L.A.A. Nos. 46/2019, 107/2019 & 49/2023 & Cross Objection No. 58/2023 in L.A.A. No. 49/2023, High Court of Kerala

``` “C.R.” ``` ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM ``` ``` THURSDAY, THE 4[TH] DAY OF APRIL 2024 / 15TH CHAITHRA, 1946 ``` **==> picture [167 x 9] intentionally omitted <==** ``` AGAINST THE JUDGMENT DATED IN LAR NO.15 OF 2017 OF II ADDITIONAL DISTRICT COURT,ERNAKULAM ``` ## **`APPELLANT/S:`** ``` THE STATE OF KERALA, ``` ``` REPRESENTED BY SPECIAL TAHSILDAR (LA) NO.1, KOCHI METRO RAIL PROJECT, CIVIL STATION, KAKKANAD, ERNAKULAM ``` ``` BY ADVS. ``` ``` SHRI K.P.JAYACHANDRAN, ADDL.ADVOCATE GENERAL SHRI.JAFARKHAN Y., (SR.GOVERNMENT PLEADER) ``` ## **`RESPONDENT/S:`** ``` 1V.J.MATHEW S/O. VARKEY JOSEPH, VALLANATTUR,PACHALAM, KOCHI - 682 012 ``` ``` 2THE MANAGING DIRECTOR KOCHI METRO RAIL LTD., REVENUE TOWER, ERNAKULAM BY ADVS. SRI.C.P.WILSON MANU VYASAN PETER SMT.ROSE MICHAEL (Sr.)P.B.KRISHNAN(K/1193/1994) ``` **LAA Nos. 46/2019, 107/2019 & 49/2023** ## **& CO 58/2023 in LAA 49/2023** ## **-:2:-** ``` P.B.SUBRAMANYAN(K/1145/2009) SABU GEORGE(K/000711/1998) K.JAYAKUMAR (SR.)(J-97) ``` ``` THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 27/3/2024, ALONG WITH LA.App..49/2023, 46/2019 AND CONNECTED CASES, THE COURT ON 4/4/2024 DELIVERED THE FOLLOWING: ``` **LAA Nos. 46/2019, 107/2019 & 49/2023** **& CO 58/2023 in LAA 49/2023** ## **-:3:-** ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM ``` ``` THURSDAY, THE 4[TH] DAY OF APRIL 2024 / 15TH CHAITHRA, 1946 ``` **==> picture [159 x 9] intentionally omitted <==** ``` AGAINST THE JUDGMENT DATED 30.09.2021 IN LAR NO.36 OF 2017 OF II ADDITIONAL DISTRICT COURT,ERNAKULAM ``` ## **`APPELLANT/S:`** - **`1 STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, ERNAKULAM, PIN - 682030`** - **`2 THE SPECIAL TAHSILDAR REPRESENTED BY THE SPECIAL TAHSILDAR , LA NO.III VYTTILA, PIN - 682019`** ``` BY SHRI K.P.JAYACHANDRAN, ADDL.ADVOCATE GENERAL SHRI.JAFARKHAN Y., (SR.GOVERNMENT PLEADER) ``` ## **`RESPONDENT/S:`** - **`1 JABEENA ABRAHAM D/O C.V. PAUL CHENNAKKAT,STADIUM LINK ROAD,IMAA HALL,SKYLINE IMPERIAL GARDER , FLAT BARRON 14-B, ERNAKULAM, PIN - 682026`** **LAA Nos. 46/2019, 107/2019 & 49/2023** ## **& CO 58/2023 in LAA 49/2023** ## **-:4:-** ``` 2ANJANA ABRAHAM , D/O JABEENA ABRAHAM CHENNAKKAT,STADIUM LINK ROAD,IMAA HALL,SKYLINE IMPERIAL GARDER , FLAT BARRON 14-B, ERNAKULAM, PIN - 682025 ``` ``` 3THE PROJECT DIRECTOR ERNAKULAM, PIN - 682016 4THE MANAGING DIRECTOR ERNAKULAM, PIN - 682017 BY ADVS. Rose Michael Michael Subramanyan P B P.B.KRISHNAN(Sr.)(K/1193/1994) SABU GEORGE(K/000711/1998) MANU VYASAN PETER(K/000652/2013) C.P.WILSON(K/000170/1988) MICHAEL PAUL CHITTINAPPILLY(K/001266/2022) ``` ``` THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 27/3/2024, ALONG WITH LA.App..107/2019 AND CONNECTED CASES, THE COURT ON 4/4/2024 DELIVERED THE FOLLOWING: ``` **LAA Nos. 46/2019, 107/2019 & 49/2023** **& CO 58/2023 in LAA 49/2023** ## **-:5:-** ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE ``` **==> picture [8 x 8] intentionally omitted <==** ``` THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM ``` ``` THURSDAY, THE 4[TH] DAY OF APRIL 2024 / 15TH CHAITHRA, 1946 ``` **==> picture [159 x 9] intentionally omitted <==** ``` AGAINST THE JUDGMENT DATED 14.01.2019 IN LAR NO.15 OF 2017 OF II ADDITIONAL DISTRICT COURT,ERNAKULAM ``` ## **`APPELLANT/S:`** ``` V.J.MATHEW, AGED 42 YEARS S/O. VARKEY JOSEPH, VELLANNATTU HOUSE, PACHALAM, KOCHI-682 012, REPRESENTED BY HIS P.A.HOLDER SONY MATHEW, S/O. V.J.MATHEW ``` ``` BY ADVS. C.P.WILSON SMT.ROSE MICHAEL K.JAYAKUMAR (SR.)(J-97) ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REPRESENTED BY SPECIAL TAHSILDAR (L.A.),NO.1,KOCHI ``` **LAA Nos. 46/2019, 107/2019 & 49/2023** ## **& CO 58/2023 in LAA 49/2023** **-:6:-** ``` METRO RAIL PROJECT, CIVIL STATION KAKKANAD, ERNAKULAM-682 018 2MANAGING DIRECTOR, KOCHI METRO RAIL LTD, REVENUE TOWER, ERNAKULAM-682 031 BY ADVS. MANU VYASAN PETER P.B.KRISHNAN (Sr.)(K/1193/1994) P.B.SUBRAMANYAN(K/1145/2009) SABU GEORGE(K/000711/1998) SHRI K.P.JAYACHANDRAN, ADDL.ADVOCATE GENERAL SHRI.JAFARKHAN Y., (SR.GOVERNMENT PLEADER) SHRI.T.K.SHAJAHAN, (SR.GOVERNMENT PLEADER) ``` ``` THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 27/3/2024, ALONG WITH LA.App..107/2019 AND CONNECTED CASES, THE COURT ON 4/4/2024 DELIVERED THE FOLLOWING: ``` **LAA Nos. 46/2019, 107/2019 & 49/2023** **& CO 58/2023 in LAA 49/2023** ## **-:7:-** ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM ``` ``` THURSDAY, THE 4[TH] DAY OF APRIL 2024 / 15TH CHAITHRA, 1946 ``` ``` CO NO.58OF 2023 ``` ``` AGAINST THE JUDGMENT DATED IN LA.App. NO.49 OF 2023 OF HIGH COURT OF KERALA ``` ## **`CROSS OBJECTOR/S:`** ``` 1]ABEENA ABRAHAM. AGED 64 YEARS D/O C.V. PAUL, CHENNAKKATTU, STADIUM LINK ROAD IMA HALL SKYLINE IMPERIAL GARDEN, FLAT BARRON 14 B, ERNAKULAM., PIN - 682017 ``` ``` 2ANJANA ABRAHAM AGED 40 YEARS D/O ]ABEENA ABRAHAM , CHENNAKKATTU, STADIUM LINK ROAD IMA HALL SKYLINE IMPERIAL GARDEN, FLAT BARRON 14 8, ERNAKULAM,, PIN - 682017 ``` ``` BY ADVS. ROSE MICHAEL C.P.WILSON MICHAEL PAUL CHITTINAPPILLY ``` **LAA Nos. 46/2019, 107/2019 & 49/2023** ## **& CO 58/2023 in LAA 49/2023** ## **-:8:-** ## **`RESPONDENT/S:`** - **`1 STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, ERNAKULAM CIVIL STATION KAKKANAD, KOCHI., PIN - 682030`** - **`2 THE SPECIAL TAHSIDAR`** ``` (LA) NO.III VYTTILA KOCHI., PIN - 682019 ``` - **`3 THE PROJECT DIRECTOR.`** - **`KOCHI METRO RAIL LIMITED ERNAKULAM., PIN - 682017`** - **`4 MANAGING DIRECTOR.`** ``` KOCHI METRO RAIL LIMITED ERNAKULAM., PIN – 682017 ``` ## **`BY`** ``` ADVS. MANU VYASAN PETER P.B.KRISHNAN (Sr.)(K/1193/1994) P.B.SUBRAMANYAN(K/1145/2009) SABU GEORGE(K/000711/1998) SHRI.JAFARKHAN Y., (SR.GOVERNMENT PLEADER) SHRI.T.K.SHAJAHAN, (SR.GOVERNMENT PLEADER) ``` ``` THIS CROSS OBJECTION HAVING BEEN FINALLY HEARD ON 27/3/2024, ALONG WITH LA.App..107/2019 AND CONNECTED CASES, THE COURT ON 4/4/2024 DELIVERED THE FOLLOWING: ``` **LAA Nos. 46/2019, 107/2019 & 49/2023** **& CO 58/2023 in LAA 49/2023** ## **-:9:-** ## **`A.MUHAMED MUSTAQUE & M.A.ABDUL HAKHIM, JJ.`** ``` ------------------------------------------------ ``` ``` LAA.Nos.46/2019, 107/2019 & 49/2023 “C.R.” ``` ``` & ``` ``` Cross Objection No.58/2023 in L.A.A. No.49/2023 ``` ``` ------------------------------------------------ ``` ``` Dated this the 4[th] day of April, 2024 ``` ## **`J U D G M E N T`** ## **`A.Muhamed Mustaque, J.`** ``` These appeals are filed under Section 74 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 [for short, the “Act 30 of 2013”]. The common question involved in all these cases is how the value has to be determined under Section 26 of the Act 30 of 2013. ``` ## `L.A.A. Nos.46/2019 and 107/2019:` ``` 2. These appeals are filed by the claimant and the State respectively. On a reference under Section 64 of the Act 30 of ``` **LAA Nos. 46/2019, 107/2019 & 49/2023** ## **& CO 58/2023 in LAA 49/2023** ## **-:10:-** ``` 2013, the reference authority the Additional District Judge, Ernakulam, enhanced the market value. The claimant V.J.Mathew was the owner of 2.06 Ares of land in Ernakulam Village in the heart of Ernakulam town. This was acquired pursuant to the notification issued under Section 4(1) of the Land Acquisition Act, 1894 dated 25/12/2012 for the purpose of Seematti Corridor of the Metro Rail Project. The Land Acquisition Officer passed an award under Section 24(1) of the Act 30 of 2013 on 5/4/2017 awarding Rs.52,12,721/- per Are and also awarded compensation of Rs.21,52,784/- for the structural value. The land value was enhanced by the reference court to a sum of Rs.3,82,66,253/-. The reference court also awarded a 12% additional market value under Section 30(3) of the Act 30 of 2013 in respect of value of structures. The reference court placed reliance on the Ext.A1 document executed on 15/11/2007 and gave a cumulative increase of 12% each per year of the land value shown in Ext.A1. The land value in Ext.A1 is Rs.1,16,09,907/. Challenging the award as above, the State has preferred the appeal. The claimant also preferred the appeal as not satisfied with the award. The claimant claimed further enhancement based on Ext.A3 to Ext.A5 ``` **LAA Nos. 46/2019, 107/2019 & 49/2023** ## **& CO 58/2023 in LAA 49/2023** ## **-:11:-** ``` judgments. Exhibit A2 is the certified copy of the sale deed dated 19/1/2011. Exhibits A3 and A4 are the judgments in the land acquisition matter under Land Acquisition Act, 1894. The reference court did not rely on Exhibits A2 to A5 as the Commissioner had not referred to the potentiality of the land. ``` ## `L.A.A. No.49/2023 and Cross Objection No.58/2023:` ``` 3. In this appeal also the land belonging to the claimant having an extent of 0.73 Ares with a building was acquired for the purpose of widening Banerji Road in connection with Kochi Metro Rail Project. Section 4(1) notification under the Land Acquisition Act, 1894 was issued on 15/6/2011. Land value was awarded at Rs.65,10,725/-per Are, and Rs.2,16,58,858/- towards the value of the building. The reference court gave a further enhancement of the land value at Rs.62,29,922/-. The reference court also allowed 12% market value under Section 30(3) to the building. While fixing the land value, the reference court relied on Ext.A1 a sale deed executed on 15/11/2007 and also Ext.A2 dated 20/1/2011. Ext.A2 was not relied by the Land Acquisition Officer stating that the value in Ext.A2 is fancy price. The claimant also filed cross objection as the reference court did ``` **LAA Nos. 46/2019, 107/2019 & 49/2023** **& CO 58/2023 in LAA 49/2023** ## **-:12:-** ``` not rely on Exts.A3 and A4 judgments in reference under the Land Acquisition Act, 1894. ``` ``` 4. The submissions of the learned Government Pleader as well as the Senior Counsel Shri P.B.Krishnan who appeared for the requisition authority - Metro are as follows: ``` ``` According to the learned Senior Counsel, the reference authority can only decide whether the determination of the amount of compensation by the Collector is by following the procedure and parameters under Section 26 to 30 of Chapter V of the Act 30 of 2013. The learned Counsel further submits that the manner in which determination of compensation is regulated is in accordance with the parameters under Section 26, and therefore no sale deed beyond three years can be considered by the authority for determination of the compensation. According to the learned Counsel, the authority cannot award a cumulative rate of increase of 12% based on the market value of land in prior deedsat the relevant time to calculate market value of the land acquired as on the date of notification. It is further argued that when the Collector had assigned reasons for the exclusion of a deed, the reference authority cannot review that decision in a reference ``` **LAA Nos. 46/2019, 107/2019 & 49/2023** ## **& CO 58/2023 in LAA 49/2023** ## **-:13:-** ``` under Section 64 of the Act 30 of 2013. It is also argued that no additional market value on structure can be awarded under Section 30(3) of the Act 30 of 2013 as the structure is not included within the meaning of land. ``` ``` 5. The learned counsel for the claimant submits that there is no bar under the law in relying on a deed beyond three years if it is advantageous to the claimant. The restriction on considering deeds for a period up to three years, as contemplated under explanation 1 of Section 26 is to protect the interest of the claimant; therefore, any deed showing a higher value beyond three years can be accepted and relied upon. The learned counsel also submits that there is also no embargo under law on placing reliance on the awards and judgments of the higher courts based on the Land Acquisition Act, 1894. ``` ## `6. We find the following points arise for consideration:` ``` i. Whether the authority in a reference under Section 64 of Act 30 of 2013 is competent to re-determine the amount of compensation? ``` **LAA Nos. 46/2019, 107/2019 & 49/2023** ## **& CO 58/2023 in LAA 49/2023** ## **-:14:-** ``` ii. How to determine average sale price for determining the market value of the land under Section 26 of the Act 30 of 2013. ``` ``` iii. In determination of the average sale price, can any sale deed preceding three years from the year in which the acquisition of land is made be relied upon or not? ``` ``` iv. Whether any award or judgment based on Land Acquisition Act 1894 can be relied on for determination of market value under the Act 30 of 2013? ``` ``` v. What is the scope of discounting indicative value in a deed for the purpose of calculating market value? ``` ``` vi. Is the claimant entitled for additional market value on structure under Section 30(3) of the Act 30 of 2013? ``` ## `Point No.i :` ``` 7. The reference authority has to consider whether the Collector has followed the parameters under Sections 26 to 30 of the Act 30 of 2013 while determining the amount. It is apposite to refer the judgment of the High Court of Bombay in Pune Municipal Corporation v. Mr.Rajeev L.Sangtani and Ors. ``` **LAA Nos. 46/2019, 107/2019 & 49/2023** ## **& CO 58/2023 in LAA 49/2023** ## **-:15:-** ## **`[(2019) 0 Supreme (Bom) 1171]`** `wherein at paras.52 and 53 it was held as follows:` ``` 52. A conjoint reading of the provisions contained in sections 51, 64 and 69 of the Act, 2013 leads to an inescapable inference that the Authority constituted under section 51 is invested with the jurisdiction to decide the dispute relating to compensation, determine whether the Collector has followed the parameters set out in sections 26 to 30 and thereafter determine the compensation by adding thereto the amount calculated @ 12 % per annum under section 69(2) and solatium of 100% over the total compensation amount. Undoubtedly, the Authority is also constituted to deal with the disputes relating to rehabilitation and resettlement, as well. In fact, if the provisions of section 18 of the Old Act are compared and contrasted with the provisions of section 64 of the Act, 2013 which envisage reference to the Authority, the only additional feature for which the reference can be made to the Authority, is objection with regard to the right of rehabilitation and resettlement under Chapters V and VI of the Act, 2013. This additional investiture of power of disposition of disputes, however, does not dilute the primary character of the Authority as the authority for adjudication of the disputes as to compensation, and determination of the compensation, on a reference. ``` ``` We are in agreement with the opinion expressed by the High Court of Bombay. ``` ``` 8. It is appropriate to refer Sections 64 and 69 of the Act 30 of 2013 which read thus: ``` **LAA Nos. 46/2019, 107/2019 & 49/2023** ## **& CO 58/2023 in LAA 49/2023** ## **-:16:-** ``` 64.Reference to Authority.–(1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Authority, as the case may be, whether his objection be to the measurement of the land, the amount of the compensation, the person to whom it is payable, the rights of Rehabilitation and Resettlement under Chapters V and VI or the apportionment of the compensation among the persons interested: Provided that the Collector shall, within a period of thirty days from the date of receipt of application, make a reference to the appropriate Authority: ``` ``` Provided further that where the Collector fails to make such reference within the period so specified, the applicant may apply to the Authority, as the case may be, requesting it to direct the Collector to make the reference to it within a period of thirty days. ``` ## _`…..............`_ ``` 69. Determination of award by Authority.–(1) In determining the amount of compensation to be awarded for land acquired including the Rehabilitation and Resettlement entitlements, the Authority shall take into consideration whether the Collector has followed the parameters set out under section 26 to section 30 and the provisions under Chapter V of this Act. ``` ``` (2)In addition to the market value of the land, as above provided, the Authority shall in every case award an amount calculated at the rate of twelve per cent. per annum on such market value for the period commencing on and from the date of the publication of the preliminary notification under section 11 in respect of such land to the date of the award of the Collector ``` **LAA Nos. 46/2019, 107/2019 & 49/2023** ## **& CO 58/2023 in LAA 49/2023** ## **-:17:-** ``` or the date of taking possession of the land, whichever is earlier. ``` ``` Explanation.—In computing the period referred to in this sub-section, any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any Court shall be excluded. ``` ``` (3)In addition to the market value of the land as above provided, the Authority shall in every case award a solatium of one hundred per cent. over the total compensation amount.” ``` ``` 9. Section 69 postulates that in order to determine the compensation, the authority has to conduct an enquiry as to whether the Collector has followed the procedure set out in Section 26 to 30. ``` ``` 10. Under Section 64, a right is conferred on any person interested who has not accepted the award, to make an application requesting the Collector to make a reference for determination of the authority, which includes his objection as to the amount of compensation. ``` ``` 11. Section 73 also states that when the authority concerned allows any amount of compensation in excess of the amount awarded by the Collector under Section 23 of the Act 30 ``` **LAA Nos. 46/2019, 107/2019 & 49/2023** ## **& CO 58/2023 in LAA 49/2023** ## **-:18:-** ``` of 2013, all persons interested in other land covered by the same notification would be entitled for re-determination of the compensation based on the award of the authority. This provision is similar to Section 28A of the Land Acquisition Act, 1894. Thus, it is clear from Section 64, 69 and 73 of Act 30 of 2013 that the authority is vested with the power to re-determine the compensation. ``` ## `Point No.ii:` ``` 12. The method and formula determining compensation had undergone a substantial change from the Land Acquisition Act, 1894 to the Act 30 of 2013. The Collector had wide power to determine the market value under both the Land Acquisition Act, 1894 and Section 23 of the aforesaid Act. Claimants would also be entitled for 30% solatium on the market value under the Land Acquisition Act, 1894. However, under Section 26 of the Act 30 of 2013, a scientific method of calculating market value was brought in. ``` ``` 13. It is appropriate to refer Section 26 of the Act 30 of 2013 which reads thus:- ``` **LAA Nos. 46/2019, 107/2019 & 49/2023** ## **& CO 58/2023 in LAA 49/2023** ## **-:19:-** ``` 26.Determination of market value of land by Collector. (1) The Collector shall adopt the following criteria in assessing and determining the market value of the land, namely:— ``` ``` (a) the market value, if any, specified in the Indian Stamp Act, 1899 (2 of 1899) for the registration of sale deeds or agreements to sell, as the case may be, in the area, where the land is situated; or ``` ``` (b) the average sale price for similar type of land situated in the nearest village or nearest vicinity area; or ``` ``` (c) consented amount of compensation as agreed upon under sub-section (2) of section 2 in case of acquisition of lands for private companies or for public private partnership projects, whichever is higher. ``` ``` Provided that the date for determination of market value shall be the date on which the notification has been issued under Section 11. ``` ``` Explanation 1.- The average sale price referred to in clause (b) shall be determined taking into account the sale deeds or the agreements to sell registered for similar type of area in the near village or near vicinity area during immediately preceding three years of the year in which such acquisition of land is proposed to be made. ``` ``` Explanation 2.-For determining the average sale price referred to in Explanation 1, one- half of the, total number of sale deeds or the agreements to sell in which the highest sale price has been mentioned shall be taken into account. ``` ``` Explanation 3.- While determining the market value under this section and the average sale price referred to in Explanation 1 or Explanation 2, any price paid as compensation for land acquired under the ``` **LAA Nos. 46/2019, 107/2019 & 49/2023** **& CO 58/2023 in LAA 49/2023** ## **-:20:-** ``` provisions of this Act on an earlier occasion in the district shall not be taken into consideration. ``` ``` Explanation 4.- While determining the market value under this section and the average sale price referred to in Explanation 1 or Explanation 2, any price paid, which in the opinion of the Collector is not indicative of actual prevailing market value may be discounted for the purposes of calculating market value. ``` ``` (2) The market value calculated as per sub-section (1) shall be multiplied by a factor to be specified in the First Schedule. ``` - _`(3) Where the market value under sub-section (1) or sub-section (2) cannot be determined for the reason that-`_ ``` (a) the land is situated in such area where the transactions in land are restricted by or under any other law for the time being in force in that area; or ``` ``` (b) the registered sale deeds or agreements to sell as mentioned in clause, (a) of sub-section (1) for similar land are not available for the immediately preceding three years; or ``` ``` (c) the market value has not been specified under the Indian Stamp Act, 1899 (2 of 1899) by the appropriate authority, ``` ``` the State Government concerned shall specify the floor price or minimum price per unit area of the said land based on the Price calculated in the manner specified in sub-section (1) in respect of similar types of land situated in the immediate adjoining areas: ``` **LAA Nos. 46/2019, 107/2019 & 49/2023** ## **& CO 58/2023 in LAA 49/2023** ## **-:21:-** ``` Provided that in a case where the Requiring Body offers its shares to the owners of the lands (whose lands have been acquired) as a part compensation, for acquisition of land, such shares in no case shall exceed twenty-five percent, of the value so calculated under sub-section (1) or sub-section (2) or sub-section (3) as the case may be: ``` ``` Provided further that the Requiring Body shall in no case compel any owner of the land (whose land has been acquired) to take its shares, the value of which is deductible in the value of the land calculated under sub-section (1): ``` ``` Provided also that the Collector shall, before initiation of any land acquisition proceedings in any area, take all necessary steps to revise and update the market value of the land on the basis of the prevalent market rate in that area: ``` ``` Provided also that the appropriate Government shall ensure that the market value determined for acquisition of any land or property of an educational institution established and administered by a religious or linguistic minority shall be such as would not restrict or abrogate the right to establish and administer educational institutions of their choice. ``` ``` 14. It is open for the Collector to rely on any of the ``` ``` modes for determination of market value, prescribed under Section 26(1)(a) to (c) of the Act 30 of 2013. However, he has to opt for a higher mode if all modes of criteria exist. Explanation ``` ``` (1) to (4) of this Section further regulates the mode of determination under Section 26(1)(b). Explanation (1) states that the average sale price shall be determined by taking into ``` **LAA Nos. 46/2019, 107/2019 & 49/2023** ## **& CO 58/2023 in LAA 49/2023** ## **-:22:-** ``` account the sale deeds or all other instruments referred therein immediately preceding three years of the year in which such acquisition of land is proposed to be made. Therefore, all sale deeds will have to be taken into account to arrive at an average sale price. If more than one sale deed is available within three years, the Collector cannot opt for one of such sale deeds for determination of sale price. Same is the case with the authority. However, it is open for the Collector and the Authority to exclude any of the sale deeds on the opinion that it is not indicative of actual prevailing market value for any reasons to be recorded in the light of explanation 4. ``` ## `Point No.iii:` ## `15. Explanation 1 to Section 26(1) of Act 30 of 2013 states as follows:` ``` Explanation 1.- The average sale price referred to in clause (b) shall be determined taking into account the sale deeds or the agreements to sell registered for similar type of area in the near village or near vicinity area during immediately preceding three years of the year in which such acquisition of land is proposed to be made. ``` ``` 16. This provision is advantageous for claimants. If the ``` ``` Collector is allowed to rely upon any sale deeds beyond three ``` **LAA Nos. 46/2019, 107/2019 & 49/2023** ## **& CO 58/2023 in LAA 49/2023** ## **-:23:-** ``` years, in normal course it may adversely affect the claimant as the presumption is that the market value escalates every year. See the Judgment of the Apex Court in G.M., Oil & Natural Gas Corporation Ltd. v. Rameshbhai Jivanbhai Patel & Anr. [(2008) 14 ``` ``` SCC 745]. Therefore, this being a beneficial provision, it has to be construed as a provision not to restrict any advantage if available to the claimant based on a deed prior to three years, but not to adversely affect a claimant by placing reliance on a deed beyond three years. If the provision is understood as above, there is no harm in placing reliance on a deed beyond three years if it is beneficial to the claimant. We make it clear that if it is not beneficial to the claimant, it cannot be relied upon. The Legislature, in fact, intended to adopt any criteria which is higher and beneficial to the claimant. Therefore, there is no embargo under the law in placing reliance on a deed beyond three years provided it is beneficial to the claimant. ``` ## `Point No.iv.:` ``` 17. The determination of the compensation under the Act ``` ``` 1894 is totally based on different parameters and criteria. Therefore, the judgment under the Land Acquisition Act, 1894 for ``` **LAA Nos. 46/2019, 107/2019 & 49/2023** ## **& CO 58/2023 in LAA 49/2023** ## **-:24:-** ``` determining compensation cannot be relied upon for determining compensation under Section 26 of Act 30 of 2013. Section 26 provides different criteria for determining market value of land. The criteria for determining market value are different in both the enactments, thus, no reliance can be placed on the judgment, or the award passed under the Land Acquisition Act, 1894. ``` ## `Point No.v:` ``` 18. Explanation 4 to Section 26(1), grants the Collector the authority to exclude any sale deed if he is of the opinion that it is not indicative of actual prevailing market value. The fancy price normally does not reflect the market value. The market value is determined by the factors of various market forces. It is primarily determined by the interplay of demand and supply between willing buyers and willing sellers. If there is a huge difference in market value among the sale deeds which is comparable from others, the Collector will have to find out whether it is indicative of the actual prevailing value or not. Privy Council in Narayana Gajapathiraju v. Revenue Divisional Officer, Vizagapatam (1939-2 Mad LJ 45 at p. 52: (AIR 1939 PC 98 at p. 102) defined market value as follows: ``` **LAA Nos. 46/2019, 107/2019 & 49/2023** ## **& CO 58/2023 in LAA 49/2023** ## **-:25:-** ``` ".. what a willing vendor might reasonably expect to obtain from a willing purchaser, for the land in that particular position and with those particular potentialities.." ``` ``` 19. Therefore, the compensation must be determined with reference to the price which the willing seller might reasonably expect to obtain from a willing purchaser. If there are multiple sale deeds, some indicating a standard average price, and other deeds showing substantial differences, opinion can be arrived at by the Collector to exclude such deeds showing substantial difference from consideration on the question of average sale price. In light of the principles of average sale price, if numerous deeds are present, it is an easy job for the Collector to exclude such deeds if there is substantial difference with average sale price in all other deeds. The Collector must provide reasons for exclusion of such deeds and will have to reckon the value of the land shown in all other comparable deeds to discount such deeds from consideration. This is merely an enabling power to be exercised cautiously and carefully. ``` **LAA Nos. 46/2019, 107/2019 & 49/2023** ## **& CO 58/2023 in LAA 49/2023** ## **-:26:-** ## `Point No.vi:` ``` 20. Section 3(p) of the Act 30 of 2013 defines land as follows: ``` ``` (p) “land” includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth. ``` ## `21. Section 30(3) of the Act 30 of 2013 states as follows:` ## _**`30. Award of solatium.`**_ ``` (3) In addition to the market value of the land provided under section 26, the Collector shall, in every case, award an amount calculated at the rate of twelve per cent. per annum on such market value for the period commencing on and from the date of the publication of the notification of the Social Impact Assessment study under sub-section (2) of section 4, in respect of such land, till the date of the award of the Collector or the date of taking possession of the land, whichever is earlier. ``` ## `22. The reference court relied upon the judgment in` ``` Chaturbhuj. Panda & Ors vs The Collector, Raigarh [AIR 1969 SC ``` ``` 255] to hold that additional market value is also allowable for things attached to the earth. If the Legislature had intention to exclude definition of land in the context of Section 30(3), that ought to have been mentioned there. Thus, we hold that the ``` **LAA Nos. 46/2019, 107/2019 & 49/2023** ## **& CO 58/2023 in LAA 49/2023** ## **-:27:-** ``` additional market value of the land referred in Section 30(3) covers the structure as well. ``` ``` The disputes in these appeals: ``` ``` L.A.A.Nos. 46/2019 and 107/2019: ``` ``` 23. These appeals are based on the reference of V.J.Mathew. The reference court relied on Exhibit.A1 sale deed executed on 15/11/2007. The reference court also awarded a cumulative increase of 12% per year on the land value shown in the above deed. In the light of the discussions in the matter, the authority could not have granted a cumulative increase of 12% on the value shown in Ext.A1 sale deed. Ext.A1 can be taken into consideration if it is beneficial to the claimant. However, it shall be taken into account along with the other sale deed relied on by the Collector. This was not done in the matter. However, we affirm 12% additional market value granted to the claimant for the structure. Therefore, the matter requires reconsideration as to the determination of the market value of the land alone in the light of our discussions in the foregoing paragraphs. ``` **LAA Nos. 46/2019, 107/2019 & 49/2023** **& CO 58/2023 in LAA 49/2023** ## **-:28:-** ## `LAA 49/2023 and Cross Objection 58/23:` ``` 24. The claimant relied on Ext.A2 sale deed dated 20.01.2011. The authority relied on Ext.A1 sale deed of the year 2007. Taking note of the price of land in Exts.A1 and A2, the authority arrived at an average sale price. This according to us is an erroneous approach. If at all Ext.A1 can be relied upon, all the sale deeds including those relied by the District Collector will have to be reckoned along with Ext.A2 to determine the average sale price. The authority cannot selectively choose one or two sale deeds to arrive at an average sale price. The law mandates that all sale deeds referred to in explanation 1 will have to be taken into account to determine the average sale price immediately preceding three years from the year in which land acquisition was made. As we observed earlier, sale deeds prior to three years also can be taken into account provided it is beneficial to the claimant. Thus, all such deeds will have to be taken into account to arrive at an average sale price. Therefore, we hold that the matter requires reconsideration for determining the market value of the land. However, we affirm ``` **LAA Nos. 46/2019, 107/2019 & 49/2023** ## **& CO 58/2023 in LAA 49/2023** ## **-:29:-** - `12% additional market value allowed to the structure. Thus, in the result, we dispose of the appeals as follows:` ``` 25. We order a remand of the appeals for fresh consideration in determining the market value of the land in the light of the discussions in points i to vi. We make it clear that any of the sale deeds relied on can also be excluded if it is not indicative of the true value in the light of explanation ``` ``` 4, while redetermining the market value. We affirm 12% additional market value granted to the claimant for the structure. In claimant’s appeals and cross objection, they are entitled for refund of the court fee. ``` ``` Sd/- ``` ## **`A.MUHAMED MUSTAQUE, JUDGE`** ## **`M.A.ABDUL HAKHIM, JUDGE`** ## **`ms`**