L.A.A. Nos.699 and 764 of 2011

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI MONDAY, THE 4TH DAY OF JUNE 2012/14TH JYAISHTA 1934 ## LA.App..No. 699 of 2011 (D) ---------------------------------LAR.805/2008 of II ADDL.SUB COURT,THIRUVANANTHAPURAM ------------- APPELLANT/IST RESPONDENT: ---------------------------------- STATE OF KERALA REP.BY THE DISTRICT COLLECTOR,THIRUVANANTHAPURAM. BY SR. GOVERNMENT PLEADER SRI.ALOYSIUS THOMAS ## RESPONDENT(S)/CLAIMANTS & 2ND RESPONDENT: --------------------------------------------------------- 1. S.WILLIAMS ADVOCATE,TC 14/415,CHITHIRA VIKAS BHAVAN PO,PALAYAM,THIRUVANANTHAPURAM-695033 2. NEELAKANTA SARMA, POWER OF ATTORNEY HOLDER OF SREENIVASA SARMA PRANAVAM NO.146,KRISHNAPURAM GRAMOM,NEYYATTINKARA-695121 ## 3. V.C.MANJU - VIJAYA BHAVAN,VANCHIYOOR,THIRUVANANTHAPURAM-695033 4. THE CHIEF EXECUTIVE OFFICER - ELECTRONICS TECHNOLOGY,THIRUVANANTHAPURAM-695001 BY ADV. SRI.ANIL THOMAS(T), SC,TECHNOPARK BY ADV. SMT.K.V.RESHMI BY ADV. SMT.M.HEMALATHA THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 04-06-2012, ALONG WITH LAA. 764/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ. -----------------------------------------------L. A. A Nos.699 and 764 of 2011 -----------------------------------------------Dated this the 4[th] day of June, 2012 ## **JUDGMENT** _Pius C. Kuriakose, J_ The Government as well as the claimants are before us by filing separate appeals. L.A.A.764/11 is the appeal preferred by the claimants and L.A.A.699/11 is the appeal preferred by the Government. The property was in Pallipuram village and the acquisition was pursuant to Section 4(1) notification published on 05/12/06 for the purposes of Electronic Technology Park, Kazhakkoottam. The Land Acquisition Officer awarded land value relying on the basis document at ` 1,00,282/- per Are. Before the Reference Court it was on Ext.A2 Sale Deed that the claimants relied on mostly. The learned Subordinate Judge under the impugned judgment found that Ext.A2 was a relevant document. Ext.A2 reflected a land value of L. A. A Nos.699 and 764 of 2011 -2- ` 2,30,346/-. The learned Subordinate Judge did not become inclined to award the value reflected in Ext.A2 for the reason that the land under acquisition was an extensive area. Therefore, what was done by the learned Subordinate Judge was to deduct 15% for the largeness of the property under acquisition from the value reflected in Ext.A2. Accordingly value of the land was re-fixed at ` 1,95,794/- per Are. The appellant had a claim for enhanced value for improvements mostly trees which stood on the property under acquisition. For these trees the Land Acquisition Officer had awarded to the appellant a sum of ` 1,07,090/-. Advocate Commissioner recommended for award of much higher value on the basis that the number of trees which actually existed on the property under acquisition was much more than the trees noted in the mahazar prepared at the time of taking over of possession. The learned Subordinate Judge, however, did not place any reliance on the Commissioner's Report and did not award any enhanced compensation towards value of improvements - trees. In the appeal preferred by the L. A. A Nos.699 and 764 of 2011 -3claimants they contend that the rate presently fixed is inadequate. According to them, the learned Subordinate Judge was not justified in deducting 15% for the largeness of the area. They also urge that the Reference Court should have given additions for passage of one and a half year's time up to promulgation of Section 4(1) notification from the date of execution of Ext.A2 to the value reflected in Ext.A2. 2. Sri.Aloysius Thomas, the learned Senior Government Pleader who was strongly supported by Smt.K.V.Resmi, the Standing Counsel for the Requisitioning Authority would submit that the rate of ` 1,95,794/- presently fixed is excessive. According to them the property covered by Ext.A2 was not comparable to the property under acquisition. Property covered by Ext.A2 was superior to the property under acquisition. This would show that at any rate the court below should have deducted much more than the rate of 15% which is deducted towards the largeness of the extent. Pallipuram village was a purely rural area and for the passage of time the maximum additions that can be given is L. A. A Nos.699 and 764 of 2011 -4- 5%, according to the learned Senior Government Pleader as well as Smt.K.V.Resmi. 3. In reply Sri.Williams submitted that Pallipuam village is on the boundary of Thiruvananthapuram city and the value of land in that village has been skyrocketing since the date of execution of Ext.A2. Hence, there is every justification for giving increase at the rate of 15% per year. The learned counsel submitted that the deduction of 15% made for the largeness of extent is not justifiable and the maximum deduction that can be made is 10%. Sri.Williams also submitted that the learned Subordinate Judge should have accepted the Commissioner's Report and given enhancement towards value of structures. Sri.Williams further submitted that the claimant have not been awarded land value for the entire extent which was taken over. They have been given land value only for 4 acres and 95 cents. As a matter of fact 39 cents of land more was acquired and the Land Acquisition Officer did not award any land value for so much land for the reason that the same was lying as a road. L. A. A Nos.699 and 764 of 2011 -5- 4. We have given our anxious consideration to the rival submissions addressed at the Bar. We have very carefully gone through the impugned award. We have made a quick survey of the evidence especially Ext.A2 Sale Deed. Having gone through Ext.A2 Sale Deed, we are convinced that the same records a normal transaction of land in the same village. We approve the action of the learned Subordinate Judge in having taken the view that Ext.A2 was a very relevant document and that the same is in respect of comparable property. But as rightly pointed out by the learned Senior Government Pleader Ext.A2 is in respect of around 12 cents of land, in comparison to the property under acquisition which is very large extent i.e. more than 4 Acres Ext.A2 is small. It is a matter of common knowledge that the price whether it be of real estate or other commodities will be higher in retail market than in wholesale market. We are of the view that the learned Subordinate Judge was justified in making deductions. We find force in the submission of the learned Senior Government Pleader and Smt.K.V.Resmi that L. A. A Nos.699 and 764 of 2011 -6- a deduction of 15% presently made is inadequate. 5. Having regard to the principles laid down by the _-_ Supreme Court in _L. A. O & Sub collector, Gadwal v. Sreelatha Bhoopal (AIR 1997 SC 2552), Gafar & Ors. v. Moradabad Development Authority & Anr. (2007(7) SCC 614), State of J & K v. Mohammad Mateen Wani (AIR 1998 SC 2470)_ and having taken into account the extent of the property under acquisition we are of the view that the proper deduction to be made on account of the largeness of the extent was 25%. 6. Now we come to the question as to what is the correct market value to be fixed for the land under acquisition. As already found Ext.A2 is the only relevant document on the basis of which land value could be fixed. We find that the property was in Pallipuram village. We are not prepared to accept the argument of the learned Senior Government Pleader or Smt.Resmi that Pallipuram village is a purely rural area. According to us, Pallipuram village is semi urban. We are of the view that there is justification for L. A. A Nos.699 and 764 of 2011 -7- giving additions at the rate of 10% per Are for land in Pallipuram village. This means that 15% will have to be added to the value reflected in Ext.A2. From the rate so arrived at then 25% will have to be deducted to the largeness of the extent. Making additions and deductions that way we re-fix the market value of the land under acquisition at ` 1,98,586/- per Are which we round off to ` 1,98,600/- per Are. 7. Now we come to the question of correct value for the improvements which was available on the property under acquisition to be granted to the claimants. True the learned Subordinate Judge had good reasons for discarding Commissioner's Report. Having regard to the number of trees which admittedly existed on the property we are of the view that the rate presently awarded by the Land Acquisition Officer which is only ` 1,07,090/- is quite inadequate. We award to the appellant on a reasonable guess estimate a further amount of ` 22,000/- towards value of improvements. 8. The result of the above discussion is that the appeal L. A. A Nos.699 and 764 of 2011 -8- preferred by the Government will stand dismissed and the appeal preferred by the claimant will stand allowed. Market value of the land under acquisition is re-fixed at ` 1,98,600/-. The claimants/appellants are awarded a further sum of ` 22,000/- towards value of trees and other improvements. Claimants will be entitled for all statutory benefits admissible under Sections 23(2), 23(1A) and under Section 28 of the Land Acquisition Act. Parties are directed to suffer their respective costs. Decree copy will be issued only after ensuring that the full court fee payable on the appeal memorandum is remitted. 9. Coming to the grievance voiced by the learned counsel for the claimants regarding the extent we find that the extent acquired as per the award is only 4 acres and 95 cents. We find that the Land Acquisition Officer as well as the Reference Court has given land value to the claimants to that extent. If it is the grievance of the appellants/claimants that further extents were actually acquired and the Land Acquisition Officer did not award them any compensation L. A. A Nos.699 and 764 of 2011 -9- taking the view that those extents were lying as roads then the remedy of the appellants/claimants lies elsewhere and not before the Reference Court or this Court which sits in appeal over the Reference Court's award. Sd/PIUS C. KURIAKOSE JUDGE Sd/A. V. RAMAKRISHNA PILLAI JUDGE kns/- //TRUE COPY// P.A. TO JUDGE