LAND ACQUISITION COLLECTOR, KAVARATHI v. HAVVAKOIFU ATHIRIGOTHI MEDUGE & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY ,THE 21ST DAY OF MARCH 2019 / 30TH PHALGUNA, 1940** ## **LA.App..No. 278 of 2016** **AGAINST THE JUDGMENT AND DECREE DATED 29.10.2015 IN LAR NO.53/2012 of DISTRICT COURT, KAVARATTY** ## **APPELLANT/RESPONDENT:** **THE LAND ACQUISITION COLLECTOR, KAVARATHI.** **BY ADVS. SRI.S.RADHAKRISHNAN,SC,LAKSHADWEEP ADMN SRI.S.MANU, SC, LAKSHADWEEP ADMN** ## **RESPONDENT/S:** - **1 HAVVAKOIFU ATHIRIGOTHI MEDUGE,REEDUGE VILLAGE, MINICOY.682559.** - **2 IBRHAIM ATHIRIGOTHI MEDUGE S/O LATE AMINAKOIFU ATHIRIGOTHI MEDUGE,AOUMAGU VILLAGE, MINOCOY-682539.** - **3 MOHAMMED LANDURANGADUWAR S/O LATE DONKOIFU ATHIRIGOTH MEDUGE,BODUVALHU GANDUWAR BADA VILLAGE,MONICOY-682559.** - **4 KADHA VALUMAUGOTHI D/O LATE HUSSAINKOIFU, ATHIRIGOTHI MEDUGE,VALUMAUGOTHI BADA VILLAGE, MINICOY-682559.** - **5 HASSANKOIFU ATHIRIGOTHI MEDUGE (DIED) REMEDUGE VILLAGE, MINICOY,(LEGAL HEIRS IMPLEADED AS 10 & 11)-682559.** - **6 KADHA THITHIGE D/O LATE IBRAHIMKOIFU,ATHIRIGOTHI MEDUGE,THITHIGE AOUMAGE, MINICOY-682559.** L.A.A.No.278/2016 2 - **7 MOHAMMED MANIKFAN DONTHIGOTHI S/O DONKOIFU ATHIRIGOTHE MEDUGE, MINICOY.682559.** **8 HAVVA VELUMAGOTHI D/O HASSANKOIFU, ATHIRIGOTHI MEDUGE, MINICOY682559.** - **9 MOHAMMED ATHIRIGOTHI MEDUGE S/O AMINKOIFU ATHIRIGOTHI MEDUGE, MINICOY-682559.** - **10 HAVVA** **W/O LATE HASSANKOIFU ATHIRIGOTHI MEDUGE,VALUMAGOTHI, MINICOY.682559.** - **11 HASEEN** **D/O LATE HASSANKOIFU, ATHIRIGOTHI MEDUGE,VALUMAGOTHI, MINICOY.682559.** **BY ADV. SRI.ANIL ABEY JOSE FOR R1 TO 4, 6, 8,9,11** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 18.03.2019, THE COURT ON 21.03.2019 DELIVERED THE FOLLOWING:** ## **C.K.ABDUL REHIM &** ## **R.NARAYANA PISHARADI, JJ.** ************************** L.A.A.No.278 of 2016 ------------------------------------------Dated this the 21[st] day of March, 2019 ## **J U D G M E N T** ## **R.Narayana Pisharadi, J** This appeal arises out of the judgment dated 29.10.2015 passed by the District Court, Kavaratti in L.A.R.No.53/2012. 2. An extent of 910 square metres of land situated in Sy.No.315/2B2 of Minicoy Island, owned by the respondents/claimants, was acquired for the purpose of construction of oil storage facilities. Notification under Section 4(1) of the Land Acquisition Act, 1894 was published on 21.09.2010. The Land Acquisition Officer granted compensation for land by fixing the value of the land at Rs.1,047/- per square metre. The reference court enhanced the compensation for land by refixing the value of the land at Rs.8,140/- per square metre. Aggrieved by the award passed by the reference court, the Land Acquisition Collector, Kavaratti has filed this appeal. L.A.A.No.278/2016 4 3. We have heard the learned Standing Counsel for Lakshadweep Administration and also the learned counsel for the respondents/claimants. We have also perused the records. 4. Exts.A1 to A5 are the documents produced by the claimants before the reference court in support of their plea for enhancement of compensation. 5. Ext.A1 is the copy of the award passed by the Land Acquisition Collector in another case relating to acquisition of land for the purpose of construction of Thermal Desalination Plant. The market value of the land acquired in that case was fixed at Rs.4,954/- per square metre. Ext.C1 report of the Advocate Commissioner shows that the property covered by Ext.A1 is situated very near the sea at a distance of 1200 metres from the land acquired and it is not a property similarly situated. Further, it is not known whether the value of the land fixed as per Ext.A1 had become final or not. Therefore, Ext.A1 award cannot be relied upon to fix the market value of the land acquired in the instant case. L.A.A.No.278/2016 5 6. The value of the land shown in Exts.A3 to A5 sale deeds also cannot be adopted as the basis for fixation of the market value of the land acquired. The claimants did not take any steps to show the lands covered by those documents to the Advocate Commissioner. There is no evidence to find that the lands covered by Exts.A3 to A5 documents are similar and similarly situated as the land acquired. In such circumstances, it would not be proper to adopt the value of the land shown in Exts.A3 to A5 documents as the basis for fixation of the market value of the land acquired. 7. Ext.A2 is the copy of document No.49/2010. As per this document, on 12.04.2010, 50 square metres of land was sold for a consideration of Rs.9,840/- per square metre. Ext.C1 report of the Advocate Commissioner shows that this property is situated at a distance of 250 metres from the land acquired. The reference court has adopted the value of the land shown in Ext.A2 document as the basis for fixation of the market value of the acquired land. L.A.A.No.278/2016 6 8. The reference court found that there is an interval between the date of the transaction covered by Ext.A2 document and the date of publication of notification of acquisition and enhanced the value of the land by 3.5% from the value of Rs.9,840/- shown in Ext.A2 document. Thereafter, the reference court reduced the amount by 20% by taking into consideration the fact that the transaction covered by Ext.A2 document was in respect of only a small bit of land compared to the extent of the land acquired and thus fixed the value of the land acquired at Rs.8,140/- per square metre. 9. The award passed by the Land Acquisition Officer shows that he took into consideration the value of the land shown in four sale deeds and that he fixed the value of the land acquired by taking an average of the value of the land shown in those documents. The relevant portion of the award passed by the Land Acquisition Officer reads as follows: _“The following land transaction details collected from SRO Minicoy vide documents number 10/10, 49/10, 71/10 & 92/10. The_ L.A.A.No.278/2016 7 _average value of all the documents are considered in this acquisition for assessing the market value of land. I am in the opinion that the market value of land under this acquisition can be fixed at Rs._ 1,047/- _per Sqm as true and fair market value.”_ 10. It is to be noted that one of the transactions taken into consideration by the Land Acquisition Officer for fixing the value of the land acquired is the transaction covered by Ext.A2 document. 11. Learned Standing Counsel who appeared for the appellant contended that Ext.A2 sale deed is a document created for the purpose of showing inflation of value of land in the locality in anticipation of acquisition of land and that the aforesaid document does not reflect the real market value of the property on the date of publication of the notification of acquisition. Learned Standing Counsel would contend that Ext.A2 document was executed by the members of the family of the claimants in respect of a small bit of land and that it is not a bona fide transaction. L.A.A.No.278/2016 8 12. The transaction covered by Ext.A2 document is a pre-notification transaction. Therefore, in the absence of any evidence adduced by the Land Acquisition Officer before the reference court to prove that Ext.A2 sale deed was created for the purpose of showing high value of land in the locality and that it is a collusive transaction, we are not able to accept the aforesaid contentions raised by the learned Standing Counsel. 13. The following circumstances would show that the reference court was justified in accepting the value of the land shown in Ext.A2 sale deed as the basis for fixation of the market value of the land acquired. (1) The transaction covered by Ext.A2 document is a pre-notification transaction. (2) The Land Acquisition Officer himself had adopted Ext.A2 document as one of the documents for fixation of the market value of the land in the locality. (3) Ext.C1 report of the Advocate Commissioner shows that the land shown in Ext.A2 document is situated very near to the land acquired, that is, only at a distance of 250 metres. (4) Though there is an allegation raised by the L.A.A.No.278/2016 9 appellant that Ext.A2 is a document created by the members of the family of the claimants, admittedly, the aforesaid land was purchased not by a relative of the claimants or a person who belongs to their family but an outsider. (5) No plea was raised before the reference court that the transaction covered by Ext.A2 document is a sham transaction. No evidence was adduced before the reference court by the Land Acquisition Officer to prove that the aforesaid transaction is not a bona fide transaction. 14. The claimants are expected to lead cogent and proper evidence in support of their claim for enhancement of compensation. The burden is on the claimants to establish that the amount awarded to them by the Land Acquisition Officer is inadequate and that they are entitled to get more amount. But, it cannot be said that there is no onus whatsoever upon the State to adduce evidence to prove that the amount granted to the claimants is just and reasonable. The Court cannot lose sight of the fact that obligation to pay fair compensation is on the State. L.A.A.No.278/2016 10 15. In **Mehrawal Khewaji Trust v. State of Punjab : AIR 2012 SC 2721,** which is also referred to by the reference court, the Hon'ble Supreme Court has held as follows: _“It is clear that when there are several exemplars with reference to similar lands, it is the general rule that the highest of the exemplars, if it is satisfied, that it is a bona fide transaction has to be considered and accepted. When the land is being compulsorily taken away from a person, he is entitled to the highest value which similar land in the locality is shown to have fetched in a bona fide transaction entered into between a willing purchaser and a willing seller near about the time of the acquisition. In our view, it seems to be only fair that where sale deeds pertaining to different transactions are relied on behalf of the Government, the transaction representing the highest value should be preferred to the rest unless there are strong circumstances justifying a different course. It is not desirable to take an average of various sale deeds placed before the ” authority/Court for fixing fair compensation._ (emphasis supplied) L.A.A.No.278/2016 11 16. The value of the land shown in Ext.A2 document is the highest value in different sale transactions. The Land Acquisition Officer himself had considered that document for taking average of the value of the land shown in various sale deeds. The decision of the Apex Court referred to above would show that it is not desirable to take an average of various sale deeds for fixing fair compensation but it is only fair that where sale deeds pertaining to different transactions are relied on by the State, the transaction representing the highest value should be preferred to the rest, unless there are strong circumstances justifying a different course. In the instant case, there is no evidence to prove that the transaction covered by Ext.A2 document is a collusive or sham transaction and that it is not a bona fide transaction. In such circumstances, the reference court has rightly relied upon that document for fixing the market value of the land acquired. 17. In the aforesaid circumstances, we find that the compensation for land granted by the reference court is just and L.A.A.No.278/2016 12 reasonable. We see no sufficient ground to interfere with the impugned judgment. Consequently, the appeal is dismissed. No costs. (sd/-) **C.K.ABDUL REHIM, JUDGE** (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr/19/03/2019 True Copy PS to Judge