L.A.A.No.187/2015 & Cross Objection No.51/2018; L.A.A.No.247/2015 & Cross Objection No.50/2018

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM`** ``` & ``` ``` THE HONOURABLE MRS. JUSTICE SHIRCY V. ``` ``` WEDNESDAY,THE 14TH DAY OF MARCH 2018/23RD PHALGUNA,1939 ``` ``` LA.App.No. 187 of 2015 ``` ``` AGAINST THE JUDGMENT AND DECREE IN LAR 81/2010 of SUB COURT, PERUMBAVOOR DATED 18-09-2014 ``` ## **`APPLICANT/APPELLANT/1ST RESPONDENT IN LAR:`** ``` STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR,ERNAKULAM. ``` ``` BY SPL.GOVERNMENT PLEADER SMT.LATHA THANKAPPAN ``` ## **`RESPONDENTS/RESPONDENTS/Claimants & 2ND RESPONDENT IN LAR`** - **1** **`P.V. MUHAMMED S/O.VEERAN, MATHRAKKATTU,CHAKKALAKKUZHY, BRAHMAPURAM- 682 303.`** - **2** **`THE CHIEF EXECUTIVE OFFICER INFO PARK, KUSUMAGIRI, KAKKANAD - 682 042.`** ``` BY ADVS. SRI.M.M.IRSHAD MOOPPAN & SRI.T.R.S.KUMAR- FOR R1 ``` ``` SRI.K.A.ABDUL SALAM, SC, FOR R2 ``` ``` THIS LAND ACQUISITION APPEAL HAVING COME UP FOR ADMISSION ON 14.03.2018, ALONG WITH LA.App.247/2015 & C.O.NO.51/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`**`** ``` The number of connected Cross Objection ‘C.O.No.51/2018’ shown in the head note of LAA No.187/2015 is corrected and substituted as ‘C.O.No.50/2018” as per common order dated 11.07.2022 in LAA. No.187/2015 & C.O.No.51/2018 and LAA No.247/2015 & C.O.No.50/2018. ``` ``` Assistant Registrar ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM ``` ``` & THE HONOURABLE MRS. JUSTICE SHIRCY V. ``` ``` WEDNESDAY,THE 14TH DAY OF MARCH 2018/23RD PHALGUNA, 1939 ``` ``` CO.No.51 OF 2018 IN LA.App.. 187/2015 ``` ``` AGAINST THE JUDGMENT AND DECREE DATED 18.9.2014 IN LAR NO.81/2010 ON THE FILE OF SUB COURT, PERUMBAVOOR ``` ## **`CROSS OBJECTOR/CLAIMANT`** ``` P.V. MUHAMMED S/O VEERAN, AGED 65 YEARS, RESIDING AT MATHRAKKATTU HOUSE, PERINGALA. ``` ``` BY ADV. SRI.T.R.S.KUMAR ``` ## **`APPELLANTS/RESPONDENTS`** > 1 **`STATE OF KERALA REP BY THE DISTRICT COLLECTOR, ERNAKULAM 682 030.`** 2. **`THE CHIEF EXECUTIVE OFFICER, INFO PARK, KUSUMAGIRI, KAKKANAD, KOCHI 682 030.`** ``` R1 BY GOVERNMENT PLEADER BY SRI.K.A.ABDUL SALAM, SC FOR R2 ``` ``` THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 14.03.2018 ALONG WITH LAA NO.187/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT THE HONOURABLE MR. C.K.ABDUL REHIM`** ``` & ``` ``` THE HONOURABLE MRS. JUSTICE SHIRCY.V. ``` ``` WEDNESDAY, THE 14[TH] DAY OF MARCH 2018 / 23RD PHALGUNA, 1939 LA.APP. NO. 247 OF 2015 ``` ``` AGAINST THE JUDGMENT IN LAR 111/2010 OF SUB COURT, PERUMBAVOOR DATED 18.09.2014 ``` ## **`APPLICANT/APPELLANT/1ST RESPONDENT IN LAR:`** ``` STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, ERNAKULAM 682 011. BY SPL GOVERNMENT PLEADER SMT. LATHA THANKAPPAN ``` ## **`RESPONDENTS/RESPONDENTS/CLAIMANT & 2ND RESPONDENT IN LAR:`** ``` 1HAJIRA W/O. MUHAMMED, MATHRAKKATTU, CHAKKALAKKUZHY, BRAHMAPURAM, PIN-682 303. 2THE CHIEF EXECUTIVE OFFICER INFO PARK, KUSUMAGIRI, KAKKANAD-682042. BY ADVS. SRI.SOBIN SOMAN SRI.M.M.IRSHAD MOOPPAN, SRI.T.R.S.KUMAR & SRI.U.B.SIRAS – FOR R1 SRI.K.A.ABDUL SALAM, SC FOR R2` THIS LAND ACQUISITION APPEAL HAVINGBEEN FINALLY HEARDON 14.03.2018, ALONG WITH LAA NO.187/2019 & C.O.NO.50/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` ** ``` ``` The connectedLAA and Cross Objection number ‘LAA No.187/2019 &C.O.No.50/2018’ shown in the head note of LAA.NO.247/2015is corrected and substituted as ‘LAA NO.187/2015 & C.O.NO.51/2018’ as per common order dated 11.07.2022 in LAA.No.187/2015 & C.O.No.51/2018 and LAA.NO.247/2015 & C.O.NO.50/2018. ``` ``` Assistant Registrar ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM ``` ## **`&`** ``` THE HONOURABLE MRS. JUSTICE SHIRCY V. WEDNESDAY, THE 14[TH] DAY OF MARCH 2018 / 23RD PHALGUNA, 1939 ``` ## **`CO NO. 50 OF 2018 IN LA.APP.247/2018`** ## **`AGAINST THE JUDGMENT IN LAR 247/2015 OF SUB COURT,`** ## **`PERUMBAVOOR`** ## **`CROSS OBJECTOR/CLAIMANT`** ``` HAJIRA MUHAMMED, W/O MUHAMMED, AGED 59 YEARS, RESIDING AT MATHRAKKATTU HOUSE, PERINGALA P.O. ``` ``` BY ADVS. SRI.T.R.S.KUMAR SRI.SOBIN SOMAN ``` ## **`APPELLANTS/RESPONDENTS`** ``` 1 STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, ERNAKULAM 682 030 ``` ``` 2 THE CHIEF EXECUTIVE OFFICER, INFO PARK, KUSUMAGIRI, KAKKANAD, KOCHI – 682 030. ``` ``` BY ADVS. GOVERNMENT PLEADER SMT. LATHA THANKAPPAN – FOR R1 SRI.K.A.ABDUL SALAM, SC, FOR R2 ``` ``` THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 14.03.2018, ALONG WITH LAA NO.247/2015 AND LAA NO.187/2015 & C.O.NO.51/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 5 LAA NO.187/2015 & CO NO.51/2018 LAA NO.247/2015 & CO NO.50/2018 ## **C.K.ABDUL REHIM. & SHIRCY V.,JJ.** ================================= ## **L.A.A.No.187 of 2015 and Cross Objection No. 51 of 2018** ## & ## **L.A.A.No.247 of 2015 and Cross Objection No.50 of 2018** ===================================== Dated this the 14[th] day of March 2018 ## **JUDGMENT** ## C.K.Abdul Rehim, J. The above appeals and cross objections arise out of a common judgment passed by the Sub Court, Perumbavoor in L.A.R.Nos.81/2010 and 111/2010. The State had filed Nos.187/2015 against the judgment in L.A.R.No.81/2010 and L.A.A. No.247/2015 against the judgment in L.A.R.No.111/2010. The 1[st] respondent in the appeals/claimants have filed the respective cross objections. 2. The land involved in these cases were acquired for the “II[nd] phase development” of INFOPARK, Kakkanadu, by virtue of Section 4(1) notification published on 20.9.2007. An extent of 15.80 Ares of property comprised in Survey Nos.384/5 of Kunnathunadu village and an extent of 15 Ares of property comprised in 384/4 of the same village 6 LAA NO.187/2015 & CO NO.51/2018 LAA NO.247/2015 & CO NO.50/2018 were acquired from the claimants in L.A.R.No.81/2010 and L.A.R.No.111/2010, respectively. The Land Acquisition Officer (LAO) awarded compensation by including the properties in category No.6 and awarded compensation by fixing the land value at Rs.2,03,855/- per Are. Before the reference court, the claimants contented that the categorisation was not correct. Category No.6 is described as high level wet land, having no road access. Contention of the claimants in both the cases was that the property in question remained as dry land, since it was reclaimed before the date of the acquisition. It was contented that the claimants in both the cases are husband and wife and the acquired property forms part of the land held by both of them together. It was the specific case that the remaining property in the ownership of the claimant (wife) in L.A.R. 81/2010 is situated on the western side having an extent of 8 Ares comprised in Survey No378/9, and the said remaining property is having access to a tar road. Therefore the acquired properties, which are lying contiguous as a compact plot along with the unacquired 7 LAA NO.187/2015 & CO NO.51/2018 LAA NO.247/2015 & CO NO.50/2018 portion, had the benefit of tar road, was the contention. Hence the the argument raised before the court below was that, the acquired property need to be included in the category of dry land having access to tar road. 3. The reference court had discarded the above said claim on the finding that the LAO had already included the properties in the category of high level wet land, taking into consideration of the fact that the land in question remained partly reclaimed at the time of acquisition. The report of the Advocate Commissioner was to the effect that, the property was remaining as dry land at the time of inspection. The court below discarded the report by observing that the Advocate Commissioner had visited the property only in the year 2014 and she is not competent to give a report regarding the actual tenure of the property, which was acquired in the year 2007. Further, the reference court found that, in the objections submitted by both the claimants before the LAO, it was stated that the properties are reclaimed paddy fields. With respect to the claim that the acquired property is having access to a tar 8 LAA NO.187/2015 & CO NO.51/2018 LAA NO.247/2015 & CO NO.50/2018 road, the reference court found that, the claim statements filed in both the cases do not contain any detailed description regarding the lie of the properties and about the unacquired portion; and that there is no reference contained in the claim statement regarding the title of the unacquired portion. With respect to the report of the Advocate Commissioner and the plan attached there with, the court below observed that, from the plan it is not possible to identify the directions of the boundaries and there is no materials to show that the Commissioner had identified the unacquired portion belonging to the claimants. Therefore, the claim regarding accessibility to road was also rejected. The reference court enhanced the land value by granting 60% increase over and above the land value fixed by the LAO with respect to Category No. 6 and re-fixed the land value at Rs.3,26,168/- per Are. The State had filed these appeals challenging the enhancement awarded. On the other hand, the claimants have filed the cross objections challenging the rejection of the claim for re-categorization and also seeking further enhancement. 9 LAA NO.187/2015 & CO NO.51/2018 LAA NO.247/2015 & CO NO.50/2018 4. In this regard, it was noticed that, a large number of appeals and cross objections pertaining to the very same acquisition had already been disposed of by this court through the judgment in LAA No.73/2E014 and connected cases, on 27.2.2018. This court had found that the categorisation made by the LAO is not real and justifiable. Therefore, this court had re-fixed the categorisation, basically dividing the land into four categories. I Dry land. II Reclaimed wet land. III Wet land having coconut trees planted on bunds IV Wet land. Among the basic four categories, this court had sub classified each categories based on the accessibility to tar road, accessibility to mud road, and properties having no access to any road. The land value in each case was fixed with respect to all the categories from Category No.I(a) to IV (c). The said land value in each case was fixed taking note of the best exemplars available. The cross 10 LAA NO.187/2015 & CO NO.51/2018 LAA NO.247/2015 & CO NO.50/2018 objectors/claimants do not have a case that any other better exemplar is available for fixing the land value in the cases at hand. Hence we are of the opinion that, in the matter of re-fixing the land value to be awarded in these case, the judgment of this court in LAA No. 73/2014 connected cases, dated 27.2.2018 can be relied upon and followed. 5. Now the question to be decided is with respect to the issue of category change. First among the contention of the cross objectors/claimants is that, the property in question is a dry land. The entire reference file in both the cases were marked in evidence before the court below. The file contains the objections submitted by the claimants before the LAO. In LAR No.81/2010 the claimant had stated in the objection that the acquired property has to be included in wet land with earth filling, having transportation facilities. Likewise the objection submitted by the claimant in LAR No.101/2010 is to the effect that, the acquired property has been reclaimed by putting earth and it has to be considered as high level land. The mahazar prepared in 11 LAA NO.187/2015 & CO NO.51/2018 LAA NO.247/2015 & CO NO.50/2018 both the cases, marked as Ext.R1(d) in LAR 81/2010 and Ext.R2(d) in LAR 111/2010, would indicate that, as per the revenue records the property is included with the description as wet land. In Ext.R1(d) it is mentioned that, even though the property is wet land as per the records, on physical verification it was found that the property is remaining at an elevated stage when compared with the neighbouring properties and that it contains improvement of various types Likewise in Ext.R2(d) it is mentioned that the property is situated at higher level than the neighbouring properties, even though it is described as wet land in the revenue records. As observed by the reference court, the commissioner had inspected the properties in the year 2014. At that time it is reported that the acquired land is seen as dry land with so many trees standing thereon. In the claim statement filed before the reference court in both the cases it is mentioned that, the acquired land is filled and is lying as garden land. All the above said evidence would reveal that the acquired property was originally remaining as wet land, which was 12 LAA NO.187/2015 & CO NO.51/2018 LAA NO.247/2015 & CO NO.50/2018 filled up by the claimants. Learned counsel appearing for the cross objectors/claimants contended that the land which remaining as reclaimed need to be considered in par with the dry land, because the advantages with respect to both the properties are one and the same. As already observed in the foregoing paragraphs, in the judgment in L.A.A.No.73/2014 and connected cases, dated 27.2.2018, this court had found that the property remaining as pucca dry land and included in the revenue records as dry land cannot be equated in quality with reclaimed wet land. Even though, after reclamation, the property can be utilised for other purposes, there are statutory restrictions contemplated under provisions of the Kerala Land Utilisation Order and/or under the Kerala Conservation of Paddy Land and Wet Land Act, 2008. Therefore the claim that the same price fixed with respect to dry land need to be awarded for reclaimed land, deserves no merit. 6. Further contention raised by the cross objectors/claimants is against categorisation of the acquired property as property having no access to any 13 LAA NO.187/2015 & CO NO.51/2018 LAA NO.247/2015 & CO NO.50/2018 roads. The acquired properties are situated in survey No.384/4 and 384/5 of Kunnathunad Village. The property acquired in L.A.R.No. 81/2010 is situated in Survey No.384/5 and the property acquired in L.A.R.No.111/2010 is situated in Survey No.384/4. The claimant in LAR No.81/2010 is the husband and the claimant in LAR No. 111/2010 is his wife. In the objections filed before the LAO both the claimants have categorically mentioned that the acquired properties are remaining adjoining with the property comprised in survey No.378/9 belonging to the claimant in LAR 111/2010. In the objections in LAR No.81/2010 the claimant had mentioned that the acquired properties are lying contiguous with the remaining property owned by his wife and that the entire properties are situated on the side of the road. Likewise in the objections in LAR No.111/2010 the claimant had mentioned that the acquired properties are remaining adjoining with the property comprised in Survey No.378/9 belonging to her as a compact plot facing the road. In the report of the Advocate Commissioner it is mentioned that 14 LAA NO.187/2015 & CO NO.51/2018 LAA NO.247/2015 & CO NO.50/2018 both the acquired properties are lying together without any boundaries separating them; and that there is no demarcation between the acquired property and the unacquired property of the claimants. It is categorically mentioned that the unacquired properties are having tar road frontage on the western side. It is further mentioned in the report that both the acquired properties are lying together. The Advocate Commissioner has identified the property only with the help of the Village Officer. It is further mentioned that the acquired properties in both the cases and other properties belonging to the claimants are lying jointly without any demarcation and that the unacquired properties is having slop towards east. It is specifically mentioned that the western boundary of the unacquired properties is a tar road. The fact that the unacquired properties belonging to the claimant in LAR No.111/2010 comprised in Survey No.378/9 having an extent of 8 Ares situated contiguous with the acquired property as a compact plot, is specifically mentioned by the claimants in the claim statement and in the additional 15 LAA NO.187/2015 & CO NO.51/2018 LAA NO.247/2015 & CO NO.50/2018 claim statement filed before the reference court. Ext.R1(e), (f) and (h) are the title documents pertaining to the acquired properties. Boundary description contained in all these three documents would indicate that the property of both the claimants are remaining contiguous. Learned counsel for the claimants argued that the unacquired property belonging to the claimant in LAR No.111/2010 was purchased in the year 2002 by virtue of Ext.R1(f) sale deed. There is categorically mentioned in the recitals of the said document, regarding availability of motorable way to the property in question. All these evidence would indicate that the unacquired portion of property belonging to the claimant in LAR No.111/2010 comprised in Survey No.378/9 was having road access. 7. Learned Standing Counsel appearing for the requisitioning authority contended that, the claimants have not succeeded in proving through convincing evidence with respect to the contiguous nature of the unacquired property. It is argued that no specific evidence was adduced to prove that the unacquired portion is situated 16 LAA NO.187/2015 & CO NO.51/2018 LAA NO.247/2015 & CO NO.50/2018 on any of the boundaries of the acquired properties at any particular direction. On a perusal of Ext.R1(d) to R1(f)it is clear that boundary description will prove about the contiguous nature of the said properties. 8. In the decision of this court in **Lillykutty v. State of Kerala [2012(4)KLT 428]** it is held that, properties of husband and wife lying together and contiguously remaining in the same condition and being enjoyed as a common holding of the family, should be included in the same category. Therefore we are of the considered opinion that the accessibility to road available with respect to the unacquired property of the wife would have been enjoyed by the acquired properties belonging to the husband and the wife, which are lying contiguous as a compact plot. Hence it is to be held that the acquired properties need to be included in the category as properties having access to road. 9. Yet another disputed question is as to whether the property need to be included in the sub category of plot having access to 'tar road' or in the sub category of plot 17 LAA NO.187/2015 & CO NO.51/2018 LAA NO.247/2015 & CO NO.50/2018 having access to 'mud road'. Learned counsel placed heavy reliance on the report of the Advocate Commissioner pointing out that the property is having access to a tar road. But, as observed by the reference court, the inspection of the Commissioner was after a period of seven years. Therefore whether the road in question was remaining as a 'tar road' as on the date of acquisition is a relevant aspect, which need to be examined. The claimants have not succeeded in proving through any convincing evidence, apart from the report of the Advocate Commissioner that the road in question was a tarred road. In this respect, learned Standing Counsel appearing for the requisitioning authority had drawn our attention to the additional claim statement filed in both the cases, where it is mentioned that the properties were lying together having gravel road access, but only an extent of 30.8 Ares alone was acquired. Therefore it has to be found that there is an admission from the side of the claimants that the acquired property was remaining as one plot having access to gravel road at the time of the acquisition. 18 LAA NO.187/2015 & CO NO.51/2018 LAA NO.247/2015 & CO NO.50/2018 10. Under the above mentioned circumstances, we are inclined to hold that the acquired properties were reclaimed land having access to mud road. In the judgment in L.A.A.No.73/2014 and connected cases dated 27.2.2018, this court had included such properties in category II(b), which is described as reclaimed land having access to mud road. The land value refixed with respect to properties in the said category is Rs.5,14,915/- per Are. We hold that the claimants in both these cases are entitled to receive the compensation at the above said rate, as the property included in category II(b). In the result, we dispose of the appeals and the cross objections as follows: (1)L.A.A.Nos.187/2015 and 247/2015 are hereby dismissed. (2) Cross Objection Nos. 51/2018 & 50/2018 are allowed in part, to the extent of refixing the land value at Rs.5,14,915/- per Are. Both the cross objectors/claimants are entitled to get compensation recomputed on the basis of the land value refixed as above, along with all statutory 19 LAA NO.187/2015 & CO NO.51/2018 LAA NO.247/2015 & CO NO.50/2018 benefits provided under Sections 23(1A), 23(2) and 28 of the Land Acquisition Act. 11. It is made clear that the claimants will not be entitled for interest under section 28 with respect to the period of 730 days, for which delay in filing the cross objection was condoned in C.O.No.51/2018 in L.A.A. No. 187/2015 and for 784 days for which delay in filing the cross objection was condoned in C.O. No. 52/2018. The claimants will also be entitled for proportionate costs. ## Sd/ ## **C.K. ABDUL REHIM, JUDGE** ## sd/ ## **SHIRCY V., JUDGE** jm/ks The number of Cross Objection ‘C.O.No.52/2018’ shown in the 6[th] line of the last paragraph of the common judgment dated 14.03.2018 in LAA No.187/2015 & C.O. (Contd...P.20) 20 LAA NO.187/2015 & CO NO.51/2018 LAA NO.247/2015 & CO NO.50/2018 No.51/2018 and LAA. No.247/2015 & C.O No.50/2018 stands corrected as “C.O.No.50/2018” as per common order dated 11.07.2022 in LAA No.187/2015 & C.O.No.51/2018 and LAA.No.247/2015 & C.O.No.50/2018. **Joint Registrar**