High Court of KeralaDivision BenchPartially allowed
LA.App.345/2016 and connected cases
Case / Petition Number:LA.App.345/2016, LA.App.357/2016, LA.App.50/2017, LA.App.56/2017, LA.App.87/2017, LA.App.71/2018, LA.App.74/2018, LA.App.76/2018
Case Details & Bench
- Court
- High Court of Kerala
- Hon'ble Judges
- C.K. Abdul Rehim
- Shircy V.
- Judgment Date
- 2018-06-12
- Court Decision / Holding
- The Appeals are allowed in part. The Court refixes land values as follows: Category 1 (dry land with frontage to Brahmapuram-Karimughal Public Road) at Rs 8,14,018 per Are; L.A.A. No.357/2016 (LAR 23/2012) at Rs 5,96,947 per Are; Categories corresponding to L.A.A. Nos.56/2017 and 74/2018 at Rs 7,05,482 per Are. Claimants are entitled to value of improvements and structural value as awarded by the reference court. Interest under Section 28 of the Act is denied except in L.A.A. No.357/2016. Appellants are allowed 15 days to deposit deficit court fee; decree will be prepared accordingly. The decision also clarifies that enhanced compensation carries statutory benefits under sections 23(1A), 23(2) and 28, with proportional costs.
- Final Disposition
- Partially allowed
Parties to the Case
Appellants / Petitioners
- T. C. Vavachan S/O Late Varkey Chacko
- Latheef M.M S/O Late Mammukkutty
- Aysha W/O Late Mammukutti
- Sabitha W/O Late Abdul Muthar
- Afin Muhammed S/O Late Abdul Muthar (Minor)
- Sajitha M.M D/O Late Mammukutt
- Ashraf T.I S/O Ibrahim Kutty
- Rameesa T.A D/O Ashraf T.I
- Sameera T.A D/O Ashraf T.I (Minor)
- Khaderkunju Koduvelikkakath
- Sulaikha W/O Khaderkunju
- Lalithaa Sukumaran @ Lalithamma W/O Late Sukumaran Nair
- Mathew Varghese S/O Late Mathew
- Pauloose M.M S/O Late Mathew
- Saramma M.Mathew
- Raju M.M
- Babu M.M
- Regina Alias W/O Late M.M Alias
- Basil Alias (Minor) S/O Late M.M Alias
- Aliyama W/O Late Mathew
- Muhammed S/O Pakko
Respondents
- State of Kerala represented by District Collector, Ernakulam
- The Secretary Kochi Corporation, Park Avenue, Ernakulam
Legal Representation & Advocates
Counsels for Petitioners
- • Varghese K. Paul
- • Arun Antony
- • Peter Kurian
- • R. Krishna Kumar (Cherthala)
Counsels for Respondents
- • A.K. Sukumaran, Senior Government Pleader
- • Jibu P. Thomas, Standing Counsel, Kochi Corporation
- • Sareena George, SC, Kochi Corporation
Case Synopsis & Summary
This is a consolidated High Court of Kerala judgment disposing of several Land Acquisition Appeals arising from the II phase of the Brahmapuram Solid Waste Treatment Plant project in Kochi. The Notification under Section 4(1) was published on 17 February 2009. The Reference Court fixed and enhanced land values across eight categories by relying on several sale documents, notably Exts A2, A3, A4 and A9. The appellants contended that the basic document Ext A2 undervalued the land and that other exemplars should be used; they argued Exts A3, A4 and A9 were more comparable and that the comparison should consider proximity to roads and development around Infopark/Smart City. The High Court, while recognizing the validity of Ext A2 as the most suitable comparator for lands with frontage to the Brahmapuram–Karimughal Road, also found that some exemplars had special advantages and could be discounted. It distinguished the earlier L.A.A.73/2014 approach and применил time-gap escalation (per ONGC) and locational adjustments, concluding that an appropriate 7.5% annual escalation for rural dry lands with frontage was warranted. The Court refixed values: Rs 8,14,018 per Are for Category 1, Rs 5,96,947 per Are for L.A.A. No.357/2016 (LAR 23/12), and Rs 7,05,482 per Are for L.A.A. Nos.56/2017 and 74/2018, among others. It granted statutory benefits, denied interest under Section 28 except in one case, and directed deposit of any deficit court fee within 15 days. The judgment awards improvements/structures and guides decree framing accordingly.
Provisions of Law Cited
Land Acquisition Act, 1894 - Section 4(1)Land Acquisition Act, 1894 - Section 23(1A)Land Acquisition Act, 1894 - Section 23(2)Land Acquisition Act, 1894 - Section 28
Legal Doctrines & Maxims
- Highest value exemplar principle in determining market value; among multiple comparables, choose the highest value sale as a fair basis for fixation, unless strong reasons to differ.
- Time-gap escalation guidelines for market value (10-15% per year for urban/semi-urban areas; 5-7.5% for rural) as approved in General Manager, ONGC v. Rameshbhai Jivanbhai Patel (2008) 14 SCC 745.
- Contiguity/principle for including related properties (e.g., husband and wife) in the same category as per Lillykutty v. State of Kerala (2012) 4 KLT 428.
- Deficit court-fee adjustment when enhanced compensation is granted (Chandrasekhar v. Additional Special Land Acquisition Officer)
Submissions & Arguments
Contentions of Appellants / Petitioners
The appellants contended that the Land Acquisition Officer erred in relying solely on Ext.A2 for fixing values in categories 1 and 2, ignoring other comparables. They argued Exts.A3, A4 and A9 are more reliable comparables and that Ext.A2’s distance and advantageous location may not reflect true market value. They urged adopting the best exemplar (Ext.A2) with proper adjustments for location, time and development (Infopark/Smart City) and disallowing overvalued exemplars with site-specific advantages. They pressed for applying the general rule of preferring the highest comparable sale but with justification for any deviations, and for ensuring compensation reflects the locality’s market value as of the relevant date.
Contentions of Respondents
The respondents defended the Reference Court’s re-fixation as reasonable and reflective of true market value given the locality’s development and road frontages. They argued Ext.A2 is a valid benchmark due to its frontage and proximity to major development; other exemplars were discounted for special advantages or remote comparability. They urged maintaining enhanced values and applying proper adjustments, with particular attention to categories without frontage where reductions or different categorization were warranted.
Cited Precedents (4)
| Case Name | Citation | Treatment | Explanation |
|---|---|---|---|
| Lillykutty v. State of Kerala | 2012(4) KLT 428 | Positive | Cited for contiguity and inclusion of related properties within same category. |
| General Manager, Oil & Natural Gas Corporation Ltd. v. Rameshbhai Jivanbhai Patel & Another | (2008) 14 SCC 745 | Positive | Used to justify escalation rates for market value over time. |
| Chandrasekhar and others v. Additional Special Land Acquisition Officer | (2009) 14 SCC 441 | Positive | Support for allowing deposit of deficit court fee when enhanced compensation is granted. |
| L.A.A. No.73/2014 and connected cases | — | Distinguished | Earlier reductions (e.g., 35% for tar-road frontage) not applied here; the court distinguishes that decision. |
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Extracted Judgment Text
Exact text extracted from official judgment records.
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM**
## **&**
## **THE HONOURABLE MRS. JUSTICE SHIRCY V.**
**TUESDAY, THE 12TH DAY OF JUNE 2018 / 22ND JYAISHTA, 1940**
**LA.App..No.345 OF 2016**
**AGAINST THE JUDGMENT AND DECREE DATED 29-06-2013 IN LAR 89/2011 OF SUB COURT, PERUMBAVOOR**
## **APPELLANT/CLAIMANT:**
**T.C.VAVACHAN S/O LATE VARKEY CHACKO, THURUTHIPARMAMBIL HOUSE, BRAHMAPURAM P.O., PUTHENCRUZ VILLAGE, NOW RESIDING AT THAMMANIMATTOM, RAMAMANGALAM P.O. KOLENCHERRY- 686 663**
**BY ADVS. SRI.VARGHESE K.PAUL SRI.ARUN ANTONY SRI.PETER KURIAN**
## **RESPONDENTS/RESPONDENTS:**
**1 STATE OF KERALA REP.BY DISTRICT COLLECTOR, ERNAKULAM, KAKKANAD- 682 030 2 THE SECRETARY KOCHI CORPORATION, PARK AVENUE, ERNAKULAM- 682 011**
**R1 BY SR. GOVT. PLEADER SRI. A.K. SUKUMARAN R2 BY ADV. SRI.R.RANJITH R., SC, KOCHI CORPORATION**
**THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 12.06.2018, ALONG WITH LA.App..357/2016, LA.App..50/2017, LA.App..56/2017, LA.App..87/2017, LA.App..71/2018, LA.App..74/2018, LA.App..76/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**LAA No.345/2016 and connected cases**
**-2-**
# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
# **PRESENT**
**THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM**
**&**
**THE HONOURABLE MRS. JUSTICE SHIRCY V.**
**TUESDAY, THE 12TH DAY OF JUNE 2018 / 22ND JYAISHTA, 1940**
**LA.App..No.357 OF 2016**
**AGAINST THE JUDGMENT AND DECREE DATED 29-06-2013 IN LAR 23/2012 OF SUB COURT, PERUMBAVOOR**
## **APPELLANT/CLAIMANT:**
**T.C.VAVACHAN S/O.LATE VARKEY CHACKO, THURUTHIPARAMBIL HOUSE,BRAHMAPURAM PO, PUTHENCRUZ VILLAGE, NOW RESIDING AT THAMMANIMATTOM,RAMAMANGALAM PO, KOLENCHERRY, PIN-686 663.**
**BY ADVS. SRI.VARGHESE K.PAUL SRI.ARUN ANTONY SRI.PETER KURIAN**
## **RESPONDENTS/RESPONDENTS:**
**1 STATE OF KERALA REP. BY THE DISTRICT COLLECTOR, ERNAKULAM, KAKKANAD, PIN-682030. 2 THE SECRETARY KOCHI CORPORATION, PARK AVENUE, ERNAKULAM,PIN-682011.**
**R1 BY SR. GOVT. PLEADER SRI. A.K. SUKUMARAN R2 BY SRI.RANJITH.R, SC, KOCHI CORPORATION**
**THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 12.06.2018, ALONG WITH LA.App..345/2016, LA.App..50/2017, LA.App..56/2017, LA.App..87/2017, LA.App..71/2018, LA.App..74/2018, LA.App..76/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**LAA No.345/2016 and connected cases**
**-3-**
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM**
**&**
**THE HONOURABLE MRS. JUSTICE SHIRCY V.**
**TUESDAY, THE 12TH DAY OF JUNE 2018 / 22ND JYAISHTA, 1940**
## **LA.App..No.50 OF 2017**
**AGAINST THE JUDGMENT & DECREE IN LAR 189/2011 DATED 29-06-2013 OF SUB COURT, PERUMBAVOOR**
## **APPELLANTS/CLAIMANTS 1, 2, LEGAL HEIRS OF 3RD CLAIMANT & LEGAL HEIRS OF 5TH CLAIMANT:**
- **1 LATHEEF M.M S/O. LATE MAMMUKUTTY, CHELLIPADATH PEEDIKAYIL, MOOLEBHAGATH, BRAHMAPURAM P.O., NOW RESIDING AT MOOLEBAGATH HOUSE, CHELLIPADAM NAGAR, KANINADU P.O., PUTHENCRUZ, ERNAKULAM DISTRICT.**
- **2 AYSHA W/O. LATE MAMMUKUTTY, -DO-**
- **3 SABITHA W/O. LATE ABDUL MUTHAR, -DO-**
- **4 AFIN MUHAMMED S/O. LATE ABDUL MUTHAR (MINOR), -DO- REPRESENTED BY HIS NEXT FRIEND AS WELL AS HIS MOTHER, SABITHA**
- **5 SAJITHA M.M. D/O. LATE MAMMUKUTTY, CHELLIPADATH PEEDIKAYIL, MOOLEBAGATH, BRAHMAPURAM P.O., NOW RESIDING AT H. NO. 530/6, PERUMAMKUDI HOUSE, PUNNORKODE KARA, PAZHATHOTTAM P.O., PIN -683 565.**
- **6 ASHRAF T.I S/O. IBRAHIM KUTT, RESIDING AT THURUTHIPARAMBIL HOUSE, BRAHMAPURAM, PIN - 682303.**
- **7 RAMEESA T.A. D/O. ASHRAF T.I, -DO-**
**LAA No.345/2016 and connected cases**
**-4-**
***8 SAMEERA T.A. D/O. ASHARAF T.I (MINOR), -DO-, REP. BY HER NEXT FRIEND AS WELL AS HER FATHER, ASHRAF T.I, S/O. IBRAHIM KUTTY, RESIDING AT THURUTHIPARAMBIL HOUSE, BRAHMAPURAM -682 303.**
**BY ADVS. SRI.VARGHESE K.PAUL SRI.R.KRISHNAKUMAR (CHERTHALA) SRI.PETER KURIAN**
## **RESPONDENTS/RESPONDENTS & LEGAL HEIR OF CLAIMANT No.3:**
- **1 STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, ERNAKULAM-682030.**
- **2 THE SECRETARY KOCHI CORPORATION, PARK AVENUE, ERNAKULAM-682011.**
- **3 ASIF MUHAMMED AGED 12 YEARS, S/O. LATE ABDUL MUTHAR (MINOR), -DO-, REP. BY HIS NEXT FRIEND AS WELL AS HIS MOTHER, SABEENA, PARAYAMKUDY HOUSE, VEMBILLY P.O., KUMARAPURAM VIA, ERNAKULAM DISTRICT-683565.**
**R3 BY ADV. SRI.JIJO PAUL KALLOOKKARAN R1 BY SR. GOVT. PLEADER SRI. A.K. SUKUMARAN R2 BY ADV. SRI.JIBU P.THOMAS, SC, KOCHI CORPORATION**
- **THE 8TH APPELLANT IS DECLARED AS MAJOR AND**
**PERMITTED TO PURSUE FURTHER PROCEEDINGS ON HERSELF VIDE ORDER DATED 19-07-2018 IN IA NO.445/2018.**
**THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 12.06.2018, ALONG WITH LA.App..345/2016, LA.App..357/2016, LA.App..56/2017, LA.App..87/2017, LA.App..71/2018, LA.App..74/2018, LA.App..76/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**LAA No.345/2016 and connected cases**
**-5-**
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM**
**&**
**THE HONOURABLE MRS. JUSTICE SHIRCY V.**
**TUESDAY, THE 12TH DAY OF JUNE 2018 / 22ND JYAISHTA, 1940**
## **LA.App..No.56 OF 2017**
**AGAINST THE JUDGMENT AND DECREE IN LAR 93/2011 DATED 31-01-2015 OF SUB COURT, PERUMBAVOOR**
## **APPELLANTS/CLAIMANTS 1,2, LEGAL HEIRS OF 3RD CLAIMANT, 4TH CLAIMANT & LEGAL HEIRS OF 5TH CLAIMANT:**
- **1 AYSHA**
- **W/O.LATE MAMMUKUTTY, CHELLIPADATH PEEDIKAYIL, MOOLEBHAGATH, BRAHMAPURAM P.O., NOW RESIDING AT MOOLEBHAGATH HOUSE, CHELLIPADAM NAGAR, KANINADU P.O., PUTHENCRUZ, ERNAKULAM DISTRICT**
- **2 LATHEEF M.M. S/O.LATE MAMMUKUTTY, CHELLIPADATH PEEDIKAYIL, MOOLEBHAGATH, BRAHMAPURAM P.O., NOW RESIDING AT MOOLEBHAGATH HOUSE, CHELLIPADAM NAGAR, KANINADU P.O., PUTHENCRUZ, ERNAKULAM DISTRICT**
- **3 SABITHA W/O.LATE ABDUL MUTHAR, - DO -**
- **4 AFIN MUHAMMED**
- **S/O.LATE ABDUL MUTHAR, (MINOR), - DO- REPRESENTED BY HIS NEXT FRIEND AS WELL AS HIS MOTHER, SABITHA**
- **5 SAJITHA M.M. D/O.LATE MAMMUKUTTY, CHELLIPADATH PEEDIKAYIL, MOOLEBHAGATH, BRAHMAPURAM P.O., NOW RESIDING AT H.N.530/6 PERUMAMKUDI HOUSE, PUNNORKODE KARA, PAZHATHOTTAM P.O., PIN-683565**
- **6 ASHRAF T.I. S/O.IBRAHIM KUTTY, RESIDING AT THURUTHIPARAMBIL HOUSE, BRAHMAPURAM, P.O.-682303**
**LAA No.345/2016 and connected cases**
**-6-**
**7 RAMEESA T.A. D/O.ASHRAF T.I., - DO -**
***8 SAMEERA T.A.**
**D/O.ASHRAF T.I.(MINOR), - DO -, REP. BY HER NEXT FRIEND AS WELL AS HER FATHER, ASHRAF T.I., S/O. IBRAHIM KUTTY, RESIDING AT THURUTHIPARAMBIL HOUSE, BRAHMAPURAM P.O.-682303**
**BY ADVS. SRI.VARGHESE K.PAUL SRI.ARUN ANTONY SRI.PETER KURIAN**
## **RESPONDENTS/RESPONDENTS & LEGAL HEIR OF CLAIMANT No.3:**
**1 STATE OF KERALA REP. BY DISTRICT COLLECTOR, ERNAKULAM-682030**
- **2 THE SECRETARY KOCHI CORPORATION, PARK AVENUE, ERNAKULAM, PIN-682011**
**3 ASIF MUHAMMED**
**AGED 12 YEARS, S/O.LATE ABDUL MUTHAR,(MINOR) - DO -, REP. BY HIS NEXT FRIEND AS WELL AS HIS MOTHER, SABEENA, PARAYAMKUDY HOUSE, VEMBILLY P.O., KUMARAPURAM(VIA), ERNAKULAM DISTRICT, PIN-683565**
**R1 BY SR. GOVT. PLEADER SRI. A.K. SUKUMARAN R3 BY ADV. SRI.JIJO PAUL KALLOOKKARAN R2 BY ADV. SRI.JIBU P.THOMAS,SC, KOCHI CORPORATION**
***THE 8[th] APPELLANT IS DELCARED AS MAJOR AND PERMITTED TO PURSUE FURTHER PROCEEDING ON HERSELF VIDE ORDER DATED 19-07-2018 IN IA No.435/2018.**
**THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 12.06.2018, ALONG WITH LA.App..345/2016, LA.App..357/2016, LA.App..50/2017, LA.App..87/2017, LA.App..71/2018, LA.App..74/2018, LA.App..76/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**LAA No.345/2016 and connected cases**
**-7-**
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
# **PRESENT**
**THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM**
**&**
**THE HONOURABLE MRS. JUSTICE SHIRCY V.**
**TUESDAY, THE 12TH DAY OF JUNE 2018 / 22ND JYAISHTA, 1940**
**LA.App..No.87 OF 2017**
**AGAINST THE JUDGMENT AND DECREE IN LAR 202/2011 OF SUB COURT, PERUMBAVOOR**
## **APPELLANTS/CLAIMANTS:**
- **1 KHADERKUNJU KODUVELIKKAKATH, BRAHMAPURAM PO, NOW RESIDING AT KODUVELIKKAKATH HOUSE, KANINADU PO, PUTHENCRUZ VILLAGE, ERNAKULAM DISTRICT, PIN 682310**
**2 SULAIKHA W/O.KHADERKUNJU, KODUVELIKKAKATH, BRAHMAPURAM PO, NOW RESIDING AT KODUVELIKKAKATH HOUSE, KANINADU PO, PUTHENCRUZ VILLAGE, ERNAKULAM DISTRICT, PIN 682310**
**BY ADVS. SRI.VARGHESE K.PAUL SRI.ARUN ANTONY SRI.R.KRISHNAKUMAR (CHERTHALA) SRI.PETER KURIAN**
## **RESPONDENTS/RESPONDENTS:**
- **1 THE STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, ERNAKULAM 682030**
- **2 THE SECRETARY KOCHI CORPORATION, PARK AVENUE, ERNAKULAM, PIN 682011**
**R1 BY SR. GOVT. PLEADER SRI. A.K. SUKUMARAN R2 BY ADV. SMT.SAREENA GEORGE, SC, KOCHI CORPORATION**
**THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 12.06.2018, ALONG WITH LA.App..345/2016, LA.App..357/2016, LA.App..50/2017, LA.App..56/2017, LA.App..71/2018, LA.App..74/2018, LA.App..76/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**LAA No.345/2016 and connected cases**
**-8-**
# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
# **PRESENT**
**THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM**
**&**
**THE HONOURABLE MRS. JUSTICE SHIRCY V.**
**TUESDAY, THE 12TH DAY OF JUNE 2018 / 22ND JYAISHTA, 1940**
**LA.App..No.71 OF 2018**
**AGAINST THE JUDGMENT AND DECREE IN LAR 37/2012 DATED 31-01-2015 OF SUB COURT, PERUMBAVOOR**
## **APPELLANT/CLAIMANT:**
**LALITHA SUKUMARAN @ LALITHAMMA W/O. LATE SUKUMARAN NAIR, KOZHUVELIL HOUSE, BRAHMAPURAM P.O,PUTHENCRUZ VILLAGE, NOW RESIDING AT KOZHUVELIL(H),KANINAD P.O, PUTHENCRUZ VILLAGE, ERNAKULAM DISTRICT.**
**BY ADVS. SRI.VARGHESE K.PAUL SRI.PETER KURIAN**
## **RESPONDENTS/RESPONDENTS:**
**1 STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, ERNAKULAM - 682 030.**
**2 THE KOCHI CORPORATION PARK AVENUE, ERNAKULAM, REPRESENTED BY ITS SECRETARY - 682 011.**
**R1 BY SR. GOVT. PLEADER SRI. A.K. SUKUMARAN R2 BY ADV. SRI.V.V.JOSHI,SC, KOCHI CORPORATION**
**THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 12.06.2018, ALONG WITH LA.App..345/2016, LA.App..357/2016, LA.App..50/2017, LA.App..56/2017, LA.App..87/2017, LA.App..74/2018, LA.App..76/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**LAA No.345/2016 and connected cases**
**-9-**
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
# **PRESENT**
**THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM**
**&**
**THE HONOURABLE MRS. JUSTICE SHIRCY V.**
**TUESDAY, THE 12TH DAY OF JUNE 2018 / 22ND JYAISHTA, 1940**
**LA.App..No.74 OF 2018**
**AGAINST THE JUDGMENT AND DECREE IN LAR 36/2012 DATED 09-03-2014 OF SUB COURT, PERUMBAVOOR**
## **APPELLANTS/LEGAL HEIRS OF CLAIMANT:**
|**1**|**ALIYAMA**|
|---|---|
||**W/O.LATE MATHEW, MALERIL HOUSE, PERINGOLE**|
||**KARA,KOLLENCHERY, ALIKARANAD NORTH VILLAGE,**|
||**KUNNATHUNAD TALUK, ERNAKULAM DISTRICT, PIN- 682**|
||**311.**|
|**2**|**MATHEW VARGHESE**|
||**S/O.LATE MATHEW, MALERIL HOUSE, PANCODE**|
||**P.O.,ALIKARANAD NORTH VILLAGE, KUNNATHUNAD TALUK,**|
||**ERNAKULAM DISTRICT, PIN- 682 310.**|
|**3**|**PAULOSE M.M.**|
||**S/O.LATE MATHEW, MALERIL HOUSE,SANTHINAGER,**|
||**THIRUVANKCULAM P.O.,THIRUVANKULAM VILLAGE,ERNAKULAM**|
||**DISTRICT, PIN- 682 305.**|
|**4**|**SARAMMA M.MATHEW**|
||**S/O.LATE MATHEW, NARIYELI HOUSE,VALAYANCHIRANGARA**|
||**P.O., VENGOLA,PERUMBAVOOR, ERNAKULAM DISTRICT, PIN-**|
||**683 556.**|
|**5**|**RAJU M.M.**|
||**S/O.LATE MATHEW,MALERIL HOUSE, PERINGOLE**|
||**KARA,KOLLENCHERY, ALIKARANAD NORTH**|
||**VILLAGE,KUNNATHUNAD TALUK, ERNAKULAM DISTRICT, PIN-**|
||**682 311.**|
|**6**|**BABU M.M.**|
||**S/O.LATE MATHEW, MALERIL HOUSE,MANANTHADAM,**|
||**PUTHENCRUZ P.O.,ERNAKULAM DISTRICT, PIN- 682 308.**|
**LAA No.345/2016 and connected cases -10-**
|**7**|**REGINA ALIAS**|
|---|---|
||**W/O.LATE M.M.ALIAS,MALERIL HOUSE, TEMPLE ROAD,**|
||**KADAVANTHRA P.O., ERNAKULAM DISTRICT, PIN- 682 020.**|
|**8**|**BASIL ALIAS (MINOR) S/O.LATE M.M.ALIAS**|
||**MALERIL HOUSE, TEMPLE ROAD, KADAVANTHRA**|
||**P.O.,ERNAKULAM DISTRICT, PIN- 682020.(THE 8TH**|
||**APPELLANT IS A MINOR AND IS REPRESENTED BY HIS NEXT**|
||**FRIEND AND MOTHER REGINA ALIAS)**|
**BY ADVS. SRI.VARGHESE K.PAUL SRI.PETER KURIAN**
## **RESPONDENTS/RESPONDENTS:**
|**1**|**STATE OF KERALA**|
|---|---|
||**REPRESENTED BY DISTRICT COLLECTOR,**|
||**ERNAKULAM, KAKKANAD, PIN- 682 030.**|
|**2**|**THE SECRETARY**|
||**KOCHI CORPORATION,PARK AVENUE,**|
||**ERNAKULAM PIN- 682 011.**|
||**R1 BY SR. GOVT. PLEADER SRI. A.K. SUKUMARAN**|
||**R2 BY ADV. SRI.V.V.JOSHI,SC, KOCHI CORPORATION**|
|**THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON**|
|---|
|**12.06.2018, ALONG WITH LA.App..345/2016, LA.App..357/2016,**|
|**LA.App..50/2017,**<br>**LA.App..56/2017,**<br>**LA.App..87/2017,**|
|**LA.App..71/2018, LA.App..76/2018, THE COURT ON THE SAME DAY**|
|**DELIVERED THE FOLLOWING:**|
**LAA No.345/2016 and connected cases -11-**
**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
# **PRESENT**
**THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM**
**&**
**THE HONOURABLE MRS. JUSTICE SHIRCY V.**
**TUESDAY, THE 12TH DAY OF JUNE 2018 / 22ND JYAISHTA, 1940**
**LA.App..No.76 OF 2018**
**AGAINST THE JUDGMENT AND DECREE IN LAR 180/2011 DATED 31-03-2015 OF SUB COURT, PERUMBAVOOR**
## **APPELLANT/CLAIMANT:**
**MUHAMMED S/O.PAKKO, MANALODY HOUSE, BRAHMAPURAM P.O,ERNAKULAM DISTRICT, PIN - 682 303.**
**BY ADVS. SRI.VARGHESE K.PAUL SRI.PETER KURIAN**
## **RESPONDENTS/RESPONDENTS:**
**1 THE STATE OF KERALA REP. BY DISTRICT COLLECTOR, ERNAKULAM - 682 030. 2 THE SECRETARY KOCHI CORPORATION, PARK AVENUE, ERNAKULAM,PIN - 682 011.**
**R1 BY SR. GOVT. PLEADER SRI. A.K. SUKUMARAN R2 BY ADV. SRI.V.V.JOSHI,SC, KOCHI CORPORATION**
**THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 12.06.2018, ALONG WITH LA.App..345/2016, LA.App..357/2016, LA.App..50/2017, LA.App..56/2017, LA.App..87/2017, LA.App..71/2018, LA.App..74/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **C.K.ABDUL REHIM & SHIRCY V., JJ.**
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**LAA Nos. 345/2016, 50/2017, 357/2016, 76/2018, 87/2017, 56/2017, 71/2018 & 74/2018 ------------------------------------------------------**
Dated this the 12[th] day of June, 2018
## **JUDGMENT**
## **C.K. Abdul Rehim, J:**
Since all the above Land Acquisition Appeals are arising out of a common acquisition, made for the same purpose, through the same notification, they are considered together and disposed of through this common judgment. L.A.A.Nos.345/2016, 50/2017 & 357/2016 arise out of a common judgment of the Sub Court, Perumbavoor respectively in L.A.R.No.89/2011, 189/2011 & 23/2012. Even though some other cases are also disposed of through the said common judgment, there are no appeals filed in those cases. L.A.A.No.76/2018 is instituted against the judgment in L.A.R.No.180/2011 of the same court. Even though it is a common judgment in 12 cases, there are no appeals filed with respect to other cases. L.A.A.No.87/2017 is instituted against the judgment of the same court in L.A.R.No.202/2011. In that case also, the impugned judgment of the reference court is common
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in 7 cases, but the appeal is only in one case. L.A.A.Nos.56/2017 and 71/2018 are arising out of a common judgment in L.A.R.Nos.93/2011 and 37/2012, respectively. There also only two appeals are filed against the common judgment, wherein the number of cases disposed of are more. L.A.A.No.74/2018 is against judgment of the same court in L.A.R.No.36/2012. All the above appeals are filed by the claimants seeking enhancement of the compensation refixed by the reference court.
2. Different extent of land belonging to the appellants/claimants situated in Puthencruz Village in Kunnathunad Taluk were acquired for the purpose of the IInd phase of 'Brahmapuram Solid Waste Treatment Plant' of Kochi Corporation, who is a party in all these appeals. The Notification under Section 4(1) of the Land Acquisition Act was published on 17.2.2009. The Land Acquisition Officer passed Award in each of the cases by classifying acquired properties into 8 categories, which are as follows:
Category 1 : Dry land with frontage to Brahmapuram - Karimughal Road Category 2 : Reclaimed land with frontage to Brahmapuram - Karimughal Road Category 3 : Dry land lying interior Category 4 : Reclaimed land lying interior Category 5 : Land lying interior with thodu and chira
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Category 6 : Wet land lying near to roads Category 7 Wet land lying interior Category 8 Dry land with frontage to Panchayath Road.
The land value fixed by the Land Acquisition Officer in each category is tabulated below:
Category 1. Rs.4,56,555/Are
Category 2. Rs.4,10,900/Are Category 3. Rs.3,48,000/Are Category 4. Rs.3,13,276/Are Category 5. Rs.2,43,659/Are Category 6. Rs.2,08,850/Are Category 7. Rs.1,74,042/Are Category 8. Rs.3,88,072/Are
For fixing the land value, the Land Acquisition Officer had relied upon the Sale Deed registered as Document No.8298/2008, dated 28.11.2008 of the Sub Registrar Office, Puthencruz, with respect to properties included in Category No. 1 and 2. With respect to Category Nos.3 to 8, the Land Acquisition Officer had relied upon three documents, Sale Deed Nos.3343/2008, 3720/2008 and 6246/2008. The average value reflected in the above said three documents, amounting to Rs.3,48,084/- per Are,
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was adopted with variable difference to each of the categories included in 3 to 7. With respect to property included in Category No.8, value was fixed by reducing the rate by 15% from the value fixed for category No.1. The Reference Court had re-fixed the value by giving enhancement as follows:
Category 1. Rs.7,30,488/Are (60% increase from the value fixed by the LAO) Category 2. Rs.6,57,440/Are - (10% less from category No.1) Category 3. Rs.3,77,671/Are - (55% above the value of LAO) Category 4. Rs.5,01,242/Are - (60% above the value of LAO)
Category 5. Rs.4,02,037/Are - (65% above the value of LAO) Rs.3,65,489/Are - (50% above the value of LAO - for property without road access)
Category 6. No cases in this batch Category 7. No cases in this batch Category 8. Rs.6,20,950/Are - (60% above the value of LAO)
The claimants are approaching this Court contending that the land value re-fixed by the reference court is inadequate and unreasonable and that the court below had failed in appreciating the evidence on record in its right perspective.
3. Heard Shri. Varghese K Paul, learned counsel appearing for the appellants in all these cases, learned Government Pleader appearing for the 1[st] respondent and the learned Standing Counsel appearing for the 2[nd] respondent in each of the cases.
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4. Since all the documents produced in other cases are also considered in the common judgment of the Reference Court in L.A.R.Nos.89/2011, 189/2011 and 23/2012, we take the respective appeals (L.A.A.Nos.345/2016, 50/2017 & 357/2016) as the leading cases. It was found by the Reference Court that, the Land Acquisition Officer had considered many documents for fixing the land value with respect to properties included in category Nos.1 and 2, but relied upon Sale Deed No.8298/2008, dated 28.11.2008 as the basic document. Referring to Exts.R1 to R7, files of the Land Acquisition Officer in each of the cases, the Reference Court observed that, the findings of the Land Acquisition Officer is to the effect that, the alignment and site of the property covered under the basic document is lying almost at an equal distance as that of the acquired properties from the Smart City Project area in Kakkanad and that both the properties are similarly situated. But the above fact was disputed by the claimants by contending that the value of the acquired property is much higher than the value reflected in the basic document. In order to substantiate such a contention, the claimants have produced Exts.A2 to A7 and A9 documents of sale instances. The court below noticed that, as revealed from the basic valuation report, the property covered by the basic
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document is situated at a distance of 2.5kms from the acquired properties. It was further found that the basic land is situated at a distance of 600 meters away from the BrahmapuramKarimughal Road. Whereas, most of the acquired properties are situated abutting to the said road. It has come out in evidence through report of the Advocate Commissioner marked as Ext.C1 and the rough sketch produced as Ext.C1A, that the acquired properties are situated at a distance of 500 meters from the 'Smart City Project' at Kakkanad and the 'Infopark, Kochi' is only at a distance of around 1.5kms. It was further found that various multi-national IT companies such as WIPRO, IBS, Tata Consultancy Services etc. and various other reputed educational institutions, Government offices, commercial establishments, residential apartments etc. are situated within a radius of 2kms from the acquired property. Further it is found that, Civil Station, Public Market, Doordarshan Kendra, VSNL, Radio Station etc. are situated within a radius of 5kms from the acquired land. Therefore, the court below found that the acquired properties are situated in a very important locality. The Advocate Commissioner had inspected the properties covered under Exts.A2 to A7 and A9. It was reported that all the said properties are situated around 1.5km to 2.5km from the acquired
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land. Based on these evidences, the reference court observed that the land value assessed by the Acquisition Officer depending on the basic document is not reasonable and sufficient.
5. So also in the case of property included in category Nos.3 to 7, the Land Acquisition Officer had relied on Sale Deed Nos.3343/2008, 3720/2008 and 6246/2008 and adopted an average value of Rs.3,48,084/- per Are. Relying on the evidence available before the Reference Court, it was found that, Exts.A5, A6 and A7 are not comparable sale instances with respect to properties included in category Nos.3 to 7, because those are also properties in the nature of paddy fields. Finding that the value reflected in those exhibits is more than Rs.4,00,000/- per Are, it was found that the basic documents relied on for fixing the value cannot be accepted. But at the same time, the Reference Court after appreciating Exts.A2, A3, A4 and A9 documents observed that, though the properties covered under these Sale Deeds appears to be similarly situated as that of the acquired properties, the individual plot covered by those documents have certain advantages more than that of the acquired land as born out from Exts.C1 and C1A. It was found that Exts.A3, A4 and A9 are the properties purchased by M/s
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Kurian Trading Company Limited and the properties situated on the surroundings belonging to the very same company. Therefore, it was found that the said company was having interest in purchasing the adjacent properties based on some specific advantages which cannot be attributed to the acquired land involved in these cases. Similarly, with respect to Exts.A5, A6 and A7, it was found that the vendee is a private limited company which is 'property developers' and the said fact itself is sufficient for the said company to purchase wet land at a higher consideration. Hence it was found that the added advantages of the purchasers in those sale instances need to be taken as reason to discard the value reflected in those documents for the purpose of fixing land value of the acquired properties. However, the court below found that there were so many other acquisitions took place in the locality for the First Phase Development of the Solid Waste Treatment Plant, acquisition in connection with Smart City, Infopark etc. It was found that those acquisitions were started as early as in the year 2007 and there occurred a consequential inflation in the land value in the locality. It was found by the Reference Court that, based on settled precedents of the Hon'ble Supreme Court, when different transactions are relied on for fixing the value, the transaction
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which represent the highest value should be preferred to the rest, unless there are strong circumstances justifying a different course. But as already observed, the exemplars produced by the claimants were not accepted for the reason that the vendee companies have other advantages in purchasing such properties. It was found that the consideration of more than Rs.8,00,000/per Are reflected in those documents cannot be treated as true value of the property involved in the present acquisition. But at the same time the court below found that the value fixed by the Land Acquisition Officer is very insufficient and it does not reflect the actual value prevailed in the locality during the relevant period. Considering the said aspects, the reference court had re-fixed the value by giving marginal increase from the value fixed by the Land Acquisition Officer in different proportion for properties included in different categories, as mentioned above.
6. Contention of the counsel for the appellants is that, the court below had failed in properly appreciating the evidence adduced with respect to comparability of the land covered under the exemplars produced with that of the acquired property. Per contra, the learned Government Pleader as well as the learned Standing Counsel appearing in different cases for the
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requisitioning authority, contended that the land value re-fixed by the Reference Court for properties under various categories are reasonable and sufficient and it reflects the true market value prevailed in the locality as on the date of the acquisition.
7. While appreciating the rival contentions, it is pertinent to note that, neither the acquisitioning authority nor the requisitioning authority had challenged the impugned judgments in appeals or in cross objections filed. Therefore the only question which need to be considered by the Appellate Court is regarding the sufficiency or justifiability of the land value refixed by the Reference Court in each of the cases. As already observed, the finding of the Reference Court that the value fixed by the Land Acquisition Officer relying on the basic document is insufficient, remains unchallenged. Therefore the question to be decided is as to whether the non-acceptance of the exemplars produced by the claimants, as basis for re-fixing the land value, was legal, correct or proper. Evidently, the Land Acquisition Officer had also considered Exts.A2 to A7 and A9 documents during the award enquiry conducted by him. The 'Notes to Award' contained in the file of the Land Acquisition Officer, marked as Ext.R1 to R7, would indicate that he had considered each of those documents separately. Ext.A2 is Sale Deed
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No.6977/2007 executed on 25.08.2007. It was found that the land is situated on the eastern side of 'Brahmapuram-Karimughal Road' and also on the side of the Panchayath Road and it reflects a value of Rs.10,09,227/- per Are. But the Land Acquisition Officer had not accepted the said document for the reason that the value reflected is too exorbitant when compared with the prevailing market value of the land in the locality. Ext.A3 is Sale Deed No.3384/2008, dated 30.04.2008, which reflected value of Rs.11,36,401/- per Are. It is found by the Land Acquisition Officer that the property is situated on the southern side of the Brahmapuram-Karimughal Road at a distance of about 1.5kms from the acquired land. The said document was discarded by observing that, the value of an old building situated therein is not seen evaluated and the value revealed in that document does not reflect the market value prevailing in that locality. With respect to Ext.A4 document of Sale Deed No.7897/2008, dated 24.01.2008, the Land Acquisition Officer found that the land is situated on the southern side of the Brahmapuram-Karimughal Road at a distance of about 1.5kms from the acquired properties and that the document reflects value at the rate of Rs.12,34,305/- per Are. It was observed that the site in the said document situates very near to the Smart City Project and the
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value mentioned in the document is too exorbitant compared to the market value prevailing in the locality. Likewise, with respect to Ext.A9, Sale Deed No.5982/2008, dated 23.07.2008, it was found that, the land situates near to the south side of the Brahmapuram-Karimughal Road at a distance of 1.5kms. There also it was observed that the land is situated very near to the Smart City Project area and therefore it is not comparable to the land under requisition. It is found that the land value of Rs.8,66,276/- per Are reflected in the document is too exorbitant when compared with the land value prevailing in the area in question.
8. Learned counsel for the appellants/claimants contended that Exts.A2, A3, A4 and A9 are the best exemplars produced before the reference court to arrive at just and reasonable conclusion regarding the market value prevailing in the locality with respect to the dry lands covered under the acquisition, which are included in category Nos.1, 2 and 8. Under such circumstances, we are inclined to examine comparability of the lands covered under those documents with that of the acquired properties, especially the dry lands acquired which were having frontage to the Brahmapuram-Karimughal Public Road. In this regard, we have to consider Exts.C1 & C1A
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report of the Advocate Commissioner and her testimony when examined as AW6. With respect to properties covered under L.A.R Nos.89/2011, 189/2011 and 23/2012, the Advocate Commissioner had reported that the nature of the property is dry land having various improvements of grown-up trees in the property in L.A.R Nos.89/2011 and 189/2011. With respect to the property in L.A.R.No.23/2012, it was reported that, the nature of property is partly wet land and partly reclaimed land. In all the three cases, it is mentioned that the properties are abutting to the Brahmapuram-Karimughal Public Road. In L.A.R.No.23/2012 also, it is reported that, there are Coconut Trees, Arecanut Trees etc. in the acquired property. The Advocate Commissioner had visited the properties covered under Exts.A2 to A7 and A9 and reported about the comparability. With respect to Ext.A2, it is mentioned that the property is situated at about 1.5kms distance from the acquired properties, with frontage to the Brahmapuram-Karimughal Road on the northern side and to a Panchayath Road on the west. It is reported that Ext.A2 property is also situated in the same locality, block and village of the acquired properties and is similar in nature to the acquired properties in L.A.R.Nos.89/2011 and 189/2011. She opined that both the
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properties are having equal importance and potentialities. But it is mentioned that the property in L.A.R.No.23/2012 is of lesser importance as the acquired property is not dry land, but remaining partially wet and partially reclaimed. With respect to property covered under Exts.A3 and A4, it is mentioned that, those are properties situated at 2kms and more from the acquired land. According to the Advocate Commissioner, the property in Exts.A3 and A4 are situated at slightly less important location when compared to the property under Ext.A2. It is stated that the acquired properties in L.A.R.Nos.89/2011 and 189/2011 are of higher importance, because they are lying on the same level of the public road. It is stated that Ext.A9 is a property which is not having frontage to the BrahmapuramKarimughal Road and hence it is not comparable with the acquired properties. As observed by the Reference Court, the properties covered under Exts.A3, A4 and A9 are purchased by M/s Kurian Trading Company Limited. It is evident from the boundary descriptions contained in those documents that the properties purchased were having neighbouring properties owned by the said firm itself. Therefore we are of the considered opinion that the special advantages available to the purchaser in buying those lands need to be considered.
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Moreover, from Ext.C1A sketch it is evident that Ext.A2 property is remaining more close to the acquired land in distance, when compared with the properties covered under Exts.A3, A4 and A9 documents. Moreover, it is evident that the BrahmapuramKarimughal Road starts from Brahmapuram junction and runs towards west. The acquired properties are situated at about a distance of 1.5kms from Ext.A2 property on its western side. Whereas, properties of Exts. A3, A4 and A9 documents are situated further away from the acquired properties on the eastern side. Therefore we are of the opinion that Ext.A2 property is the most suitable sale instance comparable in nature and similarity with that of the acquired property. We do not think that the reasons mentioned by the Land Acquisition Officer for discarding Ext.A2 document as well as the reasons mentioned by the Reference Court in not adopting the said document as a comparable sale instance, cannot be sustained.
9. We take note of the fact that, this court had occasion to dispose of a batch of appeals and cross objections relating to the acquisition for II phase development of the Infopark at Kakkanad. More than 150 cases were disposed of through a common judgment of this court dated 27[th] February, 2018, in L.A.A. No.73/2014 and connected cases. The land acquired in
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those cases are situated very near to the acquired properties in these cases and also near to the property covered under Ext.A2 Document. It has come out in evidence that the land acquired for development of the II phase of the Infopark is situated only at ½ kilometer away from the acquired properties. The acquisition in those cases were based on Section 4(1) notification published on 20-09-2007. The properties involved in those acquisition were included in different categories like dry land, reclaimed land, wet land, wet land having coconut plants planted on bunds etc. In the above mentioned judgment, this court had adopted Ext.A2 document produced in the present case as the best exemplar for fixing the land value of different categories. The acquisition in the present case is by virtue of a Notification published on 17.02.2009. Therefore there is a time gap of about 1½ years. Since Ext.A2 document was relied upon for fixing the land value in those cases, with respect to an acquisition made at about 1½ years before, we are of the considered opinion that the same exemplar can be relied upon for fixing the land value in the present cases as well, because the properties involved in both the cases are situated in the very same locality, within a distance of about 0.5 k.m. to 1.05 k.m.
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10. Even though the appellants/claimants had relied on Exts.A5 to Ext.A7 documents, for fixing the land value with respect to the wet lands involved, we notice that the properties covered under those documents are not situated in a comparable position. It has come out in evidence that there is no pathway leading to the properties comprised in Exts.A5, A6 and A7. Moreover, the only case in these batch of appeals categorised as wet land by the Land Acquisition Officer is L.A.A. No.357/2016 (L.A.R. No.23/2012). But it is found in evidence that the said property is having frontage to the 'Brahmapuram - Karimughal Public Road' and it remains partly reclaimed. Therefore, we are of the opinion that Exts.A5, A6 and A7 sale instances cannot be adopted for fixing the land value even in the said case.
11. In the judgment in L.A.A. No.73/2014 and connected cases dated 27-02-2018, this court had distinguished the properties involved into four major categories as, dry land, reclaimed land, wet land with coconut trees planted on ridges and wet land. The four major categories were again sub categorized based on accessibility to, tarred road, mud road etc. Category No.I(a) described in the said judgment is dry land having tarred road frontage. The property involved in the said category was equated with the property covered under Ext.A2
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herein for fixing the land value. But it was found that the properties included in category No.I(a) in the said judgment was not having frontage to the 'Brahmapuram - Karimughal Road', but only having frontage to tarred Panchayath Road. Therefore this court had reduced the value by 35% from the value of Rs.10,09,635/- per Are reflected in Ext.A2 Document. But in the case at hand, we notice that the properties covered under many of the cases are situated on the side of the 'Brahmapuram - Karimughal Public Road'. We are of the opinion that such a reduction as in the case of L.A.A.No.73/2014 and connected cases is not warranted in the present appeals with respect to properties having frontage to the above said Public Road. Therefore we are of the view that the property covered under Ext.A2 Document can be treated as similar to that of the acquired properties having frontage to the 'Brahmapuram - Karimughal Public Road'. We also take note of the fact that there is a time gap of 1½ years between the date of acquisition in L.A.A.No.73/2014 and connected cases and the date of acquisition in the present cases. It remains settled through the decision of the Hon'ble Supreme Court in **General Manager, Oil & Natural Gas Corporation Ltd. v. Rameshbhai Jivanbhai Patel & Another [(2008) 14 SCC 745]** that
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reasonable and appropriate rate of annual escalation over the relied on evidential transaction need to be awarded while fixing the market value. The guidelines stipulated therein is to the effect that increase in the market value in urban and semi-urban areas should be at about 10% to 15% per annum and the corresponding increase in rural areas should be at about 5% to 7.5%. The locality of the acquired properties in the present case can only be considered as a rural area. Therefore, we are inclined to escalate the value contained in Ext.A2 Document by
7.5% with respect to dry lands having frontage to the 'Brahmapuram - Karimughal Road', by taking an annual escalation of 5%. Thus the value need to be worked out to Rs.10,85,358/- per Are. But at the same time, we take note of the fact that there is a difference in the prominence of the location between the property covered under Ext.A2 and the acquired properties in the present case. As already observed, the most important junction from where the Brahmapuram - Karimughal Public Road starts is from Karimughal Junction. Ext.A2 property is situated at a distance of about 5 km. from the said junction. The acquired properties in the present case are situated towards west by a distance of about 1.5 Kms from A2 property. Moreover, there is easy accessibility from Ext.A2
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property to the area of Infopark, Smart City etc.; whereas the distance from the acquired properties to these institutions will be more. Apart from that, the present acquisition is with respect to the II phase development of the 'Brahmapuram Solid Waste Treatment Plant' of Kochi Corporation. We have to take judicial notice of the fact that, by the establishment of the I phase of the treatment plant in the locality, there exists severe environmental issues, which in fact led to different litigations from that area. Therefore, the properties covered under the present acquisition in the II phase, which is situated very near to the I phase of the 'Waste Treatment Plant' will be having its own locational disadvantages. Hence, we are of the opinion that a reduction need to be made for the difference in the prominence of the location between Ext.A2 property and the acquired properties having frontage to the Brahmapuram - Karimughal Road. On a reasonable estimation, we think it appropriate to reduce the value by 25%, from the above said value arrived. Accordingly, we make a reduction out of the value fixed at Rs.10,85,358/- and refix the value of the properties included in category No.1, which is dry land having frontage to the 'Brahmapuram - Karimughal Public Road' at Rs.8,14,018/-.
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12. We notice that the reference court had included properties covered under LAR Nos.89/2011, 189/2011, 180/2011 and 37/2012 in category No.1, properties described as dry land having frontage to the 'Brahmapuram - Karimughal Public Road'.
The properties comprised in L.A.A. No.87/2017[LAR No.202/2011] was included by the LAO in category No.3, described as dry land lying interior. It has come out in evidence that the acquired property in LAR No.202/2011 is situated on the southern side of the properties covered under LAR Nos.182/2011 and 187/2011. Learned counsel for the appellant pointed out that, LAR No.182/2011 is a property belonging to the elder brother of the 1[st] claimant in LAR No.202/2011. So also it is pointed out that, the property in LAR No.187/2011 is his own family property, in which he is holding title as one among the cosharers along with his mother and siblings. It is evident from the impugned judgment that, the 1[st] claimant in LAR No.202/11 is also one among the claimants in LAR No.187/2011. It has come out in evidence, especially from the sketch contained in the acquisition files of the LAO, that the property in LAR No.202/2011 is situated on the southern side of the properties covered in LAR No.182/2011 and 187/2011. It is also evident that those properties under LAR Nos.182/2011 and 187/2011 are
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having frontage to the Brahmapuram - Karimughal Public Road on the northern side.
13. Learned Government Pleader raised a contention that, the property in LAR No. 202/11 is lying separate and the claimants in the said case cannot claim any right of pathway to the public road through the properties in LAR No.182/2011 and 187/2011. But we take note of the Commissioner's report in the said case, which would reveal that, the property in all the three cases are lying contiguous. As observed above, it is certain that the 1[st] claimant in LAR 202/2011 is also a heir and claimant in the property covered under LAR 187/2011.
14. The Division Bench of this Court in the decision in **Lillykutty v. State of Kerala [2012(4) KLT 428]** held that, the properties of husband and wife which were lying together and contiguously in the same condition and being enjoyed as properties as a common holdings of a family, should be included in the same category. Therefore, we are inclined to include the property acquired in L.A.R.No.202/2011 in the 1[st] category of property having frontage to the 'Brahmapuram Karimughal Road'. Therefore we hold that, properties covered under L.A.A.Nos.345/16, 50/2017, 76/2018, 87/2017 and 71/2018 are to be included in the first category and are entitled for re-fixation
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of land value at the rate of Rs.8,14018/- per Are.
15. With respect to property covered under L.A.A.No.357/2016 [L.A.R. 23/12], it has come out through Ext.C1 Commissioner's report, that the land in question remained partly reclaimed and partly as wet land, even at the date of inspection by the Advocate Commissioner. It is reported that the reclaimed portion is lying at the same level of the public road. In the mahazar prepared by the Land Acquisition Officer, which forms part of the acquisition files, would reveal that the property is situated abutting to the 'Brahmapuram - Karimughal Public Road' on the western side. The above fact was reiterated when the Advocate Commissioner was examined before the reference court as AW6. But the Sketch prepared by the LAO would indicate that, a major portion of the acquired land was lying as wet land. But there is evidence to the effect that the property is having thodu - chira within the wet land area. Considering the entirety of the circumstances, we are of the opinion that the property can be described as wet land having frontage to public road with thodu and chira created therein. In the judgment of this court in LAA 73/2014 and connected cases, such lands were included in category No.III-(A). The land value awarded in the said case is at a decrease of 55% less than the
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value reflected in Ext.A2 Document. As decided with respect to category No.1, we have to consider 7.5% increase from the value reflected in Ext.A2, for the time gap between the date of acquisition in both the cases. 55% reduction in the value was fixed in the judgment in L.A.A.No.73/2014 and connected cases on the basis that the property is having frontage only to a tarred road; whereas Ext.A2 property is having frontage to the public road. But in the case at hand, the property covered under L.A.R.No.23/2012 was proved to be having frontage to the 'Brahmapuram - Karimughal Public Road'. Therefore, we are of the opinion that a reduction at 45% would be a justifiable estimation. Therefore we are of the opinion that enhancement can be granted in L.A.A.No.357/2016(LAR No.23/2012) by reducing 45% from the enhanced figure of Rs.10,85,0358/-. Thus, we refix the value in the said case at Rs.5,96,947/- per Are.
16. Properties covered under L.A.A. No.56/2017(LAR 93/2011) and LAA No.74/2018(LAR 36/2012) are properties having no frontage to the 'Brahmapuram - Karimughal Road'. The reference court found that the property in LAR No.36/2012 is having frontage to a Panchayath Road. Therefore the reference court included the said property in category No.8, as done by the LAO also; and awarded land value by granting
**LAA No.345/2016 and connected cases**
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increase of 60% from the value fixed by the LAO. It cannot be disputed that the property in the said case is originally dry land having frontage to a Panchayath Road. The property covered under L.A.A. No.56/2017 (LAR 93/2011) is a property situated at the side of a Road constructed by the Kochi Corporation, which is referred to as the 'Corporation Road' in the proceedings. The reference court had included the said property in Category No.3 which is described as “original dry land lying interior”, presumably by treating the property as having no road frontage. Contention raised by the appellant in the said case is that, the categorisation is not correct because the property is having frontage to the Corporation Road. It is evident that the respondent had taken a contention before the reference court that the road described as the 'Corporation Road' is exclusively within ownership and usage of Cochin Corporation and the claimant in the said case cannot have any right of access to the said Road. Learned Government Pleader appearing for the respondents in this appeal had also supported the above said contention. Exhibit C1 (a) is the Sketch produced by the Advocate Commissioner along with his report in LAR No.93/2011. It is evident from the Sketch that, the Corporation Road is starting from the 'Brahmapuram-Karimughal Public
**LAA No.345/2016 and connected cases**
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Road' on the northern side of the property acquired in these cases. It proceed to west and then turn to south and joins with the 'Brahmapuram-Karimughal Road' again on its western side. The property on the western side of this Corporation Road is the 'Waste Treatment Plant' constructed within the acquired land in the 1[st] phase of acquisition. The property in LAR No.93/2011 is remaining abutting to the Corporation Road on its western side. The access to the said property from the 'BrahmapuramKarimughal Road' can only be through the Corporation Road. There are also other acquired properties situated on the eastern side of the Corporation Road, with frontage to the said Road. Learned counsel for the appellant contended that, all the land owners situated on the eastern side of the Corporation Road are using the said road for their ingress and egress. Eventhough it is pointed out that the said Road was created by the Corporation for the purpose of access to the 'Waste Treatment Plant', it cannot be found that those land owners having property on the side of the said road can in any manner be prevented from using the said Road. It is also pointed out that there is a Temple situated on the side of the Corporation Road and access to the said Temple is only through the said Road. Taking note of the situation as mentioned above, we are of the opinion that the
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property in LAR No.93/2011 can also be categorised as dry land having access to a tar road other than the BrahmapuramKarimugal Road. Hence we are of the opinion that both the cases herein can be included in the same category. In the judgment of this court in LAA No.73/2014 and connected cases 'dry land with tar road frontage' is included in category IA. A reduction of 35% was estimated from the value reflected in Ext.A2 Document. Therefore we are of the opinion that the value in these cases can be refixed at a decrease of 35% from the value of Rs.10,85,358/(refixed considering the time gap as mentioned above). Thus the land value in these cases will work out to Rs.7,05,482/- per Are.
17. In the result, the above appeals are allowed in part as follows;
(i) LAA Nos.345/2016, 50/2017, 76/2018, 87/2017 & 71/2018 are allowed in part, to the extent of refixing the land value @ Rs.8,14,018/- per Are. The claimants in those cases will also be entitled for value of improvements and structural value if any, awarded by the reference court.
(ii) LAA No.357/2016 is allowed in part by enhancing and refixing the land value @ Rs.5,96,947/- per Are. The claimant will also be entitled to value of structures or improvements if any, awarded by the reference court.
**LAA No.345/2016 and connected cases**
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(iii) LAA No.56/2017 and 74/2018 are allowed in part to the extent of enhancing and refixing the land value @ Rs.7,05,482/per Are. The claimants will be entitled for structural value and value of improvements if any awarded by the reference court.
The appellants/claimants in all the above appeals will also be entitled for all the statutory benefits on the re-refixed compensation, as provided under Section 23 (1A), 23 (2) and 28 of the Land Acquisition Act, along with proportionate cost.
18. It is made clear that the appellants/claimants will not be entitled for interest contemplated under Section 28 of the Act to the extent of the periods of delay condoned by this court in filing the appeals, except in LAA No.357/2016.
19. Learned counsel for the appellant had pointed out that, in some of the cases there is deficiency in the court fee remitted based on the claim made in the appeals. It is also pointed out that in some of the cases the balance court fee is yet to be paid. We take note of the decision of the hon'ble Supreme Court in
**Chandrasekhar and others V. Additional Special Land Acquisition Officer ((2009) 14 SCC 441)** wherein it is held that, once the appellant was declared as entitled to enhanced compensation, they could not be deprived of the same on such technical grounds as that of deficiency of court fee. It is directed
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that the appellant should be given opportunity to make the deficit court fee in such cases paid. Relying on the principle in the above case, we grant the appellants time of 15 days from the date of receipt of a copy of this judgment to deposit the balance court fee and/or deficit court fee, if any due. The registry is directed to check the payments at the time of drawing the decree in each cases and if any failure is noticed, the appellant will be entitled for decree only to the extent of the claim made in the appeal, for which the court fee is remitted.
**Sd/-**
**C.K.ABDUL REHIM**
**JUDGE**
**Sd/SHIRCY V. JUDGE**
**Ks/vgd/Ul/AMG**
**LAA No.345/2016 and connected cases -41-**
## **APPENDIX OF LA.App. 345/2016**
## **APPELLANT/S EXHIBITS:**
**ANNEXURE A1 DISCHARGE SUMMERY DATED 08/08/2015 ISSUED FROM MOSC MEDICAL COLLEGE HOSPITAL, KOLENCHERRY. ANNEXURE A2 DISCHARGE SUMMERY DATED 06/09/2013 ISSUED FROM MOSC MEDICAL COLLEGE HOSPITAL, KOLENCHERRY.**
**LAA No.345/2016 and connected cases -42-**
## **APPENDIX OF LA.App. 357/2016**
## **APPELLANT/S EXHIBITS:**
**ANNEXURE A1 DISCHARGE SUMMERY DATED 08/08/2015 ISSUED FROM MOSC MEDICAL COLLEGE HOSPITAL, KOLENCHERRY.**
**ANNEXURE A2 DISCHARGE SUMMERY DATED 06/09/2013 ISSUED FROM MOSC MEDICAL COLLEGE HOSPITAL, KOLENCHERRY.**
**LAA No.345/2016 and connected cases -43-**
## **APPENDIX OF LA.App. 50/2017**
## **APPELLANT/S EXHIBITS:**
**ANNEXURE A1 (1)ORIGINAL DISCHARGE SUMMARY OF ABDUL MUTHAR ISSUED FROM LAKESHORE HOSPITAL MARADU. (2) AFFIDAVIT OF ASHARAF T.I. ANNEXURE A2 (1) ORIGINAL DISCHARGE SUMMARY OF SHABINA ASHRAF ISSUED FROM ASTER MEDCITY. (2) TRUE COPY OF SECONDARY SCHOOL LEAVING CERTIFICATE OF SAMEERA T.A. ISSUED BY SECRETARY, BOARD OF PUBLIC EXAMINATIONS, KERALA. ANNEXURE A3 ORIGINAL OF THE DEATH CERTIFICATE OF ABDUL MUTHAR DATED 23/12/2015. ANNEXURE A4 ORIGINAL OF THE DEATH CERTIFICATE OF SHABINA ASHRAF DATED 04/08/2016. ANNEXURE A5 RELATIONSHIP CERTIFICATE ISSUED BY VILLAGE OFFICER, PUTHENCRUZ RELATING TO ABDUL MUTHAR DATED 23/08/2016. ANNEXURE A6 RELATIONSHIP CERTIFICATE ISSUED BY VILLAGE OFFICER, PUTHENCRUZ RELATING TO SHABINA ASHRAF DATED 23/08/2016.**
**LAA No.345/2016 and connected cases**
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## **APPENDIX OF LA.App. 56/2017**
|||**APPENDIX OF LA.App. 56/2017**|
|---|---|---|
|**APPELLANT**|**/S**|**EXHIBITS:**|
|**ANNEXURE A1**||**(1)ORIGINAL DISCHARGE SUMMARY OF ABDUL MUTHAR**|
|||**ISSUED FROM LAKESHORE HOSPITAL MARADU. (2)**|
|||**AFFIDAVIT OF ASHARAF T.I.**|
|**ANNEXURE A2**||**(1) ORIGINAL DISCHARGE SUMMARY OF SHABINA ASHRAF**|
|||**ISSUED FROM ASTER MEDCITY. (2) TRUE COPY OF**|
|||**SECONDARY SCHOOL LEAVING CERTIFICATE OF SAMEERA**|
|||**T.A. ISSUED BY SECRETARY, BOARD OF PUBLIC**|
|||**EXAMINATIONS, KERALA.**|
|**ANNEXURE A3**||**ORIGINAL OF THE DEATH CERTIFICATE OF ABDUL MUTHAR**|
|||**DATED 23/12/2015.**|
|**ANNEXURE A4**||**ORIGINAL OF THE DEATH CERTIFICATE OF SHABINA ASHRAF**|
|||**DATED 04/08/2016.**|
|**ANNEXURE A5**||**RELATIONSHIP CERTIFICATE ISSUED BY VILLAGE OFFICER,**|
|||**PUTHENCRUZ RELATING TO ABDUL MUTHAR DATED**|
|||**23/08/2016.**|
|**ANNEXURE A6**||**RELATIONSHIP CERTIFICATE ISSUED BY VILLAGE OFFICER,**|
|||**PUTHENCRUZ RELATING TO SHABINA ASHRAF DATED**|
|||**23/08/2016.**|
**LAA No.345/2016 and connected cases**
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## **APPENDIX OF LA.App. 71/2018**
## **APPELLANT/S EXHIBITS:**
**ANNEXURE A1 THE ORIGINAL OF THE DISCHARGE SUMMARY OF SUKUMARAN NAIR ISSUED FROM LAKESHORE HOSPITAL.**
**ANNEXURE A2 THE ORIGINAL OF THE DISCHARGE SUMMARY OF SUKUMARAN NAIR ISSUED FROM LAKESHORE HOSPITAL. ANNEXURE A3 THE ORIGINAL OF THE DISCHARGE SUMMARY OF SUKUMARAN NAIR ISSUED FROM LAKESHORE HOSPITAL.**
**ANNEXURE A4 THE ORIGINAL OF THE DISCHARGE SUMMARY OF LALITHA SUKUMARAN NAIR ISSUED FROM LAKESHORE HOSPITAL, KOCHI.**
**ANNEXURE A5 THE ORIGINAL DISCHARGE SUMMARY ISSUED FROM SAMARITAN HOSPITAL, PAZHANGANAD. ANNEXURE A6 THE ORIGINAL DISCHARGE SUMMARY ISSUED FROM SUNRISE HOSPITAL, KAKKANAD.**
**LAA No.345/2016 and connected cases**
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## **APPENDIX OF LA.App. 74/2018**
## **APPELLANT/S EXHIBITS:**
- **ANNEXURE A1 ORIGINAL DISCHARGE SUMMARY DATED 06/01/2015 OF SEETHAL SUSAN PAUL ISSUED FROM P.V.S. HOSPITAL, ERNAKULAM.**
- **ANNEXURE A2 ORIGINAL DISCHARGE SUMMARY DATED 27/05/2016 OF SEETHAL SUSAN PAUL ISSUED FROM P.V.S. HOSPITAL, ERNAKULAM.**
- **ANNEXURE A3 ORIGINAL DISCHARGE SUMMARY DATED 29/12/2017 OF SEETHAL SUSAN PAUL ISSUED FROM P.V.S. HOSPITAL, ERNAKULAM.**
- **ANNEXURE A4 DISCHARGE SUMMARY DATED 10/10/2016 OF ALEYAMMA MATHEW ISSUED FROM LISIE HOSPITAL, ERNAKULAM.**
- **ANNEXURE A5 DISCHARGE SUMMARY DATED 04/04/2016 OF RAJU M.M. ISSUED FROM LISIE HOSPITAL, ERNAKULAM.**
- **ANNEXURE A6 DISCHARGE SUMMARY DATED 30/05/2015 OF MATHEW VARGHESE ISSUED FROM MOSC MEDICAL COLLEGE HOSPITAL, KOLENCHERRY.**
- **ANNEXURE A7 DISCHARGE SUMMARY DATED 09/12/2017 OF MATHEW VARGHESE ISSUED FROM MOSC MEDICAL COLLEGE HOSPITAL, KOLENCHERRY.**
- **ANNEXURE A8 SUMMARY CASH BILL DATED 09/04/2014 OF M V MATHEW ISSUED FROM MOSC MEDICAL COLLEGE HOSPITAL, KOLENCHERRY.**
- **ANNEXURE A9 SUMMARY CASH BILL DATED 25/06/2014 OF M.V. MATHEW ISSUED FROM MOSC MEDICAL COLLEGE HOSPITAL, KOLENCHERRY.**
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## **APPENDIX OF LA.App. 76/2018**
**APPELLANT/S EXHIBITS:**
**ANNEXURE A1 DISCHARGE SUMMERY DATED 08/08/2015 ISSUED FROM MOSC MEDICAL COLLEGE HOSPITAL, KOLENCHERRY.**
**ANNEXURE A2 DISCHARGE SUMMERY DATED 06/09/2013 ISSUED FROM MOSC MEDICAL COLLEGE HOSPITAL, KOLENCHERRY.**