M.V. Jose s/o Varghese v. State of Kerala and Others

LA.App.No.130 OF 2015 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **&** **THE HONOURABLE MRS. JUSTICE SHIRCY V. MONDAY, THE 21[ST] DAY OF MAY 2018 / 31ST VAISAKHA, 1940 LA.APP. NO. 130 OF 2015** **AGAINST THE ORDER/JUDGMENT IN LAR 9/2011 dated 31-10-2013 of PRINCIPAL SUB COURT,NORTH PARAVUR** ## **APPELLANT/CLAIMANT** M.V.JOSE S/O.VARGHESE, MENACHERRY HOUSE, ANGAMALY, PIN CODE 683 572, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, T.P.JOHNY, AGED 54, S/O.PAILY, THETTAYIL, ANGAMALY, PIN CODE 683 572. BY ADVS. SRI.P.N.RAMAKRISHNAN NAIR SRI.SUNIL N.SHENOI SRI.P.VISWANATHAN ## **RESPONDENTS/RESPONDENTS AND CLAIMANT B AND C** 1 STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR , ERNAKULAM KAKKANAD 2 T.D.VARGHESE, AGED 60 YEARS, S/O.DEVASSY THETTAYIL HOUSE ANGAMALY, PIN CODE 683 572. 3 T.D.AVARACHAN S/O.DEVASSY AGED 64 YEARS THETTAYIL HOUSE, ANGAMALY PIN CODE-683 572. R1 BY GOVERNMENT PLEADER SRI.T.K SHAJAHAN THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 21.05.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: LA.App.No.130 OF 2015 2 **C.K. ABDUL REHIM & SHIRCY V., JJ. ----------------------------------------LA.Appeal No.130 of 2015 ----------------------------------------Dated this the 21[st] day of May, 2018** ## **JUDGMENT** ## C.K.Abdul Rehim, J The above appeal is preferred by the 'D' claimant in LAR No.9/2011 on the files of the Sub Court, North Paravur. The impugned judgment arise from a reference made under Section 28A(3) of the Land Acquisition Act. An extent of 3.47 Ares comprised in Resurvey No.110/16 pt of Angamaly Village was acquired for widening of Muvattupuzha-Ankamaly M.C.Road under the KSTP Project. In LAC No.369/2004, an Award was passed by the Land Acquisition Officer, fixing land value at the rate of Rs.5653/- per Are. The Land Acquisition Officer deposited the amount of compensation before the reference court under Section 31(2) of the Land Acquisition Act. In that reference, LAR No.128/2006, the reference court found that the appellant herein, who is 'D' claimant is entitled to get compensation with respect to 2.06 Ares of land, out of the total extent of 3.47 Ares acquired. The appellant/D claimant had not filed any application LA.App.No.130 OF 2015 3 seeking reference under Section 18(1) of the Act. But he sought enhancement if land value under Section 28A, based on the judgment in LAR No.155/2005, dated 28.9.2006, marked as Ext.A2. In LAR No.155/2005, the reference court enhanced the land value fixed by the LAO @ Rs.1,47,710/- per Are to Rs.4,50,000/- per Are. The application filed by the appellant/D claimant under Section 28A was originally rejected by the LAO on 29.5.2007. The said order was challenged by the appellant in a writ petition filed before this Court as O.P.No.33161/2007. As per judgment dated 30.1.2008, this Court directed the Land Acquisition Officer to reconsider the application and to pass appropriate orders within a time limit stipulated. Accordingly the LAO passed an Award granting enhancement at the rate of 205% of the value awarded by the Land Acquisition Officer, over and above the land value already awarded. Accordingly, the Land Acquisition Officer had refixed the land value at Rs.17,241.65 per Are. Dissatisfied with that award the appellant/D claimant preferred an application, based on which the present reference was decided by the court below. 2. The court below found that the property involved in LAR No.155/2005 (Ext.A2) is a dry land which was categorized by the LA.App.No.130 OF 2015 4 LAO under Category No.1, whereas the acquired land in the present case is a wet land categorized under Category No.V. The reference court had discarded the contentions raised on behalf of the appellant/D claimant disputing the categorization. It was observed that, it is evident from Ext.C1 Commission Report that the acquired property remained as filled up and converted into 'purayidom', after the acquisition. Therefore it is found that the property involved in Ext.A2 judgment is not comparable with the acquired land in the present case. It was observed that, Exts.A1 and A3 documents produced by the D claimant cannot be considered, as it is a reference under Section 28A, in which the claimant is relying only on Ext.A2 judgment. The reference court found that the LAO cannot be blamed for categorizing the acquired property under category No.V. However, the court below observed that the date of notification in the case is 10.6.2003 and there is a sharp shoot up in the value of the property in the locality. Therefore, the court below had refixed the land value at Rs.11,306/- per Are and awarded enhanced compensation at that rate with respect to 2.06 Ares belonging to the appellant/D claimant. It is aggrieved by the said judgment the above appeal is preferred. LA.App.No.130 OF 2015 5 3. Heard the learned counsel for the appellant and the Government appearing for the 1[st] respondent/State. 4. Adv. Sri.P.Viswanathan, the learned Counsel appearing for the appellant raised vehement contentions disputing the categorization fixed by the LAO. It is pointed out that, the observation made in the impugned judgment that the Advocate Commissioner had reported that the property was converted into 'purayidom' after acquisition, is not true and correct. He had drawn our attention to Ext.C1 Commission Report, in order to point out that there is no finding in the report to the effect that the property was filled up after acquisition. According to the learned Counsel, the acquired property remained as 'dry land' and not as a 'wet land'. Therefore, it is contended that the property ought to have been included in category No.1 as that of the properties covered under LAR No.155/2005. According to the learned Counsel both the properties are similar in nature and similarly situated in all respects. 5. In this regard, we made a perusal to Ext.C1 Commission Report. It is mentioned that the Advocate Commissioner could realise that the acquired property is filled up and converted into dry land and the same is remaining at a lower level of 1 foot from LA.App.No.130 OF 2015 6 the M.C.Road. With respect to the remaining extent of land owned by the appellant, the Commissioner had reported that, bund has been created on the all four sides at a height of 4 feet and the land is situated at a lower level than M.C.Road, with a difference of about the height of a person. It is pertinent to note that, the acquisition was based on Section 4(1) notification published on 10.6.2003. The Commissioner had inspected the properties on 6.1.2013, which means the inspection was conducted after about 10 years. It can be inferred from the report of the Advocate Commissioner that the acquired portion was filled up and converted into a dry land. It is evident from the report that the remaining portion is situated at a level difference of about the height of a person from the M.C.Road. In this regard, we had perused the Notes to Award and the accompanying documents (Exts.R1 to R4). In Ext.R4 Mahazar it is specifically mentioned that the acquired property is situated on the northern side of M.C.Road and it remains as 'Nilam' (paddy field). We are of the considered opinion that, based on the above factual situation, claim raised by the appellant that the acquired property remained as dry land and ought to have been included in category No.1, has no basis or support of any evidence. LA.App.No.130 OF 2015 7 Therefore, we are not inclined to interfere with the impugned judgment on that respect. 6. With respect to the land value fixed, it is to be noted that the LAO had originally awarded compensation at the rate of Rs.5653/- per Are. Based on the application made under Section 28A of the Act the Land Acquisition Officer had refixed the land value at Rs.17,241.65 per Are. But in the judgment of the reference court the land value was refixed only at Rs.11,306/per Are. In fact, the reference court went wrong in reducing the amount awarded by the Land Acquisition Officer. Hence, the judgment need to be interfered. 7. The application under Section 28A was made relying on Ext.A2 judgment passed in L.A.R No.155/2005. The property acquired in that case is an extent of 0.43 Ares. The LAO categorized that property under category No.1 and awarded land value at the rate of Rs.1,47,710/- per Are. In the reference made under Section 18 of the Act, the claimant therein had produced Ext.A1 sale deed, registered as Document No.2251/1999 of the Sub Registrar Office, Angamaly. The said document was executed on 7.6.1999. The value reflected therein is Rs.4,08,163/-per Are. In Ext.A2 judgment, it is mentioned that, the acquired land in LA.App.No.130 OF 2015 8 that case is situated very near to Angamaly town, just 125 Metres away from the main junction and it abuts to M.C.Road. The reference court in that case observed that, the property covered under Ext.A1 Sale Deed is situated at a distance of 1 km away from the acquired land and from Angamaly town. Therefore the claimant therein demanded more value for the acquired land involved in that case. So also, he claimed an increase of 10% per year based on the time gap between Ext.A1 document and the Section 4(1) notification. The reference court in that case found that the acquired land therein is remaining with more importance than the land covered under Ext.A1. Therefore, it is found that the claimant in that case is entitled for refixation of land value at the rate of Rs.4,50,000/- per Are. 8. It is true that the land value awarded in LAR No.155/2005 cannot be awarded in the present case, because the acquired land in both the cases are included in different categories. It is also evident that the nature of the land is entirely different because the acquired property in L.A.R.No.155/2005 is dry land situated within Angamaly town itself, whereas the acquired property in the present case was paddy field situated at a distance of about 1 KM from the town proper. In the judgment LA.App.No.130 OF 2015 9 of this Court in _**Raghava Poduval v. Special Tahsildar (2004**_ _**(3) KLT 261)**_ it is held that, intention of the legislature in incorporating the word 'redetermination' under Section 28A would contemplate that the Land Acquisition Officer can award reasonable proportionate enhancement or reduction upon the land value given in the relied on judgment , through redetermination, which is directed to be done under Section 28A. The only statutory requirement under Section 28A is that the applicant's award as well as the award of the judgment which is relied upon by the applicant, should have been covered by same acquisition based on the very same Section 4(1) notification. It is not necessary that both the party should have been given the same rate of land value by the awarding officer. Therefore it is held that, the Land Acquisition Officer could not be insisted upon that same land value should be awarded in both the cases, for a redetermination of compensation under Section 28A. What is required is only that both the lands should be covered by the very same Section 4(1) notification. 9. In fact, the reference court had taken note of the decision of this court cited above. But we realise that the proportionate increase awarded by the LAO had in fact reduced LA.App.No.130 OF 2015 10 in the impugned judgment. We notice that, in Ext.A2 judgment the land value awarded at the rate of Rs.1,47,710/- per Are was enhanced to Rs.4,50,000/-. This means the rate of increase awarded in that case is about 210%. The enhancement awarded by the Land Acquisition Officer to Rs.17,241.65 per Are is almost equivalent to the above proportion. Therefore, the reference court went highly erred in refixing the rate of land value at Rs.11,306/- per Are. 10. Learned counsel for the appellant had pointed out that there exists a time gap of about 4 years between Ext.A1 document marked in L.A.R. No.155/2005 and the date of Section 4(1) notification. He had drawn our attention to the dictum laid by the Honourable Supreme Court in _**General Manager, Oil and Natural Gas Corporation Limited v. Rameshbhai Jivanbhai Patel and another [(2008) 14 SCC 745].**_ 11 _**.**_ The guideline for increasing the market value in urban and semi-urban areas, should be at 10% to 15% per annum and the corresponding increase in rural areas should be at about 5% to 7.5% per annum. Based on such guidelines, it is contended that the increase of 10% alone calculated from Ext.A2 judgment is not reasonable and adequate. We find force in the above said LA.App.No.130 OF 2015 11 contention. Since there is a time gap of 4 years between the date of execution of Ext.A1 document and the date of Section 4(1) notification, we think it appropriate to have refixation of the land value by giving 40% increase . Calculated on that basis, in Ext.A2 judgment the value of acquired property should have been fixed at Rs.5,71,428/-, by adding 40% to the value of Rs.4,08,163/- per Are reflected in Ext.A1. If the value ought to have been refixed in LAR No.155/2005 is taken as Rs.5,75,428/-. The rate of enhancement awarded in that case will come about 290% from the value awarded. Therefore we are of the considered opinion that an increase at the same proportion can be awarded in the present case also. Calculated on that basis we are inclined to refix the land value awarded at Rs.22,047/- per Are. We consider that the above amount will be just and reasonable compensation comparing the land value prevailed in the locality at the time of acquisition, based on the evidence and materials available. Under the above mentioned circumstances, the appeal is allowed in part. Compensation awarded by the Land Acquisition Officer in the application filed under Section 28A of the Act is hereby refixed at Rs.22,047/- per Are. The appellant/claimant LA.App.No.130 OF 2015 12 will be entitled for the enhanced compensation with respect to 2.06 Ares out of the acquired property. He will also be entitled for all statutory benefits on the enhanced compensation as contemplated under Section 23(1A), 23(2) and 28 of the Land Acquisition Act, along with proportionate costs. Sd/- C.K ABDUL REHIM JUDGE Sd/- SHIRCY V JUDGE smm