LA.App. Nos. 97/2016, 107/2016, 175/2016 & 218/2016 (Saiby Bibu Punnooran, Biju Babu Punnooran, Bibu Babu Punnooran, Suja Biju Punnooran v State of Kerala and Director, Department of Tourism)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** ## **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY,THE 08TH DAY OF JANUARY 2019 / 14TH POUSHA, 1940** **LA.App..No. 97 of 2016** **AGAINST THE JUDGMENT DATED 31-08-2015 IN LAR NO.5 OF 2014 of THE SUB JUDGE,ALAPPUZHA** ## **APPELLANT/CLAIMANT:** **SAIBY BIBU PUNNOORAN WIFE OF BIBU PUNNOORAN, PUNNOORAN SADANAM, ZACHARIA WARD, ALAPPUZHA-688 001. REPRESENTED BY HIS POWER OF ATTORNEY HOLDER BABU J PUNNOORAN OF – DO –** **BY ADV. SRI.R.AZAD BABU** ## **RESPONDENTS/RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, CIVIL STATION, ALAPPUZHA-688 001.** **2 THE DIRECTOR DEPARTMENT OF TOURISM, PARK VIEW, THIRUVANANTHAPURAM-695 011.** Sr.Government Pleader Sri.A.K.Sukumaran **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 04.01.2019, ALONG WITH LA.App..107/2016, LA.App..175/2016, LA.App..218/2016, THE COURT ON 08.01.2019 DELIVERED THE FOLLOWING:** L.A.A.Nos.97/2016, 107/2016, 175/2016 & 218/2016 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 08TH DAY OF JANUARY 2019 / 14TH POUSHA, 1940** **LA.App..No. 107 of 2016** **AGAINST THE JUDGMENT DATED 31-08-2015 IN LAR NO.2 OF 2014 of THE SUB JUDGE,ALAPPUZHA** ## **APPELLANT/CLAIMANT:** **BIJU BABU PUNNOORAN SON OF BABU J.PUNNOORAN, PUNNOORAN SADANAM, ZACHARIA WARD, ALAPPUZHA - 688 001. REPRESENTED BY HIS POWER OF ATTORNEY HOLDER BABU J PUNNOORAN OF – DO –** **BY ADV. SRI.R.AZAD BABU** ## **RESPONDENTS/RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, CIVIL STATION, ALAPPUZHA - 688 001.** - **2 THE DIRECTOR** **DEPARTMENT OF TOURISM, PARK VIEW, THIRUVANANTHAPURAM - 695 011.** Sr.Government Pleader Sri.A.K.Sukumaran **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 04.01.2019, ALONG WITH LA.App.97/2016, LA.App.175/2016, LA.App.218/2016, THE COURT ON 08.01.2019 DELIVERED THE FOLLOWING:** L.A.A.Nos.97/2016, 107/2016, 175/2016 & 218/2016 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 08TH DAY OF JANUARY 2019 / 14TH POUSHA, 1940** **LA.App..No. 175 of 2016** **AGAINST THE JUDGMENT DATED 31-08-2015 IN LAR NO.3 OF 2014 of THE SUB JUDGE,ALAPPUZHA** ## **APPELLANT/CLAIMANT:** **BIBU BABU PUNNOORAN SON OF BABU J.PUNNOORAN, PUNNOORAN SADANAM, ZACHARIA WARD, ALAPPUZHA - 688 001.** **BY ADV. SRI.R.AZAD BABU ADV. SRI.P.C.CHACKO** ## **RESPONDENTS/RESPONDENTS:** > 1 **STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, CIVIL STATION, ALAPPUZHA 688 001.** 2 **THE DIRECTOR, DEPARTMENT OF TOURISM, PARK VIEW, THIRUVANANTHAPURAM 695 011** **BY SR.GOVERNMENT PLEADER SRI.A.K.SUKUMARAN FOR R1 AND R2** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 04.01.2019, ALONG WITH LA.App.97/2016, LA.App.107/2016, LA.App.218/2016, THE COURT ON 08.01.2019 DELIVERED THE FOLLOWING:** L.A.A.Nos.97/2016, 107/2016, 175/2016 & 218/2016 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 08TH DAY OF JANUARY 2019 / 14TH POUSHA, 1940** ## **LA.App..No. 218 of 2016** **AGAINST THE JUDGMENT DATED 31-08-2015 IN LAR NO.4 OF 2014 of THE SUB JUDGE,ALAPPUZHA** ## **APPELLANT/CLAIMANT:** **SUJA BIJU PUNNOORAN** **WIFE OF BIJU PUNNOORAN, PUNNOORAN SADANAM, ZACHARIA WARD, ALAPPUZHA-688 001. REPRESENTED BY HIS POWER OF ATTORNEY HOLDER. BABU J PUNNOORAN OF-DO-** **BY ADV. SRI.R.AZAD BABU** ## **RESPONDENTS/RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, CIVIL STATION, ALAPPUZHA 688001.** **2 THE DIRECTOR DEPARTMENT OF TOURISM PARK VIEW, THIRUVANANTHAPURAM-695 001.** ## **BY SR.GOVERNMENT PLEADER SRI.A.K.SUKUMARAN** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 04.01.2019, ALONG WITH LA.App.97/2016, LA.App.107/2016, LA.App.175/2016, THE COURT ON 08.01.2019 DELIVERED THE FOLLOWING:** ## **V.CHITAMBARESH &** ## **R.NARAYANA PISHARADI, JJ.** ************************** L.A.A.Nos.97 of 2016, 107 of 2016, 175 of 2016 & 218 of 2016 ---------------------------------------------Dated this the 8[th] day of January, 2019 ## **JUDGMENT** ## **R.Narayana Pisharadi, J** These appeals arise out of the common judgment dated 31.08.2015 passed by the Sub Court, Alappuzha in L.A.R.Nos.2 of 2014, 3 of 2014, 4 of 2014 and 5 of 2014. 2. Four plots of land in Kainakari Village, having an extent of 34.25 Ares, 13.10 Ares, 32.55 Ares and 20.00 Ares respectively, owned by the appellants, were acquired in connection with Kainakary Tourism Project. Advance possession of the lands was taken on 07.09.2007. Notification under Section 4(1) of the Land Acquisition Act was published on 10.04.2013. The Land Acquisition Officer awarded compensation fixing the value of the land at Rs.64,271/- per Are. The reference court refixed the value of the land at Rs.1,05,800/- per Are and L.A.A.Nos.97/2016, 107/2016, 175/2016 6 & 218/2016 enhanced the compensation accordingly. Dissatisfied with the award passed by the reference court, the claimants have filed these appeals. 3. We have heard learned counsel for the appellants and also the learned Government Pleader. We have also perused the records. 4. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Re-settlement Act, 2013 (hereinafter referred to as 'the new Act') has come into force on 01.01.2014. The claimants had raised a plea before the reference court that the award was passed by the Land Acquisition Officer after the aforesaid date and therefore, compensation has to be determined in accordance with the provisions contained in the new Act. Their plea was based on Section 24 of the new Act. The reference court found that the award was passed by the Land Acquisition Officer on 06.06.2013 and therefore, the provisions of the new Act have no application. The appellants have challenged this finding before this Court. 5. This Court had heard the learned counsel for the L.A.A.Nos.97/2016, 107/2016, 175/2016 7 & 218/2016 appellants and the learned Government Pleader on the applicability of the new Act to the facts in the instant cases. Subsequently, it came to our notice that the Hon'ble Supreme Court, in **State of Haryana v. M/s. G.D.Goenka Tourism Corporation Ltd. and another (AIR 2018 SC 1190)** , had directed all the High Courts not to deal with any case relating to interpretation of or concerning Section 24 of the new Act. Therefore, the appeals were posted for rehearing. Then, after getting instructions, the learned counsel for the appellants had submitted before this Court that the claim for enhancement of compensation need not be considered under the provisions of the new Act. Therefore, we record that the appellants have given up their claim for compensation in accordance with the provisions of the new Act. 6. Exts.A1 and A2 documents and Ext.X1 report of the Advocate Commissioner were the primary materials available before the reference court for determination of the market value of the lands acquired. 7. Ext.A1 is the copy of the sale deed executed on L.A.A.Nos.97/2016, 107/2016, 175/2016 8 & 218/2016 22.12.2005 for sale of a land having an extent of 3.83 Ares with a building therein. The total amount of consideration paid as per this document was Rs.8,00,000/-. Out of this amount, Rs.1,00,000/- was towards the value of the building. Therefore, the value of the land paid was Rs.1,82,767/- per Are. 8. The property covered by Ext.A1 document is situated in the same village, that is, Kainakary Village. The boundaries of the property shown in Ext.A1 document would indicate that on two sides of the property, it is a lake (kayal). This land had no direct access from any public way or road. In fact, Ext.A1 document itself shows that right to walk through a private way owned by the vendor was purchased as per that document. Ext.X1 report of the Advocate Commissioner shows that the property covered by Ext.A1 document is situated at a distance of three kilometres from the lands acquired. The reference court has found that the property covered by Ext.A1 document is not similar or similarly situated as that of the acquired property. We are in agreement with the view taken by the reference court that the value of the land shown in Ext.A1 document cannot be taken L.A.A.Nos.97/2016, 107/2016, 175/2016 9 & 218/2016 as the basis for determination of the market value of the land acquired, especially for the reason that the property covered by Ext.A1 document is situated at a distance of three kilometres from the property acquired. 9. Ext.A2 is the copy of the sale deed on the basis of which the land value was fixed by the Land Acquisition Officer. Ext.A2 document shows that on 20.01.2006, 5.10 Ares of property situated in the same village was sold for a total consideration of Rs.4,60,000/-. The value of the land paid as per this document would come to Rs.90,196/- per Are. This property has also got no direct access from any public way or road. There is a canal on the northern side of this property. Ext.X1 report of the Advocate Commissioner shows that the property covered by Ext.A2 document is situated at a distance of only 50 metres from the acquired property. 10. Though the property covered by Ext.A2 document has got no water frontage by the presence of any lake on any of its boundaries, considering the fact that it is a property situated only at a distance of 50 metres away from the acquired property and L.A.A.Nos.97/2016, 107/2016, 175/2016 10 & 218/2016 which is similar in nature that of the acquired property, we are in agreement with the view taken by the reference court that the value of the land shown in Ext.A2 document can be taken as the basis for determination of the market value of the property acquired. It is also to be noted that the property covered by Ext.A2 document and also the property acquired have no direct access from any public road. 11. However, we find that the property acquired has got water frontage on two sides by the presence of lake (kayal). Ext.X1 report of the Advocate Commissioner shows that there are many tourist resorts being conducted in the vicinity of the acquired property. The property acquired is situated in an area of tourist attraction, internal as well as international. The very fact that the property has been acquired by the government for the establishment of a tourist resort would indicate the importance and potentiality of the property in connection with the tourism projects. Considering these aspects, we are of the view that the value of the property acquired has to be fixed at a rate 30% above the value of the land shown in Ext.A2 document. L.A.A.Nos.97/2016, 107/2016, 175/2016 11 & 218/2016 Then, it would come to Rs.1,17,255/- per Are. It is also to be noted that advance possession of the property was taken more than one and a half years after the transaction covered by Ext.A2 document. Considering this aspect, a further increase of 10% on the land value has to be given. Thus, the value of the land would come to Rs.1,28,980/- per Are. We find that value of the lands acquired can be fixed at Rs.1,28,980/- per Are. 12. As noticed earlier, advance possession of the lands was taken on 07.09.2007. Notification under Section 4(1) of the Land Acquisition Act was published only on 10.04.2013. The award was passed by the Land Acquisition Officer on 06.06.2013. However, the reference court has declined to grant any additional amount as provided under Section 23(1A) of the Land Acquisition Act, 1894 on the ground that advance possession was taken before the publication of the notification under Section 4(1) of the Act. This view taken by the reference court is not correct. When advance possession of the land is taken, the owner of the land is entitled to get additional compensation as provided under Section 23(1A) of the Act from the date of notification till the L.A.A.Nos.97/2016, 107/2016, 175/2016 12 & 218/2016 date of passing the award (See **Siddappa Vasappa Kuri v. Special Land Acquisition Officer : AIR 2001 SC 2951).** Therefore, the claimants are entitled to get additional compensation as provided under Section 23(1A) of the Act for the period from 10.04.2013 to 06.06.2013. 13. Consequently, the appeals are allowed in part. The value of the lands acquired is refixed at Rs.1,28,980/- (Rupees one lakh twenty eight thousand nine hundred and eighty only). The appellants/claimants are also entitled to get additional compensation as provided under Section 23(1A) of the Land Acquisition Act, 1894 for the period from 10.04.2013 to 06.06.2013. They are also entitled to get all other statutory benefits on the basis of the enhanced amount of compensation. No costs in the appeals. ## **V.CHITAMBARESH, JUDGE** ## **R.NARAYANA PISHARADI, JUDGE** jsr/7/1/2019 L.A.A.Nos.97/2016, 107/2016, 175/2016 & 218/2016 13