LA App.No.35 of 2017 - The Managing Director, KSIDC v. P. M. Pradeep Kumar, The Special Tahsildar, LA Thalassery & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** ## **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY ,THE 10TH DAY OF JANUARY 2019 / 20TH POUSHA, 1940** **LA.App..No. 35 of 2017** ## **AGAINST THE JUDGMENT AND DECREE DATED 30-03-2016 IN LAR 99/1997 of ADDITIONAL SUB COURT, THALASSERY** ## **APPELLANT/3RD RESPONDENT:** **THE MANAGING DIRECTOR, KSIDC THIRUVANANTHAPURAM.** **BY ADV. SRI.JOBY CYRIAC, SC, KSIDC** ## **RESPONDENT/CLAIMANTS AND 1ST AND 2ND RESPONDENTS:** - **1 P.M.PRADEEP KUMAR S/O.ACHUTHAN, P O MOORIYAD, KUTHUPARAMBA, KANNUR 670612.** - **2 THE SPECIAL TAHSILDAR LA THALASSERY, KANNUR 670101.** - **3 STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, KANNUR 670001. SRI.B.KRISHNAN FOR R1** ## **SRI.R.PARTHASARATHY FOR R1** **SRI.A.K.SUKUMARAN-SR.GP FOR R2 AND R3** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 04.01.2019, THE COURT ON 10.01.2019 DELIVERED THE FOLLOWING:** L.A.A.No.35/2017 2 ## **V.CHITAMBARESH &** ## **R.NARAYANA PISHARADI, JJ.** ************************** L.A.App.No.35 of 2017 ---------------------------------------------Dated this the 10[th] day of January, 2019 ## **JUDGMENT** ## **R.Narayana Pisharadi, J** This appeal arises out of the judgment dated 30.03.2016 passed by the Sub Court, Thalassery in L.A.R.No.99/1997. 2. An extent of 220.190 Ares of land, owned by the first respondent, was acquired for the purpose of establishment of an Industrial Growth Centre by the Kerala State Industrial Development Corporation. The property acquired consisted of rocky land having an extent of 218.85 Ares. Notification under Section 4(1) of the Land Acquisition Act was published on 26.05.1995. The Land Acquisition Officer fixed the value of the land at Rs.435/- per Are which is equivalent to Rs.176/- per cent for the rocky area. The reference court refixed the value of the land at Rs.3,073/- per Are which is equivalent to Rs.1,244/- per L.A.A.No.35/2017 3 cent. Aggrieved by the award passed by the reference court, the Kerala State Industrial Development Corporation has filed this appeal. 3. We have heard the learned counsel for the appellant and also the first respondent and the learned Government Pleader. We have also perused the records. 4. As per the judgment dated 24.09.2001, the reference court had earlier enhanced the compensation refixing the value of the land at Rs.700/- per cent which is equivalent to Rs.1,729/per Are. The claimant filed appeal before this Court as L.A.A.No.242/2009 challenging the aforesaid judgment. The requisitioning authority had not been impleaded in the case while the reference court passed the aforesaid judgment. As per the judgment in L.A.A.No.242/2009, this Court remanded the case to the reference court with a direction to implead the requisitioning authority and also granting liberty to the claimant to adduce further evidence in support of his claim for enhancement of compensation. Thereafter, the reference court allowed the parties to adduce further evidence in the case and disposed of L.A.A.No.35/2017 4 the case afresh as per the judgment dated 30.03.2016. 5. The evidence before the reference court consists of the testimony of AW1 and AW2 and documents marked as Exts.A1 to A7, B1, R1 to R4, C1, X1 and X2. 6. Learned counsel for the appellant submitted that there are several judgments of the reference court as well as this Court fixing the value of the land at Rs.700/- per cent in respect of rocky land acquired for the same purpose under the same notification. Learned counsel would submit that the reference court was not justified in refixing the land value at a rate above Rs.700/- per cent and granting enhancement of compensation accordingly. Per contra, learned counsel for the first respondent would submit that the reference court has totally ignored the fact that the land acquired in the instant case had the potentiality for extraction of huge quantity of laterite stone. Learned counsel for the first respondent would submit that in view of the aforesaid fact there is no justification at all for reducing the value of the land now fixed by the reference court. 7. The judgment of the reference court shows that L.A.A.No.35/2017 5 L.A.R.No.100/1997 relating to acquisition of a small extent of rocky land owned by the first respondent herein was disposed of by that court by fixing the value of the land at Rs.700/- per cent. Admittedly, the first respondent had not challenged the judgment of the reference court in L.A.R.No.100/97. While examined as AW1, the claimant has deposed that he did not challenge the award passed by the reference court in L.A.R.No.100/1997 considering the fact that the extent of land involved in the aforesaid case was very small. It is probable that the claimant did not take the trouble to challenge the award passed by the reference court in L.A.R.No.100/1997 before this Court as he thought that it was not worth to file an appeal in respect of a small extent of land to get a small amount. The mere fact that the first respondent did not challenge the award passed by the reference court in L.A.R.No.100/1997 is not a sufficient ground to find that he is entitled to get compensation for the land acquired in the instant case also only at the same rate. 8. Ext.A1 is the copy of the judgment of the reference court in L.A.R.No.43/1997. It was a case relating to acquisition L.A.A.No.35/2017 6 of land in the same village for the same purpose but under a different notification in the same year. The value of the land fixed in that case is Rs.1,000/- per cent. But, the land involved in that case was a cashewnut garden. Therefore, the value of the land fixed as per Ext.A1 judgment cannot be adopted as the basis for fixation of the value of the land in the instant case. 9. Ext.A2 is the copy of the judgment of the reference court in L.A.R.No.136/1997. The property involved in that case was garden as well as rocky land. It was acquired for the same purpose under a different notification in the same year. The reference court in that case fixed the value of the rocky land at Rs.700/- per cent. In Ext.A2 judgment, it is specifically stated that no evidence was adduced in that case regarding the laterite deposit in the land acquired. Therefore, Ext.A2 judgment cannot be adopted as the basis for fixation of the market value of the rocky land in the instant case. 10. Ext.A3 is the copy of the judgment of the reference court in L.A.R.No.49/1997. The land involved in that case was in the same village and it was acquired for the same purpose under L.A.A.No.35/2017 7 a different notification in the same year. The value of the land fixed in that case was Rs.1,000/- per cent but it was garden land and not rocky land. Therefore, the value of the land fixed as per Ext.A3 judgment also cannot be adopted as the basis for fixation of the market value of the rocky land acquired in the instant case. 11. Ext.A4 is the copy of sale deed No.140/92. As per this document, 23.25 cents of land was sold on 10.01.1992 for a total consideration of Rs.1,39,500/-. The value of the land paid in this transaction comes to Rs.6,000/- per cent. But, there was no evidence before the reference court to find that the land covered by Ext.A4 document and the land involved in the instant case are similar and similarly situated. Therefore, the reference court has rightly declined to place reliance upon this document to determine the market value of the land acquired in the instant case. 12. Ext.A5 is the copy of the sale deed No.3301/1996. As per this document, 16.16 cents of land was sold on 07.11.1996 for a total consideration of Rs.1,05,040/-. The value of the land L.A.A.No.35/2017 8 paid in this transaction would come to Rs.6,500/- per cent. This transaction had taken place subsequent to the publication of the notification under Section 4(1) of the Land Acquisition Act. Moreover, there was no evidence available before the reference court to find that the land covered by Ext.A5 document and the land acquired in the instant case are similar and similarly situated. Therefore, the reference court has rightly refused to place reliance upon this document also for determination of the market value of the land acquired in the instant case. 13. Ext.A6 is the copy of the judgment of this Court in L.A.A.Nos.111 of 2004 and 112 of 2004. The lands involved in these cases were acquired for the same purpose under the same notification. The value of the land was fixed at Rs.1,800/- per cent. However, it is to be noted that the land involved in these cases was not a rocky area but rubber plantation. 14. Ext.A7 is the copy of the judgment of this Court in L.A.A.No.1381 of 2009 and connected cases. The land involved in these cases was acquired for the same purpose under the same notification. As per Ext.A7 judgment, this Court refixed L.A.A.No.35/2017 9 the value of the land at Rs.1,800/- per cent. But, the land involved in these cases was also garden land. 15. Ext.R1 is the copy of the decree of this Court in L.A.A.No.1400 of 2003. It would only show that value of the rocky land acquired in that case was fixed at Rs.700/- per cent by this Court. However, it cannot be gathered from Ext.R1 document on what basis the value of the land was fixed at Rs.700/- per cent. Ext.R3 order of this Court shows that the appellant in the instant case filed application for review of the judgment in LAA No.1400 of 2003 but it was dismissed by this Court. 16. Exts.R2 and R4 are copies of the judgment of this Court in L.A.A.No.363 of 2001 and L.A.A.No.1050 of 2000 respectively. The land involved in those cases was acquired under the same notification for the same purpose. A part of the lands acquired in those cases consisted of rocky area and the remaining land consisted of garden land. This Court fixed the value of the rocky area of the land at Rs.500/- per cent and the garden land at Rs.1,000/- per cent. L.A.A.No.35/2017 10 17. The contention of the appellant is that value of the rocky land was fixed in other cases at Rs.700/- per cent and in the instant case also, the amount of compensation awarded by the reference court has to be reduced by adopting that rate. A similar contention was raised by the appellant before this Court in L.A.A.No.1381 of 2009 and connected appeals in respect of garden land acquired for the same purpose under the same notification. In Ext.A7 judgment, this contention was repelled by this Court. In the aforesaid appeals, the contention was that in connected cases the value of the garden land was fixed by the reference court and this Court at Rs.1,000/- per cent and therefore, value of garden land cannot be fixed at a rate above that amount. This contention was not accepted by this Court in Ext.A7 judgment. In Ext.A7 judgment, this Court took note of the fact that as per Ext.A6 judgment in L.A.A.No.112 of 2004, this Court had refixed the value of the garden land at Rs.1,800/per cent though in similar cases the amount fixed was only Rs.1,000/- per cent. Uniformity in fixation of the market value of land in different cases cannot be insisted without adverting to the L.A.A.No.35/2017 11 facts of each case and the evidence adduced in each case. 18. In **Kerala State Industrial Development Corporation v. District Collector : 2011 (4) KHC 623: 2011** **(4) KLT 890** , this Court has held that minerals underneath the soil belong to the Government and so far as the minerals above the surface are concerned, the owners are entitled to extract them but royalty has to be paid to the Government for quarrying leases. This Court had also held that the potentialities for quarrying possessed by the land should be taken into account in assessing the market value of the land and what is to be assessed is the market value of the land taking into consideration the special adaptability of the land for being used as a quarry. It was a case in which the question of awarding compensation for rocky land, which was acquired for the purpose of establishment of an Industrial Growth Centre by the Kerala State Industrial Development Corporation in another district, was considered. 19. The reference court noticed the decision of this Court in **Kerala State Industrial Development Corporation** (supra) but found that the claimant has not adduced any evidence to L.A.A.No.35/2017 12 prove that laterite stones from the property can be extracted without causing any excavation in the property and altering the lie and nature of the land acquired. The reference court held that compensation to be paid in respect of the land does not include the compensation for the soil or something existing under the soil naturally as a part of the earth which can be obtained only after conducting excavation and altering the nature and lie of the land and destroying the very topography and the use and utility of the land for which it is being used as on the date of notification. The reference court further found that the laterite stones which can be extracted from the acquired land can never be treated as a benefit arising out of the land. The reference court found that for the purpose of awarding compensation for the acquired land, the possibility of utilising the same as a laterite stone mine and the probability of securing income from the said land by conducting mining activity, need not be considered at all as it is not a land being used for the said purpose as on the date of notification. The reference court also noticed that the claimant has no case that the land was procured L.A.A.No.35/2017 13 by him for the purpose of conducting such mining operation. The reference court found that for the purpose of awarding compensation for the land acquired, the income that can be obtained by excavating the land and extracting laterite stones from the substrata of the land cannot be taken into consideration. 20. The aforesaid findings made by the reference court cannot be approved in the light of the dictum laid down by the Apex Court in **Thressiamma Jacob v. Geologist, Department of Mining and Geology : AIR 2013 SC 3251.** The Apex Court has held that there is nothing in the law which declares that all mineral wealth sub-soil rights vest in the State and on the other hand, the ownership of sub-soil/mineral wealth should normally follow the ownership of the land, unless the owner of the land is deprived of the same by some valid process. In the light of this decision of the Apex Court, the dictum laid down by this Court in **Kerala State Industrial Development Corporation** (supra) to the effect that minerals underneath the soil belong to the Government, no longer holds the field. It is to be noted that the L.A.A.No.35/2017 14 dictum laid down in **Kerala State Industrial Development Corporation** (supra) that, minerals underneath the soil belong to the Government, was based on the Full Bench decision of this Court in **Thressiamma Jacob v. District Office of the Department of Mining and Geology : 2000 (2) KLT 162** but the Full Bench decision of this Court now stands reversed by the Supreme Court. 21. However, the other principles stated by this Court in **Kerala State Industrial Development Corporation** (supra) regarding assessment of compensation for rocky land can be applied to the facts of the present case. This Court has held that the potentialities for quarrying possessed by the land should be taken into account in assessing the market value of the land and what is to be assessed is the market value of the land taking into consideration the special adaptability of the land for being used as a quarry and while assessing compensation, the fact that huge hillock consisting of building rocks and other rocks do exist in the acquired land cannot be overlooked or totally ignored. This Court has held in **Kerala State Industrial Development** L.A.A.No.35/2017 15 **Corporation** (supra) that the possibility of using the rock for quarrying purpose and for blasting and extraction of granites should also be taken into consideration. 22. In the instant case, we do not intend to follow the judgments of this Court in other connected cases wherein value of rocky land has been fixed at Rs.700/- per cent. This is for the reason that in those judgments, which have been brought in evidence in this case, the potentialities for quarrying possessed by the land and the special adaptability of the land for being used as a laterite stone quarry, have not been taken into consideration. 23. In the instant case, Ext.X2 report filed by an expert, who is a geologist, reveal that huge quantity of laterite stones could be extracted from the land acquired. It is stated in Ext.X2 report that there is laterite bed having an average thickness of three metres in the acquired property and that 13,98,6000 laterite stones of the size, 0.35 m x 0.20 m x 0.20 m, could be extracted from the acquired land. The value of the land was fixed by the reference court ignoring this fact. We are of the L.A.A.No.35/2017 16 considered view that the reference court should have taken into account the fact that extraction of huge quantity of laterite stones could be made from the acquired land and it could have been put to commercial use by the claimant. If this aspect is also taken into account in fixing the value of the land, it cannot be found that the value of the rocky land fixed by the reference court at Rs.1,244/- per cent, which is equivalent to Rs.3,073/per Are, is excessive or unreasonable. We are of the view that compensation granted by the reference court by fixing the value of the land at this rate is just and reasonable. Consequently, we dismiss the appeal. However, we make it clear that the judgment in this case shall not be treated as a precedent or basis for fixation of land value in similar or connected cases. No costs in the appeal. (sd/-) ## **V.CHITAMBARESH, JUDGE** (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr/09/01/2019 True Copy PS to Judge