L.A.A. No. 73/2014 & connected cases (INFOPARK Phase II, Kakkanad, Kochi)

## **C.K. ABDUL REHIM, J. & SHIRCY V., J.** ------------------------------------------------- **------------------------------------------------------------------** |**Sl.No.**|**LAA Nos.**|**C.O.Nos.**|**LAR Nos.**| |---|---|---|---| |1.|73/2014|26/2018|127/2010| |2.|89/2014|27/2018|128/2010| |------------------------------------------------------------------------------------------|||| |3.|187/2014|35/2018|108/2010| |4.|223/2014|32/2018|110/2010| |5.|159/2014|23/2018|112/2010| |6.|238/2014|24/2018|113/2010.| |7.|326/2014|33/2018|123/2010| |8.|265/2014|34/2018|124/2010.| |-----------------------------------------------------------------------------------------|||| |9.|609/2014|126/2014|163/2010.| |10.|610/2014|125/2014|121/2010| |11.|614/2014|15/2015|122/2010| |12.|643/2014|152/2014|77/2011| |13.|645/2014|147/2014|170/2010| |14.|648/2014|145/2014|76/2011| |15.|651/2014|143/2014|77/2011| |16.|653/2014|128/2014|76/2011| |17.|655/2014|131/2014|76/2011| |18.|659/2014|142/2014|170/2010| |19.|660/2014|135/2014|76/2011| |20.|662/2014|137/2014|77/2011| |21.|663/2014|11/2015|172/2010| |22.|664/2014|153/2014|168/2010| |23.|665/2014|141/2014|168/2010.| **LAA No.73/2014 & connected cases** -2- |24.|666/2014|209/2014|96/2011| |---|---|---|---| |25.|667/2014|138/2014|170/2010| |26.|668/2014|136/2014|77/2011| |27.|669/2014|146/2014|168/2010| |28.|671/2014|169/2014|96/2011| |29.|673/2014|129/2014|165/2010| |30.|674/2014|162/2014|169/2010| |31.|675/2014|213/2014|47/2011| |32|681/2014|177/2014|61/2011| |33.|682/2014|196/2014|76/2011| |34.|683/2014|144/2014|77/2011| |35.|684/2014|130/2014|164/2010| |36.|694/2014|191/2014|45/2011| |37.|695/2014|180/2014|62/2011| |38.|696/2014|201/2014|77/2011| |39.|697/2014|210/2014|45/2011| |40.|702/2014|181/2014|62/2011| |41.|704/2014|207/2014|95/2011| |42.|705/2014|184/2014|98/2011| |43.|706/2014|195/2014|78/2011| |44.|707/2014|206/2014|78/2011| |45.|710/2014|199/2014|95/2011| |46.|711/2014|193/2014|98/2011| |47.|718/2014|176/2014|45/2011| |48.|719/2014|178/2014|126/2010| |49.|720/2014|179/2014|61/2011| |50.|725/2014|185/2014|98/2011| **LAA No.73/2014 & connected cases** -3- |51.|726/ 2014|194/2014|78/2011| |---|---|---|---| |52.|727/2014|198/2014|77/2011| |53.|728/2014|208/2014|95/2011| |54.|741/2014|197/2014|78/2011| |55.|745/2014|203/2014|166/2010| |56.|749/2014|219/2014|78/2011.| |57.|759/2014|182/2014|95/2011| |58.|887/2014|-------------|45/2011| |59.|892/2014|-------------|61/2011| |60.|19/2015|-------------|47/2011| |61.|72/2015|-------------|95/2011.| |62.|87/2015|138/2016|172/2010| |63.|132/2015|137/2016|98/2011| |64.|156/2015|136/2016|61/2011| |65.|201/2016|146/2016|77/2011| |66.|219/2016|145/2016|76/2011| **--------------------------------------------------------------------** Dated this the 27[th] day of February, 2018 ## **J U D G M E N T** ## Abdul Rehim, J: All the above Land Acquisition Appeals and Cross Objections are filed from 3 common judgments passed by the Subordinate Judge's court, Perumbavoor. 2. First among them is the common judgment in LAR Nos.127/2010 and 128/2010, dated 16.8.2013. LAA **LAA No.73/2014 & connected cases** -4- Nos.73/2014 and 89/2014 are the appeals filed by the State. Cross Objections Nos.26/2018 and 27/2018 are filed by the respective claimants. 3. Second batch are appeals filed against the common judgment in LAR Nos.108/2010, 110/2010, 112/2010, 113/2010, 123/2010 and 124/2010, dated 9.9.2013. State had filed appeals in all the cases as LAA Nos.187/2014, 223/2014, 159/2014, 238/2014, 326/2014 and 265/2014. Cross Objections are filed by the respective claimants, as C.O.Nos.35/2018, 32/2018, 23/2018, 24/2018, 33/2018 and 34/2018. 4. Third batch are appeals filed against another common judgment in LAR Nos.121/2010, 122/2010, 126/2010, 163/2010, 164/2010, 165/2010, 166/2010, 168/2010, 169/2010, 170/2010, 172/2010, 45/2011, 47/2011, 61/2011, 62/2011, 76/2011, 77/2011, 78/2011, 95/2011, 96/2011 and 98/2011. LAA No **.** 609/2014 and C.O.No.126/2014, LAA No.610/2014 and C.O.No.125/2014, LAA No.614/2014 and C.O.No. 15/2015, LAA No.643 /2014 and C.O No.152/2014, LAA No. 645/2014 and C.O No.147 / **LAA No.73/2014 & connected cases** -5- 2014, LAA No. 648/2014 and C.O.No. 145/2014, LAA No. 651/2014 and C.O.No. 143/2014, LAA No. 653/2014 and C.O.No. 128/2014, LAA No. 655/2014 and C.O.No.131 /2014, LAA No. 659/2014 and C.O.No.142/2014, LAA No.660/2014 and C.O. No.135 /2014, LAA No.662/2014 and C.O.No. 137/2014, LAA No. 663 /2014 and C.O.No. 11/2015, LAA No.664/2014 and C.O.No. 153/2014, LAA No.665 /2014 and C.O.No.141/2014, LAA No.666/2014 and C.O.No. 209/2014, LAA No.667/2014 and C.O.No. 138/2014, LAA No. 668/2014 and C.O.No.136/2014, LAA No. 669/2014 and C.O.No.146/2014, LAA No.671/2014 and C.O.No.169/2014, LAA No. 673/2014 and C.O.No.129/2014, LAA No.674/2014 and C.O.No.162 /2014, LAA No.675/2014 and C.O. No. 213/2014, LAA No. 681 /2014 and C.O.No.177/2014, LAA No. 682/2014 and C.O.No.196/2014, LAA No.683 /2014 and C.O.No. 144/2014, LAA No.684/2014 and C.O.No.130 /2014, LAA No. 694/2014 and C.O No. 191/2014, LAA No. 695 /2014 and C.O.No. 180/2014, LAA No.696/2014 and C.O.No.201/2014, LAA No.697/2014 and C.O.No.210/2014, LAA No.702/2014 and C.O. No.181/2014, LAA No.704/2014 **LAA No.73/2014 & connected cases** -6- and C.O.No.207/2014, LAA No. 705/2014 and C.O.No. 184/2014, LAA No.706 /2014 and C.O No.195/2014, LAA No.707 /2014 and C.O.No.206 /2014, LAA No. 710/2014 and C.O.No.199 /2014, LAA No.711/2014 and C.O.No. 193/2014, LAA No.718/2014 and C.O.No.176/2014, LAA No.719/2014 and C.O.No.178 /2014, LAA No.720/2014 and C.O No.179/2014, LAA No.725 /2014 and C.O.No.185/2014, LAA No.726/2014 and C.O.No. 194/2014, LAA No.727/2014 and C.O. No. 198/2014, LAA No.728/2014 and C.O.No.208/2014, LAA No. 741/2014 and C.O.No.197/2014, LAA No.745/2014 and C.O.No. 203/2014, LAA No.749/2014 and C.O.No.219 / 2014, LAA No.759/2014 and C.O.No.182/2014, LAA No.887/2014, LAA No.892/2014, LAA No.19/2015, LAA No.72/2015, LAA No. 87/2015 and C.O.No.138 /2016, LAA No.132/2015 and C.O. No.137/2016, LAA No. 156 /2015 and C.O.No.136 /2014, LAA No. 201/2016 and C.O.No. 146/2016, LAA No.219/2016 and C.O.No. 145/2016 are appeals filed by the State and some of the claimants. The Cross Objections are filed by the respondents in the respective appeals, except in few cases. **LAA No.73/2014 & connected cases** -7- 5. Properties in all these cases were acquired for a common purpose, based on the requisition of the Chief Executive Officer, INFOPARK, Kochi, which is an undertaking fully owned by the State Government. The properties were acquired for the “IInd Phase Development of INFOPARK” at Kakkanadu. The requisitioning authority was a party in the reference cases and is also a party in the above appeals and cross objections. The acquisition was initiated based on a Notification published under Section 4 (1) of the Land Acquisition Act, on 20.9.2007. The Land Acquisition Officer (LAO) divided the acquired properties into 14 categories and fixed different land value for properties included in different categories. The LAO had fixed the land values by relying upon two basic documents. With respect to category 1 to 3, the basic document adopted was Sale Deed No.2328/2006 of the Sub Registrar Office, Puthencruz, dated 27.3.2006. For cateogry 4 to 14 the basic document adopted was Sale Deed No.5140/2007 of the Sub Registrar Office, Puthencruz, dated 6.6.2007. With respect to category 1 to 3, the land value was fixed by giving increase of 30%, 15% and 5% respectively, **LAA No.73/2014 & connected cases** -8- from the value of Rs.2,40,438/- per Are reflected in Sale Deed No.2328/2006. With respect to categories 4 to 14, the LAO fixed the land value based on the sale value reflected in Sale Deed No.5140/2007, which is Rs.1,85,323/- per Are, by giving different rate of increase/decrease for different categories as follows; |;|| |---|---| |Category4|30% increase| |Category5|25% increase| |Category6|10% increase| |Category7|15% increase| |Category8|5% decrease| |Category9|25% increase| |Category10|10% increase| |Category11|20% decrease| |Category12|30% decrease| |Category13|15% decrease| |Category14|25% decrease| Not being satisfied with the compensation awarded, the claimants sought reference under Section 18 of the Land Acquisition Act. The impugned common judgments were passed in the said references. In the appeals and cross objections, the State as well as the claimants are disputing correctness of the land value refixed by the reference court. **LAA No.73/2014 & connected cases** -9- 6. It is noticed that the reference court had disposed of some other cases also, related to the very same acquisition, following the above said three common judgments. Some other appeals and cross objections are also pending disposal before this court, arising out of such judgments. We are of the opinion that if the above appeals and cross objections are decided, rest of the cases can be decided based on this common judgment. 7. The common judgment in the first batch of cases, in LAR Nos.127/2010 and 128/2010, is challenged at the instance of the State. The claimants have filed cross objections in those appeals. Appeals against the common judgment in LAR No.108/2010 and connected cases are also filed by the State. Out of the 6 appeals filed against the said common judgment, the claimants have filed cross objections in all cases. Most of the appeals against the common judgment in LAR No.121/2010 and connected cases are filed by the claimants. Except in few such appeals, the State had filed cross objections. Some of the appeals from the said judgment are instituted by the State. This court is of the **LAA No.73/2014 & connected cases** -10- considered opinion that, since the acquired land in all these cases are situated in the same locality and since the acquisition is based on a common notification, question regarding adequacy of the land value fixed, can be considered and decided in common, subject to appropriate categorization of the properties and appropriate re-fixation of the land value in each of the categories. 8. Before we look into the justifiablity or reasonableness of the land value fixed, it is apposite to look into the question regarding correctness of the categorisation made by the LAO. One peculiar aspect which is worth mentioning herein is that, unlike other common (group) land acquisition proceedings, the LAO in this case has not passed individual awards in favour of each of the land owners, with respect to the extent of land belonging to each of them. Instead, properties comprised in each survey numbers or sub divisions belonging to different owners were clubbed together in each of the awards. As a result, part of the properties belonging to different land owners were clubbed together in many of the Awards, merely because they are **LAA No.73/2014 & connected cases** -11- situated in same survey number or sub-division numbers. As a consequence, property belonging to individual owners, which remain as compact plots, covered under single title deed, was divided and included in different Awards, based on the difference in the survey numbers and sub division numbers. 9. Learned Counsel appearing for some of the appellants/claimants raised a contention attacking the above method adopted by the LAO while passing the Awards. They referred to various provisions in the Land Acquisition Act and in the Kerala Survey and Boundaries Act, 1961. It is specifically pointed out that, the LAO had an obligation to conduct measurement and demarcation of the land proposed to be acquired and to prepare a plan as mandated under Section 8 of the Land Acquisition Act. It is further pointed out that, such survey need to be carried out in the manner as stipulated under Section 4 of the Kerala Survey and Boundaries Act; and in accordance with the Rules made thereunder. As per Section 6 of the said Act, a notification need to be published in the manner as prescribed in sub **LAA No.73/2014 & connected cases** -12- section 1, with respect to conduct of the survey to be done, with due notice to any person having interest in the land or in the boundaries of the land in which the survey has to be conducted. Under Rule 22 of the Survey and Boundaries Rules, 1964 it is obligatory on the part of the LAO making such survey to create fresh subdivisions in the survey fields, if any required, for the purpose of acquisition. It is argued that, considering the above mentioned provisions it is clear and evident that the LAO had failed to identify the properties of each claimants (land owners) and to measure out and demarcate the same, if necessary after assigning specific sub-divisions. In the case at hand no such measurement and demarcation was done by the LAO and the acquired land was demarcated only on the basis of existing survey plans, grouping them based on the survey and sub-division numbers. Consequently, properties belonging to each land owners covered under one title document, which is lying as compact plot, happened to be included in different awards passed by the LAO. As a result, there are instances where different land value was happened to be fixed for various **LAA No.73/2014 & connected cases** -13- extents comprised under different survey or sub-division numbers, within one compact plot belonging to a single land owner. According to the claimants, this is totally an irregular and improper method adopted, which need to be interfered by this court. 10. Learned Standing counsel appearing for the requisitioning authority had drawn our attention to the 'Notes to Award' prepared in some of the cases, which contains an explanation. It is stated that, a vast area of the acquired property remained waterlogged without any specific demarcations of its individual boundaries and it was practically impossible for the LAO to conduct survey and demarcation of properties of the individual claimants. We do not think that such an explanation can be accepted for the irregular method followed in passing the Awards by clubbing together properties of different claimants in one Award and for including property of one owner in different awards. Even though no provisions can be traced out strictly prohibiting adoption of such a method, it is evident that all the steps required under the statutory provisions has not been **LAA No.73/2014 & connected cases** -14- complied with by the LAO. Considering the best interest, we are inclined to observe that, such practice need to be deprecated. The claimants should not be put to more complications and cumbersome procedure for getting the just and reasonable compensation. However, we are of the considered opinion that such irregularities cannot be considered as a ground to hold that the entire proceedings got vitiated because of that. At this stage, it may not be possible for this court to rectify such anomalies, which may require setting aside of the entire land acquisition proceedings and directing a de-novo proceedings. Considering the long lapse of time and the lengthy procedures already undergone, we are not venturing for any such drastic steps, even though it will be highly difficult even on the part of this appellate court to fix a uniform valuation with respect to properties covered under each of the reference cases, belonging to different claimants. 11. Next aspect which needs decision from this Court is regarding the justifiability and correctness of the categorisation made by the LAO for fixing the different land **LAA No.73/2014 & connected cases** -15- values. From Ext.A10 'Notes to Award' marked in LAR No.77/2007 and connected cases, it is evident that the descriptions with respect to categorisation are as follows: |Category No.1|-|Garden land having access to tar road.| |---|---|---| |Category No.2|-|Garden land having access to mud road| |Category No.3|-|Garden land having no access to any<br>road.| |Category No.4|-|High level wet land having access to<br>tar road| |Category No.5|-|High level wet land having access to mud<br>road.| |Category No.6|-|High level wet land having no access to<br>any roads| |Category No.7|-|Wet land having access to mud road with<br>coconut trees planted on 'chira' (bund).| |Category No.8|-|Wet land having no access to any road<br>with coconut trees planted on 'chira'<br>(bund)| |Category No.9-|-|Wet land having access to mud road with<br>coconut trees planted on bunds and<br>remaining as coconut garden.| |Category No.10|-|Wetland without access to any road with<br>coconut trees planted on bunds and<br>remaining as coconut garden.| |Category No.11|-|Wetland having access to gravel road.| |Category No.12|-|Wetland having no access to any roads.| |Category No.13|-|Wetland having access to tar road.| |Category No.14|-|Wetland having access to mud road.| **LAA No.73/2014 & connected cases** -16- Learned Counsel appearing for many of the claimants contended that, categorisation made by the LAO is totally unrealistic, unreasonable and unjustifiable. It is specifically pointed out that, the category described as 'high level wetland' is totally unrealistic. Drawing our attention to the materials and evidence, including reports of Advocate Commissioners deputed to inspect the properties, it is contended that the properties described as 'high level wetland' are in fact properties already reclaimed and are remaining as dry lands. So also it is pointed out that, there is no difference between the property described as “coconut trees planted on 'chira' (bund)” and “coconut trees planted on bunds remaining as coconut garden”. Both are in fact properties which are wet lands, where coconut trees are planted by creating bunds (chira). Likewise it is pointed out that, there is no difference between 'mud road' and 'gravel road'. All the properties having access to roads other than tarred roads ought to have been categorised alike, is the contention. **LAA No.73/2014 & connected cases** -17- 12. Eventhough learned Special Government Pleader appearing for the State as well as Standing Counsel appearing for the requisitioning authority had not conceded to the above said arguments, no proper explanation is forthcoming with respect to such imaginary categorisation. On a perusal of the evidence it is clear that, what was described by the LAO as “high level wet land” are originally wet lands which remained filled up (reclaimed), either in full or in part. Those are properties which are described in the common parlance as 'reclaimed lands' or as 'filled up land'. Even though such property cannot be considered as similar in nature to pucca dry land or garden land, it need to be considered that such land is remaining usable for purposes other than paddy cultivation or other agricultural operations. So also, we find merit in the contention that there cannot be any specific difference between a road which is not tarred, whether it is filled with mud or with gravel. On a deep look into the 'Notes to Award' of the LAO, we do not find any specific difference mentioned between the categories of **LAA No.73/2014 & connected cases** -18- properties having access to mud road and access to gravel road. Likewise the categories mentioned under item 7 to 10 are basically wet lands, which are planted with coconut trees on bunds (chira). Therefore the distinct categorisations made by the LAO as land with “coconut planted on 'chira'” and “coconut planted on bunds and remaining as coconut garden” does not appeal to any sense, because those are not properties having any difference in the quality. We are of the considered view that, all the wet lands having coconut plantation on bunds need to be grouped into one category, subject to classification based on accessibility to tar road or mud road. So also the garden lands, reclaimed land and wet land need to categorised separately depending on the accessibility to roads. While appreciating the contentions in this regard, we are of the opinion that a recategorisation of the acquired properties would be the most appropriate, in order to ensure that just and reasonable compensation is awarded with respect to lands remaining with distinct qualities and situated in different nature. We are convinced from the materials available that the acquired properties can **LAA No.73/2014 & connected cases** -19- be classified basically into four distinct categories; viz (1) pucca dry land, which is otherwise called as 'garden land' (2) reclaimed land, which originally remained as wet land and filled up in part or in full before the acquisition, either up to the level of the road abutting such property or upto a lower level. (3) wet land with coconut trees planted on chira (bund) and (4) lands which remained as wet land as on the date of acquisition. 13. Based on the findings mentioned as above, this court re-fixes categorization of the acquired properties into 4 major groups with the following descriptions; |Category No.I|-|Dry land (garden land)| |---|---|---| |Category No.II|-|Reclaimed land (wet land filled up in<br>full or part).| |Category No.III|-|Wet land with coconut trees planted on<br>chira (bund)| |Category No.IV|-|Wet land (without any reclamation)| Among the above 4 basic categories (major groups) there will be difference in quality based on accessibility to roads. It is of common knowledge that any property having access to a tar road will be fetching more value than a property having access only to a mud road. Property having no access to any **LAA No.73/2014 & connected cases** -20- roads will be further inferior in the matter of land value. Therefore, we think it appropriate to sub classify the properties included in all the above said 4 basic categories, depending on accessibility to the roads, as follows; |Category I (a)|-|Dry land (garden land) with access to tar<br>road| |---|---|---| |Category I (b)|-|Dry land (garden land) with access to<br>mud/gravel road| |Category I (c)|-|Dry land (garden land) having no road<br>access| |Category II (a)|-|Reclaimed land (filled up land) having<br>access to tar road| |Category II (b)||Reclaimed land (filled up land) having<br>access to mud/gravel road| |Category II (c)||Reclaimed land (filled up land) having no<br>road access| |Category III(a)||Wet land with coconut on bunds having<br>access to tar road| |Category III(b)||Wet land with coconut on bunds having<br>access to mud/gravel road| |Category III (c)||Wet land with coconut on bunds having no<br>road access| |Category IV(a)||Wetland having access to tar road| |Category IV(b)||Wet land having access to<br>mud/gravel road| |Category IV (c)||Wet land having no road access| 14. The next aspect which requires decision is the fixation of land value. We may now deal with those cases considered by the reference in the 3 common judgments. In **LAA No.73/2014 & connected cases** -21- the first common judgment, in LAR No.127/2010 and 128/2010, the acquired properties were included by the LAO in the 14[th] category. The claimants therein contented that, the properties ought to have been included in the 9[th] category. The reference court accepted the contention and included the property in category No.9. It is evident that the LAO considered 20 documents, executed in between the years 2005 to 2009. He accepted Sale Deed No.5140/2007 as basic document for fixing the land value. The reference court had specifically noticed that, the LAO had failed to produce the basic document in evidence. But the 'Notes to Award' contains description about the nature and lie of the property conveyed under the basic document. The property covered under the said document is situated in Kunnathunadu village and it remains as 'nilam' (wet land) without any road access. The sale consideration per Are reflected in that document is Rs.1,85,323/-. LAO fixed value of the properties included in the 14[th] category by reducing 25% from the said value. Thus the land value was fixed at Rs.1,38,992/- per Are. Contention before the reference court was that, property covered under **LAA No.73/2014 & connected cases** -22- the basic document is situated in an area having lesser importance and it is 'nilam' (wetland) having no road access. Ext.A10, A14 to A19 conveyances were produced by the claimants in support of their claim for enhanced compensation. The value shown in Ext.A10 is more than Rs.10 lakhs per Are and the average value of the documents produced as Ext.A14 to A18 is around Rs.4 lakhs per Are. The vendor in Ext.A10 Sale Deed was examined as AW2. But reference court had discarded those evidence by observing that properties covered under those documents are dry land and are having direct access to public road. Further, it was found that those documents are post notification transactions, which cannot be accepted. Report of the Advocate Commissioner, which is marked as Ext.C1 revealed that, on the inspection conducted at the property covered under the basic document, it was revealed that the said property is situated at a distance of more than 6 (six) Kilo Meters from the acquired property. The report also indicated that the property covered under that document is a noncultivating paddy field surrounded by similar fields having no **LAA No.73/2014 & connected cases** -23- pathway and is having access only through ridges in the paddy fields. Even though the claimants have produced Ext.A20 valuation report prepared by an approved valuer of the State Bank of India, in evidence with respect to market value of the acquired properties, the court below had discarded such evidence by finding that, nothing is mentioned in the report about the basis or method upon which such valuation was arrived; and because of the reason that the valuation was done after a period of more than one year from the date of the acquisition. 15. Having found that the acquired land in the above said cases were remaining reclaimed and used for coconut cultivation, the reference court included those properties in Category No.9. It was found that the marginal increase of 25% given by the LAO from the value reflected in the basic document, is highly insufficient. Hence the reference court, on a reasonable estimation, re-fixed the land value at 40% above the value fixed by the LAO, by including the property in Category No.9. It was also found that the acquired property is situated in an urban or rather semi-urban area **LAA No.73/2014 & connected cases** -24- and that the value of the property in such area is increasing day by day. There is a gap of three months between the date of execution of the basic document and the date of Section 4(1) notification. It was also found that the acquired properties are situated in a more developed area, which is quite adjacent to the 'Smart City' and other institutions of commercial and public importance. Therefore, the reference court fixed the land value in those cases at Rs.3,70,645/- per Are, by including the properties under Category No.9. The State is challenging the findings of the reference court by contending that the land value fixed is excessive and exorbitant. The claimants, on the other hand, filed cross objections seeking further enhancement in the land value. 16. In the common judgment in the second batch of cases in LAR No.108/2010 and connected cases, the reference court considered the comparability of the property covered under the basic document (sale deed No.5140/2007) with the properties included under Category 4 to 14 and comparability of the property covered under Sale deed No.2328/2006, which is the basic document adopted by the **LAA No.73/2014 & connected cases** -25- LAO with respect to Category 1 to 3, with the acquired properties in those categories. The claimants in those cases have produced Exts.A3 to A5 and A7 to A10 documents. Some of the executants of those documents were also examined as AW2, AW3 and AW4. The court below discarded all the exemplars produced, except Ext.A7, because all of them are post notification transactions. Referring to various legal precedents of the Hon’ble Supreme Court and this court, it was held that, adoption of post notification transactions is permitted only if it is inevitable; and in such cases there should be greater caution in applying the prices fetch for such transactions which took place at a point of time after the acquisition. Further it was found that, there was no comparison between properties covered under those conveyances with the acquired land. The requisitioning authority had produced Exts.R2(b) to R2 (e), R2 (g) and R2 (h) documents, which are sale deeds executed in favour of them under the negotiated purchases made for the very same purpose. But the reference court found that, the fact that some of the land owners have decided to convey their **LAA No.73/2014 & connected cases** -26- properties to INFOPARK for a particular price, cannot be considered as sufficient reason for disallowing enhanced compensation to the claimants. Ext.A13 and A14 are judgments of the same reference court with respect to properties acquired for establishment of the “Brahmapuram Waste Treatment Plant” for Cochin Corporation. The claimants contended that the acquired property in those cases are situated in the nearby locality and the Section 4 (1) notification in both the cases are more or less at the same period. But the reference court observed that, those cases are with respect to another acquisition covered by another notification. Further it was noticed that the operation of the said judgments are under stay granted by this court. Under such circumstances, the reference court had proceeded to consider the question whether the land value fixed by the LAO based on sale deed No.5140/2007 is appropriate or not. It was found that the acquired properties are situated in Puthencruz Village, which is having more proximity to Cochin City than Kunnathunadu Village. The court below had taken specific note about the admission in the evidence of the LAO **LAA No.73/2014 & connected cases** -27- (RW1) that, after construction of the BrahmapuramKakkanad Bridge in the year 2004, the locality wherein the acquired land is situated became more important. The admissions made by RW1 that the locality where the acquired land situates is having highest commercial importance in the State of Kerala and that before the acquisition in question there was another acquisition in the same locality for establishment of the 'Smart City', were taken note of. It was found that, reduction made by the LAO from the value of the basic document, with respect to property included in category No.12, is not sustainable. It was found that, the lapse of more than 3 months period in between Section 4 (1) notification and the date of the document is an important factor to be considered. Taking note of the report of the Advocate Commissioner with respect to the presence of very important public institutions in the locality, it was found that none of such advantages can be claimed with respect to the basic land. Therefore the court below found that, with respect to the acquired property in LAR 108/2010 an appropriate category change from Category No. 12 to **LAA No.73/2014 & connected cases** -28- Category No.7 need to be allowed and an increase of 65% from the value of the basic land need to be awarded. Accordingly the reference court had re-fixed the land value of properties included in Category No.7 at Rs.3,51,650/- per Are. With respect to Category No.14 the reference court fixed the land value at Rs.3,05,783/- per Are. For Category No.13 an increase of 75% from the value of the basic land was awarded and Rs.3,24,315/- per Are was fixed by the reference court. So also, with respect to Category No.11 Rs.3,15,049/- per Are was awarded. In the same common judgment in LAR No.108/2010 and connected cases, with respect to Category Nos.1 to 3, the reference court re-fixed the land value by granting proportionate increase from the value of sale deed No.2328/2006, which is accepted as basic document by the LAO. With respect to property in the I[st] category, land value was re-fixed at Rs.4,98,432/- per Are, by giving increase of 55% over and above the value fixed by the LAO, instead of 30% increase awarded by the LAO from the value of the basic document. Likewise, with respect to property under Category No.3, the reference court granted **LAA No.73/2014 & connected cases** -29- 65% increase above the land value fixed by the LAO. 17. In the common judgment in the third batch of cases in LAR No.121/2010 and connected cases, dated 27.1.2014 (leading case LAR No.77/2011) the reference court found that the LAO had failed to produce the basic document (sale deed No.5140/2007) which was relied upon for fixing land value of properties covered under category Nos.4 to 14. But it was found from the 'Notes to Award' that the property covered under the said document is 'Nilam' situated in Kunnathunad Village, remaining without any road access. Therefore it was found that the amount fixed by the LAO with respect to Category Nos.11, 13 and 14, which are described as wet lands having access from gravel road, tar road and mud road, can only be considered as a callous procedure adopted by the LAO. Referring to settled precedents of the hon'ble apex court it was found that, a reference under Section 18 is not an appeal against the award and the reference court cannot take into account the materials relied upon by the LAO, unless the same is produced and proved before the court. It was observed based on precedents of the **LAA No.73/2014 & connected cases** -30- hon'ble apex court that, when land is compulsorily acquired, the owner is entitled to get the highest value which similar land in the locality was shown to have fetched, in a bonafide transaction entered into between a willing purchaser and a willing seller, at near about time of the acquisition. The reference court specifically found that, property covered under the basic document (sale deed No.5140/2007), is a paddy field without any means of access. Similar property in the present acquisition is described as Category No.12. But it was found that the LAO had made a reduction of 20% (it is pointed out that the actual reduction made when computed was 30%) even for property included in Category No.12, without offering any proper explanation. It was found by the court below that, the LAO had failed to consider the time gap of more than three months between Section 4(1) notification and the date of execution of the basic document. Finding of the reference court is that, the acquired land is situated in an urban or rather semi urban area and value of the property was increasing day by day, as discernible from the 'Notes to Award'. It is also found that the proximity of the acquired **LAA No.73/2014 & connected cases** -31- lands to the developed areas, was omitted consideration by the LAO. The reference court considered Exts.A17, A18 and A43 judgments passed in other references. Ext.A17 is the judgment which is already referred to in the foregoing paragraphs of this judgment, which pertains to property acquired for the “Brahmapuram Waste Treatment Plant”. Ext.A17 was discarded by the reference court for the reason that the acquisition is on the basis of another notification and that the operation of the said judgment is under stay of this court. But with reference to Exts.A18 and A43, the court below found that, those are cases arising out of the very same notification. Out of which Ext.A18 is the common judgment in LAR Nos.127/2010 and 128/2010, which is also under challenge herein. Likewise, Ext.A43 is the judgment in LAR No.108/2010 and connected cases, which is also under challenge herein. Following those judgments the reference court awarded increase in the land value to the extent of 60% above the price fixed by the LAO for Category Nos.11, 7 and 5. **LAA No.73/2014 & connected cases** -32- 18. Now we may proceed to consider the question whether it was legal or not on the part of the court below to discard exemplars produced by the claimants and in placing reliance on the basic documents for fixation of the land value. In this regard, learned Standing Counsel for the requisitioning authority had raised contentions that, it is the burden of the claimants to establish that the amount awarded to them by the LAO is inadequate and that they are entitled for more. Only on satisfactory discharge of that initial burden, the burden will be shifted to the respondents to justify the award. He placed reliance in this regard on the decision of the Honourable Supreme Court, **Gafar and others vs. Moradabad Development Authority and another [2007 (7) SCC 614].** Learned Standing counsel had pointed out that, the acquisitioning authority had produced evidence before the reference court to prove that many land owners in the very same locality had executed sale deeds in favour of the requisitioning authority based on negotiated purchases. The price in those purchases was fixed by taking note of various components such as, 30% solatium, **LAA No.73/2014 & connected cases** -33- 12% additional market value etc. It was contended that there is no evidence adduced by the claimants to show that those land owners have agreed for such amount not under their free will, but under coercion or under any other circumstances which compelled them to receive compensation at that rate. The normal inference would be that they had agreed for the amount because they found it as proper compensation. It is the contention that such fact should be considered as having evidentiary value and having a bearing for the purpose of fixation of land value in the acquisition. 19. The requisitioning authority had placed much reliance on the value shown in the title deeds of the acquired properties. It is pointed out that the acquired property in L.A.R.No.121/2010 and connected cases were purchased by the claimants through a series of sale deeds (25 Nos) executed on the very same date of 25.1.2005. The value shown in all such documents is at the rate of Rs.2,000/- per cent, corresponding to Rs.4,942/- per Are. Learned Standing Counsel had drawn our attention to testimony of some of the **LAA No.73/2014 & connected cases** -34- claimants that the price shown in those documents is the genuine price. Per contra, counsel appearing for the claimants had pointed out that, the evidence with respect to those 25 claimants is that those properties were purchased based on a collective decision of all of them and the purchases were made from a common vendor with a view to develop the land under a common 'Association'. It is further pointed out that the oral evidence was only that the different plots in the area were purchased by fixing different price and the selection of plots for each purchaser was on the basis of lots drawn. Learned Standing Counsel had placed reliance on a decision of the Hon'ble Supreme Court in **Krishi Utpadan Mandi Samiti Sahaswan, District Badaun v. Bipin Kumar and another [ (2004) 2 SCC 283].** The Apex Court in that case observed that, Section 92 of the Evidence Act precludes a party from leading evidence contrary to the terms of a written document. Otherwise, it is not open to the party to urge that though the sale deed showed a specific price the real market value was different. The Apex Court observed that, permitting the parties to so urge, would be to **LAA No.73/2014 & connected cases** -35- give a permit to dishonesty. Parties who undervalued their documents for the purpose of payment of stamp duty, cannot be allowed to then claim that their own documents do not reflect the correct market value. Learned Standing counsel had also placed reliance on another decision of the apex Court in **Pehlad Ram and Others v. Haryana Urban Development Authority and Others[(2014)14 SCC 778].** It is held therein that, when the acquisition of land takes place soon after its purchase, the consideration paid is the best evidence for determination of the market value. There also it was held that, when the consideration amount paid by the appellant/claimant was not truly shown and when there is clear evidence with respect to evasion of stamp duty, he was not entitled for any protection by courts. It is found that a dishonest litigant need not be protected by the courts. The Supreme Court had emphasised the above principle based on the earliest decision of the Hon'ble Apex Court in **Dollar Company, Madras v. Collector of Madras [ (1975) 2 SCC 730].** The apex court in the said case observed that the best evidence for the value of the property is the sale of the **LAA No.73/2014 & connected cases** -36- very property to which the claimant is a party. If the sale is of a recent date, then all that need normally be proved is that, the sale was between a willing purchaser and willing seller and that there has not been any appreciable rise or fall since; and that nothing has been done on the land during the short interval to raise its value. But it is observed that, if the sale was long ago, may be the court would examine more recent sales of comparable lands as throwing better light on the current land value. 20. Controverting the above contentions, learned counsel appearing for some of the appellants/claimants, Advocate G.S. Reghunath, argued that, in all the 3 batch of cases dealt with by the Reference Court, the acquisitioning authority had failed to prove the basis for fixation of the land value, before the Reference Court. He placed reliance on a decision of the Hon'ble Supreme Court in **Vidhyadhar v. Mankikrao & another [AIR 1999 SC 1441].** The dictum therein is that, where a party to the suit does not mount the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, **LAA No.73/2014 & connected cases** -37- presumption would arise that the case set up by him is not correct. When the facts pleaded in the written statement is not stated by the party on oath in the trial court, and when the party had evaded from the witness box so that he may not be cross examined, such pleas cannot be considered as valid in evidence. Learned counsel contended that, in a reference case under Section 18 of the Act, it is the primary burden of the acquisitioning authority to prove that the market value was fixed on the basis of reliable materials. It is the burden of the State to prove that the market value of the land acquired was fixed depending upon the price of lands which are similarly situated, which were transacted or sold in the recent past, particularly those lands situated in the neighbouring areas. Relying on the decision of the apex court in **Land Acquisition Officer and Mandal Revenue Officer V. Narasaiah [(2001) 3 SCC 530],** it is contended that, it is the burden of the State Officials to trace out the persons connected with such transactions mentioned in the sale deeds and then to examine them in court for the purpose of proving the said transaction. It was in the wake **LAA No.73/2014 & connected cases** -38- of the aforesaid practical difficulties that Section 51-A was introduced in the L.A.Act, which says that certified copy of a registered document “may be accepted as evidence of the transaction recorded in such document.” But it is observed by the apex court that, the mere acceptance of such document does not mean that the court is bound to treat them as reliable evidence. It is for the court to weigh all the pros and cons to decide whether such transaction can be relied on for fixing the real price of the land concerned. It is contended that, while fixing valuation of the acquired land, determination of the market value shall be based on comparable sales. The method of averaging the market value fetched for different lands having different feature, under previous sale deeds and awards, were not found to be the correct method as held by the Apex Court in **M/s. Printers House Pvt.Ltd. v. Mst.Saiyadan (deceased) by L.Rs. and others [AIR 1994 SC 1160].** It is held that, where there is evidence of sales or awards of lands which could be compared with the acquired lands, the courts, as a matter of course, adopts the 'comparable sales method of valuation of **LAA No.73/2014 & connected cases** -39- land', in preference to other recognised methods of valuation, such as 'capitalization of net income method' or 'expert opinion method', for determining market value of the acquired land. 'Comparable sales method' is the most favoured method, since the price paid within a reasonable time in a bona fide transactions of purchase or sale of the very acquired lands or a portion thereof, or of the lands adjacent to those acquired and possessing similar advantages, could furnish to the court the 'price basis' for determination of the market value of the acquired land. In that, there can be no better evidence of what the willing purchaser would pay for the acquired land if it had been sold in 'the open market at the time of publication of preliminary notification'. Evidence of price fetched by sales of lands similar to the acquired land will be taken by the court to be the price which a willing purchaser would have paid for the acquired land, if the same had been sold to him in the open market. However, the apex court made it clear that, if the price under comparable sale is to be taken by the court, as furnishing the 'price basis' for determination of the market **LAA No.73/2014 & connected cases** -40- value of the acquired land, the comparable sale must, firstly be genuine, secondly it must have taken place at a time proximate to the date of publication of the preliminary notification under Section 4(1) of the Act, thirdly the land sold under the sale must be similar to the acquired land, and fourthly the land sold under the sale must be in the vicinity of the acquired land. It has therefore to be noted that, the location, size, shape, tenure, user or potentiality of land under comparable sale, if do not compare favourbaly with the acquired land, price fetched in the comparable sale cannot furnish the 'price basis' for determining the market value of the acquired land. However, if any differing feature or factor in a land covered by comparable sale admits of adjustment in terms of money, depending on whether it is plus factor or minus factor, the market value of the acquired land can be determined either by increasing its price or by decreasing its price, vis-a-vis the price fetched for land under comparable sales. 21. Controverting arguments of the Standing Counsel for the requisitioning authority, who canvassed for fixation of **LAA No.73/2014 & connected cases** -41- the land value based on the title deeds of the claimants themselves, other counsel appearing for the appellant/claimants have supported the arguments of Adv. G.S. Reghunath. Adv. Blaze K. Jose placed a decision of the hon'ble Supreme Court in **Chimanlal Hargovinddas V. Special Land Acquisition Officer, Poona and another ((1988) 3 SCC 751)** . The apex court in that case laid down the principle to be kept in mind by the courts in determining the value. It was held that, a reference under Section 18 of the Act is not an appeal against the award and the court cannot take into account the material relied upon by the LAO in his award, unless the same material is produced and proved before the court. It is not the function of the court to sit in appeal against award, approve or disapprove its reasoning or correct its error or affirm, modify or reverse the conclusions reached by the Land Acquisition Officer, as if it were an appellate court. The court has to treat the reference as an original proceedings before it and shall determine the market value afresh on the basis of the materials produced. The claimant is in the position of the plaintiff, who has to **LAA No.73/2014 & connected cases** -42- show that the price offered for the land in the award is inadequate on the basis of the materials produced in the court. The materials produced and proved by the other side can also be taken into account for this purpose. The market value of land acquired has to be determined as on the crucial date of publication of notification under Section 4. The determination has to be made standing on the date of publication of notification under Section 4, as if the valuer is a hypothetical purchaser willing to purchase the land from the open market and is prepared to pay a reasonable price as on the day. In doing so the court has to correlate the market value reflected in the most comparable instance which provides the index of the market value. Even post-notification instances can be taken into account, if they are very proximate, genuine and the acquisition itself has not motivated the purchaser to pay a higher rate on account of the resultant improvement or the development prospects. The apex court held that, the most comparable instances out of the genuine instances have to be identified on the consideration of proximity from time angle and proximity **LAA No.73/2014 & connected cases** -43- from situation angle. Having identified the instances which provide the index of the market value, the price reflected therein may be taken as the norm and the market value of the land under acquisition may be deduced by making suitable adjustments for the 'plus' or 'minus' factors, vis-a-vis the land under acquisition by placing the two in juxtaposition. The balance sheet of 'plus' and 'minus' factors may be drawn for the said purpose and the relevant factors may be evaluated in terms of price variation as the prudent purchaser would do. The market value of the land under acquisition has thereafter to be deduced by loading the price reflected in the instance taken as norm for 'plus' factors and unloading it for 'minus' factors. The apex court had pointed out specifically as to which are the 'plus' factors and which are the 'minus' factors. The principle contained in **Chimanlal's case (supra)** was reiterated in a more recent decision of the apex court in **Land Acquisition Officer Revenue Divisional officer, Chittor V. L. Kamalamma and others ((1998) 2 SCC 385)** . It is held that, when no sales of comparable land were available and where large **LAA No.73/2014 & connected cases** -44- chunks of land had been sold, even land transactions in respect of smaller extent of land could be taken note of as indicating the price that it may fetch in respect of large tracts of land by making appropriate deductions such as for development of the land by providing enough space for roads, sewers, drains expenses involved in formation of a lay out, lump sum payment, as also the waiting period required for selling the sites that would be formed. When a land is acquired which has the potentiality of being developed into an urban land, merely because some portion of it abuts the main road, higher rate of compensation should be paid while in respect of lands on the interior side it should be at lower rate, may not stand to reason, because when sites are formed those abutting the main road may have its advantages as well as disadvantages. 22. Contending against the view that the purchase price of the land acquired is to be considered, Adv. Blaze K. Jose had placed reliance on a decision of the apex court in **Mahabir Prasad Santuka and others V. Collector, Cuttack and others ((1987) 1 SCC 587).** It is observed **LAA No.73/2014 & connected cases** -45- therein that, the market value means, the price which a purchaser is willing to pay for the similar land to a willing seller, having regard the advantages available to the land and the development activities which may be going on in the vicinity and the potentiality of the land. Eventhough land was being used for agricultural purpose, but it was fit for nonagricultural purpose and it had potentiality for the future use as a factory or building site, the factor of increase of land price in the area need to be considered. It was observed therein that, the purchase price of the land acquired is irrelevant for determination of market value and the court only need to be concerned about the market value. 23. In a more recent decision of the hon'ble Supreme Court in **Union of India V. Raj Kumar Baghal Singh and others (2014) 10 SCC 422)** the apex court had streamlined the factors to be considered for computing the compensation by adopting the 'comparative sales method'. The factors to be considered is enumerated as, sale instance should be adjacent to the acquired land, proximate to the date of acquisition and possessing of similar advantages. In **LAA No.73/2014 & connected cases** -46- the absence of evidence of similar transactions, it is permissible to take into account transaction of nearest land around the date of notification by making suitable allowance. There is no fixed criteria as to what would be the suitable addition or subtraction from the value of the relied on transaction. Following the decision in **Chimanlal's case (supra)** it was held by the court that, commonsense is the best and most reliable guide. 24. While analysing the facts involved in these cases based on settled precedents, the main question to be considered is whether the reference court went wrong in not adopting the value reflected in the title deeds of the claimants for fixing land value of the acquired lands. As already discussed, legal precedents are to the effect that, when the land under acquisition was purchased on a date having proximity to the notification the value at which such land was purchased can be considered as an acceptable criteria. Proximity of such purchase with the date of Section 4 (1) notification is a very important factor. The rate at which a willing and prudent purchaser would buy the land from a **LAA No.73/2014 & connected cases** -47- willing seller, as on the date of Section 4 (1) notification, is the crucial basis for arriving at the market value. As laid down in a catena of decisions, the market value need to be ascertained by taking into consideration of all the potentialities of the land being developed into a land suitable for commercial exploitation. Nearness to developed area and the potential of the being developed for the purpose akin to one for which the acquisition was made, are important factors. Contention of the Standing Counsel is that 25 claimants have purchased their respective plots in January 2005 for the price shown in their title deeds and therefore the said price need to be considered, even with a marginal increase for the difference in point of time. But it is evident that Section 4 (1) notification was in September 2007, i.e: more than 2 years and 8 months after the purchase. Evidence on record would indicate that, the property under acquisition is situated very near to the developed areas. Admittedly, there occurred previous acquisitions for establishment of 'Info Park phase-I'. Functioning of 'I.T Parks' in the developed 'Phase-I' area had commenced in the year 2004. It **LAA No.73/2014 & connected cases** -48- is also revealed that the establishment of 'Smart City' in the nearby vicinity was announced in the year 2005 and steps for acquisition of the land is ongoing. The most important factor which the claimants could prove in evidence is that, a new bridge was constructed across the river 'Kadambrayar' connecting the acquired properties with the area of 'Info Park phase-I' and the 'Smart City'. It is pointed out that there occurred a sudden hike in the price of land in the area wherein the acquired properties are situated when construction of the said bridge was started and when it was completed and opened during the year 2006. However, we are of the considered opinion that, there is no reason to deviate from the 'comparative sales method' for fixing the market value, especially when the title deeds are executed with a time gap of more than 2 years and 8 months from the date of the notification. Even if it is accepted for the sake of argument that, the value reflected in the title deeds of the claimants are the true value at which those lands were purchased or that they have taken advantage by showing lump sum price in order to reduce the stamp duty and **LAA No.73/2014 & connected cases** -49- therefore the claimants cannot be permitted to take any advantage, it has to be taken note of that, there occurred considerable hike in the market value of the land based on the above said developments in the close vicinity and because of the accessibility and proximity with such developed areas. Therefore we are of the considered opinion that the reasonable and justifiable market value need to be fixed based on the exemplars available on record, which are sale instances having close proximity with respect to the point of time and to the proximity of the location. Learned counsel appearing for the appellants/claimants have also contended that, with respect to most of the acquired lands there occurred developmental activities in between the date of purchase and date of the notification. Of course, such a contention was opposed by learned Standing Counsel based on submissions made that, the claimants have not proved any such improvements through acceptable evidence. Further it is pointed out by learned counsel for the claimants that, even the LAO had fixed the land value at considerable increase from the purchase price, on being convinced that the market **LAA No.73/2014 & connected cases** -50- value prevailing in the locality as on the date of notification is much higher than the consideration reflected in the title deeds. Hence, neither the acquisitioning authority nor the requisitioning authority cannot be heard to content that the claimants are entitled only for the land value reflected in their title deeds executed more than 2 years and 8 months earlier to the date of Section 4 (1) notification. 25. Question now mooted for decision is, which is the most suitable exemplar which can be relied upon for fixing land value of the acquired properties. In all the 3 common judgments referred above, the reference court had found that, none of the exemplars produced by the claimants can be accepted and hence taken the value awarded by the LAO as basis, by allowing variations taking into consideration of the 'plus' factors and 'minus' factors. The LAO had taken the value reflected in the basic document, sale deed No.5140/2007, for fixing land value for categories 4 to 14. Likewise, the value reflected in the basic document, sale deed No.2328/2006, was considered for fixing land value for category 1 to 3. Report of the Advocate Commissioner **LAA No.73/2014 & connected cases** -51- marked in LAR 127/2010 and 128/2010 would reveal that the property covered under sale deed No.5140/2007 is uncultivated paddy field surrounded by similar uncultivated fields without having any accessibility other than through the ridges in the paddy fields. Distance of the said land from the acquired property through road was reported to be 6.6 Kilometers. It has come out in evidence that the property covered by the said sale deed is situated in Pallikkara Desom in Kunnathunadu Village. It remains trite that, it is the duty of the LAO to establish before the court that the basis adopted for fixing the land value is correct and reasonable. As already found, the authority had failed in producing or proving the basic document nor had adduced any evidence to prove comparability of the land covered under the basic document with that of the acquired properties. The finding arrived by the reference court is that the acquired properties are situated in a more prominent location in the vicinity of the developed areas and more close to the Cochin City. Further, on the point of accessibility also, it is found that the land is surrounded by paddy fields and having access only **LAA No.73/2014 & connected cases** -52- through the ridges. It cannot in any manner be compared with even the acquired wet land having no access from the tar road or mud road. With respect to property covered under sale deed No.2823/2006 it is to be noted that it is a transaction which occurred one year and 6 months before the date of Section 4 (1) notification. Evidence adduced is to the effect that the property covered under that sale deed is situated at about 700 meters away from the acquired properties. The LAO himself had fixed land value for properties included in category 1 to 3 by giving increase from 5% to 30%, considering the importance of the locality with respect to the acquired properties. 26. Under the above mentioned circumstances, it is to be considered whether any better exemplars than the basic documents are available for fixing land value of the acquired properties. Eventhough the Standing Counsel had canvassed the position that average price of such exemplars need to be considered, legal position remaining settled through recent decisions are to the effect that, when there are more than one exemplars with respect to similar lands are available, **LAA No.73/2014 & connected cases** -53- highest of the exemplars, if it is satisfied that it is a bonafide transaction, need to be considered and accepted vide decision of the hon'ble Supreme Court in **Mehrawal Khewaji Trust V. State of Punjab ((2012) 2 KLT 542** **(SC))** . When the burden to prove inadequacy of the compensation was successfully discharged by the claimants and when the State has not adduced any contra evidence in support of its claim of sufficiency, the court may be justified in setting aside the award of the reference court, is the dictum contained in **Mahesh Dattatray Thirthkar V. State of Maharashtra (AIR 2009 SC 2238)** . 27. Based on the findings as above, now we are evaluating each of the exemplars produced by the appellants/claimants in order to substantiate the prevailing market value of the acquired land as on the date of the notification. 28. In LAR 127/2010 and 128/2010 the claimants have produced Exts.A10 and A14 to A19. The reference court observed that, the properties covered under those documents are dry land and many of them have direct access to public **LAA No.73/2014 & connected cases** -54- road. It was further observed that, those are post-notification documents. Exhibit A20 is the valuation report of the approved valuer of a nationalized Bank. Value of the acquired property was assessed at Rs.2,25,000/- per cent. But the court discarded the said evidence mainly for the reason that the valuer was not examined and the basis of the valuation was not proved. It was also found that valuation was made after a period of more than one year from the date of Section 4 (1) notification. Learned counsel appearing for the appellants/claimants pointed out that, the observation of the reference court that all the sale deeds are post-notification documents, is factually incorrect. Our attention was drawn specifically to the document marked as Ext.A14. On a perusal, we find that Ext.A14 is a sale deed executed on 2008-2007. The very same document is seen produced as Ext.A7 in LAR No.108/2010 and connected cases. In that judgment it is specifically mentioned that Ext.A7 is not a post-notification document. But still, the reference court failed to consider the comparability of the land covered under Ext.A7 with that of the acquired property. The **LAA No.73/2014 & connected cases** -55- claimants in LAR No.108/2010 and connected cases had adduced evidence through Exts.C1 and C1 (a), the report of the Advocate Commissioner and the sketch prepared. It is revealed that the Advocate Commissioner had inspected the property covered under the said sale deed, in the presence of counsel for the requisitioning authority, Village Officer of Puthencruz Village and his Assistant. The report is that the property in question is a dry land having frontage of about 7 Meters to the Brahmapuram-Karimughal public road on its northern side. There is also Panchayat road lying on the western side of the said property. It is noticed that the total extent of the land covered is 214.149 Cents, which is lying at the same level of the Brahmapuram - Karimughal road. The Commissioner reported that the property in question is situated at a distance of 200 meters away from the acquired property in LAR No.108/2010 and at about 250 meters from the property covered under LAR No.123/2010 & 124/2010, as well as at about 500 meters from the property in LAR No.112/2010. The report is to the effect that all the properties are situated in the same locality, Block and **LAA No.73/2014 & connected cases** -56- ## Village. 29. Learned counsel appearing for the appellants/claimants pointed out that, the LAO had considered comparability of the land covered under the above said sale deed, which is reflected in the 'Notes to Award' marked as Ext.A10 in LAR No.77/2011. The observation therein is that, the property covered under the sale deed is situated on the southern side of the acquired properties at about a distance of 750 Meters and the property is having direct access to BrahmapuramKarimughal road. It was observed that the purchase was made for the purpose of construction of flats and the property was levelled by taking earth therefrom. Finding of the LAO is that, the value contained in the sale deed cannot be accepted as market value of the acquired property, because the purchase was for a commercial purpose. 30. All the counsel appearing on behalf of the appellants/claimants have conceded that property covered under the above said sale deed (herein after referred to as sale deed No.6977/2007) is the best exemplar, upon which **LAA No.73/2014 & connected cases** -57- they are relying for fixation of the land value of the acquired properties. Learned counsel appearing for the appellants in the appeal arising out of the LAR Nos.172/2010, 98/2011 and 61/2011 had specifically pointed out that, the claimants in those cases were denied of opportunity to adduce proper evidence. He pointed out that an application filed by the appellants in those cases to re-open the evidence and for appointment of an Advocate Commissioner, was not allowed by the reference court. The order passed by the reference court in LAR No.163/2010 is produced for our perusal. It is evident that the said case was jointly tried along with LAR No.72/2011 and connected cases. The application mentioned above was filed after examination of the claimant therein in the joint trial, when fresh vakkalath was filed after changing the lawyer. The court below observed that, almost 2 months have elapsed since the commencement of trial and both sides have adduced various evidence in those cases. Finding that the claimant has not offered any sustainable explanation for filing such application at a highly belated stage, and taking into consideration of the stage of the litigation, the court **LAA No.73/2014 & connected cases** -58- below had refused to reopen the evidence and to permit to adduce fresh evidence. But it is evident that, against dismissal of similar applications filed in LAR No.77/2011 the claimant therein had approached this court in a petition filed under Article 227 of the Constitution of India as OP (C) No. 4549/2013. This court found that the claimant should be given an opportunity to adduce further evidence in the matter and issued directions accordingly. It is evident that, pursuant to the said order, additional documents were allowed to be produced before the trial court, which were marked as Ext.G1 to G15. Ext.G6 is the certified copy of the very same Document, No.6977/2007. Learned counsel for the appellants/claimants in the above said cases, Adv. T.R.S Kumar had fairly conceded that the exemplar of higher value among Ext.G1 to G15 is sale deed No.6977/2007 itself. 31. As we have already mentioned, judgments in LAR Nos.131/2010 and 138/2010 with respect to acquisition for establishment of the 'Waste Treatment Plant' at Brahmapuram was also pressed into service from the side of the appellants/claimants. It is already found that the **LAA No.73/2014 & connected cases** -59- judgments in those cases pertains to a different acquisition in a different area and that operation of the said judgment is under stay of this court. Therefore we are of the considered opinion that, among the exemplars produced from the side of the claimants, the best one which need to be considered is the sale deed No.6977/2007. 32. While considering the question as to which among the two basic documents relied upon by the LAO and Sale Deed No.6977/2007, need to be accepted as the most suitable sale instance for the fixing the land value of the acquired properties, we notice that, the property covered under the basic document No.5140/2007 is situated in a far away place and is not at all a comparable because of the various reasons mentioned above. So also the property covered under Sale Deed No.2328/2006 is a transaction which took place about one year and 6 months prior to the notification. Whereas the transaction under Document No.6977/2007 is the most proximate in point of time, being a document executed on 20-08-2007, vis-a-vis the notification under Section 4 (1) published on 20-09-2007. The sale in **LAA No.73/2014 & connected cases** -60- question was exactly about one month prior to the date of the notification. The evidence with respect to comparability of the land assumes importance. From the report of the Advocate Commissioner it is clear that the property covered under Sale Deed No.6977/2007 is having frontage of 6 Meters to a public road having Bus route. Further, on the western side of the said property there is another Panchayat road. Admittedly the acquired properties are situated on the northern side of the said property. The Commissioner had reported that the nearest of the properties among the acquired land is situated at about 200 Meters from the said property. It has come out in evidence that the acquired properties are situated on the side of the another road namely, “Brahmapuram - Pinarmunda - Pallikkara road”. Only the property of few claimants in these cases are having frontage to the said Brahmapuram - Pinarmunda - Pallikkara public road. On a comparison of the entire evidence it is clear that Brahmapuram-Karimughal road is a PWD road having Bus route and the property covered under the said document is sitauted in a more prominent location than the acquired **LAA No.73/2014 & connected cases** -61- properties. It is contended by learned Standing Counsel for the requisitioning authority that, the buyer in Sale Deed No.6977/2007 is a Builder and the purchase was intended for construction of multi-storied apartments. He is relying on the 'Notes to Award' prepared by the LAO in order to contend that, the purchase can be considered only as a commercial transaction. It is further contended that, the purchase was at a point of time when preparations for the present acquisition stood completed. Intention of the purchaser was to utilize the potential development which may occur in the acquired properties. There is nothing to suspect genuineness of the said transaction. The acquisitioning authority or the requisitioning authority had no case that the transaction is in any manner not genuine. Their only contention is that the transaction is commercial in nature because the purchaser is a builder who had purchased the property for construction of a multi storied apartment. It remains well settled that, while considering comparable sale instances, potentiality of the acquired land based on developments which can be effected, is also one among the factors need to be taken note of. As **LAA No.73/2014 & connected cases** -62- observed, the most comparable sale instance need to be selected based on proximity from the angle of time and from the angle of situation. However, we are of the considered opinion that sale deed No.6977/2007 cannot be discarded. It can be adopted as the best available exemplar for fixation of the land value, subject to suitable variations in the price thereof. This is especially because of the proximity in point of time as well as proximity in point of location. 33. Learned counsel appearing for the appellants/claimants had placed reliance on a decision of the Honourable Supreme Court in **Andhra Pradhesh Housing Board vs. K.Manohar Reddy and others [(2010) 12 SCC** **707]** , wherein it is held that, in a case where the acquired land is classified as an agricultural land, there exist a possibility that it could always be converted to land of good quality by making investments like filling, providing road, sewage system and other civic amenities. The land having such potential value could therefore be converted to a land of good quality by investing money towards its development. In that view of the matter, it has to be held that, even if the **LAA No.73/2014 & connected cases** -63- comparable instance is a purchase made after the proposal for the acquisition had been made public, such an exemplar need to be considered. In **Shaji Kuriakose vs. Indian Oil Corporation Limited (2001 (7) SCC 650)** it is held by the Honorable apex court that, there are certain factors which are required to be fulfilled for awarding compensation in accordance with the value of land reflected in the comparable instances. The factors which need to be considered inter alia are; 1) the sale must be a genuine transaction. 2) that the sale deed must have been executed at a time proximate to the date of issue of Notification under Section 4 of the Act. 3) that the land covered by the sale must be in the vicinity of the acquired land. 4) that the land covered by the sale must be similar to the acquired land. 5) that the size of the plot of the land covered by the sale be comparable to the land acquired. We are of the considered opinion that all these factors are remaining satisfied with respect to the transaction covered under Document No.6977/2007. But it is to be noted that the acquired properties include properties of different nature classified **LAA No.73/2014 & connected cases** -64- into distinct groups. It include dry lands, reclaimed lands, wet lands and wet lands converted into coconut plantations. There are also dissimilarities in locational importance on the basis of accessability to public roads. There is also difference with respect to the advantage of accessibility to tar road and mud road. In the decision in **Chimanlal Hargovinddas vs. Special Land Acquisition Officer, Poona and another** [(1988) 3 SCC 751] it is held by the Honorable Supreme Court that, having identified the instance which provide index of the market value, the particulars therein may be taken as a norm and the market value of the land under acquisition may be deduced by making suitable adjustments for the 'plus' and 'minus' factors vis-a-vis the land under acquisition, by placing the two in juxtaposition. A balance sheet of plus and minus factors should be drawn for this purpose and the relevant factors may be evaluated in terms of the price variation, as a prudent purchaser would do. The market value of the land under acquisition has thereafter be deduced, by loading the price reflected in the instance taken as the norm for plus factors and by unloading it for the **LAA No.73/2014 & connected cases** -65- minus factors. In **Chimanlal's** case (supra) it is stipulated that such exercise has to be undertaken in a common sense manner as a prudent man in the world of business would do. The Honorable apex court had also illustrated some of the 'plus factors' and 'minus factors' which need to be taken into consideration. In **Shaji Kuriakose's** case (supra) also the Apex Court observed that, while adopting the norms based on the comparable instance, if there is a dissimilarity with respect to locality, shape, size or nature of the land between the land covered by the sales and the land acquired, it is open for the court to proportionately reduce the compensation for the acquired land than what is reflected in the sales, depending upon the disadvantages attached with the acquired land. 34. Keeping in mind the guiding principles as mentioned above, we are now evaluating the comparable sale instance with each of the categories of the acquired properties. As already found, the comparable sale instance of Document No.6977/2007 is with respect to a property having extent of 214.149 cents which is equivalent to 86 Ares and 70 **LAA No.73/2014 & connected cases** -66- sq.metres. We are of the view that on the basis of the extent, the said exemplar need not be differentiated from the extent of acquired properties belonging to different claimants. In other words, there is no much difference on the aspect of largeness or smallness of the extent. But at the same time from the angle of locational importance there is considerable difference. The property covered by the said document is facing a more prominent PWD public road having Bus route. The property is situated at the same level of the public road, remaining in a developed state, because of the removal of earth and levelling conducted. The property is also having the advantage of another Panchayath Road (mud road) abutting on its western side. As borne out from the records, the acquired properties are situated at a distance varying from 200 Metres to 700 Metres. It is to be noted that, among the acquired properties the category which is situated in most advantageous position, is the dry lands having access to tar road. From Ext.C1 and C1(a) Commission report and sketch in LAR No.108/2010 and from Ext.C1 and C1(a) report prouduced in LAR No.77/2011 and also from Ext.C1(c) sketch **LAA No.73/2014 & connected cases** -67- prepared by the Village Officer, it is evident that the acquired properties are situated on the northern side of Brahmapuram-Pinarmunda-Pallikkara Road. A few plots under acquisition is having frontage to Brahmapuram -Pinarmunda-Pallikkara road. But many of the other plots are having frontage only to Panchayath roads leading from the above said Brahmapuram-Pinarmunda-Pallikkara Road. The plots among the acquired properties which are situated in the most advantageous position, are having frontage only to the Brahmapuram - Pinarmunda-Pallikkara Road. There exists a lot of difference in the importance of location, lie and nature of the land when compared with the property covered under Document No.6977/2007. Therefore we are of the opinion that the comparable instance under Document No.6977/2007 can be taken as the basis for fixing land value of the property included in the first category, ie; Category No.I (a), which are the dry lands having access to tar road. While considering the 'minus' factors, like the difference in location, lie and nature of the land, we notice that the value of the property covered under Sale deed No.6977/2007, at **LAA No.73/2014 & connected cases** -68- Rs.10,09,636/- per Are, cannot be awarded to the acquired properties under category 1 (a). On a reasonable estimation the land value of the properties included under Category I(a) can be fixed by reducing 30% of the value of Sale Deed No.6977/2007. Accordingly, the land value of the properties included in Category No.I(a) (dry land with access to tar road) is fixed at Rs.7,06,745/- per Are. With respect to the reclaimed land (filled upland) having access to tar road included in Category II (a) the land value can reasonably be fixed by reducing 40% from Rs.10,09,636/-, at Rs.6,05,782/per Are. With respect to wet land having coconut plantation on bunds having access to tar road is fixed by reducing 50% of the value. Accordingly, the land value with respect to Category III(a) is fixed at Rs.5,04,818/- per Are. With respect to wet land having access to tar road which is included in Category IV(a), the land value is fixed by giving a reduction of 60% at Rs.4,03,854/- per Are. 35. It is to be noted that, with respect to all the 4 catogories mentioned above, there are sub classifications based on accessibility to mud/gravel road as well as land **LAA No.73/2014 & connected cases** -69- having no access to any roads. Those are properties included in Sub classification (b) and (c) of the main groups. We think it appropriate to have a further reduction of 15% each with respect to property having access to tar road. So also with respect to properties having no road access 40% deduction can be made from the value fixed with respect to property having access to tar road in each of the main categories/groups. Thus, we fix the land value with respect to properties included in all the categories as follows: Category I(a) Rs.7,06,745/- per Are (-30% from 10,09,636/-) Category I(b) Rs.6,00,733/- per Are (-15% from Rs.7,06,745/-) Category I(c) Rs.4,24,047/- per Are (-40% from Rs.7,06,745/-) CategoryII(a) Rs.6,05,782/- per Are (-40% from Rs.10,09,636/-) CategoryII(b) Rs.5,14,915/- per Are (-15% from Rs.6,05,782/-) Category II(c) Rs.3,63,469/- per Are (-40% from Rs.6,05,782/-) Category III(a) Rs.5,04,818/- per Are (-50% from Rs.10,09,636/-) Category III(b) Rs.4,29,095/- per Are (-15% from Rs.5,04,818/-) Category III(c) Rs.3,02,891/- per Are (-40% from Rs.5,04,818/-) Category IV(a) Rs.4,03,854/- per Are (-60% from Rs.10,09,636/-) Category IV(b) Rs.3,43,276/- per Are (-15% from Rs.4,03,854/-) Category IV(c) Rs.2,42,312/- per Are (-40% from Rs.4,03,854/-) **LAA No.73/2014 & connected cases** -70- 36. Based on the fixation of land value for the properties included under different categories this court proposes to dispose of the appeals by grouping them based on such categorization as follows. ## 37. Group No.1 - (1) L.A.A.No. 609/2014 & C.O. No.126/2014 (2) L.A.A.No. 610/2014 & C.O. No.125/2014 (3) L.A.A.No. 643/2014 & C.O. No.152/2014 (4) L.A.A.No. 645/2014 & C.O. No.147/2014 (5) L.A.A.No. 648/2014 & C.O. No.145/2014 (6) L.A.A.No. 651/2014 & C.O. No.143/2014 (7) L.A.A.No. 653/2014 & C.O. No.128/2014 (8) L.A.A.No. 655/2014 & C.O. No.131/2014 (9) L.A.A.No. 659/2014 & C.O. No.142/2014 (10) L.A.A.No. 660/2014 & C.O. No.135/2014 (11) L.A.A.No. 662/2014 & C.O. No.137/2014 (12) L.A.A.No. 664/2014 & C.O. No.153/2014 (13) L.A.A.No. 665/2014 & C.O. No.141/2014 (14) L.A.A.No. 666/2014 & C.O. No.209/2014 (15) L.A.A.No. 667/2014 & C.O. No.138/2014 (16) L.A.A.No. 668/2014 & C.O. No.136/2014 (17) L.A.A.No. 669/2014 & C.O. No.146/2014 (18) L.A.A.No. 671/2014 & C.O. No.169/2014 (19) L.A.A.No. 674/2014 & C.O. No.162/2014 (20) L.A.A.No. 683/2014 & C.O. No.144/2014 **LAA No.73/2014 & connected cases** -71- (21) L.A.A.No. 694/2014 & C.O. No.191/2014 (22) L.A.A.No. 695/2014 & C.O. No.180/2014 (23) L.A.A.No. 696/2014 & C.O. No.201/2014 (24) L.A.A.No. 697/2014 & C.O. No.210/2014 (25) L.A.A.No. 702/2014 & C.O. No.181/2014 (26) L.A.A.No. 704/2014 & C.O. No.207/2014 (27) L.A.A.No. 705/2014 & C.O. No.184/2014 (28) L.A.A.No. 706/2014 & C.O. No.195/2014 (29) L.A.A.No. 707/2014 & C.O. No.206/2014 (30) L.A.A.No. 710/2014 & C.O. No.199/2014 (31) L.A.A.No. 718/2014 & C.O. No.176/2014 (32) L.A.A.No. 725/2014 & C.O. No.185/2014 (33) L.A.A.No. 726/2014 & C.O. No.194/2014 (34) L.A.A.No. 728/2014 & C.O. No.208/2014 (35) L.A.A.No. 741/2014 & C.O. No.197/2014 (36) L.A.A.No. 745/2014 & C.O. No.203/2014 (37) L.A.A.No. 749/2014 & C.O. No.219/2014 (38) L.A.A.No. 759/2014 & C.O. No.182/2014 (39) L.A.A.No. 72/2015 (40) L.A.A.No. 201/2016 & C.O. No.146/2016 (41) L.A.A.No. 219/2016 & C.O. No.145/2016 (42) L.A.A.No. 892/2014 (43) L.A.A.No. 887/2014 (44) L.A.A.No. 19/2015 (45) L.A.A.No. 132/2015 & C.O. No.137/2016 **LAA No.73/2014 & connected cases** -72- The LAO had included these properties in Category No.12, which are wet lands without access to any road. The reference court found that these are properties having access to a particular road, which was formed for common usage of all land holders. Therefore the category was changed to Category No.11. The reference court found that an increase of 60% above the land value fixed by the LAO can be awarded to the said catagory. Thus, the land value in these cases was re-fixed by the reference court at Rs.2,37,213/-. 37. Learned Standing Counsel for the requisitioning authority as well as the learned Government Pleader appearing for the acquisition authority had raised vehement contentions assailing the finding of the reference court with respect to the change of category allowed. A brief explanation about the factual aspects prevalent in these cases will be beneficial. Copies of the title deeds through which these properties were purchased, which were produced in evidence, would reveal that all the transactions were effected on the very same date of 25.1.2005. One Sri.C.V.Gopi, who is also a claimant in one of the reference **LAA No.73/2014 & connected cases** -73- cases, is one among the vendors. Recitals in all those title deeds are that, the then land owners of the properties along with the owners of adjacent lands have divided their properties into different plots and for the purpose of getting approach to the Brahmapuram-Pinarmunda-Pallikkara public road, from all such plots divided, they have entered into an agreement dated 17.1.2005 with Sri.C.V.Gopi, demarcating a strip of land having the width of 7 Meters continuously, running from Brahmapuram – Pinarmunda - Pallikkara public road on the south through the properties of the parties of the said agreement, in such way that the respective plots of all the parties gets approach to the public road through the strip of land contributed by each such land owners. From the recital it is clear that the properties comprised in each such title document was conveyed along with the right of way upon the aforesaid 7 Meter wide road for taking all kinds of vehicles and for taking electricity, water, cable T.V. and drainage connections. Ext.A2 in LAR No.77/2011 is the sale deed executed with respect to the property which is demarcated as the pathway. The name of the purchaser **LAA No.73/2014 & connected cases** -74- mentioned in Ext.A2 document is Sri.C.V.Gopi, aged 47 years, Government employee, S/o of Narayana Kurup residing at 28/1824 A, Pandaranchira Road, Kadavanthara Desom, Elamkulam Village, Kanayannoor Taluk, Cochin- 682 020, in his capacity as the Secretary of 'Kadambrayar Enclave Owners Association'. The recital of Ext.A2 document is to the effect that the demarcated strip of land having a width of 7 Meters set apart by the virtue of agreement dated 7.1.2005, is demarcated in such a way that all the respective plots conveyed through the title documents of each party will have approach through the said road to the BrahmapuramPinarmunda-Pallikkara public road and that each of the purchasers will be entitled to draw electricity, telephone, water, Cable T.V., drainage connections through the said strip of land. It is stated that on the basis of the agreement dated 7.1.2005, the strip of land having 7 meter width admeasuring 1.87 cents is conveyed for the benefit of the owners of the 25 plots and to other plots as permitted by the “Kadambrayar Enclave Owners Association”. It was the case of the claimants that all of them had joined together for purchasing **LAA No.73/2014 & connected cases** -75- the respective plots with a view to develop the same and for that purpose a strip of land which is covered under Ext.A2 document was set apart as pathway having access to all the plots from the Brahmapuram-Pinarmunda-Pallikkara road. According to the claimants, at the time of the acquisition, the strip of pathway remained specifically demarcated and partially developed. Therefore it was contended that the inclusion of the properties covered under these acquisitions in the category of wetland having no road access was not true and correct. On the other hand, it is the contention of the respondents before the reference court that, no such road was in existence at the time of acquisition. It was pointed out that, the land covered under Ext.A2 document was also acquired and the Land Acquisition Officer had awarded compensation for the said land also. Before this court, it was argued by the State and the requisitioning authority that, the view taken by the reference court was factually incorrect. In this regard, the evidence adduced before the reference court would reveal that the boundary description in each of the title deeds would specifically **LAA No.73/2014 & connected cases** -76- indicate that, each such plots are abutting to the 7 Meters wide road on one of its sides. The plan (sketch) appended with those documents would clearly indicate about the existence existence of such a pathway. Ext.A2 would reveal that the land demarcated as pathway was purchased by Sri.C.V.Gopi in his capacity as Secretary of the 'Kadambrayar Enclave Owners Association' in the year 2009. An Advocate Commissioner deputed from this court in two original petitions filed had inspected the properties. Ext.A27 is the report of the Advocate Commissioner, who conducted the inspection on 31.12.2009. The report is to the effect that the entire area was found to be water logged and that he could not notice of any road in the property belonging to the claimant in those case, Mrs.Haleema Zubair. But it was reported that there exists a mud road having a width of 6.6 meters on the eastern side of the property belonging to another claimant, namely Zubair Naina. It is stated that the said mud road is starting from Brahmapuram-PinarmundaPallikkara road and ending in Kadambrayar. The report further states that the property on either side of the road is **LAA No.73/2014 & connected cases** -77- wetland and that the mud road was seen constructed with gravel and mud and it can be used for vehicular traffic. The Advocate Commissioner when examined as AW14 had clarified in his testimony that, 'Akasia' plants noted in Exts.A9 and A26 series of photographs are having the age of about 4 years. Exts.C1, C1 (a), and C1(b) are the reports submitted by another Advocate Commissioner deputed from the reference court. The said inspection was conducted on 16.3.2013. The report is to the effect that there is a private road in existence, providing access to the properties of various claimants, which is having width of 5.5 Meters to 7 Meters. The reference court had remitted back the said report for conducting a further inspection with the assistance of the Village Officer. After examining the property with the assistance of the Village Officer, the Advocate Commissioner had submitted a further report enclosing Ext.C1(c) plan prepared by the Village Officer. In Ext.C1 (c), the Village Officer had identified 7 Meter wide road, which was purchased as per Ext.A2 sale deed. The Village Officer who prepared Ext.C1(c) plan was examined as RW1. During his **LAA No.73/2014 & connected cases** -78- examination he had deposed that the road portion shown in the said plan is lying at a higher level separated from the adjacent plots. However he conceded that the existence of such a road is not evident in the village records. When the LAO was examined as RW (2), he conceded that the inspections by the Advocate Commissioners were made in his presence and the 'Akasia' plants noted in the plan are in existence. He admitted of having written Ext.A5 letter to the District Collector on 10.6.2009, wherein it is stated that the entire properties in that locality is water logged, but the properties in the name of Sri.C.V.Gopi has been partially reclaimed by filling with soil. 38. All the above mentioned evidence would clearly prove that the respective plots were purchased with the specific understanding that the property covered under Ext.A2 document will be set apart as pathway, for common usage of all the plots. It is also evident that the land covered under Ext.A2 was conveyed for usage of all the owners as pathway and the purchaser of that property had bought the land in his capacity as Secretary of the above said -79- **LAA No.73/2014 & connected cases** Association. 39. Contention of the learned Standing Counsel is that, the attempt of the land owners was to make a false claim by presenting a made to believe story regarding the formation of a pathway. Such contention cannot be accepted, because the purchase of the respective plots as well as the purchase for the land of the pathway was in January 2005, whereas the notification for acquisition came only in September 2007. Further contention raised is that, even assuming that the documentation was made in the manner as mentioned above, there existed no pathway as on the date of acquisition of the properties. But the factual matrix proved in evidence, as narrated in the forgoing paragraphs, will fortify that the pathway remained demarcated and partly filled up as on the date of the Notification. Even if it is accepted for the sake of argument that, despite execution of Ext.A2 sale deed, the parties have not developed the pathway and put it to use as on the date of the Notification, question to be considered is as to whether individual plots were having right for usage of the road for access to the public road. It is evident from the **LAA No.73/2014 & connected cases** -80- documents of title of each individual plots as well as from Ext.A2 that the owners were vested with right through the road specifically demarcated for access to the public road. 40. Learned Standing Counsel raised vehement argument that the acquired land was not remaining as demarcated plots having accessibility to road. On the other hand, properties in the entire area was remaining water logged. It is contended that the claimants were having no legal rights to make any conversion due to prohibitions contained in the Kerala Land Utilisation Order and in the Conversion of Paddy Land and Wet Land Act, 2008. It is further contended that even assuming that they have converted any land in violation of the legal embargo, the claimants cannot be permitted to derive benefit out of such illegal act. In the case at hand, the acquisition was in the year 2007. The bar contained under Section 14 of the Conservation of Paddy Land and Wet Land Act, 2008 will not be applicable to any paddy land or wet land, which if got converted prior to the commencement of the said Act. The legal position in this regard remains settled through various **LAA No.73/2014 & connected cases** -81- precedents of this Court, the last one in its series being a Division Bench decision of this Court **in Aysha Beevi vs. Superintendent of Police [2014 (3) KLT 1078]** . 41. Learned Standing Counsel placed reliance on the decision of the Hone’ble Supreme Court in **Revenue Divisional Officer, Fort Cochin and Others Vs.Jalaja Dilip Vs. 2015 (2) KHC 109 (SC)** . It is held therein that, if classification of the land in the 'revenue records' remained as ‘Nilam’ (paddy land), provisions of the KLU Order will be applicable to such land and the Collector only has got power to grant permission to utilize the land for other purposes. Contention of the Standing Counsel for the requisitioning authority is that, even if the land is converted without getting such permission from the Collector as mandated under the KLU order, it will amount to an illegal conversion, based on which the claimants are not entitled to get compensation. 42. Per contra, counsel appearing for various claimants contended that, in order to attract provisions of the KLU Order it has to be proved that the land in question was cultivated with any of the food crops mentioned therein, for a **LAA No.73/2014 & connected cases** -82- continuous period of three years either before commencement of the KLU order or at any time after that. In the case at hand the only evidence brought on record is that the area remained as water logged. Unless and until the authorities have proved that the land in question was utilized for cultivation of food crops continuously for a period of three years, it cannot be canvassed that there occurred a violation of the KLU Order. We take note of the provisions contained in the KLU Order which permit the Collector to take action restraining any such conversion if done without obtaining proper permission. Fact that the land was filled up partly and the road was demarcated and formed, at least in some portions, is not in dispute. The legal position remaining settled is to the effect that, while fixing compensation with respect to acquisition of the land, all the potentials for future development need to be taken into consideration. If the plots in question were purchased by providing specific demarcated pathway with individual right of usage assigned to each of such purchaser, they will be at liberty to get statutory permissions for development of the land and the pathway for **LAA No.73/2014 & connected cases** -83- their common usage. 43. Counsel for the claimants have also pointed out that the LAO himself had awarded higher rate of compensation with respect to certain plots covered in the very same area, by including them in the category of high level wet land. It is evident from the 'Notes to Award' that such categorization was made on the basis that those lands remained partly filled up. Therefore it is contended that the authorities cannot have a turn around in raising an argument that the conversion was without statutory permission. 44. Under the above mentioned circumstances, we are of the considered opinion that the acquired land covered under the cases specified above cannot at any manner be catagorised as wetlands having no access to the public road. Therefore the categorization of the property involved in these cases, made by the reference court, need to be upheld. The properties in the above above specified batch of cases, except LAA Nos.887/14, 19/15 and 892/14 need to be included in Category IV (b) for which land value is fixed at Rs.3,43,276/- per Are. **LAA No.73/2014 & connected cases** -84- 45. With respect to LAA Nos.887/2014, 19/2015 and 892/2014, the property acquired is land covered under Ext.A2 document. Contention is against the finding of the referene court that the land in question is remaining as a demarcated road. In view of our conclusion narrated above, such a contention cannot be countenanced. It is pertinent to note that, compensation fixed by the LAO in these cases was confirmed by the reference court. There is no challenge with respect to the said finding from the side of the claimants. Therefore, we are of the opinion that, no interference is warranted in the above three appeals with respect to land value fixed. Hence those three appeals are liable to be dismissed. 46. In the result, all the Land Acquisition Appeals and the respective cross objections included in this group, except in the 3 appeals mentioned above (LAA Nos.887/2014, 19/2015. and 892/2014) are hereby disposed of by re-fixing the land value at Rs.3,43,276/- per Are, which is the value fixed by this court for properties included in category No. IV(b). The respective claimants will be entitled for all **LAA No.73/2014 & connected cases** -85- statutory benefits provided under Section 23 (1A) and 23 (2) and Section 28 of the Land Acquisition Act, 1894 along with proportionate cost in the appeals/cross objections in which the enhancement is allowed. ## 47. Group No.2 - (1) LAA Nos.681/2014 & C.O.No.177/2014, (2) LAA Nos.719/2014 & C.O.No.178/2014, - (3) LAA Nos.720/2014 & C.O.No.179/2014, (4) LAA Nos.684/2014 & C.O.No.130/2014, (5) LAA Nos.614/2014 & C.O.No.15/2015, - (6) LAA Nos.675/2014 & C.O.No.213/2014 - (7) LAA Nos.682/2014 & C.O.No.196/2014 (8) LAA Nos.711/2014 & C.O.No.193/2014 (9) LAA Nos.727/2014 & C.O.No.198/2014 (10) LAA Nos.156/2015 & C.O.No.136/2016 Among the above cases, with respect the properties covered under LAA Nos.681/2014,719/2014 and 720/2014, the reference court had awarded compensation including them under Category No.5 which is high level wet land having access to mud road. In these cases, the LAO had awarded compensation by including the land in Category No.6 which are high level wet land having no road access. **LAA No.73/2014 & connected cases** -86- The State had filed Cross Objections in those three appeals challenging the change of category allowed by the reference court, as well as impugning enhancement of the land value. The acquired properties in these three cases purchased through documents executed on 25.1.2005, as in the case of properties included in the previous group of cases. The claimants could able to prove before the reference court that those properties were having right of access to the road specifically demarcated, which is covered under Ext.A2 document. Therefore, we do not find merit in the challenge raised by the State, because the contention that the properties remained without having access to any road, cannot be accepted. The properties categorised as high level wet lands are included in the basic category No.II in this judgment; ie, reclaimed (filled up) lands. Since it is proved that the property covered under these 3 appeals are having access to mud road, the acquired properties need to be included in Category No.II(b). Accordingly, the appellants in the above 3 cases are entitled for refixation of land value at the rate of Rs.5,14,915/- per Are. **LAA No.73/2014 & connected cases** -87- 48. With respect to LAA Nos. 682/2014, 727/2014, 614/2014, 675/2014, 684/2014 and 711/2014, the claimants have filed appeals assailing the respective judgments, to the extent it declined the contention that the properties remained reclaimed as on the date of the Section 4(1) notification. Inter alia, the appellants/claimants are seeking enhancement of the compensation awarded. The State had filed Cross Objections in these cases challenging the amount of enhancement awarded by the reference court. There are Advocate Commission Reports available to these 6 appeals supporting the lie and nature of the properties. The appellant in L.A.A.Nos.682/2014 and 727/2014 had purchased the properties as per sale deed No.570/2005, which is marked in evidence as Ext.A1. The appellant in L.A.A.Nos.684/2014 and 711/2014 had purchased the land through sale deed No. 581/2005, which is marked as Ext.A33. The appellant in L.A.A.Nos.614/2014 and 675/2014 had purchased the property through sale deed No.577/2005, which is marked as Ext.A32. In Ext.C1 commission report, even though the Commissioner was requested to note the lie and nature of the **LAA No.73/2014 & connected cases** -88- properties, it was reported that the lie of those properties cannot be reported because identification of the property based on the descriptions contained in the document was found to be impossible without the help of a surveyor. On the request of the claimants in those cases Ext.C1 commission report was remitted back with specific directions to identify the properties with the help of the Village Officer. In Ext.C1(b) report submitted by the Advocate Commissioner on 27.5.2013 it is stated that, measurement with respect to the properties, which remained filled up, was conducted with the help of the Village Officer. Ext.C1(c) is the plan submitted by the Village Officer based on such measurement. The Advocate Commissioner had specifically reported that the property covered under sale deed Nos. 570/2005, 581/2005 and 577/2005 were specifically marked in Ext.C1(c) plan and those plots were remaining as reclaimed land. Apart from the above aspect, it has come out in evidence that the appellant in L.A.A.Nos.682/2014, 727/2014 had submitted Ext.A4 complaint to the District Collector projecting their grievance regarding non-inclusion of the land in the category **LAA No.73/2014 & connected cases** -89- of dry land. Evidently, the District Collector had called for a report of the Land Acquisition Officer. Ext.A5 is the reply given by the LAO, dated 10.6.2009. In Ext.A5 it is stated that, when the award enquiry was conducted, the properties were remaining without proper demarcation of boundaries and most of the area were remaining water logged. But it is conceded that the properties comprised in different sub division coming with survey Nos. of 365, 374, 380, 373 and 370 were remained partially filled up. It is further stated that, for determining the category, the LAO had considered only the survey and sub divisions and the request for conversion of the category with respect to any part of a particular sub division was not accepted. Learned counsel appearing for the appellants pointed out that, the LAO had categorised certain reclaimed lands by including them in the category of “High level wet land”. But such categorisation was allowed only if it was convinced that the entire extent comprising in a particular sub division is remained as filled up. But in cases where the land belonging to a particular claimants, even if remained filled up, was not included in the **LAA No.73/2014 & connected cases** -90- category of “high level wet land” only because the entire area in that particular sub division was not filled up. This anomaly happened only because of the fact that the LAO had passed the Awards not on the basis of ownership of individual claimants, but by clubbing together properties of different claimants comprised in any particular sub division in a single Award. For instance, learned counsel for the appellants had pointed out that, with respect to the appellant in L.A.A.Nos.684/2014 and 711/2014, a part of the land covered by Ext.A33 document comprised in survey No.374/7 has already been included in the category of high level wet land. Likewise with respect to the appellants in L.A.A.Nos.614/2014 and 675/2014, the extent of land comprised in survey Nos. 374/8 and 374/7 covered under Ext.A32 document was already included in the category of high level wet land. Contention of the appellants in these cases is that they could establish before the reference court through Exts.C1(b) and C1(c) reports that the properties covered under Exts.A1, A33 and A32 remained fully reclaimed as measured out and reported by the Village **LAA No.73/2014 & connected cases** -91- Officer and the Advocate Commissioner. They also placed reliance on the facts reported by the LAO in Ext.A5. 49. Controverting the above contentions, learned Standing Counsel as well as learned Government Pleader argued that, the proof adduced through Ext.C1(b) and C1(c) cannot be taken as conclusive evidence for holding that the properties in question remained as reclaimed as on the date of the Notification. It is pointed out that, in Ext.C1(c) report it is specifically mentioned by the Village Officer that the different plots are remaining without any demarcation and the plots in question were identified only on the basis of the descriptions contained in the respective title documents. It is further stated that, those properties, except the particular plots marked, were not measured and the extent was not marked separately with respect to those plots. Contention of the Standing Counsel is that, the plots specifically marked in Ext.C1(c)were not also measured by the Village Officer. In this regard, reliance was placed on an answer given in crossexamination by the Village Officer that, the site measurements were demarcated based on descriptions **LAA No.73/2014 & connected cases** -92- contained in the document. But in Ext.C1(b) report, the Advocate Commissioner had categorically mentioned that the properties remained as filled up land, covered by document Nos. 575/2005, 577/2005, 581/2005 and 582/2005 and it was measured and demarcated with the help of the Village Officer. The specific version used in the report is that; “the above described plot has been measured and plotted by the Village Officer in the plan with green shade”. It is further stated that plots 1, 2, 3, 4 and 5 were identified in measurement and it remains reclaimed. 50. Fact that the LAO had classified certain lands in the area, including lands belonging to the appellants in the above said cases, in the category of 'high level wet land', would reveal that there were plots in the area remained as filled up. When the appellants in these cases purchased the plots through individual sale deeds executed and the property covered by each such sale deeds are comprised in different sub divisions, it cannot be possible for the appellants to fill up a specific area in a particular sub division, by leaving the other area comprised in other sub **LAA No.73/2014 & connected cases** -93- divisions as unfilled. Question which need to be considered is as to whether the claimants in these cases could able to establish before the reference court through acceptable evidence about the nature and lie of the acquired lands. As already observed, from Exts.C1(b) and C1(c) reports as well as from Exts.A4 and Ext.A5 documents, they have discharged the burden in a successful manner. The technical objections now raised by the State as well as by the requisitioning authority need to be discarded, since it is convincingly proved that the land covered in these 6 appeals remained reclaimed (filled up) at the time of the acquisition. There is no dispute that the lands under these appeals are having access to mud road. Therefore we are inclined to categorize the land covered under these 6 appeals in category No.II(b). Accordingly, we refix the land value of these properties at Rs 5,14,915/- per Are. 51. LAA No.156/2015 in the above group is an appeal filed by the State against the judgment in LAR No.61/2011, with respect to the property of one among the claimants namely, George P. Cherukoth. The said claimant had filed **LAA No.73/2014 & connected cases** -94- Cross Objection No.136/2016. The reference court allowed the change of category from category No.6 to category No.5 treating it as high level wet land having access to mud road. As observed in the foregoing paragraphs, the respondent/claimant had purchased the land along with the owners of other plots in the year 2005. The documentary evidence would reveal that the plot in question is having right of access to the road demarcated under Ext.A2 document. Therefore the challenge against the change of classification cannot be sustained. Since this court had included the property having access to the mud road in category No.II (b), the respondent/cross objector is entitled to get the land value refixed at Rs 5,14,915/- per Are. Accordingly the above appeal is dismissed and the Cross Objection No.136/2016 is allowed to the extent of re-fixing the land value at Rs 5,14,915/- per Are. The respective claimants will be entitled for all statutory benefits provided under Section 23 (1A), 23 (2) and 28 of the Land Acquisition Act, 1894, along with proportionate cost in the respective appeals/cross objections in which the enhancement is **LAA No.73/2014 & connected cases** -95- allowed. 52. Group No.3 - (1) LAA No.673/2014 & C.O No.129/2014, - (2) LAA No.663/2014 & C.O No.11/2015, - (3) LAA No. 87/2015 & C.O No.138/2016, - (4) LAA No. 73/2014 & C.O No.26/2018, - (5) LAA No. 89/2014 & C.O No.27/2018 In these batch of cases the reference court included the acquired properties in category No.7 and 9, i.e; wet land with coconut planted on bunds (chira). LAA No.73/2014, 89/2014 & 87/2015 are appeals filed by the State. The claimants have filed cross objection in those appeals. LAA Nos.673/2014 and 663/2014 are appeals filed by the claimants, wherein the State had filed cross objection. In LAA No.73/2014 and 89/2014 the LAO included the properties of the claimants in category No.14 as wet land having access to mud road. But the claimants therein could prove through Ext.C1 Commission report and Ext.R1 (a) 'Notes to Award' and Ext.R1 (b) Mahazer that, there existed a good number of coconut trees and cashew trees, the age which were estimated as upto more than 20 years. On that basis the **LAA No.73/2014 & connected cases** -96- reference court allowed the change of categorisation to category No.9 ; i.e., wet land with coconut planted on bunds having access to mud road. In the appeals filed by the State, eventhough the land value fixed was challenged, there is no much dispute regarding the categorisation. Learned counsel for the cross objectors/claimants had raised a contention that the land in question ought to have been included in the category of reclaimed land. The position was canvassed placing reliance on Ext.C1 Commission report. But it is mentioned in the Commission report itself that some areas of the property is remaining as wet land with water logging and the coconut plantation are seen on the bund and some as scattered here and there. Therefore we are not inclined to accept the contention raised by the claimant for treating the land in the category of reclaimed land. 53. Another serious contention raised by the State is against the finding of the reference court in allowing compensation for more extent, than what was contained in the Award. Before the reference court, the title documents of the claimants were produced and marked as Ext.A12 and **LAA No.73/2014 & connected cases** -97- A13. Exhibit A12 is a modified deed and the extent of property mentioned therein is 17 Ares. Exhibit A13 is a sale deed with respect to another extent of 17 Ares. Before the reference court the claimant had produced Ext.A1 Thandaper Register, which is marked through the Village Officer, who was examined as AW1. The claimant had also proved copies of the Basic Tax Receipt, Possession Certificate, Location Sketch etc, as Ext.A5 to A9 series. In all those documents the extent of property which is covered by Ext.A12 document is mentioned as 15.45 Ares and covered by Ext.A13 document is mentioned as 16.85 Ares. Exhibit A4 is the copy of the declaration published under Section 6 of the Land Acquisition Act. In the said declaration also the extent is mentioned is 15.45 Ares and 16.85 Ares, respectively. But the LAO while passing the Award had reduced the extent to 14.37 Ares and 14.88 Ares, respectively. The claimant contended before the reference court that no Award was passed with respect to the actual extent of property in his possession and which was acquired. The respondents (The State and the Requisition Authority) had raised a contention **LAA No.73/2014 & connected cases** -98- that a scientific survey was conducted and the actual extent of property which was found in the said survey has been properly and correctly included in the Award. But the reference court found that there is no evidence adduced to substantiate such a contention with respect to extent of the acquired land. The reference court found that, the only material available before the court are the documents produced by the claimants. Therefore the reference court allowed the claim and directed to make compensation for the extent of land proved by the claimant through the above said materials produced. 54. In the said two appeals filed by the State, the specific contentions raised is that the reference court went erred in awarding compensation for more extent of land than what was in the possession of the claimants and what was actually acquired from the claimants. In support of such a contention certain additional documents are produced, which are the alleged relinquishments executed by the claimant surrendering certain portion of the property for the purpose of a panchayat road. But the contention of learned counsel **LAA No.73/2014 & connected cases** -99- for the claimant is that, the extent of land surrendered for widening of the panchayat road is actually reflected as the difference in the extent covered in the village records. It is pointed out that the village records contains only a lesser extent than what is contained in Ext.A12 and Ext.A13. On a perusal of the alleged relinquishment letter it can be seen that there is no specific mention with respect to the extent of land surrendered. In order to have a clear idea about the reduction in the extent we perused the records of the acquisition, marked before the reference court as Ext.R1 (a) series. Ext. R1 (b) in LAR No.127/2010 and Ext.R1 (d) in LAR No.128/2010 are the Mahazers prepared by the LAO. Nothing is indicated therein to show that any survey of the property was conducted to find out the actual extent. In both these Mahazers the correct extent of land as contained in village records (BTR) is mentioned. At the same time, the extent of land mentioned as inspected for the purpose of preparation of the Mahazers is a lesser extent. Going by relevant provisions under the Land Acquisition (Kerala) Rules, 1990 it is obligatory on the part of the LAO to arrange for **LAA No.73/2014 & connected cases** -100- preparation of a sketch and Sub Division records of the land notified for acquisition, after publication of the preliminary notification. The preparation of the draft declaration contemplated under Section 6 need to be made based on the sketch so prepared. The draft declaration need to be submitted for approval of the Government and publication of the declaration under Section 6 has to be made thereafter on approval of such draft declaration. In the case at hand, the preliminary notification under Section 4 (1) as well as the declaration published under Section 6 contains the extent of the land as contained in the village records. In the records relating to the award enquiry or in the Notes to the Award or in the Mahazer prepared, nothing is mentioned with respect to any difference in the extent of land. Nor there is anything to indicate that an actual survey was conducted with notice to the claimant, before fixing the extent or reducing the extent notified and declared for acquisition. Under such circumstances, we are of the opinion that the decision of the reference court in re-fixing the extent of land as contained in the village records and the direction issued for payment of **LAA No.73/2014 & connected cases** -101- compensation for such extent need to be upheld. 55. In LAA Nos.673/2014, 663/2014 and 87/2015 the reference court allowed change of category from 8 to 7. The LAO passed Award in those cases by treating the land in question as coconut plantation on bunds in property having no access to road. As found in the other cases, the reference court had arrived at a conclusion that the properties were having access to the road demarcated covered under Ext.A2 document marked in LAR 127/2010 and connected cases. For the reasons already mentioned in the earlier batch of cases, we do not find any ground to interfere with those findings. 56. As per decision already arrived by this court, properties with coconut plantation on bunds are included in the basic category No.III. As found above, in all these 5 appeals the properties are wet land with coconut planted on bunds (chira) having access to mud road. Hence this court is inclined to award compensation including the acquired properties in category No.III (b). Accordingly we refix the compensation payable in these cases at Rs.4,29,095/- per Are. Consequently the claimants' appeals or cross-objections, **LAA No.73/2014 & connected cases** -102- as the case may be, are allowed and the appeals/cross objections of the State are hereby dismissed. The respective claimants will be entitled for all statutory benefits provided under Section 23 (1A), 23 (2) and 28 of the Land Acquisition Act, 1894, along with proportionate cost in the respective appeals/cross objections in which the enhancement is allowed. 57. Group No. 4 - (1) L.A.A No.265/2014 & C.O. No.34/2018 (2) L.A.A No.326/2014 & C.O. No.33/2018 The above appeals arise from the judgments in L.A.R.Nos.123/2010 & 124/2010 which were disposed of through the common judgment in L.A.R.No.108/2010 and connected cases. The Land Acquisition Officer included the property covered under L.A.R No.124/2010 in category No.1 which is dry land having access to the tar road. The property under L.A.R No.123/2010 was included only in category No.3 which is dry land having no access. The claimants in both the cases are husband and wife. The Land Acquisition Officer when examined as RW1 admitted that both the properties are lying adjacent and belong to husband and wife. In Ext.C1 **LAA No.73/2014 & connected cases** -103- report of the Advocate Commissioner also it is mentioned that, both the properties are remaining adjacent. But the reference court has denied inclusion of the property in L.A.R.No.123/2010 in the same category as that of L.A.R.No.124/2010, by making an observation that there is no evidence to the effect that both the properties are lying as a compact unit. The reference court had given much emphasize to the report of the Advocate Commissioner, wherein specific boundaries of the extents covered under different survey numbers were mentioned. 'Notes to Award' in L.A.R.No.123/2010 contains mention about the title deed of the claimant. It is evident that the property is situated in different survey numbers. But its description would indicate that the property is lying as a compact plot. Therefore merely because of the commissioner had noted boundaries of properties comprised in different survey numbers, it cannot be said that the properties are remaining distinct and differentiated. On the other hand evidence is to the effect that the properties in question are being held as a compact plot in the ownership of the husband and wife. In the **LAA No.73/2014 & connected cases** -104- decision of this court in **Lillykutty v. State of Kerala [2012** **(4) KLT 428]** it is held that, if the properties are lying contiguously and that the husband and wife are enjoying the properties as common holding of the family, whatever advantages the husband's property was enjoying were available to the wife's property also, through her husband's property. Under the social conditions prevailing in the State, there is justification for treating those properties of the husband and wife, lying together and contiguously, as one single holding of the family. Therefore the property of the husband and wife can be included in one and the same category. Relying on the above said principle, we are inclined to include the property under L.A.R.No.123/2010 also in the same category of dry land having access to the tar road. Therefore we are inclined to include the properties in both these cases in category No. 1(a), which is dry land having access to tar road. Hence, the cross objections in those appeals are allowed to the extent of fixing land value of the acquired properties at the rate of Rs. 7,06,745/- per Are. Hence the appeals/cross-objections of the claimants are **LAA No.73/2014 & connected cases** -105- allowed to that extent. The respective claimants will be entitled for all statutory benefits provided under Section 23 (1A), 23 (2) and 28 of the Land Acquisition Act, 1894, along with proportionate cost in the respective appeals/cross objections in which the enhancement is allowed. 58. Group No. 5 - (1) L.A.A.No.187/2014 & C.O. No.35/2018, - (2) L.A.A.No.159/2014 & C.O. No.23/2018 L.A.A.No. 187/2014 & C.O. No. 35/2018 arises out of L.A.R.No.108/2010. The LAO included the property in category No.12, which is wet land without having access to any roads. Ext.C1 report of the Advocate Commissioner would indicate that the property in question is remaining contiguous with the property comprised in Re-survey No.99/1 and both properties are remaining as a compact plot having frontage to the tar road (Panchayath Road). The Land Acquisition Officer when examined as RW1 had conceded that, even though the properties are comprised in two different survey numbers, the properties are lying as a compact plot. Therefore the reference court had included **LAA No.73/2014 & connected cases** -106- the properties in category No.7, which is wet land having access to mud road with coconut trees on bunds. Learned counsel for the cross objector/claimant contended that the property in question is a filled up (reclaimed) land which need to be included in category No.II(a). In support of such contention reliance was placed on the report of the Advocate Commissioner, which is to the effect that the property was not remaining water logged. It is also pointed out that the report of the Advocate Commissioner as well as the testimony of RW1 would indicate that there are grown up Coconut and other trees contained in the property. But this court takes note of the fact that there is a mention in Ext.C1 commission report that a portion of the property remains as wet land. There is also no evidence to the effect that there occurred any reclamation in the property. Of course, there is evidence to the effect that the property is having grown up Coconut plantation. Therefore, we are of the considered opinion that the nature of the property is not that of a reclaimed land but at the same time it can be included in category III which are coconut plantations on bunds. Since **LAA No.73/2014 & connected cases** -107- the property is having access to tar road, we are inclined to include the property in category III(a). 59. L.A.A.No. 159/2014 & C.O. No.23/2018 arises out of L.A.R.No.112/2010. The Land Acquisition Officer included this property in category No.11 which are wet land having access from gravel road. The reference court found that the property was having access to tar road and allowed a change of category. Here also there is evidence adduced through commission report that the property is having grown up coconut plantation. In this case also learned counsel for the cross objector/claimants pleaded for a category change to that of reclaimed land, for the reason as mentioned in the above said paragraphs. There is no evidence of reclamation. Hence, we are inclined to include the land covered in this case also under category No.III(a), which is property having coconut plantations with access to tar road. Hence, it is held that the properties covered in L.A.A. Nos.187/2014 and 159/2014 are liable to be included in category No.III(a). The cross objections filed by the claimants in this regard are hereby allowed. We refix the land value of the acquired **LAA No.73/2014 & connected cases** -108- properties at the rate of Rs.5,04,818/- per Are. Consequently the appeals filed by the State are hereby dismissed. The respective claimants will be entitled for all statutory benefits provided under Section 23 (1A), 23 (2) and 28 of the Land Acquisition Act, 1894, along with proportionate cost in the respective appeals/cross objections in which the enhancement is allowed. 60. Group No. 6 - (1) L.A.A.No.223/2014 & C.O. No.32/2018. - (2) L.A.A.No.238/2014 & C.O. No.24/2018. In both these cases the properties are wet land with access to gravel road. There is no dispute with respect to the categorisation made by the reference court. The properties which are wet land having access to mud road is included in category No.IV(b) in this judgment. Hence, the claimants are entitled for land value fixed in the said category. There is a dispute in L.A.A.No.238/2014 and C.O.No.24/2018 with respect to the extent of land acquired, for which the reference court had awarded enhanced compensation. The extent of land acquired as per the notification is 5.48 Ares. The LAO had passed Award for the same extent of land. But **LAA No.73/2014 & connected cases** -109- the compensation was disbursed to the respondent/cross objector only with respect to an extent of 5.13 Ares. Compensation with respect to the remaining extent of 0.34 Ares were deposited before the reference court. The reference under section 31 was decided separately in L.A.R.No.4/2010. The reference court found that the claimant herein is entitled to receive the compensation with respect to the above said 0.35 Ares. But while fixing the enhanced compensation in L.A.R.No.113/2010 the judgment in L.A.R.No.4/2010 was omitted to be noted. Hence enhanced compensation was ordered only with respect to 5.13 Ares. We find it appropriate to award enhanced compensation for the entire extent of land. Therefore, we hold that compensation need to be paid for an extent of 5.48 Ares acquired through the notification as per the enhancement granted in L.A.R.No.113/2010 by including the property in category No.IV(b), at the rate of Rs.3,43,276/- per Are. Hence, we allow the cross objection in the above two appeals and hold that the cross objectors/respondents/ claimants will be entitled for refixation of the land value at **LAA No.73/2014 & connected cases** -110- the rate of Rs.3,43,276/- per Are. The respective claimants will be entitled for all statutory benefits provided under Section 23 (1A), 23 (2) and 28 of the Land Acquisition Act, 1894, along with proportionate cost in the respective appeals/cross objections in which the enhancement is allowed. ## 61. Special contentions in certain cases; The Counsel appearing for the Cross Objectors/claimants in appeals filed by the State as LAA Nos.132/2015, 156/2015 and 87/2015 had raised a separate contention seeking for a remand of the respective reference cases. He had filed I.A.No.142/2018 in LAA No.132/2015 seeking to split up the appeal from the batch of cases being heard. Specific contention put forth is that, request made by the respective claimants in the reference cases for reopening of the evidence and permitting to adduce further evidence, was not allowed. It is specifically pointed out that in LAR No.163/2010 the claimants had filed I.A Nos.2147/2013,2148/2013 and 2150/2013 seeking to reopen the evidence, for appointment of an Advocate Commissioner **LAA No.73/2014 & connected cases** -111- and seeking direction to the respondents and other claimants to supply copies of certain documents. The records would reveal that the reference court had dismissed the above said applications through a common order passed on 2.12.2013. The reference court observed that LAR No.163/2010 was tried jointly with 20 other cases, in which trial had commenced as early as on 4.10.2013. The evidence was adduced on behalf of the claimants by examining 14 witnesses and by marking 43 documents on their side. Two witnesses were examined on behalf of the respondents and Exts.R1 and R2 series documents were marked, apart from marking of the Commission Report. The court below noticed that the claimant in LAR No.163/2010 was also examined as a witness. It was noticed that the interim applications were filed after a fresh vakalath was filed on behalf of the claimant. The court below found that the claimant therein who was sailing along with the other claimants had filed the interim applications only for the reason that he has engaged a new lawyer at a belated stage. It was found that no proper explanation is forthcoming as to why appropriate steps to **LAA No.73/2014 & connected cases** -112- examine the witnesses now cited was not taken earlier. The court below, on considering the then stage of the litigation, found that the claimant is not entitled for a re-opening of the evidence and cannot be permitted to have opportunity to adduce further evidence. 62. In another case, LAR No.77/2011, the claimants had approached this court in an Original Petition filed under Article 227 as O.P(C)No.4549/2013. There also the grievance was regarding the denial of opportunity to adduce additional documents. This court through its judgment dated 17.12.2013 observed that, even though there were laches on the part of the claimant, it cannot be taken a reason for rejecting the request to reopen the evidence for production of additional documents which are relevant. Therefore it was found that the claimant should be given an opportunity to adduce further evidence. The relaxation of the time stipulated for disposal of the cases was allowed by this Court. It is conceded that documents marked under Ext.G series were produced pursuant to the above said judgment of this Court. Adv. T.R.S.Kumar appearing for the claimants who had **LAA No.73/2014 & connected cases** -113- filed Cross Objections in the above said appeals contended that the claimants have to adduce further evidence, both documentary as well as oral to prove that they are entitled for higher compensation than what was decided by the reference court. As already found, the reference cases in question were put to joint trial. All the claimants were participating in the joint trial. Therefore they could have produced evidence if any before the trial court at the appropriate time. However, it is evident that after raising the issue for reopening of the evidence further time of about two months was granted and that one of the claimants have produced additional documents. Now, when the appeals were heard from the common judgments passed by the reference court, we do not find any necessity to split up any particular appeal. On the other hand, the claimants could have produced better document if any available for fixing the market value of the land under acquisition. In LAA No.132/2015 the respondent/Cross Objector had filed I.A No.151/2018 seeking acceptance of certain documents as additional evidence. The documents produced are **LAA No.73/2014 & connected cases** -114- photocopies of a lease deed and three sale deeds. The Registry of this Court had noticed defect in accepting those documents as additional evidence, because the originals or certified copies of those documents were not produced. However, we were inclined to look into those documents for the purpose of ascertaining whether any of those documents can be considered for fixing land value of the acquired properties. 26.02.2018 63. One of the documents produced by the respondent/cross objector in L.A.A.No. 132/2015 is a lease deed registered as document No. 896/I/2008. It is the lease executed by M/s. INFOPARK in favour of a multi-national company for leasing 5 Acres of land for development by constructing an IT park. The lease premium with respect to the lease executed for 90 years was seen fixed as Rs.27,50,00,000/- (Rupees twenty seven crores and fifty lakhs only). It was conceded across the Bar that the lease is with respect to a property contained in 'Infopark Phase-I', Kakkanad. Learned Standing Counsel appearing for the **LAA No.73/2014 & connected cases** -115- KINFRA had pointed out that, the acquisition with respect to land in 'Infopark Phase-I' was in the year 1998. According to him, after acquisition of the land, KINFRA had expended huge amount for development of the land by providing all infrastructure facilities therein such as internal roads, water supply facilities, electrification, Broad Band lines, sewage and drainage system etc. Learned counsel for the respondent/cross objector contended that the lease premium of Rs.5,50,000/- per cent reflected in the above said document should be considered for the purpose of fixing the market value of the acquired properties. It was contended that the capitalised value can be ascertained based on the lease premium, through acceptable methods of calculation by any expert approved valuer. It was contended that the claimant is seeking for a remand for the purpose of examination by such approved expert valuer, in order to arrive at the reasonable market value based on capitalisation method based on the lease premium fixed. Learned counsel had pointed out that the property covered under the lease deed is situated only at a distance of 800 Metres from the **LAA No.73/2014 & connected cases** -116- acquired properties. On the other hand, learned Standing counsel contended that the property covered under the lease deed is situated within the limits of Kakkanad village whereas the acquired properties are situated in Puthencruz and Kunnathunad villages. According to the learned Standing Counsel, the property covered under the lease deed is situated in a fully developed area of Kakkanad where a lot of important institutions are situated including the Civil Station where the administrative headquarters of the District is functioning. Therefore the land in question cannot be considered at all in a comparison with the acquired properties herein. 64. While evaluating the rival contentions in this regard, we take note of the fact that the Notification under section 4(1) in these cases was in September 2007, whereas the lease deed in question was executed in March, 2008. Therefore it is clearly a post notification document. It remains well settled that a post notification document can be considered for comparison of land value only in case where no other exemplar near to any period of section 4(1) **LAA No.73/2014 & connected cases** -117- notification is available. Further, the document in question does not reflect the land value in the area. It is the lease made on the basis of lump sum premium amount for a period of 90 years. The lessee was selected on the basis of a tender invited and based on public auction. It is with respect to land which was acquired by KINFRA much earlier to the present acquisition. After development of the land, the plots are auctioned to multi national IT companies for establishment of IT Parks. Therefore the lease premium in the said cases cannot be considered in any manner as having any bearing on the land value of the acquired properties. Learned counsel for the cross objectors/claimants contended that the draft of the 'Data Bank' prepared under the provisions of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 would indicate that the land covered under the lease deed had remained as wet land even in the year 2008 and therefore the valuation of the land need to be ascertained through capitalisation method by adding the expenditure which was required for reclamation of the land. As already found, the lease premium indicated in the said document cannot be **LAA No.73/2014 & connected cases** -118- considered in any manner as having any bearing on the land value. Moreover, since the lease deed in question is a post notification document, the same cannot be accepted. As already found, there is a most suitable exemplar available for the purpose of fixing the market value, which is a sale instance with respect to a land situated in the nearby vicinity, exactly at about one month back to the date of the section 4(1) Notification. Therefore the court cannot look into any other document which is not having any direct bearing with respect to the market value in the area. 65. Among the additional documents produced there are sale deeds executed as document Nos.3088/2008, 3089/2008 and 3218/2008. All these are documents executed during November 2008. The purchaser in all these documents is a Builder, which is a company having its place of business in Delhi. One of the vendors is also another Builder company. The description of those documents would also reveal that the properties situated far away from the acquired property, within the limits of Thrikkakara Municipality (erstwhile Thrikkakara Panchayath). These are **LAA No.73/2014 & connected cases** -119- also not comparable sale instances with respect to the acquisition made during the year 2007. Under the above mentioned circumstances, we do not find that the documents produced need to be accepted as the additional evidence. Moreover, learned Standing Counsel had contended that there exists no sustainable ground as contemplated under Order IV Rule 27 of the Code of Civil Procedure to accept such additional evidence. Based on the findings as mentioned above, we are not inclined to split up any of the cases mentioned above for the purpose of remanding for fresh consideration and disposal by the reference court. We do not think that the claimants in those cases had been denied of any opportunity or in any manner prevented from adducing any other best evidence available. Consequently those interim applications are also dismissed. 66. It is made clear that the cross objectors/claimants will be permitted to remit the deficit court fee if any in tune with the compensation awarded as above within a period of three weeks, in view of the decision of the hon'ble Supreme Court in **Chandrasekhar and others V. Additional** **LAA No.73/2014 & connected cases** -120- ## **Special Land Acquisition Officer ((2009) 14 SCC 441),** failing which the cross objectors/claimants will be entitled for enhancement of the compensation only to the extent which they have claimed in the respective memorandum of appeals or cross objections. The Registry shall take note of specific orders, if any contained in any of the appeals or cross-objections with respect to exemption of payment of interest for the period of delay condoned, through specific orders passed in the respective delay condonation applications, while drafting the decree in respect of such cases. ## Sd/- ## **C.K. ABDUL REHIM, JUDGE** . Sd/- ## **SHIRCY V., JUDGE** . ## **Smm/Ks/Jm/AMG** True copy P.A. to Judge Continued at page No.121 -121- **LAA No.73/2014 & connected cases** The paragraph No.47 as well as Paragraph No.50 in the common judgment dated 27.02.2018 of L.A.A No.73/2014 and connected cases are amended suo motu by adding the sentence **'All appeals shall stand allowed and all the cross objections shall stand dismissed'** , as per the order dated 30.11.2020 in L.A.A Nos.614, 675, 681, 682, 684, 711, 719, 720 and 727 of 2014. Sd/DEPUTY REGISTRAR