Margaret Sunny, Hazel Marquis and Jessy Anslem v State of Kerala and The Director, Tourism Department

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN THURSDAY, THE 28TH DAY OF SEPTEMBER 2017/6TH ASWINA, 1939 LA.App..No. 345 of 2012 () --------------------------AGAINST THE ORDER/JUDGMENT IN LAR 16/2001 of II ADDL.SUB COURT,THIRUVANANTHAPURAM DATED 22-07-2011 APPELLANT(S/CLAIMANTS: --------------------- 1. MARGARET SUNNY, D/O CARMEL ROSSARIO,AGED 70 YEARS, FORMERLY RESIDING AT T.C 29/1189, VALIYATHOPPIL, PETTAH VILLAGE, THIRUVANANTHAPURAM AND NOW RESIDING AT T.C 34/895, CARMEL COMPOUND, VALIYATHOPPU, THIRUVANANTHAPURAM 2. HAZEL MARQUIS, D/O CARMEL ROSSARIO,AGED 69 YEARS, FORMERLY RESIDING AT -DO- AND NOW RESIDING AT T.C 34/895, CARMEL COMPOUND, VALIYATHOPPU, THIRUVANANTHAPURAM 3. JESSY ANSLEM, D/O CARMEL ROSSARIO, FORMERLY RESODING AT T.C 29/1189, VALIYATHOPPIL, PETTAH VILLAGE, THIRUVANANTHAPURAM AND NOW RESIDING AT ANUGRAH,CARMEL COMPOUND, VALIYATHOPPU, THIRUVANANTHAPURAM REPRESENTED BY HER HUSBAND AND POWER OF ATTORNEY HOLDER ANSLEM REBEIRO, S/O EMMANUAL REBEIRO, RESIDING AT T.C 34/895, VALIYATHOPPU, THIRUVANANTHAPURAM BY ADVS.SRI.V.AJAKUMAR SRI.T.M.CHANDRAN SRI.SIDHARTH A.MENON RESPONDENT(S): -------------- 1. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, COLLECTORATE, THIRUVANANTHAPURAM 695001 2. THE DIRECTOR, TOURISM DEPARTMENT, OFFICE OF THE DIRECTOR OF TOURISM, VELI, THIRUVANANTHAPURAM 695001 BY SR GOVERNMENT PLEADER SMT.AMMINIKUTTY K. THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 7-07-2017, THE COURT ON 28/9/2017 DELIVERED THE FOLLOWING: ## **A.M. SHAFFIQUE & ANU SIVARAMAN, JJ.** =========================== LAA No.345 of 2012 ============== Dated this, the 28[th] day of September, 2017 ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal is filed by the claimants in LAR No.16/2001 of the II[nd] Addl.Sub Court, Thiruvananthapuram. 2. An extent of 95 cents of property comprised in Sy.No.52/IV and 52/II of Kadakampally village was acquired for expansion of Veli Tourism village pursuant to notification under Section 4(1) of the Land Acquisition Act, 1894 published on 9/3/1998. 3. The Land Acquisition Officer included the property having an extent of 30.80 Ares under two different categories. In respect of 6.80 Ares, land value was fixed at `37,513/- per Are and in respect of 24 Ares at `14,820/- per Are. According to the claimants, though the entire area of 95 cents were acquired, the Land Acquisition Officer acknowledged only 30.80 Ares (76 cents) to the LAA No.345/2012 ## -:2:- credit of the claimants. 4. The claimants objected to the award and accordingly the matter was referred under Section 18 of the LA Act. Originally, the case was tried along with LAR Nos.48/2000 and 49/2000 which were reference under Section 31(2) of the LA Act. An award was passed by the Reference Court on 27/2/2008. Claimants preferred appeal as LAA No.1315/2010 against LAR No.16/2001 and accordingly, after setting aside the decree already passed, the matter was remitted back for fresh consideration. Before remand, AW1 was examined and Exts.A1 to A15 were already marked. After remand, AW2, the Advocate Commissioner was examined and Exts.C1 and C2 were marked. The earlier common judgment in LAR No.16/2001 and connected cases was marked as Ext.A16. Respondents relied upon Exts.R1 to R4. 5. The Reference Court, after remand, refixed the land value at `50,000/- per Are for both items of property treating the property as coming under Category C. Claimant being dissatisfied with the said award has approached this Court. Before this Court, LAA No.345/2012 -:3:- claim is for fixing the land value at `1 lakh per Are. By an order dated 7/2/2012 in IA No.704/2012 (a), the Reference Court had corrected the extent of land under acquisition as 81.929 cents instead of 30.80 Ares (76 cents). 6. The main contention urged by the learned counsel for the appellants is that the property ought to have been included under Category A as the property was having road access to the main road. This fact had been reported by the Advocate Commissioner as evident from Exts.C1 and C1(a) reports. In respect of property coming under Category A, this Court in a connected case with reference to the very same notification has fixed the land value at `1 lakh per Are. Reference is made to the judgment in _**State of Kerala v. Celin**_ decided on 26/3/2009 in LAA No.537/2007. That was a case in which property coming under the very same notification was categorized by the Land Acquisition Officer into Category A and B. The Sub Court fixed the market value of property coming under Category A at `1 lakh. This Court did not interfere with the said judgment. The contention urged is that judgment in LAA No.537/2007 has to be LAA No.345/2012 -:4:- applied to the land acquired in the present case. Reference is also made to the judgment in LAA Nos.1167, 1450 and 2014 of 2008 decided on 1/3/2011. That case also related to properties acquired under the very same notification. The appellants challenge the categorization of the properties involved. It is argued that the Land Acquisition Officer had categorized the land into 4 categories, A, B, C and D. Property of the claimants was categorized in C and D categories and Court below had already observed that C and D categories can be categorized under category C. But, according to the claimants, the property having access to the main road, should be categorized under Category A alone. It is pointed out that certain extent of land belonging to the claimants were included in another land acquisition reference case and in a reference under Section 31(2), the said property had been held to belong to the claimants. If that property is included, it was a pathway leading to the main road, in which event, the claimants are entitled for change of category. It is already found that the property already in possession of the claimant is 81.929 cents and not 76 cents as found by the Land LAA No.345/2012 -:5:- Acquisition Officer. 7. The learned Government Pleader submitted that there is no reason to interfere with the judgment. The property of the claimants does not have main road facility and therefore, it can never be categorized under Category A. There is no evidence to show that the property is having access to the main road and therefore, at no stretch of imagination can a claim be made for the value of property covered by Category A. It is argued that reasonable compensation has already been granted by treating two categories as a single block. 8. On the basis of these rival claims, the short question to be considered is in regard to the market value of land covered by the above notification. A perusal of the Award Note would show that the properties had been categorized as Category A to D. Category A is dry land with reference to properties on the side of Veli Madhavapuram, Veli Sanghumugham tar road. Category B are properties which are not by the side of a public road. Category C is a coconut garden with water bodies, ridges and without a public road/pathway. D Category involves land which are lying LAA No.345/2012 -:6:- waterlogged, marshy and without any public road facility. The Land Acquisition Officer had categorized 6.80 Ares under Category C ad 24 Ares under category D. The Advocate Commissioner deputed to the site after several years from the date of acquisition observed that when she visited the property it was levelled with granite pieces and the acquired property and the tarred road are lying in the same level Further, it was observed that the acquired property is behind the properties in LAR Nos.92 and 93/2000. 9. The method of valuation made by the Land Acquisition Officer was by fixing the land value for A category at `27,000/per cent and thereafter 25% was deducted to arrive at the value of Category B property. In respect of Category C, the value was fixed at `15,187.50 per cent by deducting 25% from the value of Category B. `6,000/- per cent was fixed as value for Category D. The property was taken by the Land Acquisition Officer on 17/7/1999 and the Advocate Commissioner visited the property on 23/5/2009. The Court below further found that it was not proper for the Land Acquisition Officer to have categorized the LAA No.345/2012 -:7:- property into two categories and therefore, it is found that since the property is lying as a single plot, it can be included in Category C and since `1 lakh was fixed as value for Category A and B, the value of the property under acquisition was fixed at `50,000/- per Are, i.e., 50% of the value given to Category A and B. 10. The question is, whether the claimant had access to the main road through a private property and whether the entire property of the claimants could be given the value of A category or not. 11. Category A and B are apparently dry lands. Category A has main road frontage of a tar road and Category B is dry land without public road access. Even the Court below did not rely upon the Advocate Commissioner's report as the report was prepared 10 years after Section 4(1) notification. Therefore, the nature and lie of the property at the time of acquisition is not discernible from the Commissioner's report. No materials are available in regard to the nature and lie of the property as on the date of acquisition. The property coming under Category C is not LAA No.345/2012 -:8:- dry land whereas it has canals, ridges and coconut trees and the property coming under Category D is waterlogged marshy land. The Reference Court had already categorized both the properties as a single block and had given the value of C Category. 12. Now the only difference is based on the argument that the entire property had an access to the main road. AW1, while being examined in the case, placed reliance upon Ext.A1, the title deed bearing No.990/1968 by which he along with claimants 2 and 3 obtained title in respect of 95 cents in Sy.Nos.52/1 and 52/2 of Kadakampally Village. Out of the entire 95 cents, 1[st] claimant had 36 cents, 2[nd] claimant had 37 cents and the 3[rd] claimant 22 cents. She deposed that entire 95 cents were acquired, but, land value was given only for 76 cents. She had deposed that the property is lying on the eastern side of the road leading to Sanghumugham from Veli Tourist village and it has direct access to the road. In her evidence, she claimed land value at `15,000/per cent. In cross examination, she submitted that she does not remember the boundaries of the property. Veli Sanghumugham road is an old road and she does not know whether the said road LAA No.345/2012 -:9:- has been shown as boundary for the acquired property. Further a question was asked whether coconut trees were planted in certain portions, her answer was that property was reclaimed and cultivated with coconut trees. She further deposed that the property is a little far away from Sanghumugham road. In between her property and Sanghumugham Vely road, there is only one property. She also deposed that from the Sanghumugham Veli road, there was a small road to her property through which a vehicle can pass. She was asked whether there was any canal (ºÞW), her answer was that ºÞW was there at the time it was a paddy field. The property by the side of the road was dry land. In re-examination she says that the access to her property is from Veli Madhavapuram road which was metalled after acquisition. 13. In the mahazar prepared by the Land Acquisition Officer which has been marked as Ext.R1, it is stated that the acquired land was lying about 150 metres east of the Veli Club which is 350 metres from the road leading from Veli to Sanghumugham, which is near Madhavapuram Junction between LAA No.345/2012 ## -:10:- All Saint's College and ISRO Road. The Advocate Commissioner was examined as AW2. She deposed that the acquired property is lying behind the property in LAR Nos.92, 93 and 109/2000 which has direct access to the Sanghumugham road. In cross examination, she had identified the land as shown by the party. She stated that the client had informed her that the road leading to the property was metalled after acquisition. Though it is contended by the learned counsel for appellants that there is a direct road access to the property from the main road, it is not discernible from any document. It is stated that the access was through the other property which was found in favour of the claimant in another reference. But there is no material to indicate that the claimants were having any direct road access. Especially from the Advocate Commissioner's report, one cannot come to a conclusion that there was an access from the main road. Unless the property is identified and the access is proved by cogent evidence, it may not be possible for this Court to arrive at a finding based on the oral testimony of AW1. AW1 in her evidence had not stated that the property involved in another reference LAA No.345/2012 ## -:11:- was the access to the acquired property from the main road. The Advocate Commissioner in her report observes that even though there is direct access from the main road, the acquired property is behind the properties in LAR Nos. 92 and 93/2000 and her report is based on the claimants' submission that there was a motorable road prior to acquisition. In her report marked as Ext.C2, she does not say that the property involved in another reference was lying as a road leading to the acquired property. In so far as the road portion had not been identified by the Advocate Commissioner based on documents, the argument cannot be accepted and no ground had been taken up even in the memorandum of appeal stating that the property involved in yet another reference was the road portion. Of course, in a reference under Section 31(2) as LAR Nos.48/2000 and 49/2000, compensation for certain extent of land was given to the claimant. But, there is no evidence to confirm that even the said land was the road portion. 14. In the light of the above findings, we do not think that the claimants are entitled for land value in respect of either LAA No.345/2012 **==> picture [27 x 9] intentionally omitted <==** category A or B. In fact, the Court below had already awarded land value treating the property as coming under Category C for the entire block though the Land Acquisition Officer had valued it differently taking into account the nature of property. Therefore, reasonable compensation has already been awarded taking into account all the relevant facts and in such circumstances, we do not think that this Court should place reliance on the judgment in LAA No.537/2007 and fix the land value as sought for. We do not find any merit in the grounds raised. Appeal is, therefore, dismissed. Parties shall bear their own costs. Sd/- ## **A.M. SHAFFIQUE, JUDGE** Sd/- **ANU SIVARAMAN, JUDGE** Rp //True Copy// P.S to Judge