KERALA INDUSTRIAL INFRASTRUCTURE(KINFRA) DEVELOPMENT CORPORATION v. GEORGE FELIX (RAJU) & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **& THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **TUESDAY, THE 19TH DAY OF JULY 2016/28TH ASHADHA, 1938** **LA.App..No. 923 of 2006 () --------------------------LAR 84/1998 of III ADDL.SUB COURT, ERNAKULAM** **---------** **APPELLANT(S)/2ND RESPONDENT:** **---------------------------** **KERALA INDUSTRIAL INFRASTRUCTURE(KINFRA) DEVELOPMENT CORPORATION (KINFRA), VELLAYAMBALAM, THIRUVANANTHAPURAM, REP. BY ITS MANAGING DIRECTOR.** **BY ADV. SRI.G.S.REGHUNATH** **RESPONDENT(S):-(CLAIMANTS 2 TO 6 & R1) :** **--------------------------------------** **1. GEORGE FELIX (RAJU) & OTHERS** **S/O. LATE JOSEPH XAVIER MICHAEL @ KOCHAPPEN, PALLATHU HOUSE, H.NO.7/717, MAVELIPURAM COLONY, COCHIN-30, KAKKANAD.** ## **2. ANTONY SEBASTIAN,** **S/O. DO. DO. DO.** **3. THOMAS PAUL (JIJU),** **S/O. DO. D0. DO.** **4. MARGERET MARY (JINI), DAUGHTER OF LATE JOSEPH XAVIER MICHAEL @ KOCHAPPAN, DO. DO.** **5. SMT. GRACY, W/O.LATE SRI.JOSEPH XAVIER MICHAEL @ KOCHAPPAN, DO. DO.** ## **6. STATE OF KERALA.** ## **BY GOVERNMENT PLEADER SMT. ROSE MICHAEL** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 19-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** ## **P.N. Ravindran & A.Muhamed Mustaque, JJ.** **- - - - - - - - - - - - - - - - - - - - - -- - - L.A.A.No.923 of 2006** **- - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 19[th] July, 2016** ## **J U D G M E N T** ## **P.N. Ravindran, J.** The appellant is the second respondent in L.A.R.No.84 of 1998 on the file of the Court of the Subordinate Judge of Ernakulam. Respondents 1 to 5 are claimants 2 to 6 and the sixth respondent is the first respondent therein. In this appeal, the appellant challenges the enhancement of land value by the reference court. The brief facts of the case are as follows: 2. A parcel of land, 97.60 Ares in extent, situate in Survey No.612/3 of Kakkanad Village, Kanayannur Taluk, Ernakulam District, belonging to the predecessor-in-interest of respondents 1 to 5, was acquired at the instance of the appellant for the purpose of establishing an Export Promotion Industrial Park at Kakkanad. The notification under section 4(1) of the Land Acquisition Act 1894 was last published on 1.11.1995. By award passed on 25.1.1997, the Land Acquisition Officer awarded land value at the rate of Rs.8,600/- per Are. He also awarded compensation for the trees standing in the acquired lands. LAA 923 of 2006 -:2:- Dissatisfied with the land value awarded by the Land Acquisition Officer, the land owner received the compensation awarded by him under protest and sought a reference of the dispute regarding land value to the competent civil court. A reference was accordingly made to the Court of the Subordinate Judge of Ernakulam where it was taken on file and numbered as L.A.R.No.84 of 1998. When summons was issued to the claimant/land owner, it was returned with the endorsement that the claimant is no more. Thereafter, the Land Acquisition Officer was again addressed and he resubmitted the reference with the details of the legal heirs of the original claimant and thereupon, they were impleaded as additional claimants 2 to 6. 3. Before the reference court, claimants 2 to 6 (respondents 1 to 5 herein) claimed land value at the rate of Rs.25,000/- per Are. They examined the second claimant as AW1 and produced and marked Exts.A1 to A6. On the side of the respondents, the Special Tahsildar (Land Acquisition) during the relevant time was examined as RW1. The respondents also produced and marked Exts.B1 to B3. After considering the rival contentions, the reference court enhanced the land value to Rs.16,510/- per Are. The said amount was arrived at by giving a LAA 923 of 2006 -:3:- 5% increase, to the market value fixed for comparable lands falling in category No.7 in Ext.A4 judgment in L.A.R.No.68 of 1997 on the file of the Court of the Subordinate Judge of Ernakulam, which in turn was delivered on 23.7.2004. The reference court also held that the claimants will be entitled to all statutory benefits. The requisitioning authority has, aggrieved thereby, filed this appeal. 4. We heard Sri.G.S.Raghunath, learned counsel appearing for the appellant and Smt.Rose Michael, learned Government Pleader appearing for the State of Kerala. Though respondents 1 to 5 have been served, there was no appearance on their behalf. Sri.G.S.Raghunath, learned counsel appearing for the appellant contended that in the absence of any material to show that the lands involved in the instant case are comparable lands or have more potential, the court below erred in awarding a 5% increase over and above the land value awarded by the reference court in respect of lands falling in category No.7, in A4 judgment in L.A.R.No.68 of 1997. Learned counsel further submitted that the claimants could have asked for land value as determined in Ext.A4 judgment, only if they had shown that the lands involved in the instant case are comparable with the lands LAA 923 of 2006 -:4:- involved in L.A.R.No.68 of 1997. Learned counsel also placed reliance on the decision of the Apex Court in **Chandrashekhar and others vs. Additional Special Land Acquisition Officer [(2009) 14 SCC 441]** . Inviting our attention to the decision of the Apex Court in **Special Deputy Collector and another v. Kurra Sambasiva Rao and others [(1997) 6 SCC 41]** , learned counsel for the appellant also submitted that burden was on the claimants to show that the lands belonging to them would have fetched a higher market value, that in the instant case, apart from relying on Ext.A4 judgment, no evidence was adduced by the claimants, notwithstanding the fact that one of them was examined as AW1, to show that the lands belonging to them had more potential and therefore, it would have fetched a higher market value. Learned counsel contended that in any view of the case, the reference court erred in awarding land value in excess of the land value determined in respect of lands falling in category No.7, in A4 judgment in L.A.R.No.68 of 1997, above referred to. Learned Government Pleader appearing for the State of Kerala reiterated the submissions made by Sri.G.S.Raghunath, learned counsel for the appellant. LAA 923 of 2006 -:5:- 5. We have considered the submissions made at the Bar by learned counsel appearing for the appellant as also the learned Government Pleader appearing for the State of Kerala. We have also gone through the impugned judgment and the materials on record including Ext.A4 judgment in L.A.R.No.68 of 1997 on the file of the Court of the Subordinate Judge of Ernakulam. The lands involved in the instant case fall in category No.7 namely, wet lands without any road frontage. The access to the acquired lands was only through a _varamba_ having a width of one meter according to the requisitioning authority but a width of 2 meters according to the claimants. No attempt was however made by them to show that the access to the acquired lands was not through a _varamba_ and it was accessible from the road. In other words, it was not seriously disputed that acquired lands would fall in category No.7. The reference court has in Ext.A4 judgment in L.A.R.No.68 of 1997 determined the land value payable in respect of lands falling in category No.4, namely, wet lands with PWD road frontage at the rate of Rs.23,500/- per Are. Thereafter, the reference court proceeded to determine the land value payable in respect of other categories of lands, namely, categories 5 to 9. In respect of lands falling in category No.7, the LAA 923 of 2006 -:6:- reference court fixed the land value at the rate of Rs.15,725/per Are, by making a reduction of 35% from the land value determined in respect of lands falling in category No.4. Ext.A4 judgment in L.A.R.No.68 of 1997 was subjected to challenge by the claimants as well as by the State of Kerala and the requisitioning authority in this court. L.A.A.No.804 of 2005 filed by the claimants therein and L.A.A.No.300 of 2006 filed by the State of Kerala and the requisitioning authority were heard and dismissed by a Division Bench of this court by judgment delivered on 22.6.2015. It is in the background of these facts that we have to consider the question whether the enhancement of land value by the reference court merits interference. 6. The lands in the instant case admittedly fall in category No.7. The acquired lands have no access except through a _varamba_ which according to the land acquisition officer had a width of only one meter. The reference court has however awarded land value at the rate of Rs.16,510/- per Are, by giving a 5% increase over the market value fixed for comparable lands in Ext.A4 judgment. The lands involved in L.A.R.No.68 of 1997 and the lands involved in the instant case were acquired pursuant to the very same notification and for the very same purpose. The LAA 923 of 2006 -:7:- lands in L.A.R.No.68 of 1997 are situated in survey No.684/6 of Kakkanad Village, Kanayannur Taluk, Ernakulam District. The total extent of the lands acquired in that case was 2.6160 hectares. The extent of lands acquired in the instant case is 97.60 Ares. (Approximately 1 hectare). The lands involved in L.A.R.No.68 of 1997 also fall in category No.7, namely wet lands without any road frontage but with access through a _varamba_ . A Division Bench of this court has in L.A.A.No.804 of 2005 and L.A.A.No.300 of 2006 held that the land value fixed by the reference court does not merit interference either by way of enhancement or by way of reduction. In such circumstances, in the absence of any evidence on the side of the claimants in the instant case to show that the lands involved in the instant case have more potential and are capable of fetching a higher market value, though they were acquired pursuant to the very same notification and are situated in the very same locality, we are of the considered opinion that the reference court erred in awarding 5% enhancement over the land value awarded by the reference court in Ext.A4 judgment in L.A.R.No.68 of 1997. The appellant is in our opinion well founded in the submission made by it that the reference court ought to have awarded land value only at the LAA 923 of 2006 -:8:- rate of Rs.15,725/- per Are. 7. The notification under Section 4(1) of the Act was first published on 31.1.1995. The last publication was on 1.11.1995. The reference court has awarded to the claimants compensation under Section 23(1A) of the Act only with effect from 1.11.1995, the date on which Section 4(1) notification was last published, till 19.7.1996 when possession of the acquired land was taken. Under the scheme of the Act, as interpreted by the Apex Court in **Kolkata Metropolitan Development Authority v. Gobinda Chandra Maal and another [(2011) 9 SCC 207]** and by a Division Bench of this court in **State of Kerala v. P.Sethunathan and another [2016 (2) KHC 622]** , payment under Section 23(1)A of the Act has to be made from the date on which the notification under Section 4(1) of the Act was first published and not from the date on which it was last published. In such circumstances, notwithstanding the fact that the claimants have not filed an appeal or memorandum of crossobjections, we are of the opinion that this court should modify the decree and judgment passed by the court below exercising the power conferred on this court under Order XLI Rule 33 of the LAA 923 of 2006 -:9:- Code of Civil Procedure, as otherwise it will result in a miscarriage of justice. We accordingly, allow the appeal in part and refix the land value payable in respect of the acquired lands at the rate of Rs.15,725/- per Are. We also hold that the claimants are entitled to a 12% increase on the market value thus determined by this court in respect of the acquired lands, from 31.1.1995, the date on which the notification under Section 4(1) of the Act was first published till 19.7.1996, the date of taking possession, instead of the period from 1.11.1995 to 19.7.1996. The decree and judgment passed by the reference court shall stand modified accordingly. The parties shall suffer their respective costs in this court. Sd/- ## **(P.N. Ravindran, Judge)** **Sd/-** **(A.Muhamed Mustaque, Judge)** ## **ms/**