LAA. 660/2006 & conn.cases

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM** ## **FRIDAY, THE 28TH MAY 2010 / 7TH JYAISHTA 1932** **LA.App..No. 660 of 2006(D) -----------------------------------LAR.314/2000 of PRINCIPAL SUB COURT, NORTH PARAVUR** **....................** ## **APPELLANT(S): 2ND ADDL. RESPONDENT** **THE MANAGING DIRECTOR, KERALA INDUSTRIAL INFRASTRUCTURE DEVELOPMENT KINFRA HOUSE, TC.14/1026, VELLAYAMBALAM, THIRUVANANTHAPURAM.** **BY SRI.M.PATHROSE MATTHAI, SENIOR ADVOCATE BY ADVS. SRI.RONY J.PALLATH SRI.RADHIKA RAJASEKHARAN P.** ## **RESPONDENT(S): CLAIMANT** **PULLIKKATHARAIL, PERUMBAVOOR, BY POWER OF ATTORNEY BABY PAUL.** ## **2. STATE OF KERALA.** ## **BY SR. GOVT. PLEADER SMT.LATHA T.THANKAPPAN** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 28/05/2010, ALONG WITH LAA NO. 661 OF 2006 AND CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ORDER ON IA. NO.3635/2008 IN LAA. NO.660/2006** **DISMISSED 28/05/2010 SD/- PIUC C.KURIAKOSE, JUDGE SD/- C.K.ABDUL RAHIM, JUDGE TRUE COPY** **P.S. TO JUDGE** **tss** PIUS C.KURIAKOSE & C.K.ABDUL REHIM,JJ. ------------------------------LAA.NOs.660, 661, 671, 831, 856 of 2006; 287, 372, 460, 585 and 586 of 2007 -----------------------------------------------Dated this the 28th day of May, 2010 ## JUDGMENT ## Pius C.Kuriakose,J. All the above appeals except LAA.372/07 are preferred by the Requisitioning Authority, the Managing Director, Kerala Industrial Infrastructure Development Corporation. L.A.A.372/07 is filed by the Government. All the cases pertain to acquisition of land in Irapuram village for the purpose of construction of Rubber Park at Irapuram. LAA.660/06, 661/06, 671/06, 856/06, 831/06 and 460/07 are directed against the common judgment in LAR.314/2000, 307/2000, 308/2000, 310/2000, 311/2000 and 313/2000. This common judgment is dated 19/10/05. LAA.585/07 and LAA.586/07 are directed against another common judgment dated 31/07/06 in LAR. Nos.34/01, 35/01, 36/01, 49/01 and 65/01. LAA.372/07 is directed against yet another common judgment dated 30[th] September, 2005 in LAR.19/01 and LAR.22/01. LAA.287/07 is directed against a LAA. 660/2006 & conn.cases 2 separate judgment dated 8[th] February, 2006 in LAR.297/2000. Since all cases pertain to same acquisition and the awarding officer as well as the Reference Court under the impugned judgments awarded similar rates for properties included in the same category by the awarding officer, it was agreed before us that LAA.660/06 arising from LAR.314/2000 can be treated as the leading case and arguments can be addressed in that case. It was also agreed that separate arguments as regards special claims, if any, for the respondents as regards their properties under acquisition can also be addressed. Accordingly, we have heard submissions of Smt.Mariam Mathai, the learned counsel for the appellants in all cases except LAA.372/07 and those of Smt.Latha T. Thankappan, the learned senior Government Pleader in LAA.372/07. We heard submissions of Sri.Basil Mathew, Sri.Siraj Karoly, Sri.Shaijan C. George and Sri.John Vipin, learned counsel appearing for the claimants/respondents in these appeals. Before we refer to the submissions, it is necessary to refer to the facts. 2. The properties were situated in Irapuram village of Kunnathunad Thaluk in Ernakulam District. The properties were LAA. 660/2006 & conn.cases 3 dry lands, wet reclaimed lands and wet lands. On the basis of their lie, location and nature, the Land Acquisition Officer categorised the land under acquisition into eight categories. Included in category-A were dry lands with road frontage on two sides. For the properties in these category the Land Acquisition Officer awarded land value at Rs.8348/- per Are. Included in category-B were dry lands with road frontage on one side. For these properties, the Land Acquisition Officer awarded value at the rate of Rs.7513/- per Are. Included in category-C were dry lands with access to road through pathway. For these properties, the Land Acquisition Officer awarded value at the rate of Rs.6722/- per Are. Included in category-D were interior dry lands. For these properties the Land Acquisition Officer awarded value at the rate of Rs.5863/- per Are. Included in category-E were wet reclaimed lands having access to road through pathway. For these lands, the Land Acquisition Officer awarded value at the rate of Rs.2980/- per Are. Included in category-F were interior wet reclaimed lands. For these lands he awarded value at the rate of Rs.2522/- per Are. Included in category-G were wet lands (triple crops) having pathway access to three LAA. 660/2006 & conn.cases 4 adjoining lands. For these lands, he awarded value at Rs.2429/per Are. Included in category-H were properties interior triple crops wet lands. For these properties, the Land Acquisition Officer awarded value at the rate of Rs.2186/- per Are. The common judgment impugned in LAA.660/06 does involve properties in categories B, C, D, F and H only. LAA.585/07 and 586/07 involve properties in category-C only. LAA.660/06, 661/06, 460/07 pertain to properties in category-H. LAA.856/06 pertains to properties in category-B. LAA.671/06 is in respect of property in category-D. LAA.831/06 is in respect of property in category-F. LAA.287/07 is in respect of property in category-H. A scrutiny of the award passed by the Land Acquisition Officer will show that he awarded the highest rate for properties included in category-A which were evidently superior to properties in other categories. For the properties included in the other categories B to H, he awarded lesser rates maintaining a ratio of 100:90:81:70:36:30:29:26 between categories A to H. The Reference Court under the impugned judgment which are impugned in these appeals did not maintain the above ratio at all. As a result of this it is seen that there is considerable variation in LAA. 660/2006 & conn.cases 5 the percentage of enhancement given to properties in different categories. For example, while properties in category-C are granted an enhancement of 208% over what was given to them by the Land Acquisition Officer, the properties in category-H and F are seen given enhancement percentage of 691 and 585 respectively. While properties in category-B is given enhancement of just 200%, properties in category-D is given enhancement of 280%. 3. Before the Reference Court (in LAR.314/00) pertaining to LAA.660/06 and the five other cases decided along with the same, the claimants relied on Exts.A1 to A3 documents in support of their claim for enhancement in land value. They relied also on Ext.A4 which deals with allotment of the acquired property by Rubber Park to various applicants after the acquisition. They also relied on Ext.A5 Commissioner's Report under which it was reported by the Commissioner that the value of the property is above Rs.10,000/- per cent. Ext.A1 is a very significant document. It is executed in the year 1996. It is in respect of a portion of the properties acquired pursuant to the same notification for the same purpose. Ext.A1 revealed a land LAA. 660/2006 & conn.cases 6 value of Rs10,000/- per cent. Ext.A2 and Ext.A3 were also documents much prior to the date of section 4(1) notification which in this case was 01/09/99. These documents reflected land value of Rs25,000/- per cent and Rs.17,000/- per cent respectively. The oral evidence on the side of the claimants in the cases covered by the common judgment in LAA.660/06 consisted of the testimonies of AWs.1 to 3. The solitary witness on the side of the respondent was RW1. The documents on the side of the appellants and the Government consisted of Exts.R1 to R25. A contention was raised before the court below that the purchaser under Ext.A1 purchased the land covered by Ext.A1 after being aware of the proposal to acquire the same. What was urged before the court below was that though section 4(1) notification is published on 01/09/99 proceedings such as preliminary survey etc. were conducted in 1996 itself that is to say even before Ext.A1 is executed. It was accordingly, urged that the value shown in Ext.A1 is a fancy value and cannot be relied on. Ext.A4 the document under which the appellant/Requisitioning Authority leased out the acquired land on a lease rent of Rs.50,000/- per Are was very much relied on by the claimants. The court below, LAA. 660/2006 & conn.cases 7 however, accepted the Requisitioning Authority's case that lease is after improving the lands substantially and did not place any reliance on Ext.A4. Ext.A4 Commissioner's Report was also not relied on by the court below for the reason that the above report does not pertain to the lands acquired in the cases which were being tried but pertained to other lands covered by the same acquisition. The court below on evaluating the entire evidence came to the conclusion that the value fixed by the Land Acquisition Authority was inadequate and without proper basis. It was noticed that the claimants have proved that at the time of the notification Rs.10,000/- per cent was the prevailing market value. The value shown in Exts.A2 and A3 was not followed for the reason that there was no proper evidence to show the comparability of the properties covered by those documents with the property under acquisition. Ultimately relying practically on Ext.A1 it was found that Rs.10,000/- was the market value. But the court below noticed that even the claim of the appellant was only Rs.10,000/- and what was done was to fix the value of dry lands at Rs.9,000/- per cent and that of wet lands at Rs.7,000/per cent assuming that it is not proper to award the rate claimed LAA. 660/2006 & conn.cases 8 by the party. 4. A perusal of the judgments which are impugned in the other appeals would reveal that it is practically by following the rates fixed in the impugned common judgment in LAA.660/2006 and by giving proportionate increase or decrease that those cases have been decided. 5. Smt.Mariam Mathai, learned counsel for the appellant would assail the awards of the reference court on various grounds raised in the memoranda of appeals and she was supported in all her submissions by the learned senior Government Pleader Smt.Latha T.Thankappan. Smt.Mariam Mathai submitted that Ext.A1 document which appears to have been relied on by the court below for fixing the market value was a document brought into existence by the vendee after coming to know that there was a proposal to acquire that property. According to her, though the notification under section 4(1) was published only in 1999, the proceedings of acquisition were started in 1996 itself, much prior to the date of Ext.A1. As regards other documents Exts.A2 and A3 learned counsel submitted that those properties are not comparable to the properties covered under acquisition. Those LAA. 660/2006 & conn.cases 9 documents reflects land value of Rs.25,000/- and Rs.17,000/respectively. The claimants generally claimed only Rs.10,000/per cent. This being the position the court below should have found that evidence regarding the market value was only the oral evidence adduced by the parties. Learned counsel submitted that it was in an arbitrary manner that the learned Judge at any rate fixed the market value of the wet lands which were involved in the acquisition. The Land Acquisition Officer had fixed a particular ratio between the values of categories of A to H. The reference court having not found anything irrational about that ratio should have maintained the above ratio atleast to a substantial extent while refixing the land value. As a result of what is done there is considerable disparity between the enhancement presently received by the various claimants. She also referred to the judgments which are impugned in LAA.Nos.594/2006,593/2006 and 662/2006 (these appeals are already dismissed by us by separate judgment). She submitted that in those cases the court has to a certain extent maintained the ratio between the values of dry lands and wet lands as fixed under the award of the Land Acquisition Officer. Ext.A4 cannot LAA. 660/2006 & conn.cases 10 be relied on since Ext.A4 is after the acquired property was substantially developed. Ext.A5 commission report also cannot be relied as the report does not relate to the properties under acquisition in these cases. 6. Mr.Basil Mathew, Siraj Karoly and John Vipin, learned counsel for the claimants/respondents would support the impugned judgment. Learned counsel submitted that the properties under acquisition were situated in between three important towns in the District viz. Kolencherry, Perumbavoor and Muvattupuzha. These properties were situated far away from institutions and establishments like Medical College, Schools, temples etc. A major District road ArakkappadyMuvattupuzha was also going very close to the properties. The lands under acquisition were very fertile and public irrigation facility is available. Learned counsel submitted that Ext.A1 is in respect of the very acquired property and should receive maximum probative value and in this context counsel relied on the judgment of the Supreme Court in **Ravinder Narain and another vs. Union of India (2003) 4 SCC 481) and Nelson Fernandes vs. Special land Acquisition Officer (2007(2)** LAA. 660/2006 & conn.cases 11 ## **KLT 256 (SC)** . 7. We have very anxiously considered the rival submissions at the bar. We have scanned the impugned judgment and particularly the common judgment relied on in LAA.No.660/2006. As noticed by us, the Land Acquisition Officer categorised the land under acquisition into different categories depending upon the lie and nature of the properties. We feel on re-appreciating the evidence that categorisation of the entire property under acquisition into 8 categories in the manner done by the awarding officer was justified. According to us the categorisation of the properties into A to H categories was proper and is liable to be maintained by the court also. But at the same time we are of the view that through the ratio maintained by the Land Acquisition Officer between the values of these eight categories of properties was more realistic than the ratio presently seen maintained by the court, the proper ratio to be fixed between the eight categories of properties A to H will be as follows: 100 : 90 : 80 : 65 : 45 : 39 : 35 : 30 8. Most of the dry lands involved in the common judgment which is impugned in LAA.No.660/2006 were lands which were LAA. 660/2006 & conn.cases 12 included in category C by the Land Acquisition Officer. We are therefore proceeding to determine the value of the land which were included in category C by the Land Acquisition Officer first. Ext.A1 document as already mentioned is a document in respect of a portion of the properties which were acquired in these cases. Thus Ext.A1 is a document in respect of the very acquired property. Ext.A1 should ordinarily receive great probative value as laid down by the Supreme Court in the decision cited before us by the learned counsel for the respondents. The argument was that Ext.A1 was got executed in anticipation of the land acquisition proceedings is not supported by evidence. The judgment does not reveal that the above argument was accepted by the learned Subordinate Judge. In our view also there is no justification for discarding Ext.A1 on the reason that the purchase under Ext.A1 was made by the purchaser therein for a fancy price. AW1 was cross examined at length. We do not find even a suggestion made to AW1 that the value seen paid as per Ext.A1 is a fancy value. No suggestion is made that Ext.A1 is a document brought into existence in anticipation of Land Acquisition proceedings. There is no allegation on the part of the LAA. 660/2006 & conn.cases 13 Land Acquisition Officer or the requisitioning authority that Ext.A1 is a document brought into existence deliberately. The value paid under Ext.A1 is only Rs.10,000/- which is far below the prices shown in Exts.A2 and A3 . We therefore of the view that Ext.A1 records a bonafide transaction entered into between the parties in the usual course of business. 9. We are convinced from the description of the property in Ext.A1 that the property covered by Ext.A1 was comparable to the properties included by the Land Acquisition Officer in category C and that the finding that Rs.10,000/- was the market value of the property arrived at on the basis of Ext.A1 is correct. Nevertheless the learned Subordinate Judge deducted 10% from the value in Ext.A1 . When it is taken into account that there is a time gap of three years between Ext.A1 and the date of of section 4(1) notification, there was justification for adding 40% we are of the view that relying on Ext.A1 the value of the property included in C category can be reasonably fixed atleast Rs.24100/- per Are which we round off to Rs.25,000/-. 10. All these properties under acquisition were lying contiguously . Even otherwise we are of the considered view that LAA. 660/2006 & conn.cases 14 there must be co-relation between the values of different types of properties lying within a given local area. This is why we have found earlier that the value of the properties involved in category A,B,D,E,F,G and H can be decided based on the value fixed for category C. Accordingly, the value awarded for the properties included in category B will be Rs.28125/- per Are which we round off to Rs.28,000/-. In the same way the value of properties included in category D also will have to be refixed at Rs.22,000/- per Are. Similarly the value of the properties included in category F will have to be refixed at Rs.12187/- per Are which we rounded of Rs.12,000/- per Are. Similarly the value of properties included in category H will have to be refixed at Rs.9375/- per Are which we rounded of Rs.9500/- per Are. The result of the above discussion therefore is as follows- 11. LAA.Nos.585/2007 and 586/2007 are therefore dismissed. LAA.Nos.856/2006 and 671/2006 are also dismissed. LAA.Nos.660/2006, 661/2006,460/2007 and 287/2007 are allowed refixing the value of the land at Rs.9500/- per Are. LAA.No.831/2006 is allowed refixing the value of the land at Rs.12,000/- per Are. LAA.No.372/2007 is allowed by refixing LAA. 660/2006 & conn.cases 15 the value of the properties included by the Land Acquisition Officer in category D at Rs.22,000/- per Are. Parties are directed to suffer their respective costs. The claimants will be entitled for all statutory benefits admissible under section 23(1A),23(2) and 28 of the Land Acquisition Act. It is made clear that this judgment is without prejudice to the contentions raised by the parties in other appeals preferred in respect of the impugned judgment and other judgment pertaining to the same acquisition. PIUS C. KURIAKOSE ,JUDGE C.K.ABDUL REHIM,JUDGE pmn/ LAA. 660/2006 & conn.cases 16