L.A.A.No.407/2006 & Cross Objection No.82/2006

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** **& THE HONOURABLE SMT. JUSTICE P.V.ASHA** **FRIDAY, THE 26TH DAY OF SEPTEMBER 2014/4TH ASWINA, 1936** **LA.App..No. 407 of 2006 ( )** **---------------------------AGAINST THE JUDGMENT IN LAR 167/1988 of II ADDL.SUB COURT,THRISSUR DATED 31-03-2005** **APPELLANT/2ND RESPONDENT IN LAR NO.167/1988:** **---------------------------------------------------------** **THE SECRETARY, THRISSUR CORPORATION.** **BY ADVS.SRI.K.P.VIJAYAN** **SRI.V.M.SYAM KUMAR SRI.K.A.SREEJITH** **SMT.KRIPA ELIZABETH MATHEWS SRI.V.N.HARIDAS** **RESPONDENTS/CLAIMANTS B TO G & R1 IN LAR NO.167/1988:** **-----------------------------------------------------------** **1. MATHIRI, W/O. LATE E.P.GEORGE, ELUVATHINGAL HOUSE, M.T.NAGAR, KACHERY P.O.ANCHERY, THRISSUR-680 006.** **2. CHERIAN GEORGE, S/O. LATE E.P.GEORGE, ELUVATHINGAL HOUSE, M.T.NAGAR, KACHERY P.O.ANCHERY, THRISSUR-680 006.** **3. THABITHA GEORGE, D/O. LATE E.P.GEORGE, ELUVATHINGAL HOUSE, M.T.NAGAR, KACHERY P.O.ANCHERY, THRISSUR-680 006.** **4. THIMOTHY GEORGE, S/O. LATE E.P.GEORGE, ELUVATHINGAL HOUSE, M.T.NAGAR, KACHERY P.O.ANCHERY, THRISSUR-680 006.** **5. ROSHY E. GEORGE, D/O. LATE E.P.GEORGE, ELUVATHINGAL HOUSE, M.T.NAGAR, KACHERY P.O.ANCHERY, THRISSUR-680 006.** **6. JOHNY E. GEORGE, S/O. LATE E.P.GEORGE, ELUVATHINGAL HOUSE, M.T.NAGAR, KACHERY P.O.ANCHERY, THRISSUR-680 006.** **7. THE SPECIAL TAHASILDAR (LA), THRISSUR MUNICIPALITY, THRISSUR.** **R1,2,4,5,6 BY ADV. SRI.S.V.BALAKRISHNA IYER (SR.) R1,2,4,5,6 BY ADV. SRI.K.JAYAKUMAR R1,2,4,5,6 BY ADV. SRI.P.B.KRISHNAN ADV. SRI.A.A.DAVIS** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 26-09-2014, ALONG WITH CO. 82/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **T.R.RAMACHANDRAN NAIR & P.V.ASHA, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **L.A.A.No.407 OF 2006 & Cross Objection No.82 OF 2006** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26[th] day of September , 2014 ## **JUDGMENT** ## Ramachandran Nair, J. The appellant in L.A.A.No.407/2006 is the Thrissur Corporation and the Cross Objection is filed by the respondents in the appeal. 2. The details regarding the acquisition shows that the properties were acquired as per notification issued on 9.7.1974 under Section 3(1) of the Kerala Land Acquisition Act. The total extent of properties acquired is 194.32 cents (0.7892 hectares). 3. The award was passed as Award No.3/1977 on 5.3.1977 and a total amount of Rs.2,01,273.50 was awarded as compensation. The claimants sought enhancement before the court below at the rate of Rs. 10,000/- per cent and by the impugned judgment, the land value has been fixed as Rs. 4,000/- per cent. While fixing the land value, the land acquisition officer had adopted belting method which was found L.A.A.No.407/2006 & Cross Objection 82/06 2 fault with by the court below and a uniform rate was adopted. 4. We heard the learned Standing Counsel for the Thrissur Corporation and the learned counsel for the claimants. 5. According to the learned Standing Counsel for the Corporation, there was no reason to enhance the land value. It is submitted that as on the date of notification, the nearby properties were not developed and the Sakthan Thampuran market was developed in the year 1977. It is therefore submitted that enhancement granted at the rate of Rs.4,000/- per cent cannot be justified. It is also submitted that since a large plot has been acquired , it cannot be said that the land has potential as a commercial site and in that view of the matter also, the compensation awarded is excessive. 6. The learned counsel for the claimants submitted that the property is only 2 furlong away from the main centre of the Thrissur town namely, Thrissur Round. It is near to the Thrissur-Ernakulam main road and they are bounded by three major roads on three sides. The learned counsel submitted that the acquisition in this case is after a ## L.A.A.No.407/2006 & Cross Objection 82/06 3 part of the claimants' property was acquired for the same purpose by a different notification. It is submitted that the court below even though was appraised of a crucial document namely Ext.A9 which shows that Rs. 15,000/- per cent was awarded for the properties acquired under notification dated 4.6.1968 and the acquisition was for the purpose of improvements of Jaihind market, which is also nearby, it was not correctly applied. The learned counsel further submitted that the judgment of this Court in L.A.A.No.1138/1998 which has been produced as Ext.A18 will show that the land value has been fixed as Rs. 20,000/- per cent even though the acquisition was in the year 1981. It is submitted that even if some allowance is given for the difference to the period of notification, then also it can be seen that the land value claimed by the claimants is reasonable. 7. While mentioning about the potentiality of the land, the learned counsel submitted that being very near to the main centre of activity of the town and bounded by three roads, the land is potential as a commercial site also since the very purpose of acquisition will point L.A.A.No.407/2006 & Cross Objection 82/06 4 to the fact that it was to put for commercial use i.e. for a market. The : learned counsel relied upon the following decisions of the Apex Court **National Fertilizers Limited v. Jagga Singh (Deceased) through LRS. and another ( 2012) 1 Supreme Court Cases 74** **Mehrawal Khewaji Trust v. State of Punjab ( 2012 (2) KLT 542(SC)** **Om Prakash v. State of Haryana ( 2010(4) KLT Suppl.24(SC)** **Digamber & Ors. v. State of Maharashtra & Ors. ( AIR 2013 Supreme Court 3532)** ## **Sabhia Mohammed Yusuf v. Special Land Acquisition Officer (2012(3) KLT SN 45 (C.No.45) SC)** 8. One of the other contentions raised by the learned counsel for the claimants relying upon the dictum laid down by the Apex Court is that when the claimants have not obtained the land value even within a reasonable time, the said fact also has to be considered by this Court. In this context, the learned counsel submits that pursuant to the interim order passed by this Court in the year 2006 part of compensation of Rs.15 lakhs has been deposited. It is also submitted that in the first round of litigation during the pendency of L.A.A.No.407/2006 & Cross Objection 82/06 5 L.A.A.No.647/1996 also, Rs. 12 lakhs was deposited as per the order of this Court. The larger part of the amounts remained unpaid, it is submitted. 9. We will now refer to the various aspects considered by the court below. Ext.A16 is the certified copy of the Commissioner's report in O.S.No.422/1975 which was relied upon by the court below, which will reflect the features of the land and the importance of the locality. Going by the deposition of AW1- claimant, the entire acquired properties are dry lands and it had road frontage to the T.B.Road and all the buses plying to Thrissur town are passing through the T.B.Road. According to him, the South Indian Bank, the Casino Hotel and the Surya Hotels are located near to the acquired properties. The report of the Commissioner has been discussed in paragraph 13 of the judgment. AW2 is the Advocate Commissioner appointed in O.S.422/1975. He has inspected the properties which is in Sy.Nos. 1016 and 1017. According to him, properties are situated two furlong away from the important part of Thrissur town and these properties were Paramba and L.A.A.No.407/2006 & Cross Objection 82/06 6 there were coconut trees, arecanut trees and plantains etc. in the plaint schedule property. It is situated on the southern side of Sakthan Thampuran bus stand. He inspected the properties on 8[th] , 9[th] and 10[th] of June 1975. Based on the above evidence as well as the evidence of AW1 and the report of the Commissioner Ext.A16 the court below concluded that the properties are dry lands and the above facts have not been controverted by the appellant Corporation also. Only a small extent of 0.0217 alone is wet land. The property lies within the radius of 1 km. From the Municipal bus stand, west of National High way ( Thrissur-Ernakulam road), north of T.B.Road, east of ThrissurIrinjalakuda road and south of Post Office road. With the assistance of Ext.A17 plan, the learned counsel for the respondents explained the various features of the land. Even though the court below was of the view that Jaihind Market is away from the acquired properties, what we find on a reference to Ext.A17 is that the same is opposite to the old bus stand and it is beyond the post office road very near to the acquired property. L.A.A.No.407/2006 & Cross Objection 82/06 7 10. We will now come to the manner in which the court below has considered the various documents. Exts.A1 and A2 have been rejected as not comparable to the acquired land. Ext.A1 was rejected for the reason that, therein 30 cents was sold for Rs.30,000/- per cent and that document is of the year 1987. Ext.A2 is the certified copy of the Assignment Deed No. 3279 of 1973 which was executed prior to the date of Section 3(1) notification i..e. before 9.7.1974 . Going by Ext.A2, property consisting of 1 cent with a shop building thereon was sold for Rs. 30,250/-. Since the actual value of shop building was not reflected, Ext.A2 was also not considered. 11. Ext.A4 is the judgment in L.A.R.No.24/1988. It is in respect of a property which is situated 100 metres away from the acquired properties and the notification is dated 17.2.1981. AW1 has also produced Award Nos.5/1977, 5/1976 and 50/1970 as Exts.A5, A6 and A9. In paragraph 12 of the judgment, what is recorded as far as Ext.A9 is that therein the notification is on 4.6.1968 and the land value has been fixed at Rs.15,000/- per cent. Going by the reasoning of the L.A.A.No.407/2006 & Cross Objection 82/06 8 court below, there is nothing to show that those properties and the acquired properties are similar lands with similar advantages and potentials. It is mentioned that the properties acquired as per Ext.A9 are lying very near to the Jaihind Market. 12. In paragraph 14 of the judgment, the court below has taken the view that the belting method adopted is not correct since no scientific method was adopted by the Land Acquisition Officer and we do not find any reason to interfere with the said finding. Herein the properties are on the western side of National Highway and are bounded on three other sides by different roads. It is only 2 furlong from the main centre of the town and the Municipal bus stand. Therefore the potential nature of the land cannot at all be doubted. 13. The document relied upon by the Land Acquisition Officer for fixing the market value is Ext.B2 where the land value of the Paramba is shown as Rs.3,125/-. Ext.B1 was relied upon to fix the land value of wet land. Apart from Ext.B2, there is a reference about Ext.A6 award No.5 of 1976 where the market value fixed by the Awarding L.A.A.No.407/2006 & Cross Objection 82/06 9 Officer as Rs. 2,500/- per Are. We are not having any further details of the same and as to the enhancement, if any, granted in any reference to the court. 14. What we find from Ext.A18 judgment, which is a judgment of the Division Bench of this Court in L.A.A.No. 1138/ 1998, is that therein the property was having road frontage on the northern side. It is also seen from the judgment in paragraph 7 that the acquired properties had direct access to National Highway and it was situated in an important locality in the town with huge commercial potential. It was very very near to Sakthan Thampuran Market namely the busiest market of Thrissur Corporation. As far as Ext.B2 document is concerned, it is 7.3 Ares in extent. 15. Now we will come to the judgments relied upon by the learned counsel for the claimant. In **National Fertilizers Limited v. Jagga Singh (Deceased) through LRS. and another ( 2012) 1 Supreme Court Cases 74** , the Apex Court in paragraph 28 was of the view that “the market value of the land acquired has to be determined L.A.A.No.407/2006 & Cross Objection 82/06 10 on the basis of its potentiality for urban developments and not on the basis of revenue or agricultural classification of the land as done by the collector because the land acquired in the present case had great potential value for urban purposes i.e. commercial, industrial and residential.” The above finding is heavily relied upon the learned counsel for the respondents to submit that herein also the same reasoning supports the plea for higher compensation by the claimants. 16. In **Digamber & Ors. v. State of Maharashtra & Ors. ( AIR 2013 Supreme Court 3532),** it was held that the purpose of acquisition is also a factor. Therein, the agricultural land was acquired for the purpose of industrial development. It was held that the purpose of acquisition will clearly show that the land in question has non-agricultural potentiality and criteria for determination of market value has therefore to be that acquisition in question is for commercial purpose. This aspect is also heavily relied upon to contend that herein the acquisition was for commercial purpose which justifies the claim of the claimants to consider the potentiality of the acquired land as a ## L.A.A.No.407/2006 & Cross Objection 82/06 **==> picture [13 x 9] intentionally omitted <==** commercial site. In paragraph 23 it has also been held that apart from existing amenities like water, electricity, whether near about the acquired land town is developing or has prospect of development in future have to be taken into consideration by both the Land Acquisition Collector and the Courts for determination of market value. 17. In **Sabhia Mohammed Yusuf v. Special Land Acquisition Officer (2012(3) KLT SN 45 (C.No.45) SC)** also the Apex Court considered the same question which has been held that “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 the 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. Many a discerning customer may prefer to stay in the interior and far away from the main road and may be willing to pay a reasonably higher price for that site. One cannot rely on the mere possibility so as to indulge in a meticulous exercise of L.A.A.No.407/2006 & Cross Objection 82/06 12 classification of the land as was done by the Land Acquisition Officer when the entire land was acquired in one block and therefore classification of the same into different categories does not stand to reason.” 18. Going by the above dictum laid down in the above cases also, we are of the view that potential nature of the land as a commercial site can be considered. Nearness to the town, is another factor and it is a much developing town also. Of course if we go through the various documents that has come up in evidence, the land value of different properties in that locality varies. But as far as one crucial document namely Ext.A9 in respect of the notification dated 4.6.1968 is concerned, the land value has been fixed at Rs.15,000/- per cent which was for the improvements of Jaihind Market. Therefore, even though Sakthan Thampuran market was developed only after 1977, which the finding by the court below, the above factor will support the plea of the claimants . Lastly, Ext.A18 judgment is in a case where the notification is on 17.2.1981 and with regard to the L.A.A.No.407/2006 & Cross Objection 82/06 13 property having potential value which is near to the National Highway, this Court adopted the land value as Rs. 20,000/0 per cent. Allowance can be given for the time lag between the two notifications. 19. Of course one of the factors to be considered is the reduction for development charges which is also a relevant one going by the decisions of the Apex Court. 20. In that view of the matter, even though the extent of land is 194.93 cents and the documents relied on in respect of small items of properties cannot be considered for fixing the land value, according to us, Exts.A9 and A18 could help this Court to arrive at a proper formula to fix the land value. What is argued by the learned counsel for the Corporation is that acquisition being of 1974, it cannot be said that there is appreciable increase in the land value in the locality. But in the light of the fact that the item of land is bounded by three roads and also the National Highway is very near to it and only it is 2 furlong away from the Thrissur Town which is the main centre of activity and there are various important other institutions, hotels etc. near to it, it cannot ## L.A.A.No.407/2006 & Cross Objection 82/06 **==> picture [13 x 9] intentionally omitted <==** be said that the land may not get much potential value. It is a matter of common knowledge that the land value in such business and commercial centres may be going high when the property is to put for commercial or other like purposes. Such being the consideration, we find that reasonable enhancement can be granted in favour of the claimants herein. We therefore fix Rs.7,500/- per cent ( Rupees seven thousand five hundred) for the acquired land. The claimants will be entitled for all statutory benefits as granted by the court below. Accordingly, L.A.A.No.407/2006 is dismissed and Cross Objection No.82/06 is allowed to the above extent. No costs. ## **T.R.RAMACHANDRAN NAIR, JUDGE** sv. ## **P.V.ASHA, JUDGE**