Jayasree S. and Geethadevi S. v State of Kerala and Kollam Development Authority

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN TUESDAY, THE 3RD DAY OF OCTOBER 2017/11TH ASWINA, 1939 LA.App..No. 1313 of 2009 ( ) ----------------------------- AGAINST THE AWARD IN LAR 234/1998 of ADDL.SUB COURT,KOLLAM DATED 1308-2008 APPELLANTS/CLAIMANTS 1 AND 2:: ---------------------------- 1. JAYASREE S., 3A, 3RD FLOOR, ACCORD BUILDERS, KRISHNA KUDI 7-9, NORTH MADA STREET, SREE NAGAR COLONY, SAIDAPET, CHENNAI - 600 015. FROM SUDARSAN, KUTCHERY WARD, KOLLAM. 2. GEETHADEVI S., SAROWAR, HOUSE NO.14, SOWHRIDA LANE, KODUNGANOOR P.O., VATTIYOORKAVU,, THIRUVANANTHAPURAM-13 FROM SUDARSAN,, KUTCHERY WARD, KOLLAM. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) RESPONDENTS/RESPONDENTS:: ----------------------- 1. STATE OF KERALA REPRESENTED BY THE SPECIAL TAHSILDAR (LA) NO.II, KOLLAM. 2. KOLLAM DEVELOPMENT AUTHORITY, REPRESENTED BY ITS SECRETARY. BY SR.GOVERNMENT PLEADER SMT.AMMINIKUTTY.K THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 07/07/2017, ALONG WITH LAA. 1359/2009, LAA. 52/2011 AND LAA.268/2017, THE COURT ON 03/10/2017 DELIVERED THE FOLLOWING: ## **A.M.SHAFFIQUE, J & ANU SIVARAMAN, J** *** * * * * * * * * * * * * *** L.A.A.Nos.1313 of 2009, 1359 of 2009, 52 of 2011 & 268 of 2017 ---------------------------------------Dated this the 3[rd] day of October 2017 ## **J U D G M E N T** ## **Shaffique, J** L.A.A.Nos.1313/2009 and 1359/2009 arise from the judgment dated 13/08/2008 in L.A.R.No.234/1998 of the Additional Sub Court, Kollam. The appellants in L.A.A.No. 1313/2009 are claimants 1 and 2 in L.A.R.No.234/1998 and the appellants in L.A.A.No.1313/2009 is the State. 2. L.A.A.No.268/2017 has been filed by the 4[th] claimant in L.A.R.No.234/1998 and the claimant in L.A.R.No.235/1998. L.A.A.No.52/2011 is filed by the State against the judgment in L.A.R.No.235/1998. 3. Since these appeals are filed against a common judgment, they are heard and decided together: 4. The short facts arising in these appeals are as under: In L.A.R.No.234/1998 an extent of 27 Ares of land in L.A.A.Nos.1313/2009 & connected cases 2 Re.Sy.Nos.186 and 143 of Kollam East Village was acquired for the purpose of construction of Andamukkom Commercial area Phase I, pursuant to notification under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as 'the LA Act') published on 11/10/1994. The Land Acquisition Officer awarded land value at the rate of Rs.45,245/- per Are. The extent of property in L.A.R.No.235/1998 was 4.45 Ares in Re-Sy.No.183/156 of the same village acquired for the same purpose and the Land Acquisition Officer awarded the same amount. Since the claimants objected to the award, the matter was referred Under Section 18 of the LA Act. Before the Reference Court, the claimant relied upon the oral testimony of AW1 and Exts.A1 to A7. The respondent did not adduce any oral evidence but they produced Exts.R1 to R3(b). R1 is the notes to award. Ext.R2 is the attested copy of document No.548/1992 which is the basic document. Exts.R3(a) and R3(b) are mahazars in L.A.R.No.234/98 and 235/98 respectively. The documents produced by the claimants are the certified copies of title deeds which are basis for the claim. According to the claimants, they are entitled for market value at Rs.4 lakh per cent. It was contended that the L.A.A.Nos.1313/2009 & connected cases 3 property was very near to the Chinnakkada Municipal Shopping Complex and Private bus stand. On the northern, southern and western sides of the properties, there are public roads. Within half kilometer radius is the Railway Station, Colleges, police camp, K.S.R.T.C bus stand, District hospital, Collectorate etc. 5. Written statement was filed by the 1[st] respondent and additional 2[nd] respondent supporting the award passed by the Land Acquisition Officer. According to them, the claim is without any basis. 6. The Reference Court observed that Exts.A6 and A7 documents cannot be considered as the same related to properties purchased during the year 2005. Ext.A1 relates to sale of 70 cents of property on 23/07/1993 for Rs.56 lakhs. Ext.A2 relates to sale of property having an extent of 17.390 cents for Rs.12 lakhs. In Ext.A3, the sale consideration for 3 cents is shown as Rs.4,50,000/- on 26/11/1997. Ext.A5 is also a sale deed executed on 18/11/1997 by which 3 cents of property was sold for Rs.4,50,000/-. Court below found that the property covered by Ext.A1 was situated by the side of NH 47 which is not comparable with the land under acquisition. However Ext.A2 represents a L.A.A.Nos.1313/2009 & connected cases 4 property of similar nature in the same village. As per Ext.A2, the value of property is Rs.69,000/- per cent, and being of the year 1993, it can be taken as a guideline for fixing the land value. However, considering the argument of the respondent that Ext.A2 was purchased for a fancy price for the purpose of a pathway, it was observed that Rs.50,000/- per cent is reasonable compensation which would come to Rs.1,23,550/- per Are and after deducting the award amount, the claimants will be entitled for an enhanced land value at Rs.78,305/- per Are. 7. Learned counsel for the claimants argued that taking into consideration the value of property covered by the documents which had been produced and proved in this case, the Court below ought to have granted a higher consideration. The Court below did not consider the potentiality of the land involved. The property was situated 250 meters from the main central town where all commercial establishments and business centers function. Therefore, the property would have obtained commercial value, which had been denied. Court below relied on Ext.A2 which was dated 23/11/1993 did not grant the very same value. There is no reason to reduce any amount from the value L.A.A.Nos.1313/2009 & connected cases 5 shown in Ext.A2, whereas an enhancement ought to have been granted taking into account the time gap between Ext.A2 and notification under Section 4(1) which was dated 11/10/1994. Further, it is evident from Ext.A2 document itself that the value of property was fixed on 23/11/1991. Therefore, appropriate escalation should have been granted from 23/11/1991. Learned counsel also placed reliance on Exts.A3 to A5 documents which are relating to 3 cents of property each, where the value would come to Rs.1,50,000/- per cent. Though Exts.A3 to A5 are dated 24/11/997, 26/11/1997 and 18/11/1997 respectively, it is possible to assume the sharp rise in the value of land in the locality which ought to have been considered while fixing the land value. Claimants, therefore, sought to fix the land value at Rs.4,94,000/per Are. 8. On the other hand, learned Government Pleader submitted that the award passed by the Reference Court was exorbitant. The State had relied upon Ext.R2 document which was a document in the year 1992. Ext.R2 document was wrongly rejected by the Court below. It relates to the property having an extent of 4.45 cents in Re-Sy.No.183/156. The property covered L.A.A.Nos.1313/2009 & connected cases 6 by Ext.R2 was comparable with the land under acquisition. Therefore, the claimant should not have been granted any enhancement in land value, as sought for. 9. Learned counsel for the appellant also placed reliance on the judgment in **General Manager, Oil and Natural Gas Corporation Limited v. Rameshbhai Jivanbhai Patel and Another** _[(2008) 14 SCC 745]_ . In this judgment the Apex Court, while considering the fixation of market value in a locality, observed the nature of price increase that could be given for the time gap between the date of document and the date of 4(1) notification. It was held that the logical, practical and appropriate method is to apply the increase in percentage cumulatively and not at a flat rate. It was also held that the percentage of increase in some pockets in big cities is due to rapid development and high demand for land, the escalations in prices have touched even 30% to 50 % or more per year, during the nineties. The Apex Court also took note of the judgment wherein rate of escalation in the market value at the relevant time was in the range of 10% to 15% per annum. L.A.A.Nos.1313/2009 & connected cases 7 10. The short question to be considered is whether Exts.A2 to A5 can be the basis for fixation of land value in the present case or whether the award by the Land Acquisition Officer requires to be sustained by placing reliance on Ext.R2 document. 11. Apparently, none of the parties to the document have been examined in the case. In the mahazar, marked as Ext.R3(a), with reference to 27 Ares of land in Re-Sy.No.183/148, it is stated that the property is garden land, 10 meters away from the southern side of a road and 150 meters from the western side of Chinnakkada - Andamukkam road and near Andamukkam private bus stand. The property on the eastern side belongs to Sri.Gopalakrishna Pillai and on the northern side Sri.Shamsudheen. On the western side of the property, there is a pond and on the eastern side, it is a private property. It is also stated that the property is 2 meters below the road level and there is direct access to the road. The mahazar is signed by two witnesses Sri.K.Gopalan and Sri.Raman Chellan along with Revenue Officers. Ext.R2, which has been relied upon by the Land Acquisition Officer is a sale deed executed on 12/02/1992. The assignment is in respect of 4.047 Ares corresponding to 10 L.A.A.Nos.1313/2009 & connected cases 8 cents in Sy.No.8200. The property is situated in Kollam Municipality. The total sale consideration for the land is 1,83,700/- and the building in the property was valued at Rs.10000/-. The value of the property therefore would come to 18,370/- per cent corresponding to Rs.45,392/- per Are. Land Acquisition Officer awarded land value at Rs.45,245/- per Are. 12. As far as Exts.A6 and A7 documents are concerned, as rightly observed by the Reference Court, those are documents executed several years after the date of notification, that is of the year 2005, more than 10 years after Sec.4(1) notification and those documents were rightly rejected. Coming to Exts.A3 to A5, those are documents relating to sale of property, 24/11/1997, 26/11/1997 and 18/11/1997. Those are post notification documents where the land value would come to Rs. 1,50,000/per cent. Those are documents relating to sale of a small extent of land having an extent of 3 cents in Kollam east village. There is a danger in relying upon Exts.A3 to A5. First of all, there is no evidence regarding comparability of the land covered by Exts.A3 to A5 with reference to the acquired land. Secondly, it is a post notification document which cannot be relied upon when L.A.A.Nos.1313/2009 & connected cases 9 documents relating to the date prior to Sec.4(1) notification is available and thirdly the sale of property concerns a small extent of land having an extent of 3 cents. Under such circumstances, there is justification on the part of the Reference Court to have not relied upon Exts.A3 to A5. 13. Ext.A1 is sale deed dated 23/07/1999 which is also a post notification document. It appears that the number is wrongly shown as 2530 of 1993 as the stamp paper was purchased on 21/7/1999 and registered as 2530 of 1999 in Book No.1 Volume 368 in pages 471 to 481. It is apparently a post notification document executed after more than 3 years after the date of Sec.4(1) notification and cannot be relied upon. 14. As far as Ext.A2 is concerned, which is already relied upon by the Reference Court, it is a sale deed dated 23/11/1993, by which property having an extent of 17.390 cents in Survey.No.8712-B and B1 along with the motor shed constructed with asbestos roofing comprised in Sub Division 1 and 2 in Survey.No.8712-B and B1 has been sold for a total consideration for Rs.12 lakhs. The contention urged by the appellants is that recital of the said deed itself would show that the parties to the L.A.A.Nos.1313/2009 & connected cases 10 document entered into an agreement earlier for sale and amounts were paid in advance. The agreement was executed as a sale and lease agreement dated 23/11/1991 in favour of the purchaser of which Rs.9 lakh was paid at the time of agreement and balance Rs.3 lakhs was paid on 23/11/1993. It is, therefore, argued that even relying upon Ext.A2, the value of Rs.12 lakhs has to be considered as paid on the date of the agreement, that is on 23/11/1991 and taking into consideration the value as on the said date, an escalation for the time gap has to be worked out and the land value fixed accordingly. It is true that the documents recite execution of previous agreement between the parties, but no such agreement have been produced and none of the parties to the document have been examined to prove what was the arrangement between the parties at the relevant time. Document also was termed as sale and lease agreement. Therefore the terms of the agreement dated 23/11/1991 assumes importance which is not produced or proved. Secondly, other than stating that the property is situated in Survey Nos.1812-B and B1, there is no evidence to indicate that the property covered by Ext.A2 and the acquired property are comparable. The L.A.A.Nos.1313/2009 & connected cases 11 acquired property is situated in Re.Sy.No.183/148 of Kollam East village. AW1 while deposing before Court in cross-examination, has stated that the property covered by Ext.A1 is by the side of National Highway and the acquired property does not have National Highway frontage. He also deposed that the property covered by Ext.A2 is by the side of the National Highway and it is a business office and in Gerom Nagar. Suggestion was made to AW1 stating that the acquired property was not comparable to the property covered by documents which the claimant had relied upon, which AW1 had denied. Suggestion was also made that the acquired property was 2 meters below the road level as evident from the mahazar, which also he denied. 15. The mahazar Exts.R3(a) and R3(b) produced in the case, which cannot be disputed indicates that acquired property is about 2 meters below the road level. The property in L.A.R.No. No.235/1998 is adjoining the property in L.A.R.No.234/1998. But the property has a road access. It was lying as an agricultural land at the relevant time. The learned counsel, however, produced a google map in order to prove the fact that the property is situated near the main town. It might be correct that L.A.A.Nos.1313/2009 & connected cases 12 the property is situated in a prominent locality. But, while valuing the land, it is settled law that when comparable sale method is adopted, the Court will have to come to a finding that the acquired land is comparable with the document sites which are relied upon by either of the parties. In this case, other than filing a chief affidavit by AW1 stating that the documents relied upon has to be considered, the exact location of the documents relied upon and the comparability with the acquired land has not been stated. It is also not stated as to where Ext.A2 document is situated. The Court below, however, found it fit to place reliance upon Ext.A2. No reason is stated to reject Ext.R2. It is observed that Ext.A2 represents a property similar to the acquired property in Kollam east village itself. But it is relevant to note that the acquired property is about 2 meters below the road level as evident from mahazar Exts.R3(a) and R3(b) which factor would definitely have a bearing on the value of land. 16. The Court below also did not blindly accept Ext.A2. It was only found that Ext.A2 can be a guideline for fixing the land value. Thereafter, taking into account the submission of the learned Government Pleader that Ext.A2 property was purchased L.A.A.Nos.1313/2009 & connected cases 13 for a fancy price and for the purpose of a pathway, the value was deducted to Rs.50,000/- per cent as against Rs.69,000/- per cent as shown in Ext.A2. 17. We do not think that the above reflects a proper valuation of the land, under acquisition. In comparison with Ext.R2, definitely Ext.A2 can be relied upon as it is a document subsequent to Ext.R2. But, as already stated, there is no evidence about the comparability of either of the land with the acquired land. 18. Despite such infirmities in the judgment to avoid further controversy in the matter and to avoid prolonged litigation in the matter, we are of the view that since the acquired property and the property covered by A2 situates at the very same village, property covered by Ext.A2 can be relied upon to fix the market value of land under acquisition. But as far as acquired property is concerned, it is 2 meters below the road level. In order to utilize the said land for any commercial activity, substantial development ought to be made. The property is now being used as garden land. Though it was contended that the property has roads on three sides, the property is only having an access to the L.A.A.Nos.1313/2009 & connected cases 14 main road. In other words, it does not have main road frontage and it is 10 meres on the southern side of the road which leads to a main road. Whereas, in respect of Ext.A2, the schedule would show that on the northern side there is property in Survey No.8710, 8711, 8712-A, on the eastern side, property in Survey No.807, on the southern side property in Survey No.8706 (road) and on the western side, property in Survey Nos.8713 and 8714. Therefore, the said property is lying by the side of the road. Further, the property had a motor shed with asbestos roofing which was not separately valued. The terms of the earlier agreement dated 23/11/1991 is not forthcoming. AW1 says that the property covered by Ext.A2 is situated in Gerome Nagar. He has stated that the acquired property is one meter below the road level and 10 meters from Andamukkam road. When a question was put to him that the distance from Chinnakkada and Andamukkam is half kilometer, according to him, it would only be 100 meters. He deposed that, on the eastern side there is a service station, on the west, he does not know whose property it is. After two three houses there is a pond, the property on the southern side is of Smt.Padmavathi Amma and on the northern L.A.A.Nos.1313/2009 & connected cases 15 side it is the property of Sri.Shamsudheen. Therefore, on all sides of the property, there are properties of private parties only. However, as per the mahazar, claimants have an access to the main road. What is the nature of access is not discernible. 18. The value of property covered by Ext.A2 is Rs.69,005/per cent. Taking into account the disadvantages of the acquired property in comparison with the property covered by Ext.A2, 50% deduction can be granted, in which event, the value will come to Rs.34,502.50/- per cent. Taking into account the fact that Sec.4(1) notification was one year after the date of Ext.A2, it is appropriate to grant an enhancement of 10% on account of escalation. Therefore, by adding Rs.3,450.25/- the land value can be fixed at Rs.37,952.75/- per cent which corresponds to Rs.93,781.24/- per Are and rounded off to Rs.93,800/- per Are. In the result, i) L.A.A.Nos.1313/2009 and 268/2017 are dismissed. ii) L.A.A.Nos.1359/2009 and 52/2011 are allowed as under: (a) The judgment and decree of the trial court shall stand modified as follows: L.A.A.Nos.1313/2009 & connected cases 16 _The land value in L.A.R.No.234/1998 and 235/1998 are refixed at Rs.93,800/- (Rupees ninety three thousand and eight hundred only) per Are._ (b) The claimant shall be entitled for the aforesaid land value after deducting the amount already awarded by the Land Acquisition Officer. (c) The claimants shall also be entitled for statutory benefits and interest as decreed by the Court below. (d) Parties shall bear their own costs. (sd/-) **(A.M.SHAFFIQUE, JUDGE)** (sd/-) **(ANU SIVARAMAN, JUDGE)** jsr True Copy P.S to Judge