LA.App. Nos. 257/2015, 273/2015, 324/2015, 344/2015 (State of Kerala v Claimants and RBDC)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** ## **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY ,THE 29TH DAY OF JANUARY 2019 / 9TH MAGHA, 1940** ## **LA.App..No. 257 of 2015** **AGAINST THE JUDGMENT AND DECREE IN LAR 28/2012 of SUB COURT, KOYILANDY DATED 08-01-2015** ## **APPELLANT/1ST RESPONDENT IN L.A.R:** **STATE OF KERALA** **REPRSENTED BY THE SPECIAL TAHSILDAR, LAND ACQUISTION, KOYILANDY** **BY SR.GOVERNMENT PLEADER SRI.A.K.SUKUMARAN** ## **RESPONDENTS/CLAIMANTS AND 2ND RESPONDENT IN L.A.R:** - **1 LEELA W/O.BALAN, KARIPOYIL KUNIYIL, PO.EDAKKULAM, KOYILANDY 673 306.** - **2 SUMATHI D/O.BALAN, KARIPOYIL KUNIYIL, PO.EDAKKULAM, KOYILANDY 673 306.** **3 PRAMOD S/O.BALAN, KARIPOYIL KUNIYIL, PO.EDAKKULAM, KOYILANDY 673 306.** **4 VINOD S/O.BALAN, KARIPOYIL KUNIYIL, PO.EDAKKULAM, KOYILANDY 673 306.** **5 THE MANAGING DIRECTOR RBDC (ROADS AND BRIDGES DEVELOPMENT CORPORATION) PALARIVATTAM, KOCHI 682 025.** **R1 TO BY ADV. SRI.K.A.SALIL NARAYANAN R4 R5 BY ADV.SHYSON P MANGUZHA** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 29.01.2019, ALONG WITH LA.App..273/15,323/15,324/15 & 344/15, THE COURT ON 17.01.2019 DELIVERED THE FOLLOWING:** **LA.App..No. 257 of 2015 & conn. Cases** **2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY ,THE 29TH DAY OF JANUARY 2019 / 9TH MAGHA, 1940** ## **LA.App..No. 273 of 2015** **AGAINST THE JUDGMENT AND DECREE IN LAR 29/2012 of SUB COURT, KOYILANDY DATED 08-01-2015** ## **APPELLANT/1ST RESPONDENT IN L.A.R:** **STATE OF KERALA REPRESENTED BY THE SPECIAL TAHSILDAR, LAND ACQUISITION, KOYILANDY** **BY SR. GOVERNMENT PLEADER SRI.A.K.SUKUMARAN** **RESPONDENTS/CLAIMANTS AND 2ND RESPONDENT IN L.A.R: 1 NARAYANI W/O. PADMANABHAN, KOLANGARA, EDATTU (PO), PAYYANNUR, KANNUR DISTRICT 670704 2 THE MANAGING DIRECTOR RBDC (ROADS AND BRIDGES DEVELOPMENT CORPORATION),PALARIVATTOM, KOCHI 682025 BY ADVS.** R1 **SRI.K.A.SALIL NARAYANAN** R2 **SRI.SHYSON P. MANGUZHA, SC, RBDC( BY ORDER )** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 29.01.2019, ALONG WITH L.A.A NOS.257/15,323/15,324/15 & 344/15 THE COURT ON 17.01.2019 DELIVERED THE FOLLOWING:** **LA.App..No. 257 of 2015 & conn. Cases** ## **3** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY ,THE 29TH DAY OF JANUARY 2019 / 9TH MAGHA, 1940 LA.App..No. 323 of 2015** **AGAINST THE JUDGMENT AND DECREE IN LAR 26/2012 of SUB COURT, KOYILANDY DATED 8.1.2015** ## **APPELLANT/1ST RESPONDENT IN L.A.R:** **THE STATE OF KERALA REPRESENTED BY THE SPECIAL TAHSILDAR,LAND ACQUISITION,KOYILANDY** ## **BY SR.GOVERNMENT PLEADER SRI.A.K.SUKUMARAN** ## **RESPONDENTS/CLAIMANT AND 2ND RESPONDENT IN LAR:** **1 MADHAVI W/O. LATE BALAKRISHNAN,"ABHINANDANA", EDAVATTU KUNNUMMAL,P.C PALA, P.O KAKKUR,KOZHIKODE DISTRICT 673 619** **2 THE MANAGING DIRECTOR RBDC,(ROADS AND BRIDGES DEVELOPMENT CORPORATION), PALARIVATTOM,KOCHI 682 025** > R1 **BY ADV. SRI.K.A.SALIL NARAYANAN** R2 BY SRI SHYSON .P MANGUZHA **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 29.01.2019, ALONG WITH L.A.A NOS.257/15,273/15,324/15 & 344/15 THE COURT 17.01.2019 DELIVERED THE FOLLOWING:** **LA.App..No. 257 of 2015 & conn. Cases** **4** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY ,THE 29TH DAY OF JANUARY 2019 / 9TH MAGHA, 1940** **LA.App..No. 324 of 2015** **AGAINST THE JUDGMENT AND DECREE IN LAR 15/2012 of SUB COURT, KOYILANDY DATED 8.1.2015** ## **APPELLANT/1ST RESPONDENT IN L.A.R:** **THE STATE OF KERALA REPRESENTED BY THE SPECIAL TAHSILDAR,LAND ACQUISITION,KOYILANDY** **BY SR.GOVERNMENT PLEADER SRI.A.K.SUKUMARAN** ## **RESPONDENTS/CLAIMANTS AND 2ND RESPONDENT IN L.A.R:** - **1 K.V.ABDUL HAMEED S/O.LATE K.V.IBRAHIM, REP. BY POWER OF ATTORNEY HOLDER K.V.HARIFA, W/O.HAMEED, K.V.HOUSE,KIZHAKKE VALAPPIL, MOODALI, KOYILANDY TALUK673 531.** **2 THE MANAGING DIRECTOR RBDC, (ROADS AND BRIDGES DEVELOPMENT CORPORATION),PALARIVATTOM, KOCHI - 682 025.** **BY ADV. SRI.K.A.SALIL NARAYANAN** R2 BY SRI.SHYSON P. MANGUZHA **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 29.01.2019, ALONG WITH LA.App.NOS.257/15,273/15,323/15 & 344/15 THE COURT ON 17.01.2019 DELIVERED THE FOLLOWING:** ## **LA.App..No. 257 of 2015 & conn. Cases** ## **5** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY ,THE 29TH DAY OF JANUARY 2019 / 9TH MAGHA, 1940** **LA.App..No. 344 of 2015** **AGAINST THE JUDGMENT AND DECREE IN LAR 25/2012 of SUB COURT, KOYILANDY DATED 8.1.2015** ## **APPELLANT/1ST RESPONDENT IN L.A.R:** **THE STATE OF KERALA REPRESENTED BY THE SPECIAL TAHSILDAR,LAND ACQUISITION,KOYILANDY** ## **BY SR.GOVERNMENT PLEADER SRI.A.K.SUKUMARAN** ## **RESPONDENTS/CLAIMANTS AND 2ND RESPONDENT IN L.A.R:** - **1 MARIYAKUTTY UMMA (DIED) W/O.ABDU AMETH, PANTHALAYANI AMSOM, PANTHALAYANI VILLAGE, KOYILANDY, 673305.(DIED)** - **2 P.M.KUNHAMMED S/O.ABDU AMETH, PANTHALAYANI AMSOM, PANTHALAYANI VILLAGE, KOYILANDY, 673305.** - **3 P.M.ALIKUTTY S/O.ABDU AMETH, PANTHALAYANI AMSOM, PANTHALAYANI VILLAGE, KOYILANDY, 673305.** - **4 P.M.IMBICHIMAMMU S/O.LATE ABDU, MUTHIRAPARAMBATH HOUSE, KOYILANDY P.O., 673305.** - **5 P.M.HASHIM S/O.ABDU AMETH, PANTHALAYANI AMSOM, PANTHALAYANI VILLAGE, KOYILANDY, 673305.** **LA.App..No. 257 of 2015 & conn. Cases** **6** - **6 P.M.SUHARA** **D/O.ABDU AMETH, PANTHALAYANI AMSOM, PANTHALAYANI VILLAGE, KOYILANDY, 673305.** - **7 P.M.RAMLA** - **D/O.ABDU AMETH, PANTHALAYANI AMSOM, PANTHALAYANI VILLAGE, KOYILANDY, 673305.** - **8 P.M.FOUSIYA** - **D/O.ABDU AMETH, PANTHALAYANI AMSOM, PANTHALAYANI VILLAGE, KOYILANDY, 673305.** - **9 P.M.SALEENA** - **D/O.ABDU AMETH, PANTHALAYANI AMSOM, PANTHALAYANI VILLAGE, KOYILANDY, 673305 ( IT IS RECORDED THAT THE LEGAL HEIRS OF DECEASED R1 ARE ALREADY IN THE PARTY ARRAY AS R2 TO R9 AND APPEAL TO BE PROCEEDED AGAINST THE SURVIVING RESPONDENTS VIDE ORDER DATED 28/10/2016 IN IA 1102/16)** ## **10 THE MANAGING DIRECTOR RBDC, (ROADS AND BRIDGES DEVELOPMENT CORPORATION),PALARIVATTAM, KOCHI-682025.** R1 TO R9 **BY ADV. SRI.K.A.SALIL NARAYANAN** R10 BY SRI.SHYSON P. MANGUZHA **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 29.01.2019, ALONG WITH LA.App.NOS.257/15,273/15,323/15 & 324/15, THE COURT 17.01.2019 DELIVERED THE FOLLOWING:** **LA.App..No. 257 of 2015 & conn. Cases** **7** ## **JUDGMENT** ## **R.Narayana Pisharadi, J** These appeals are filed challenging the common judgment dated 08.01.2015 passed by the Sub Court, Koyilandy in the cases L.A.R.Nos.15/2012, 25/2012, 26/2012, 28/2012 and 29/2012. 2. Lands owned by the party respondents in these appeals (hereinafter referred to as 'the claimants'), situated in Panthalayani Village, were acquired for the purpose of construction of railway overbridge at Koyilandy. The notification under Section 4(1) of the Land Acquisition Act, 1894 was published on 30.07.2010. The Land Acquisition Officer granted compensation for land by fixing the value of the land at Rs.72,341/- per cent for wet land and Rs.75,786/- per cent for garden land. The reference court enhanced the compensation by refixing the value of the land at Rs.2,12,860/- per cent. In L.A.R.No.15/2012, the reference court also granted an amount of Rs.2,00,000/- as compensation for injurious affection. Aggrieved by the award passed by the reference court, the State has filed these appeals. **LA.App..No. 257 of 2015 & conn. Cases** **8** 3. We have heard the learned Government Pleader and the learned counsel for the respondents/claimants and also the learned counsel for the requisitioning authority. We have also perused the records. 4. The Land Acquisition Officer fixed the value of the land at Rs.72,341/- per cent in respect of the land involved in L.A.R.No.15/2012 and in other cases at Rs.75,786/- per cent. The value of the land involved in L.A.R.No.15/2012 was fixed at a lower rate by the Land Acquisition Officer on the ground that it was wet land. However, the reference court has found that it is not a wet land but it is also a garden land as in the other cases. This finding made by the reference court is not challenged by the State in the appeal filed against the award passed in L.A.R.No.15/2012. 5. Ext.C1 is the report filed by the Advocate Commissioner after inspecting the lands acquired. Ext.C1 report shows that the lands acquired are situated on the north-eastern side of the new bus stand at Koyilandy. The lands acquired are situated in Koyilandy Town. Ext.C1 report also shows that the lands acquired are situated in a commercially important locality, very near to the National Highway. The railway station, taluk hospital, post office, higher secondary school, police station, municipality office etc are located within a **LA.App..No. 257 of 2015 & conn. Cases** **9** radius of 500 metres of the lands acquired. 6. The Land Acquisition Officer adopted the value shown in Ext.R2 document as the basis for fixation of the market value of the lands acquired. Ext.R2 document shows that on 07.06.2010, 4.10 Ares (10.127 cents) of land situated in Panthalayani Village was sold by its owner for a total consideration of Rs.7,00,000/-. The value of the land paid as per this document comes to Rs.69,122/- per cent. 7. The description of the property given in Ext.R2 document shows that there is no public road on any side of it and the access to that property is through the pathways lying on its eastern and northern sides. This property is lying 600 metres away from the lands acquired. 8. There was absolutely no justification for the Land Acquisition Officer to adopt the value of the land shown in Ext.R2 document as the basis for determination of the market value of the lands acquired. The lands acquired are situated very near to the National Highway in a commercially important locality. They are situated at the heart of Koyilandy Town. All important institutions and offices in Koyilandy are situated very near to the acquired lands. On the other hand, the land covered by Ext.R2 document is lying far away from the National Highway at an interior area which has got no commercial importance. **LA.App..No. 257 of 2015 & conn. Cases** ## **10** It cannot be found that the land covered by Ext.R2 document is similarly situated as the acquired lands. In urban and semi-urban areas, even a small distance makes considerable difference in the price of the land. 9. Exts.A1 and A2 are the only documents produced by the claimants before the reference court in support of their claim for enhancement of compensation for land. 10. Ext.A1 is the copy of document No.2988/10. As per this document, on 01.11.2010, one-third share of the right in the property mentioned in that document was sold for a total consideration of Rs.6,87,000/-. The extent of the entire property mentioned in this document is 4.29 Ares (10.596 cents). Ext.A2 is the copy of document No.2320/10. As per this document, on 13.08.2010, twothird right in the very same property was sold for a total consideration of Rs.13,74,000/-. 11. The reference court has relied upon the value of the land shown in Exts.A1 and A2 documents as the basis for fixation of the market value of the lands acquired. The procedure adopted by the reference court appears to be not proper. In the first place, the transactions covered by Exts.A1 and A2 documents were post notification transactions. In **Maya Devi v. State of Haryana (AIR** **LA.App..No. 257 of 2015 & conn. Cases** **11** **2018 SC 645),** the Apex Court has categorically held that post notification transactions cannot be taken into consideration for fixing the market value of the land acquired for granting compensation. In the second place, as per Exts.A1 and A2 documents, the entire land was not sold. What was sold was only the fractional right over the land. When fractional right over a property is only sold, the document may not reflect the real market value of the property. In the third place, Ext.C1 report would show that the property mentioned in Exts.A1 and A2 documents is situated not in a commercially important locality. The aforesaid property is not similarly situated as that of the lands acquired and it does not have the advantages of the properties acquired. 10. The claimants are expected to lead cogent and proper evidence in support of their claim for enhancement of compensation. The burden is on the claimants to establish that the amount awarded to them by the Land Acquisition Officer is inadequate and that they are entitled to more amount. But, it cannot be said that there is no onus whatsoever upon the State in such reference proceedings. The court cannot lose sight of the fact that obligation to pay fair compensation is on the State. In the absence of any reliable documents to prove the market value of similar and similarly situated **LA.App..No. 257 of 2015 & conn. Cases** **12** properties, the value of the lands acquired can be fixed on the basis of some guess work only. Depending on the facts and circumstances of the case, the court may have to take recourse to some guesswork while determining the fair market value of the land. The Court is entitled to apply some amount of reasonable guesswork to balance the equities and fix a just and fair market value (See **Trishala Jain v. State of Uttaranchal : AIR 2011 SC 2458** ). An exercise of computation of the amount of compensation necessarily involves some amount of approximation and guesswork. 11. In the instant case, it is proved that the property covered by Ext.R2 document, which had not even access from a public road, and which lies at a distance of 600 metres from the National Highway, had the market value of Rs.69,122/- per cent, just a month before the date of publication of the notification of acquisition. The lands acquired are situated very near to the National Highway in Koyilandy Town in a commercially important locality. The officer examined as RW1 on behalf of the State has admitted on cross examination that the lands acquired are situated between the bus stand and the town hall and the National Highway. The value of the land fixed by the reference court comes to about three times higher than the value of the land shown in Ext.R2 document. Considering the commercial importance of the ## **LA.App..No. 257 of 2015 & conn. Cases** **13** locality in which the lands acquired are situated, we are of the considered view that the value of the land fixed by the reference court, though on a different basis, is proper and that the compensation for land awarded is just and reasonable and not excessive. It is a case of acquisition of land which is situated in a reasonably good location surrounded by developed areas having civic amenities and facilities. When the market value of the lands acquired is determined taking into consideration their geographical situation and proximity to National Highway, the compensation granted by the reference court does not warrant interference in appeal. 12. In L.A.R.No.15/2012, the reference court has granted an amount of Rs.2,00,000/- as compensation for injurious affection. Ext.C1 report of the Advocate Commissioner shows that the total extent of the property in that case was 23 cents and the extent of the property acquired was 9.50 cents. The remaining property, after acquisition, happened to be on either side of the railway overbridge and it has considerably affected the utility of that land. Considering this aspect, it cannot be found that the amount of compensation granted by the reference court for injurious affection is excessive. 13. The discussion above would show that there is no merit in the appeals and they are liable to be dismissed. ## **LA.App..No. 257 of 2015 & conn. Cases** **14** Consequently, the appeals are dismissed. No costs. **Sd/-V.CHITAMBARESH, JUDGE** **Sd/-R.NARAYANA PISHARADI, JUDGE** jsr/28/01/2019