KEMEMA LISBETH MATHEW & OTHERS v. STATE OF KERALA & SECRETARY, MANARCADU GRAMA PANCHAYATH

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **MONDAY, THE 7TH DAY OF AUGUST 2017/16TH SRAVANA, 1939** **LA.App..No. 622 of 2012** **---------------------------** **AGAINST THE JUDGMENT IN LAR 85/2009 of PRL.SUB COURT,KOTTAYAM DATED 06-01-2012** **APPELLANTS/CLAIMANTS:** **----------------------** ## **1. KEMEMA LISBETH MATHEW, AGED 25 YEARS** - **D/O. LATE JACOB MATHEW, VATTAMALA, ANANATHANPARAMBIL, MANARCADU, KOTTAYAM DISTRICT REPRESENTED BY MOTHER AND POWER ATTORNEY HOLDER MRS.SHEELA MATHEW.** ## **2. KEREN SUSAN NESTY,** - **D/O.LATE JACOB MATEHW, AGED 25 YEARS,CHEERAMATTOM HOUSE, MALAM PO KOTTAYAM DISTRICT, (NOW WORKING AT ALDHOW (AL-SAYER GROUP) SAFAT P.O., KUWAIT), REPRESENTED BY HER MOTHER AND POWER OF ATTORNEY HOLDER MRS.SHEELA MATHEW.** ## **3. KESSIA SARA MATHEW,** - **D/O. LATE JACOB MATHEW, AGED 25 YEARS,** - **VATTAMALA HOUSE, MANARKADU VILLAGE, KOTTAYAM DISTRICT (NOW WORKING AT SREE SIDDHARTHA COLLEGE OF NURSING, B.H.ROAD, AGALAKOT THUMKUR, KARNATAKA), REPRESENTED** **BY MOTHER AND POWER ATTORNEY HOLDER MRS.SHEELA MATHEW.** **4. ESTHER MAHIMA MATHEW** - **D/O. LATE JACOB MATEHW, AGED 11 YEARS (D.O.B.22/11/97) VATTAMALA HOUSE, MANARKADU P.O., MANARKADU VILLAGE, KOTTAYAM DISTRICT- 686 019) REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN MRS.SHEELA MATHEW.** **5. SHEELA MATHEW,** - **W/O. LATE JACOB MATHEW, AGED 49 YEARS,VATTAMALA HOUSE, ANANTHAN PARAMBIL, MANARKADU, KOTTAYAM DISTRICT.** **BY ADVS.SRI.V.SANTHARAM SRI. LAKSHMEESH S. KAMATH SRI.ANTO THOMAS SRI.E.B.SHAIJU SRI.P.S.SYAMKUTTAN** **L.A.A.NO.622/2012** **2** ## **RESPONDENTS/RESPONDENTS:** **--------------------------** ## **1. STATE OF KERALA** - **REPRESENTED BY THE DISTRICT COLLECTOR KOTTAYAM - 686 001.** ## **2. THE SECRETARY,** - **MANARCADU GRAMA PANCHAYATH, KOTTAYAM-686 019.** **R1 BY GOVERNMENT PLEADER SMT.RESHMI K.M. R2 BY ADV. SRI.MATHEW JOHN (K) R2 BY ADV. SRI.DOMSON J.VATTAKUZHY** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 07-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **APPENDIX IN L.A.A.NO.622 of 2012** ## **APPELLANTS' EXHIBITS** **ANNEXURE A1 TRUE COPY OF THE JUDGMENT DATED 28.02.2001 IN L.A.R.NO.22/1996 PASSED BY THE ADDITIONAL SUB JUDGE, KOTTAYAM** **/TRUE COPY/** **PS TO JUDGE** ## **A.M.SHAFFIQUE & K.P.JYOTHINDRANATH, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **L.A.A.No.622 OF 2012** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7[th] day of August, 2017 ## **JUDGMENT** ## Shaffique, J. This appeal is filed against the judgment in L.A.R.No.85/2009 passed by the Principal Sub Judge, Kottayam. 2. An extent of 16.93 Ares of land has been acquired pursuant to a notification under Section 4(1) of the Land Acquisition Act, 1894 published on 11.07.2005. An award was passed on 18.1.2008 by which the land acquisition officer awarded land value at Rs.4,600/- per annum. Possession was taken on 18.04.2008. The claimant later contended that the award was passed without notice. Writ petition came to be filed before this court and this court permitted the claimants to object to the award. The claimants having objected to the award, the matter was referred to the Sub Court, Kottayam under Section 18 of the Land Acquisition Act. 2 L.A.A.No.622/2012 3. Before the Sub Court, the claimant relied on Exts.A1 to A3 documents. One of the claimants was examined as AW1 and the Advocate Commissioner was examined as AW2. Ext.C1 is the Commissioner report, which has been marked in this case. The respondent did not adduce any evidence. The land acquisition officer having found that Exts.A1 to A3 documents cannot be relied upon, granted an enhancement of 20% of the value granted by the land acquisition officer and fixed the land value at Rs.5,520/- per Are. 4. The learned counsel for the appellants while impugning the aforesaid award contended that Ext.A1 was a sale deed, which was produced as evidence in this case. It related to a property by the side of the acquired property and adjacent to it. As per Ext.A1, an extent of 5.06 Ares was sold in the year 1996 for an amount of Rs.98,840/- per Are. Ext.A2 is the document of the year 2007, wherein 1.21 Ares of land has been sold for Rs.5,20,661/- per Are. It is submitted that the court below had committed serious error in rejecting Exts.A1 and A2 documents in order to arrive at the market value of the land. It is further submitted that the court below had observed that the land value L.A.A.No.622/2012 3 in Ext.A1 cannot be considered since the property was situated 1 km. away and and there was nothing to indicate the comparability of the land. Further, the property in Ext.A1 was a garden land. Ext.A2 was rejected on the ground that it was a post notification document. 5. The learned Government Pleader on the other hand supported the view taken by the reference court and contended that the property under acquisition was wet land and came under Category B as per the note prepared by the land acquisition officer and is not comparable with either Ext.A1 or Ext.A2. 6. The learned counsel appearing for the requisitioning authority, the Panchayath also supported the view taken by the reference court. 7. On a perusal of the Advocate Commissioner's report and the evidence of the Advocate Commissioner, it is rather clear that Ext.A1 was adjacent and adjoining to the acquired property. The learned counsel for the appellants placed before us the following judgments to substantiate the contention that documents prior to the date of notification and subsequent to the date of notification can be L.A.A.No.622/2012 4 considered while fixing the market value of land by giving appropriate addition or reduction as the case may be. The following are the judgments which have been relied upon by the learned counsel for the appellants : - **(i) Spl. Dy. Collector v. Abdul Gafoor (2008 (1) KLT 115) (ii) State of Kerala v. Jose Simon and Others [2009 (1) KHC 881 (DB)]** 8. There is no doubt regarding the proposition laid down in the aforesaid judgments. When reference is made before the Sub Court under Section 18 of the Land Acquisition Act, the court has to evaluate the evidence adduced before the court and arrive at the market value. In this case, the claimants relied upon Exts.A1 to A3. The learned counsel for the appellants fairly submitted that they do not intend to rely upon Ext.A3. The question is whether Exts.A1 and A2 can be the basis for fixing the market value of the land in a case where comparable sale method is adopted. 9. The only question to be considered is whether the land involved in the acquisition and the documents relating to the land on L.A.A.No.622/2012 5 the basis of which the claim is being made is comparable or not. The most comparable document is the property lying by the side of the acquired property or even inside the acquired property. The learned counsel by filing I.A.No.1367/2012 has pointed out that a portion of the property or claiming adjoining the acquired property was earlier acquired from the total land available with the claimants in which Sub Court had granted land value at Rs.59,798/- per Are for dry land. That was with reference to an acquisition based on notification under Section 4(1) notification dated 10.11.1993. The said judgment is delivered in L.A.R.No.22/1996. 10. The basic document relied upon by the land acquisition officer has not been produced or proved in this case. No evidence has been adduced by the respondents. 11. The material document which has been produced is Ext.A1. Though Ext.A1 is of the year 1996, it relates to the value of property by the side of the acquired property. This fact is evident from the Advocate Commissioner's report and is not objected by the learned counsel appearing on either side. The Advocate Commissioner was L.A.A.No.622/2012 6 examined as AW2 and the veracity of his report has not been doubted in any manner. Therefore, Ext.A1 could have been made as a safe guide for arriving at the market value of the land under acquisition. As far as Ext.A2 is concerned, it is a post notification document and that apart it lies 500-600 metres away from the acquired property. When the value of the nearby property is very much available, definitely the same can be taken into consideration. Therefore, we are of the view that Ext.A1 ought to have been considered by the reference court to fix the market value of the land. 12. As already held in the judgments referred above, when a document of the previous year is being considered appropriate enhancement could be given taking into consideration the factual aspects involved in the matter. It is borne out from the judgment in L.A.R.No.22/1996 that a portion of the property of the claimants was earlier acquired on 10.11.1993. In that case, the land acquisition officer awarded land value @ Rs.11,609/- per Are for wet land and Rs.27,664/per Are for dry land. The sub court enhanced the land value to Rs.43,737/- per Are for wet land and Rs.59,798/- per Are for dry land. 7 L.A.A.No.622/2012 13. Therefore, when we are considering the land value in the present case, there has to be a comparison for the land value granted in an earlier acquisition as well. In L.A.R.No.22/1996, the wet land was valued at Rs.43,737/- per Are. 14. The learned Government Pleader submits that L.A.R.No.22/1996 relates to a commercial plot which is by the side of Mannarcadu junction itself. Therefore, the said judgment cannot be the basis for fixing the land value. 15. In so far as the judgment in L.A.R.No.22/1996 is not part of the evidence on record, we do not think it necessary for us to take into consideration the said judgment for the purpose of fixing the land value in the present case. In the case on hand, as already stated, the value shown in Ext.A1 can be a safe guide to fix the land value for the acquired land. The only aspect is that there is difference in category of the land involved in Ext.A1 as that of the acquired land. Acquired land is treated as reclaimed wet land. Taking into consideration the proximity of time i.e. the date of document as well as the date of Section 4(1) notification and the deduction that could be made on L.A.A.No.622/2012 8 account of the difference in the nature of the land, we are of the view that interests of justice will be served by fixing the land value in the following manner : (i )Value of land in Ext.A1 - Rs.98,840/- per Are (ii )Enhancement for 9 years at 12% every year - Rs.1,06,747/- ------------------ Total - Rs.2,05,587/- (iii) Deduction by 50% on account of the difference in the nature of land - Rs.1,02,793/- The aforesaid amount can be rounded off to Rs.1,00,000/- per Are taking into account all the factual circumstances involved in the matter. 16. In the result, the appeal is allowed as under. The land value of the property is fixed at Rs.1,00,000/- per Are and the claimants will be entitled to the said enhanced land value after deducting the amount already awarded by the land acquisition officer. The claimants shall also be 9 L.A.A.No.622/2012 entitled for statutory benefits and interest as directed by the court below. The court fee, if any, paid in excess of Rs.1,00,000/- per Are shall be given as refund to the appellants. ## **A.M.SHAFFIQUE, JUDGE** ## **K.P.JYOTHINDRANATH, JUDGE** sv. 08/08/2017