Margret (W/o Thomas) v. State of Kerala and Cochin Port Trust

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI THURSDAY, THE 12TH DAY OF APRIL 2012/23RD CHAITHRA 1934 LA.App..No. 223 of 2012 ---------------------------LAR.48/2009 of III ADDL.SUB COURT, ERNAKULAM ------------- APPELLANT(S)/CLAIMANT: ----------------------------- MARGRET, W/O THOMAS,MACHUVEETTIL HOUSE, CHERANELLOOR COCHIN 34 BY ADVS.SRI.AUGUSTINE JOSEPH SRI.S.DILEEP SRI.K.S.ROCKEY RESPONDENT(S)/RESPONDENTS: ------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SPECIAL TAHASILDAR (LAND ACQUISITION) INTERNATIONAL CONTAINER TRANSHIPMENT TERMINAL VALLARPADAM,ELOOR,ERNAKULAM 683501 2. CHAIRMAN, COCHIN PORT TRUST, W.ISLAND ERNAKULAM-682003 BY SR. GOVERNMENT PLEADER SRI.C.R.SYAMKUMAR -R1 SRI.M.GOPIKRISHNAN NAMBIAR - R2 SMT.THUSHARA JAMES THIS LAND ACQUISITION APPEAL HAVING COME UP FOR ADMISSION ON 12-04-2012, A/W LAA.225/12, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ. -----------------------------------------------L. A. A Nos.223 & 225 of 2012 -----------------------------------------------Dated this the 12[th] day of April, 2012 ## **JUDGMENT** ## _Pius C. Kuriakose, J_ As it is a common issue that arises in both these appeals, we are deciding both these appeals under a common judgment. 2. These appeals pertain to acquisition of land in Mulavukad village for the purpose of construction of four line connectivity to ICTT Vallarpadam. The Land Acquisition Officer included the properties in categories 1 and 2. For properties included in category-1 he awarded value at the rate of ` 71,464/- per Are. For the properties included in category-2 he awarded value at the rate of ` 57,171/- per Are. The Reference Court found that the properties included in these two categories which were lying contiguously belonged to one and the same person. Therefore, the court L. A. A Nos.223 & 225 of 2012 -2- took the view that putting these properties in two different categories was unjustified. The Reference Court therefore, found that the entire property was eligible to be included in category-1. On evaluating the evidence adduced by the parties, the Reference Court found that Ext.A3, a document executed six years prior to the promulgation of the relevant Section 4(1) notification (08/05/07), was the only relevant document which could be taken into account. The learned Subordinate Judge added 90% for the passage of time (despite the fact that Mulavukad at the relevant time did not qualify as an urban area). Even after giving additions that way, the learned Subordinate Judge added a further percentage of 10% for the superiority of the property under acquisition and finally the market value was uniformly refixed at ` 1,45,768/- per Are. 3. The ground which is prominently raised in both these appeals is that this Court has by various judgments including the judgment in L.A.A.503/11 re-fixed the value of identical lands in the same village acquired for the same purpose at L. A. A Nos.223 & 225 of 2012 -3- ` 5,86,895/- per Are. The argument which was seriously addressed before us by Sri.Dileep, the learned counsel for the appellant was as there is a time gap of about nine months between the two section 4(1) notifications, this Court may re-fix the value of lands under acquisition by reducing 15% from ` 5,86,895/- and the market value be refixed at ` 4,98,860/- per Are. 4. The above request is very stiffly opposed by Sri.C.R.Syamkumar, the learned Senior Government Pleader and Smt.Thushara James for the Requisitioning Authority, Cochin Port Trust. Both of them submitted that the cases under which land value was re-fixed at ` 5,86,895/- per Are were the cases of acquisition pursuant to a different Section 4(1) notification. They also highlighted that even the Land Acquisition Officer had awarded much higher rates to parties in that case than the rate granted in the present case to the appellants. There is no comparison in that way between the properties covered by those judgments and the present properties. They also submitted that the progress of the L. A. A Nos.223 & 225 of 2012 -4- construction works in ICTT project resulted in escalation in land prices in Mulavukad village on a monthly basis if not on a daily basis. Therefore the market value of the properties in these villages on 13/02/08 was much more than the market value of the properties in the same village on 08/05/07. 5. Sri.S.Dileep would place strong reliance on the judgment of the Supreme Court in Iyasamy & Anr. v. Spl. Tahsildar Land Acquisition (JT 2010(11) SC 173) and submit that awards passed in respect of acquisition of adjoining lands are to be relied on while determining the market value of the land under acquisition. According to Sri.Dileep, the properties under acquisition in these appeals were situated very near to the properties covered by LAA.503/11 and the other properties, which were acquired pursuant to Section 4 (1) notification dated 13/02/08. This Court has to rely on the judgment in L.A.A.503/11, according to the learned counsel. 6. We have given our anxious consideration to the rival submissions addressed at the Bar. We have gone through the ratio of the decision of the Supreme Court in Iyasamy's L. A. A Nos.223 & 225 of 2012 -5- cases (cited supra). Their Lordships in Iyasamy's case have only reiterated the settled position that court awards in respect of adjacent lands will have reliance while determining the market value of land acquired subsequently. But the question as to the comparability between the properties and the question as to the actual rate of escalation in land prices considering the interval between the two relevant Section 4(1) notifications are equally relevant while deciding to what extent the awards in respect of acquisition pertaining to the adjacent lands can be relied on in a given land acquisition case. The argument of Sri.Dileep that as the passage of time is less than one year only 15% need be deducted. The above argument has only first blush attractiveness. It will be very unsafe to accept the above argument having regard to the fact situation which obtains in this particular village. The ICTT project is one of the largest projects of shipping and logistics industry which is being constructed since 2005. With the completion of every stage of construction, the land value in L. A. A Nos.223 & 225 of 2012 -6- the said village has been sky rocketing. Therefore, to accept the argument that the land value to be determined in the present case can only be 15% less than the land value awarded in LAA.503/11 will be very unsafe and detrimental to the public interest involved in these cases. At the same time, we notice that the properties in those cases were in the same village and the distance between the two properties was also not much. We keep in mind the judgment in L.A.A.503/11 also. We re-appraise the entire evidence. We keep in mind all the inputs which are relevant while determining the market value of the land in cases of compulsory acquisitions. 7. We allow these appeals and re-fix the market value of the land under acquisition in both these appeals at ` 3,50,000/- per Are. The appellant will get proportionate costs also apart from all statutory benefits admissible under Sections 23(2), 23(1A) and under Section 28 of the Land Acquisition Act. But then the benefit under Section 28 will become admissible only subject to the conditions we have L. A. A Nos.223 & 225 of 2012 -7- imposed while passing orders in C.M. Application No.350/12 in L.A.A.225/12 and C.M. Application No.347/12 in L.A.A.223/12. Decree copy will be issued to the appellant only after ensuring that the full court fee payable on the appeal memorandum is remitted and also that the conditions imposed by this Court in C.M. Application Nos.350 and 347 of 2012 are fully complied with. Sd/PIUS C. KURIAKOSE JUDGE Sd/A. V. RAMAKRISHNA PILLAI JUDGE kns/- //TRUE COPY// P.A. TO JUDGE