LA.App..188/2015, CO.153/2015 & CO.36/2018

## **[ LA.App..188/2015, CO.153/2015** **& CO.36/2018 ]** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **&** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **THURSDAY, THE 01ST DAY OF MARCH 2018 / 10TH PHALGUNA, 1939** **LA.App..No.188 OF 2015** **AGAINST THE JUDGMENT AND DECREE IN LAR 82/2010 OF SUB COURT, PERUMBAVOOR DATED 31.1.2014** ## **APPLICANT/APPELLANT/RESPONDENT IN I.A.** **STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, ERNAKULAM.** **BY GOVERNMENT PLEADER SMT. LATHA THANKAPPAN** **RESPONDENTS/RESPONDENTS/CLAIMANTS AND 2ND RESPONDENT IN LAR** **1 THOMAS PHILIPOSE KALAPPURACKAL, BRAHMAPURAM-682303. 2 NAYOMI KURIAKOSE W/O. KURIAKOSE, KOOLIYAATTU, BRAHMAPURAM. 3 THE CHIEF EXECUTIVE OFFICER INFO PARK, KUSUMAGIRI, KAKKANAD, 682042. R1 BY ADV. SRI.MATHEWS K.PHILIP R1 BY ADV. SMT.T.MANASY BY SRI.K.A.ABDUL SALAM, SC, INFOPARK R2 BY ADV. SRI.VARGHESE K.PAUL** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 01.03.2018, ALONG WITH CO.153/2015 AND C.O.NO.36 OF 2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **[ LA.App..188/2015, CO.153/2015** **& CO.36/2018 ]** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **&** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **THURSDAY, THE 01ST DAY OF MARCH 2018 / 10TH PHALGUNA, 1939** **CO.No.153 OF 2015 IN LA.App.. 188/2015** **AGAINST THE JUDGMENT AND DECREE IN LAR NO.82/2010 OF SUB COURT, PERUMBAVOOR, DATED 31/01/2014** ## **CROSS OBJECTOR/IST RESPONDENT IN THE APPEAL.** - **1 THOMAS PHILIPOSE KALAPPURACKAL, BRAHMAPURAM. *DIED** - **2 P.M SARA ALIAS SARAMMA, W/O. LATE THOMAS PHILIPOSE (K.T. PHILIPOSE), AGED 88, KALAPPURACKAL HOUSE, BRAHMAPURAM, PUTHENCRUZ VILLAGE, KUNNATHUNAD TALUK, PIN -82303, ERNAKULAM DISTRICT.** - **3 MATHEWS.K.PHILIP, S/O.LATE THOMAS PHILIPOSE, ADVOCATE, AGED 58, KALAPPURACKAL HOUSE, BRAHMAPURAM, PUTHENCRUZ VILLAGE, KUNNATHUNAD TALUK, PIN -682303, ERNAKULAM DISTRICT.** - **4 ALICE K.V, W/O. LATE THOMAS K. PHILIP AGED 57, KALAPPURACKAL HOUSE, ERUMELIKKARA, KUMARAPURAM, KUNNATHUNADU** - **5 SINCY SARA THOMAS, D/O. LATE THOMAS K. PHILIP, AGED 31, KALAPURACKAL HOUSE, ERUMELIKKARA, KUMARAPURAM, KUNNATHUNADU** - **6 SAJIN PHILIP THOMAS, S/O. LATE THOMAS K. PHILIP, AGED 29, KALAPURACKAL HOUSE, ERUMELIKKARA, KUMARAPURAM , KUNNATHUNADU, ERNAKULAM** **LEGAL HEIRS OF THE DECEASED CROSS OBJECTORS IMPLEADED AS ADDITIONAL CROSS OBJECTORS 2 TO 6 AS PER ORDER DATED 21.8.2020 IN I.A NO.1/2020** **3** ## **[ LA.App..188/2015, CO.153/2015** ## **& CO.36/2018 ]** **BY ADVS. SRI.MATHEWS K.PHILIP** **RESPONDENTS/APPELLANT AND RESPONDENTS 2 AND 3.** - **1 STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, ERNAKULAM, 682030.** - **2 NAYOMI KURIAKOSE W/O.KURIAKOSE, KOOLIYATTU, BRAHMAPURAM, 682301.** - **3 THE CHIEF EXECUTIVE OFFICER INFO PARK, KUSUMAGIRI, KAKKANAD, 682030.** ## **BY ADVS** **SMT. LATHA THANKAPPAN, SPL. GOVERNMENT PLEADER FOR R1 SRI.K.A. ABDUL SALAM, SC, INFOPARK FOR R3 SRI. VARGHESE K. PAUL FOR R2** **THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 01.03.2018, ALONG WITH LA.App..188/2015 AND C.O.NO.36 OF 2018 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **[ LA.App..188/2015, CO.153/2015** **& CO.36/2018 ] 4** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **&** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **THURSDAY, THE 01ST DAY OF MARCH 2018 / 10TH PHALGUNA, 1939 CO.No.36 OF 2018 IN LA.App.. 188/2015** **AGAINST THE JUDGMENT AND DECREE IN LAR 82/2010 OF SUB COURT,PERUMBAVOOR, DATED 31.1.2014.** **CROSS OBJECTOR/2ND RESPONDENT. NAYOMI KURIKOSE W/O. KURIAKOSE, KOOLIYATTU, BRAHMAPURAM, 682031** **BY ADVS. SRI.VARGHESE K.PAUL SRI.R.KRISHNAKUMAR (CHERTHALA) SRI.PETER KURIAN** **RESPONDENTS/APPELLANT AND 1ST RESPONDENT** - **1 STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, KAKKANAD ERNAKULAM** - **2 THOMAS PHILIPOSE, KALAPPURACKAL, BRAHMAPURAM** - **3 THE CHIEF EXECUTIVE OFFICER, INFO PARK, KUSUMAGIRI, KAKKANAD -682030** **BY ADVS. SMT. LATHA THANKAPPAN, SPL. GOVERNMENT PLEADER FRO R1 R1 BY SRI.K.A.ABDUL SALAM, SC, INFOPARK FOR R3** **THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 01.03.2018, ALOGN WITH LA.APPLN. 188/2015 AND C.O. NO.153 OF 2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **[ LA.App..188/2015, CO.153/2015** **& CO.36/2018 ]** **5** ## **JUDGMENT** **[ LA.App..188/2015, CO.153/2015 & CO.36/2018 ] Dated this the 1st day of March 2018** ## **C.K.Abdul Rehim,J.** Challenge in the above appeal and Cross Objections is against the judgment in LAR No.82/2010 of the Sub Court, Perumbavoor. The 1[st] claimant is the Cross Objector in C.O.No.153/2015 and the 2[nd] claimant is the Cross Objector in C.O.No.36/2018. 29.39 Ares belonging to the 1[st] claimant and 0.61 Ares belonging to the 2[nd] claimant were acquired for IInd phase development of Info Park at Kakkanad. Date of publication of the Notification under Section 4(1) of the Land Acquisition Act was on 20.9.2007. The Land Acquisition Officer awarded compensation by fixing the land value at Rs.1,76,057/- per Are, including the acquired properties in Category No.7, which is described as “wet land coconut plantation on bunds created, having no road access”. The reference court refixed the land **[ LA.App..188/2015, CO.153/2015** **& CO.36/2018 ] 6** value at Rs.2,89,691/-. The acquisitioning authority is challenging the enhancement awarded. In the Cross Objections the claimants are seeking further enhancement, as well as disputing correctness of the categorization, on contending that the properties were having access to a private road. 2. This court through the judgment dated 27.2.2018 in LAA No.73/2014 and connected cases had disposed of a batch of L.A.Appeals and Cross Objections pertaining to the very same acquisition, after elaborate consideration of all the evidences available on record. This court had recategorized the entire properties covered under the acquisition and refixed the land value with respect to properties included in each of such categories. Wet lands with coconut and other improvements planted on bunds (Chira) created are basically included in Category No.III. Sub classifications in Category III as III(a), III(b) and III(c) are made based on accessibility to tar road, accessibility to mud road and no road accessibility. There is no dispute from the side of the claimants that any other better exemplar than the one considered in the above said judgment is available. Therefore, this court is of the considered opinion that **[ LA.App..188/2015, CO.153/2015** **& CO.36/2018 ] 7** the land value refixed in the above said batch of cases can be adopted in this case also. Since this court had refixed the land value by giving the enhancement than the value fixed by the reference court, appeal filed by the State has to fail. The only question need to be considered is whether the acquired property in this case was having accessibility to road at the time of publication of the Notification under Section 4(1). 3. The extent of land acquired is 29.39 Ares belonging to the 1[st] claimant and 0.61 Ares belonging to the 2[nd] claimant. Both the properties are comprised in Sy.No.145/10A of Puthencruz village. In the claim statement filed by the 1[st] claimant before the LAO it is mentioned that the entire property under acquisition was purchased by him through document No.192/1962 of Aikaranadu Sub Registry. Out of the total extent he had transferred 0.61 Ares to the 2[nd] claimant and now he is in possession of the balance extent of 29.39 Ares. It is specifically stated that the 1[st] claimant had reclaimed the land by using red earth and planted coconut trees and at present, the land is remaining as a Purayidam 'garden land'. It is stated that there are 65 yielding coconut trees in the said property. Specific **[ LA.App..188/2015, CO.153/2015** **& CO.36/2018 ] 8** contention is that there is a private pathway ending in his property, leading from Brahmapuram-Padathikara PWD road. In support of the said claim, the claimants have adduced evidence through the report of the Advocate Commissioner, which is marked as Ext.C1. In Ext.C1 while reporting regarding the importance of the locality where the property is situated, the Advocate Commissioner had observed that, the acquired properties can be accessed in vehicles through the road having a distance of ¾ km from Brahmapuram-Karimugal PWD road, at a spot which is situated at 50 Metres away from the bridge across 'Kadambrayar, from the starting point of phase II of the INFOPARK. It is further stated that, the property can be accessed through a new road lying through the middle of the paddy fields at Brahmapuram and the acquired properties are facing the said new route. Even though the Advocate Commissioner was examined as AW2, he was not seen cross examined on the above aspect. The reference court found that the Advocate Commissioner had inspected the property only on 3.8.2013 which is around 6 years after the date of Section 4(1) notification. Pointing out that, the Advocate Commissioner had **[ LA.App..188/2015, CO.153/2015** **& CO.36/2018 ] 9** reported about a new road constructed and that the exact lie of the said road is not made clear through the report, it was observed that there exist ambiguity regarding the lie of the road and that the claimants have failed to clarify the said aspect while examining the Advocate Commissioner. Therefore, the property was included in the category of properties which are having no road access. 4. Learned counsel appearing for the Cross Objectors/claimants had pointed out that, Ext.A18 is the document through which 0.61 Ares of property was transferred by the 1[st] claimant in favour of the 2[nd] claimant. The said document is executed on 3.3.2004, prior to the Notification under Section 4(1). It is pointed out that, in the description of boundaries mentioned in the said document the northern boundary is mentioned as 'road and property of Kunnathu Varghese'. Therefore, it is contended that there existed access to a road even at the time when Ext.A18 document was executed. Further it is pointed out that the revenue inspector who participated in the Land Acquisition proceedings was examined as RW1. In his deposition he had conceded that both the properties **[ LA.App..188/2015, CO.153/2015** **& CO.36/2018 ] 10** acquired, belonging to the different claimants, are having common boundary on the northern side. 5. Learned Counsel for the Cross Objectors/claimants have also placed reliance on the Mahazar contained in the records of the LAO which is marked as Ext.R1(b), inorder to point out that, on the north eastern corner of both the extent of land there is a space provided in the sketch which is an indication of a pathway leading from the said point. 6. While evaluating the above said contention on consideration of the counter arguments raised by the learned Standing Counsel appearing for the requisitioning authority, we noticed that reference court had mentioned only about the new road reported by the Advocate Commissioner in Ext.C1. But on a careful perusal of Ext.C1 it is evident that the Advocate Commissioner had reported with respect to existence of a motorable way to reach the acquired properties, other than the new road which came into existence subsequently. Further Ext.A18 document would clearly indicate that the property was having road access on the northern side. The above aspect is fortified through the testimony of RW1 that both the properties **[ LA.App..188/2015, CO.153/2015** **& CO.36/2018 ] 11** were sharing the common boundary on its northern side. More over, it is evident that the property contained a good number of coconut trees and plantain cultivation. The coconut tress are of considerable age and was seen planted on bunds created. It is not possible to create bunds without putting earth from outside, in a wet land. Therefore, it has to be presumed that the claimants have brought earth for creating bunds for planting coconuts through motorable access. All the above aspects would persuade this Court to accept the contention that the acquired properties were having accessibility to a private road, which in turn leads to a public road. Therefore categorization of the property as land having no access cannot be considered as factually correct. Hence, we find merit in the contention of the claimants for granting change in the category. The property in the nature of wet land with coconut trees planted on bunds created are included in the common judgment in LAA No.73/2014 of this court in category No.III. Sub category III(c) is properties having no road access, whereas sub category III(b) is the properties having access to mud road. Based on the findings as mentioned above, we are inclined to include the acquired properties in this **[ LA.App..188/2015, CO.153/2015** **& CO.36/2018 ] 12** case in category No.III(b) as awarded in LAA No.73/2014 and connected cases. We are inclined to refix the land value of the property in question at Rs..4,29,095 per Are, in accordance with the value fixed in the said judgment. 7. In the result, the above LA Appeal is dismissed and Cross Objections are allowed to the extent of refixing the land value at Rs.4,29,095/- per Are. The Cross Objectors/claimants will be entitled to get all the statutory benefits contemplated under Section 23 (IA), 23 (2) and 28 of the Land Acquisition Act. It is made clear that the 2[nd] claimant who is the Cross Objector in C.O.No.36/2018 will not be entitled for interest with respect to the period of 916 days for which delay in filing the Cross Objection was condoned by this Court. 8. It is made clear that the Cross Objectors/claimants will be entitled to deposit the deficit court fee, if any required, in tune with the enhanced compensation awarded herein within a period of three weeks from today, in view of the decision of the Honorable Supreme court in _**Chandrashekhar and others vs. Additional Special Land Acquisition Officer [2009 (14) SCC 441].**_ **[ LA.App..188/2015, CO.153/2015 & CO.36/2018 ] 13** The claimants/cross objectors will also be entitled for proportionate cost. **C.K.ABDUL REHIM JUDGE SHIRCY.V JUDGE** smm **[ LA.App..188/2015, CO.153/2015** **& CO.36/2018 ] 14** ## **JUDGMENT** ## **C.K.Abdul Rehim,J.** Challenge in the appeal and Cross Objections is against the judgment in LAR No.82/2010 of the Sub Court, Perumbavoor. 1[st] claimant is the Cross Objector in C.O.No.153/2015 and 2[nd] claimant is the Cross Objector in C.O.No.36/2018. 29.39 Ares belonging to the 1[st] claimant and 0.61 Ares belonging to the 2[nd] claimant were acquired for second phase development of Info Park at Kakkanad. The last date of publication of notification under Section 4(1) of the Land Acquisition Act was on 20.9.2009. The Land Acquisition Officer awarded compensation fixing the land value at Rs.1,76,057/- per Are including the acquired properties in Category No.VIII which is in the nature of wet land with coconut plantation on bunds created, having no road access. The reference court had refixed the land value at Rs.2,89,691/-. The acquisitioning authority is challenging the enhancement awarded by the reference court. In the Cross Objections the claimants are seeking further enhancement as well as disputing the categorization of the acquired property, contending that the properties are having access through a private road. **[ LA.App..188/2015, CO.153/2015** **& CO.36/2018 ] 15** 2. This court through judgment dated 27.2.2018 had disposed of a batch of L.A.Appeals and Cross Objections pertaining to the very same acquisition after elaborate consideration of all the evidence available on record. This court had recategorized the entire properties covered under the acquisition and refixed the land value with respect to each of such categories. Wet lands with coconut and other improvements planted on bunds (Chira) created are basically included in category No.III. A sub classification in Category No.III as III(a), III(b) and III(c) are made based on accessibility to tar road, accessibility to mud road and no road accessibility. There is no dispute from the side of the claimants that any other better exemplar than which were considered in the above said judgment is available. Therefore, this court is of the considered opinion that the land value refixed in the above said batch of cases can be adopted in this case also. Since this court had refixed the land value by giving the enhancement than the value fixed by the reference court. The appeal filed by the acquisitioning authority has to fail. The only question in dispute which need to be considered in this appeal is as to whether the acquired property **[ LA.App..188/2015, CO.153/2015** **& CO.36/2018 ] 16** in this case was having accessibility to road at the time of publication of the notification under Section 4(1). 3. The extent of land acquired is 29 Ares belonging to the 1[st] claimant and 0.61 Ares belonging to the 2[nd] claimant. Both the properties are comprised in Sy.No.145/10A of Puthencruz village. In the claim statement filed by the 1[st] claimant before the LAO it is mentioned that the entire property under acquisition was purchased by him through document No.192/1962 of Aikaranadu Sub Registry. Out of the total extent he had transferred 0.61 Ares to the 2[nd] claimant and now he is in possession of the balance extent of 29.39 Ares. It is specifically stated that the 1[st] claimant had reclaimed the land by using red earth and planted coconut trees and at present, the land is remaining as a Purayidam 'garden land'. It is stated that there are 65 yielding coconut trees in the said property. The specific statement is that there is a private property ending in his property leading from Brahmaputam-Padathikara PWD road. In support of the said claim, the claimants have adduced evidence through the report of the Advocate Commissioner marked as Ext.C1. In Ext.C1 while reporting regarding the importance of the locality where the **[ LA.App..188/2015, CO.153/2015** **& CO.36/2018 ] 17** property is situated, the Advocate Commissioner observed that the acquired properties can be accessed in vehicles through road having a distance of ¾ km from Brahmapuram-Karimugal PWD road at a spot which is situated at 50 metres from the bridge across Kadanthrayar, from the starting of phase II of Info Park. It is further stated that apart from that, the property can be accessed through a new road lying through the middle of the paddy fields at Brahmapuram and the acquired properties are facing the said new route. Even though the Advocate Commissioner was examined as AW2, he was not seen cross examined on the above aspects reported. The reference court found that the Advocate Commissioner had inspected the property only on 3.8.2013 which is around 6 years after the date of Section 4(1) notification. Pointing out that the Advocate Commissioner had reported about a new road constructed and that the exact lie of the said road is not made clear through the report, it was observed that there exist ambiguity regarding the lie of the road and that the claimants have failed to clarify the said aspect while examining the Advocate Commissioner. Therefore, the property was in category of properties which are **[ LA.App..188/2015, CO.153/2015** **& CO.36/2018 ] 18** having no road access. 4. The learned counsel appearing for the Cross Objectors/claimants had pointed out that Ext.A18 is the document through which 0.61 Ares of property was transferred by the 1[st] claimant in favour of the 2[nd] claimant. The said document is executed on 3.3.2004, prior to the notification under Section 4(1). it is pointed out that in the description of boundaries mentioned in the said document, it is stated that the norther boundary is 'road and property of Kunnathu Varghese'. Therefore, it is contended that there existed access to a road even at the time when Ext.A18 document was executed. Further it is pointed out that the revenue inspector who participated in the Land Acquisition proceedings was examined as RW1. In his deposition he has conceded that both the properties acquired belonging to the different claimants are having common boundary on the northern side. 5. The learned counsel for the Cross Objectors/claimants have also placed reliance on the Mahazar contained in the records of the LAO which is marked as Ext.R1(b) to point out that on the north eastern corner of both the extent of land there is a space **[ LA.App..188/2015, CO.153/2015** **& CO.36/2018 ]** **19** provided in the sketch which is an indication of a pathway leading from the said point. 6. While evaluating the above said contention in consideration of the counter arguments raised by the learned Standing Counsel appearing for the requisitioning authority, we noticed that reference court had mentioned only about the new road reported by the Advocate Commissioner in Ext.C1. But on a careful perusal of Ext.C1 it is evident that the Advocate Commissioner had reported with respect to existence of a motorable way to reach the acquired properties, other than the new road which came into existence subsequently. Further Ext.A18 document would clearly indicate that the property was having road access on the northern side. The above aspect is fortified through the testimony of RW1 that both the properties were sharing the common boundary on its northern side. More over, it is evident that the property contained a good number of coconut trees and plantain cultivation. The coconut tress are of considerable age and was seen planted on bunds created. It is not possible to create bunds without putting earth from outside, in a wet land. Therefore, it has to be presumed that the claimants **[ LA.App..188/2015, CO.153/2015** **& CO.36/2018 ] 20** have brought earth for creating bunds for planting coconuts through motorable access. All the above aspects would persuade this Court to accept the contention that the acquired properties were having accessibility to a private road, which in turn leads to a public road. Therefore , the categorization of the property as land having no access cannot be considered as factually correct. Hence, we find merit in the contention of the claimants for granting a change in the category. The property in the nature of wet land with coconut trees planted on bunds created are included in the common judgment in LAA No.----- of this court in category No.III. Sub category III(c) is properties having no access, whereas sub category III(b) is the properties having access to mud road. Based on the findings as mentioned above, we are inclined to include the acquired properties in this case in category No.III(b) as awarded in LAA No.--- and connected cases. We are inclined to refix the land value of the property in question at Rs.----/Are. 7. In the result, the above LA Appeal is dismissed and Cross Objections are allowed to the extent of refixing the land value at Rs.---------/Are. The Cross Objectors/claimants will be entitled to ## **[ LA.App..188/2015, CO.153/2015** **& CO.36/2018 ] 21** get all the statutory benefits contemplated under Section 23 IA, 23 II and 28 of the Land Acquisition Act. It is made clear that the 2[nd] claimant who is the Cross Objector in C.O.No.36/2013 will not be entitled for interest with respect to the period of 916 days for which delay in filing the Cross Objection was condoned by this Court. 8. It is made clear that the Cross Objectors/claimants will be entitled to deposit additional court fee if any required in tune with the enhanced compensation awarded herein by paying the deficit court fee within a period of three weeks from today, in view of the decision of the Honorable Supreme court in _**Chandrashekhar and others vs. Additional Special land Acquisition Officer [2009 (14) SCC 441].**_ **C.K.ABDUL REHIM JUDGE** **SHIRCY.V** **JUDGE** **[ LA.App..188/2015, CO.153/2015 & CO.36/2018 ] 22** smm **Sd/C.K.ABDUL REHIM JUDGE Sd/SHIRCY V. JUDGE**