Musthafa S/O Muhammed Ibrahim & Shahul Hameed v. State of Kerala & Trivandrum Development Authority (LA.A No. 838 of 2012)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **&** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **THURSDAY, THE 31ST DAY OF MAY 2018 / 10TH JYAISHTA, 1940** ## **LA.App..No.838 OF 2012(D)** **AGAINST THE JUDGMENT AND DECREE IN LAR 495/2008 DATED 2710-2011 OF II ADDITIONAL SUB COURT,THIRUVANANTHAPURAM** ## **APPELLANTS/CLAIMANTS** |**1**|**MUSTHAFA**| |---|---| ||**S/O.MUHAMMED IBRAHIM, TC 20/1226, SAJINA**| ||**MANZIL, KARAMANA, MELARANNOOR,**| ||**THIRUVANANTHAPURAM.**| |**2**|**SHAHUL HAMEED**| ||**AGED 69 YEARS**| ||**S/O.SHEIK ADAM LABBAR, RESIDING AT**| ||**T.C.20/1332(3), SAJINA MANZIL, KARAMANA,**| ||**MELARANNOOR, THIRUVANANTHAPURAM.**| ||**(DIED, LEGAL HEIRS ARE IMPLEADED)**| |**ADDL.**|<br>**FATHIMA BEEVI,**| |**A3**|**T.C 20/1332/3, SADIQ MANZIL, KARAMANA P.O,**| ||**THIRUVANANTHAPURAM -695002**| |**ADDL.**|**BUSHARA .F,**| |**A4**|**T.C. 20/1332/3, SADIQ MANZIL, KARAMANA P.O,**| ||**THIRUVANANTHAPURAM-695002**| |**ADDL.**|**NUSAIFA BEEVI.F,**| |**A5**|**T.C.20/1332/3, SADIQ MANZIL, KARAMANA P.O,**| ||**THIRUVANANTHAPURAM-695002**| |**ADDL.**|**MUHAMMED ISMAIL. S,**| |**A6**|**T.C. 20/1332/3, SADIQ MANZIL, KARAMANA P.O,**| ||**THIRUVANANTHAPURAM -695002**| 2 LAA 838/2012 **ADDL. MUHAMMED SADIQ.S, A7 T.C. 20/1332/3, SADIQ MANZIL, KARAMANA P.O, THIRUVANANTHAPURAM -695002** **ADDL. SHAMEENA.F, A8 T.C 20/1332/3, SADIQ MANZIL, KARAMANA P.O, THIRUVANANTHAPURAM -695002** **ADDITIONAL APPELLANTS 3 TO 8 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED 2ND APPELLANT VIDE ORDER DATED 28.5.2018 IN I.A. NO.324/2018** **BY ADVS. SRI.G.S.REGHUNATH SRI.K.RAJESH KANNAN SRI.A.S.SHAMMY RAJ SRI.P.SHANES** ## **RESPONDENTS/RESPONDENTS:** - **1 STATE OF KERALA** **REPRESENTED BY THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM-695001.** - **2 TRIVANDRUM DEVELOPMENT AUTHORITY (TRIDA) REPRESENTED BY ITS SECRETARY-695001** - **R2 BY ADV. SRI.K.A.JALEEL SC. TRIDA R1 BY ADV. SRI.T.K. SHAJAHAN, GOVERNMENT PLEADER R2 BY ADV. SRI.M. RAJAGOPALAN NAIR, SC TRIDA** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 31.05.2018, THE COURT ON THE SAME DAY DELIVERED THE** **FOLLOWING:** 3 LAA 838/2012 ## **C.K. ABDUL REHIM & SHIRCY V.,JJ.** ## **==============================** ## **L.A.A. No. 838 OF 2012** ## **==============================** ## **Dated this the 31[st] day of May, 2018** ## **JUDGMENT** ## **C.K.Abdul Rehim, J.** 0.33 Ares comprised in Survey No. 2501/1-3-1 of Thycaud Village was acquired for widening of PattoorChoorakattupalayam Road for Trivandrum Development Authority (TRIDA) through Notification under Section 4(1) of the Land Acquisition Act published in the official gazette on 31.3.2005 (date of notification mentioned in the impugned judgment is 20.5.2005). The acquired land belonged to appellants 1 and 2 herein who enjoyed ownership with respect to distinct extent of land. During pendency of this appeal, the 2[nd] appellant died and his legal heirs were impleaded as additional appellants 3 to 8. The Land 4 LAA 838/2012 Acquisition Officer (LAO) awarded compensation by fixing the land value at the rate of Rs.3,70,500/- per Are by relying on Document No. 586/2005, dated 1.2.2005 of the Sub Registrar's Office, Chalai. Being not satisfied with the award, the claimants sought reference and the judgment impugned herein in LAR No. 495/2008 was passed by the Sub Court in the said reference. The reference court had refixed the land value at Rs.20,00,700/-per Are, which is equivalent to approximately Rs.8,10,000/- per cent. The claimants are challenging the judgment of the reference court on the ground that the land value refixed is inadequate and insufficient. 2. Heard; counsel for the appellant and the Government Pleader appearing for the 1[st] respondent. 3. Evidence before the court below consists of oral testimony of AW1, the 2[nd] appellant; and AW2, the Advocate Commissioner. Exts.A1 and A2 are the documents produced 5 LAA 838/2012 on behalf of the claimants. From the side of the respondents, Ext.R1 Mahazar, Ext.R2 Sketch, Ext.R3 Valuation Statement and Ext.R4 Note to Award were produced . 4. The court below found that, property covered under the basic document relied upon by the LAO is situated on the side of Killipalam-Chalai Bazar road which is admittedly byeroad having less importance than the Power House road where the acquired property is situated. Therefore it was found that the value fixed by the LAO based on the said document cannot be accepted. From the side of the claimant, Exts.A1 and A2 documents were produced. Ext.A1 is the certified copy of the common judgment in LAR. 215/1998 and 289/1998. Ext.A2 is the certified copy of the judgment in L.A.A.No.332/2005. It is a common judgment passed by this Court in L.A.A.No.972/2004 and connected cases, dated 3.1.2018. Ext.A2 judgment arose from Ext.A1 6 LAA 838/2012 judgment of the reference court. The property covered under the cases disposed of through Ext.A2 judgment were acquired for the purpose of widening of M.G.Road, from Over Bridge to Pazhavangadi Junction. In Ext.A2 judgment this court had refixed the land value at the rate of Rs.9 lakh per cent. It is noticed in the impugned judgment that from Ext.C1 Commission Report it was revealed that the acquired property in the present case is situated at a distance of 100 Metres away from M.G.Road. The court below observed that, the acquired property is situated on the side of Power House Road, which is starting from M.G. Road. It was observed that, from Ext.C1 the acquired property is situated only at a distance of 100 Metres from M.G.Road . Hence the court below opined that, Exts.A1 and A2 could be relied on for fixing the land value by giving 10% deduction than the land value fixed in Ext.A2 judgment. Accordingly the reference court had refixed the land value at Rs.20,00,700/- 7 LAA 838/2012 per Are. 5. Contention of the appellant is that, the property covered under Ext.A2 and the acquired property are situated with equal prominence in an equally important location within the Thiruvananthapuram City. Therefore it is contended that the reduction of 10% made by the reference court for fixing the value, cannot be justified and is not reasonable. It is further pointed out that, the notification under Section 4(1) with respect to the acquisition covered under Ext.A2 judgment was on 14.5.1997. Therefore there is a time gap of about 8 years between the two acquisitions. It is argued that the reference court had omitted to take note of the above fact and to consider the components of price escalation in the market value during the time gap. 6. Per contra, the learned Government Pleader contended that M.G.Road is the most commercial importance of prominent Avenue within the city of 8 LAA 838/2012 Thiruvananthapuram and that Power House road cannot be considered as equally prominent or important location. Referring to Ext.C1 Report of the Advocate Commissioner, it is pointed out that, the distance between M.G.Road and the acquired property is reported to be 250 Metres. Therefore it is contended that the reliance placed by the reference court on Ext.A2 judgment and the value fixed by giving 10% reduction is excessive and unjustifiable. 7. While evaluating the rival contention, we take note of the fact that, Ext.A2 is the judgment in a batch of cases in which the acquisition was for widening of M.G.Road, in between Over Bridge and Pazhavangadi Junction. The acquired property is situated at a distance of 250 Metres from M.G.Road, on the side of Power House Road. Learned counsel for the appellant contended that the Power House Road leads of Choorakkad-Palayam Junction wherein the road joins with the road coming from Thycaud and 9 LAA 838/2012 Thampanoor Railway Stations. Further it is pointed out that, southern side of Thampanoor Railway Station is on the opposite side of the Power House Road and there is entrance from the Power House Road to the Central Railway Station, Thiruvananthapuram. Considering the width and importance of both the Roads, we are of the opinion that the acquired property situated on the side of the Power House Road cannot be considered as equally important as that of the property situated on M.G.Road at Pazhavangadi which is the main nerve centre in Thiruvananthapuram City. Moreover we take note of the fact that the court below was under an impression that the distance is only 100 Metres from Ext.A2 property, but the actual distance noted is 250 Metres. It is pertinent to note that the State or the requisitioning authority had not filed any appeal or cross objection in this case. But at the same time, we find force in the contention raised by the learned Government Pleader 10 LAA 838/2012 that deduction made at the rate of 10% is insufficient, considering the difference in the prominence of the locality. We are of the opinion that despite the fact that the Government have not filed any appeal, the contention need to be considered by this court in this appeal, exercising the jurisdiction conferred under Order XLI Rule 33 of the Code of Civil Procedure. We think it appropriate to make a deduction at the rate of 25% considering difference in prominence of the location. 8. The next aspect to be considered is regarding the time gap. As pointed out by the learned counsel for the appellant the date of publication of Section 4(1) Notification in the case of properties covered under Ext.A2 judgment was on 14.5.1997. The date of publication of the gazette notification in this case is on 31.3.2005. Therefore there is a time gap of more than 7 ½ years between the two acquisitions. In **General Manager, Oil and Natural Gas** 11 LAA 838/2012 **Corporation Ltd. v. RameshBhai Jivanbhai Patel and Another [(2008) 14 SCC 745]** it is held that reasonable and appropriate rate of annual escalation need to granted considering escalation in the marked value. It was pointed out that, considering the increase in the market value, in urban and semi urban areas should be given increase from 10% to 15% per annum and corresponding increase in rural areas shall be at about 5% to 7.5% per annum. The guidelines fixed by the hon'ble Supreme Court in this regard was reiterated in a very recent decision in **Haryana State Industrial Development Corporation Ltd. v. Udal and Others [ (2013)14 SCC 506].** We are of the opinion that the court below had omitted to take note of the above aspect. There is no dispute that the acquired property as well as the exemplar property are situated within the limits of Thiruvananthapuram city which is an urban area. Therefore we feel it appropriate to consider escalation in 12 LAA 838/2012 market value at the rate of 10% per annum. Therefore we are inclined to increase the land value fixed as above by 75%, considering the time gap of 7 ½ years. When worked out on that basis the land value need to be refixed at Rs.11,81,250/- per cent (90,000/-minus 25% = 6,75,000/+ 75%) which is equivalent to 29,18,869/- per Are. Under the above mentioned circumstances the above L.A.A.is allowed in part. The land value awarded by the court below is enhanced and refixed at Rs.29,18,869/- per Are. The claimants will be entitled for all statutory benefits on the enhanced compensation as contemplated under Section 23(1), 22 and 28 of the Land Acquisition Act, along with proportionate costs. **Sd/-** ## **C.K. ABDUL REHIM JUDGE** ## **Sd/-** **SHIRCY V. JUDGE** **ks.**