, 181, 243, 244, 245, 264, 265, 266, 267, 270, 296, 314, 414, 447, 570, 608, 610 and 787 of 2010** **----------------------------------------------------------** Dated this the 28[th] day of July, 2010 ## **JUDGMENT** Pius C.Kuriakose, J. All these appeals pertain to acquisition of land in Kunnathunadu village at Pallikkara for the construction of 400/220 KV Sub Station for the Power Grid Corporation, the requisitioning authority. Appeal Nos.1532/2009 & 414,447,570/2010 are preferred by the requisitioning authority and Appeal Nos.1502,1541/2009 and 102, 104, 108, 148, 161, 162, 163, 181, 243, 244, 245, 264, 265, 266, 267, 270, 296, 314, 608, 610 and 787 of 2010 are preferred by the claimants. The acquisition was pursuant to Section 4(1) notification published on 28/2/2005. The Land Acquisition Officer categorized the properties under acquisition into as many as nine group/categories based on their nature and relative advantages. Included in Group A were paddy fields presently lying as dry lands having frontage of PWD road. Included in Group B were paddy fields having frontage of PWD road. Included LAA.No.1502/09 & CON. CASES -2- in Group C were paddy fields without any road frontage. Included in Group D were dry lands having the frontage of Panchayat tarred road. Included in Group E were dry lands having frontage of Panchayat mud road. Included in Group F were dry lands having frontage of PWD road. Included in Group G were dry lands having pathway facility. Included in group H were paddy field presently lying as dry lands but without any road frontage. Included in Group I were paddy fields presently lying as dry lands with road frontage. The awarding officer would consider various documents executed in respect of properties in the same village within a period of three years preceding the date of promulgation of the notification under Section 4(1) and finally placing specific reliance on document No.598/2005 of the Sub Registry, Ernakulam, he would fix the value of properties included in Group-A at Rs.1,34,382/- per Are. Similarly, relying on document No. 717/05 of the Sub Registry, Puthencruz the awarding officer fixed the value of properties in Group-B at Rs.98,600/- per Are. For properties included in Group - C, the awarding officer relied on document No. 219/05 dated 11-1-2005 LAA.No.1502/09 & CON. CASES -3- of the Sub Registry, Puthencruz and fixed the value at Rs.23,256/- per Are. For properties in Group -D, the awarding officer relied on document No. 598 of 2005 dated 31-1-2005 of the Sub Registry, Ernakulam and would re-fix the value at Rs.1,27,983/- per Are. For properties in Group - E, the awarding officer relied on the very same document, made a deduction of 5% and fixed the value at Rs.1,27,534/- per Are. For properties in Group - F, the awarding officer relied on document No. 598/05 itself, made additions for the extra advantages enjoyed by the properties and fixed the value at Rs.1,40,781/- per Are. For properties in Group - G also, the awarding officer relied on the very same document, but giving deductions for the absence of advantages, the value was fixed at Rs.89,589/- per Are. For properties in group - H, the awarding officer relied on document No. 219/05 of the Sub Registry, Puthencruz and the value was fixed at Rs.26,746/- per Are. For properties in Group I, the awarding Officer relied on the very same document itself, made addition for the extra advantages enjoyed by the properties and fixed the value at Rs.29,069/- per Are. The Reference Court LAA.No.1502/09 & CON. CASES -4- decided LAR. Nos. 244, 254, 260, 271, 272, 280, 293, 295, 296, 245, 246, 247, 248, 249, 252, 255, 256, 257, 261, 265, 266, 267, 268, 270, 273, 274, 281, 287, 289, 290, 291, 292, 299 and 300 of 2007 by a common judgment after trying them jointly. The evidence before the Reference Court in the above cases were Exts. A1 to A6, R1 to R44, C-1 to C-4 (commission reports), oral evidence of AWs. 1 to 8 and that of RW-1. 2. Under that common judgment the learned Subordinate Judge would take the view that Ext.A1 does not record a bona fide transaction and would discard Ext.A1. In fact, the other documents produced by the claimant were also discarded by the learned Subordinate Judge stating the reason that the properties covered by those documents are not perfectly comparable to the properties under acquisition. At the same time, the learned Subordinate Judge concluded that the basis document relied on by the Government for fixing the values of the various properties was far inferior to the properties under acquisition. Ultimately, it is by doing guess work or by applying the rule of thumb that the learned Subordinate Judge re-fixed the market value. The learned LAA.No.1502/09 & CON. CASES -5- Subordinate Judge would enhance the market value of the lands involved in these cases by 45% over what was awarded by the Land Acquisition Officer. 3. LAA.1532/09 pertains to LAR.259/07. The said case was considered by the very same learned Judge who delivered the common judgment referred to hereinbefore. The evidence in LAR.259/07 consisted of Exts.A1 to A3, R1 to R13, Commissioner's Report Ext.C1, witnesses AWs.1 to 3 and RW1. It was on Ext.A1 (sale deed No.738/05 of the Sub Registry, Puthencruz) that the claimants relied mostly in support of their claim for enhanced land value. The learned Subordinate Judge discarded Ext.A1 from consideration stating various reasons. We are of the view that the reasons stated by the learned Subordinate Judge for discarding Ext.A1 from consideration are good reasons as Ext.A1 does not inspire us also as a document recording a bona fide transaction between the parties thereto. Ultimately after finding that both the basis document as well as Ext.A1 document were not dependable, what the learned Subordinate Judge did in that case was to apply the rule of LAA.No.1502/09 & CON. CASES -6- thumb. Relying on the Advocate Commissioner's report, it was found that the properties under acquisition has several locational advantages. It was found that it had commercial and industrial potentialities. Taking all these aspects into account, the learned Subordinate Judge had applied the rule of thumb and enhanced market value by 90% over what was awarded by the Land Acquisition Officer. It is the above enhancement that is challenged in LAA.1532/09. 4. The LAR cases pertaining to LAA Nos.414/10, 447/10, 448/10, 482/10, 499/10, 534/10, 536/10, 570/10, 608/10 and 610/10 were decided by another learned Single Judge placing reliance to some extent on the judgment which is impugned in LAA.1532/09 and different rates of enhancement were granted under the various judgments. In some cases enhancement at 90% (the rates granted under the judgment impugned in LAA.1532/09) was granted. **5.** It was very extensive submissions which were addressed before us by the learned counsel for the appellants viz.Sri.K.P.Dandapani, learned senior counsel for the LAA.No.1502/09 & CON. CASES -7- requisitioning authority, Sri.Alexander Joseph, Sri.Jeemon John and others for various claimants and Smt.R.Bindu for the State which is common respondent in all these appeals. According to Mr.Dandapani, it is an arbitrary manner that the learned Sub Judge has refixed the value of various categories of land under acquisition. The learned counsel argued that while in some cases, the Reference Court granted 90% increase over what awarded by the Land Acquisition Officer. In other cases, the increase granted is only 45%. According to him, it was reasonable compensation which was awarded by the Land Acquisition Officer and hence there was no warrant for giving any increase even though guess work is permissible while determining the market value of acquired land. It is too much on the part of the court below to have awarded 90% increase by guess work. At the most, uniform rate of enhancement by 45% of what was awarded by the Land Acquisition Officer for each of the categories can be permitted. Mr.Dandapani was supported in all his submissions by Smt.R.Bindu, learned Government Pleader. Mr.Alexander Joseph and Mr. Jeemon John and other LAA.No.1502/09 & CON. CASES -8- learned counsel for the claimants would argue that on the basis of the evidence, which came on record, there was justification for granting much more enhancement even 90% above what was awarded by the Land Acquisition Officer. They would read the evidence and particularly the report submitted by the Advocate Commissioner. They submitted that the property under acquisition had nearness to three important towns viz. Perumbavoor, Muvattupuzha and Kizhakkambalam. The properties had commercial, residential as well as industrial potentiality. The correct market value of the lands under acquisition is several times more than what is fixed by the court below. 6. We have very anxiously considered the rival submissions of the learned counsel as regards the correct market value to be fixed for properties under acquisition. We have made a thorough reappraisal of the entire evidence including the report submitted by the commissioner. We are convinced that the properties under acquisition had commercial, industrial and residential potentialities. We are also convinced that the LAA.No.1502/09 & CON. CASES -9- properties had nearness to important institutions and establishments in the locality. We feel that granting enhancement by 90% over the rate that was awarded by the Land Acquisition Officer is on the high side. The properties under acquisition certainly had market value much above 45% of what was awarded by the Land Acquisition Officer. According to us, the ratio fixed by the Land Acquisition Officer and also the ratio fixed by the Court under the impugned judgment between the values of various categories of land under acquisition is not correct. 7. On the basis of the reappraisal of the evidence that is made by us and on our view regarding the correct ratio to be maintained between the values of the various categories of properties under acquisition in these cases the market value of the properties, which were included in group A, will have to be refixed at Rs.2,38,528/- per Are and we round of to Rs.2,38,530/- per Are, thus giving an enhancement by 77.5% over what was awarded by the Land Acquisition Officer. Similarly, the market value of lands included in Group-B by the Land LAA.No.1502/09 & CON. CASES -10- Acquisition Officer will stand re-fixed at Rs.1,62,690/- per Are which we round off to Rs.1,62,700/- per Are, thus awarding enhancement by 65% over what was awarded by the Land Acquisition Officer. Similarly, the market value of wetlands included in Group-C by the Land Acquisition Officer will stand refixed at Rs.38,372/- per Are which we round off to Rs.38,380/per Are, thus awarding enhancement by 65% over what was awarded by the Land Acquisition Officer. Similarly, for dry lands included in Group-D by the Land Acquisition Officer, the market value of the land will stand re-fixed at Rs.2,21,169/- per Are which we round off to Rs.2,21,170/- per Are, thus awarding enhancement by 77.5% over what was awarded by the Land Acquisition Officer. Similarly, for dry lands included in Group-E by the Land Acquisition Officer, the market value of the land will stand re-fixed at Rs.2,15,811.60/- per Are which we round off to Rs.2,15,820/- per Are, thus awarding enhancement by 77.5% over what was awarded by the Land Acquisition Officer. Similarly, for dry lands included in Group-F by the Land Acquisition Officer, the market value of the land will stand re- LAA.No.1502/09 & CON. CASES -11- fixed at Rs.2,49,886/- per Are which we round off to Rs.2,49,890/- per Are, thus awarding enhancement by 79.5% over what was awarded by the Land Acquisition Officer. Similarly, for dry lands included in Group-G by the Land Acquisition Officer, the market value of the land will stand re-fixed at Rs.1,59,017/per Are which we round off to Rs.1,59,020/- per Are, thus awarding enhancement by 77.5% over what was awarded by the Land Acquisition Officer. Similarly, for dry lands included in Group-H by the Land Acquisition Officer, the market value of the land will stand re-fixed at Rs.53,819.70/- per Are which we round off to Rs.53,820/- per Are, thus awarding enhancement by 77.5% over what was awarded by the Land Acquisition Officer. The market value of the properties included in Group-I is re-fixed at Rs.51,597/- per Are which we round off to Rs.51,600/- per Are. 8. The appellants in L.A.A. Nos. 1502/2009, 265/2010, 104/2010, 1541/2009 and 181/2010 have raised a claim that their wet lands, which were included in category 'G', were lying contiguous to their dry lands included in category 'E” and LAA.No.1502/09 & CON. CASES -12- category 'I' (L.A.A.Nos.181/2010). The argument is that as the wet lands were lying contiguous to the dry or reclaimed lands with frontage of Panchayat road, the wet lands have to be treated as wet lands with frontage of Panchayat mud road. It is submitted that for wet lands in category 'B', this Court has refixed the value at Rs.1,62,700/- and at least 80% of that value should be awarded to the properties which were included in category 'C' by the Land Acquisition Officer in these cases. Except in one case, the learned counsel for the appellants was unable to produce the title documents pertaining to the wet lands under acquisition. That document certainly supports the claim that the wet lands were lying contiguous to the dry lands. In the other cases the counsel for the claimants relied on the commission reports and the mahazars. Neither the mahazars nor the group sketch reveal the existence of any road by the side of the wet lands. However, we feel that as a matter of fact, wet lands in this case were lying contiguously or continuously with the lands included in category 'E' and 'I' respectively. At the same time, we are not inclined to accept the argument that 80% LAA.No.1502/09 & CON. CASES -13- of the value that was awarded to category 'B' should be awarded. We feel that, keeping in mind all the relevant inputs including the principles laid down by the judgment of this Court in Sreedharan And Others v. State of Kerala 1967 KLT 1067 , the value of wet lands which were included in these cases can be reasonably refixed at Rs. 75,000/- per Are. 9. In L.A.A. No.265/2010, the appellant has a grievance that even though the Court below found that ¼ cents of land remaining unacquired was injuriously affected completely while awarding compensation for injurious affection, the Court below has given value of ¼ cents of wet lands forgetting that the holding acquired was dry lands and the unacquired property is part of the original holding. We find genuineness in the above grievance. We have earlier fixed the value of properties included in category 'E' at Rs.2,15,820/- per Are. The appellant will be entitled for total compensation for injurious affection at Rs.53,955/- including the amount already awarded by the Court below. 10. We have heard Sri.Alexander Joseph, learned counsel LAA.No.1502/09 & CON. CASES -14- for the appellant and Smt.R.Bindu, learned Government Pleader on the question as to the correctness of the order of the learned Subordinate Judge impounding Ext.A2 construing the same to be a conveyance and directing the claimant to remit deficit stamp duty and penalty on the basis that the correct stamp duty is payable as per Section 23A of the Indian Stamp Act. Having regard to the submissions addressed, we are of the view that the learned Subordinate Judge's order is not sustainable in law. First of all, Section 23A of the Indian Stamp Act cannot have any application to the present case where the stamp law applicable is the Kerala Stamp Act and secondly the amendments introduced in the Registration Act and Transfer of Properties Act insisting on the registration of agreements for sale only and unless the agreements are registered, agreements will not be considered for the purpose of Section 53A of the Transfer of Properties Act. On the express terms of Ext.A2, it is an agreement simplicitor for sale of the property and possession of the property is not handed over. The learned Government Pleader's argument was that AW1 gave oral evidence to the effect that possession was handed over LAA.No.1502/09 & CON. CASES -15- on the date of Ext.A2 itself. She also highlighted the recital in Exts.A1 that possession is handed over on 7/5/2002 the date of the agreement. 11. We have scanned Exts.A2 and A1. As already stated, there is nothing in Ext.A2 to indicate that the possession is handed over. Ext.A1 certainly contains a recital that the entire consideration for Ext.A1 is paid and the possession of the property is handed over on 7/5/2002. Significantly even in Ext.A1 it is not recited that the handing over of possession is on the basis of Ext.A2 sale agreement. The claimant does not rely on Ext.A2 for the purpose of claiming equity under Section 53A of the Transfer of Properties Act. He relied on Ext.A2 to show that Ext.A1 is a genuine transaction. In fact Ext.A1 was not relied on by the learned Subordinate Judge as a genuine transaction giving various reasons. According to us, apart from the various reasons stated by the learned Subordinate Judge in his judgment, the deviation between the recitals in Exts.A2 and A1 regarding the payment of consideration and delivery of possession itself can be another reason for the learned LAA.No.1502/09 & CON. CASES -16- Subordinate Judge not relying on Exts.A2 and A1. At the same time, we are unable to sustain the decision of the learned Subordinate Judge to impound Ext.A2 and to direct the claimant to remit stamp duty and penalty as though Ext.A2 is conveyance. The above direction under the impugned judgment is set aside. 12. The result of above discussions therefore is that all the above appeals are allowed to the above extent but without any order as to costs. This means that in L.A.A. Nos.108/2010, 245/2010, 270/2010, 102/2010, 243/2010, 148/2010, 266/2010, 162/2010, 244/2010, and 608/2010 involving properties in Group-C, the market value is refixed at Rs.38,380/per Are. For properties in L.A.A. Nos. 1502/2009, 1541/2009, 104/2010, 181/2010, and 265/2010, the market value is refixed at Rs.75,000/- per Are. For properties in L.A.A. Nos.447/2010, 570/2010, 1532/2009, 414/2010 and 314/2010 involved in Group-A, the market value is refixed at Rs.2,38,530/- per Are. For properties in L.A.A. Nos. 264/2010, 161/2010, 610/2010 and 787/2010 involved in Group-E we refix LAA.No.1502/09 & CON. CASES -17- the market value at Rs.2,15,820/- per Are. For properties in L.A.A. No. 163/2010 involved in Group-G, we refix the market value at Rs.1,59,020/- per Are. For properties in L.A.A. Nos. 267/2010 and 296/2010 involved in Group-D, the market value is re-fixed at Rs.2,21,170/- per Are. In LAA. No. 265/2010 we award a total compensation for injurious affection of Rs.53,955/including the amount already awarded by the court below. It is needless to mention that the claimants appellants will be entitled for all statutory benefits admissible under Section 23(2), 23(1A) and Section 28 of the land Acquisition Act on the basis of the refixation done under this judgment. ## PIUS C. KURIAKOSE, JUDGE C. K. ABDUL REHIM, JUDGE Dpk/-, Ksv & kns/-