Puthenpeedikakkal Rabia Umma v. District Collector, Malappuram and The Executive Engineer, Minor Irrigation Division, Malappuram

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD TUESDAY, THE 24TH DAY OF JULY 2018 / 2ND SRAVANA, 1940 LA.App..No. 376 of 2014 AGAINST THE DECREE AND JUDGMENT DATED 13-03-2007 IN LAR NO.24/1995 of SUB COURT, MANJERI ## APPELLANT/CLAIMANT: PUTHENPEEDIKAKKAL RABIA UMMA, D/O.ALAVI HAJI, KARUMARAKKAD, VAZHAKKAD, MALAPPURAM DISTRICT. BY ADV.SRI.K.M.SATHIANATHA MENON ## RESPONDENTS/RESPONDENTS: 1. THE DISTRICT COLLECTOR, MALAPPURAM, PIN 676 505. 2. THE EXECUTIVE ENGINEER, MINOR IRRIGATION DIVISION, MALAPPURAM, PIN 676 505. BY GOVERNMENT PLEADER SRI.SHYAMJIRAM THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 24-07-2018 ALONG WITH LAA NO.377/2014 AND CONNECTED CASES,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **A.HARIPRASAD, J. -------------------------------------L.A.A.Nos.376, 377, 638, 642 & 676 of 2014** **-------------------------------------Dated this the 24[th] day of July, 2018** ## **COMMON JUDGMENT** Heard the learned counsel appearing for the appellants and the learned Government Pleader. 2. Appellants are aggrieved by the common judgment of the Court of Subordinate Judge, Manjeri in respect of various references made under the Land Acquisition Act, 1894 (in short, “Act”). The common judgment in L.A.R.Nos.11 of 1995, 20 of 1995, 21 of 1995, 23 of 1995 and 24 of 1995 are challenged in L.A.A.Nos.638 of 2014, 377 of 2014, 676 of 2014, 642 of 2014 and 376 of 2014 respectively. 3. From the impugned common judgment, the following facts are revealed. Eight references were tried by the learned Subordinate Judge. The judgment passed by the lower court was taken up in appeal before this Court and on a consideration of the materials, this Court set aside the judgment and remanded the cases for a fresh determination. Thereafter, applications were filed for remitting the advocate commissioner's reports. Those applications were rejected against which three writ petitions were filed. This Court set aside the order and the commissioner's reports were L.A.A.Nos.376, 377, 638, 642 & 676 of 2014 2 remitted. Fresh reports were obtained after inspecting the properties. They are Exts.C9 to C16 marked before the court below. 4. Properties involved in these appeals were acquired for the construction of Kavanakallu Regulatory-cum-Bridge across Chaliyar River. Section 4(1) notification under the Act was published on 14.09.1993. Possession of the lands were taken on 15.12.1992. Award in L.A.R.No.11 of 1995 was passed on 07.12.1994 and in other cases, it was on 31.10.1994. 5. Common contentions raised by the appellants in their claim statements are that the lands acquired are lying near Chaliyar River and hence the lands are fertile. Property acquired in L.A.R.No.11 of 1995 is a portion of the residential compound and on account of the acquisition, remaining portion of the compound could not be conveniently used. It is the contention raised by the claimants in L.A.R.No.20 of 1995 that they were about to construct four residential buildings in the land and due to acquisition proceedings much inconvenience had been caused to them. The property involved in L.A.R.No.21 of 1995 is a coconut garden and the claimant used to fetch good income from the trees. Moreover a shoproom situated in the property was fetching an amount of rupees one lakh. A compound wall worth `15,000/- was also part of the acquired property. L.A.A.Nos.376, 377, 638, 642 & 676 of 2014 3 Only a meagre compensation was awarded in respect of the property and structures. Land involved in L.A.R.No.23 of 1995 is also a portion of the residential compound of the claimant and on account of acquisition, he suffered hardships. There were 12 yielding coconut trees with an annual yield of 300 coconuts per tree. Arecanut trees were there producing 1000 arecanuts per year. Land involved in L.A.R.No.24 of 1995 was a portion of large extent of property and on account of acquisition, the remaining portion has become unfit for construction of a house. Land value has been diminished. It is a wet land, going by the records. 6. Learned counsel for the appellants contended that the reasons stated by the court below for rejecting Ext.A1 and oral testimony of AWs 1 to 6 cannot be justified. According to her submissions, the court below should have seen that the lands acquired were having much more potential value than the basis document. As pointed out by the learned counsel for the appellants, the basis document has many reasons to find that it did not reflect the actual price prevailed at the time of execution. 7. Per contra, learned Government Pleader supported the judgment by contending that the learned Sub Judge has considered all the relevant inputs correctly and assessed the compensation in a scientific manner. It is also contended that the relevant decisions of the apex court L.A.A.Nos.376, 377, 638, 642 & 676 of 2014 4 on the point have been followed by the reference court and no interference is required. 8. With regard to the basis document, there are some infirmities noted by the court below. It is seen that the property involved in the basis document was assigned in the year 1992 by a Muslim for the purpose of a mosque. That apart, the document showed that a minor was involved in the transaction. Normally a property belonging to a Muslim minor could not have been assigned without getting permission from the court under the Guardian and Wards Act and if a de facto guardian makes an assignment of minor's property, the whole transaction will fall down. Complaint of the appellants is that these aspects were not considered by the Land Acquisition Officer. True, the basis document showing a value of `4,237/- per cent was not relied on by the court below for valid reasons. It is also found by the court below that the basis land is situate behind a building and abutting a Panchayat road. It is contended that some of the lands involved in these appeals are situate in a better locality. Court below, for valid reasons, did not rely on the basis document for determining the value for the acquired lands. 9. Thereafter, the learned Sub Judge decided the issue with reference to the evidence available in the records. In paragraphs 26 to 28 L.A.A.Nos.376, 377, 638, 642 & 676 of 2014 5 of the common judgment, the learned Sub Judge elaborately considered the method adopted for fixing the land value as follows: _“26. Now the next aspect to be taken into account is in respect of the documents produced by the claimants in fixing the market value of the land under acquisition. The claimants caused production of Ext.A1. Ext.A1 document is in respect of a land having an extent of 3.5 cents situated in Edavannappara bazaar._ _The commissioners were asked to compare the commercial importance of Ext.A1 document with that of the land under acquisition. All the commissioners in Exts.C9 to C16 have reported unanimously that the land referred in Ext.A1 is situated at a more commercially important locality. Edavannappara bazaar_ _is a junction from where four roads start. The importance of Edavannappara bazaar was already discussed in the prior portion of this judgment. From Edavannappara a road starts which proceeds to Feroke college.Three other roads also start from Edavannappara which proceeds to Elamaram,_ L.A.A.Nos.376, 377, 638, 642 & 676 of 2014 6 _Areacode and Kondotty. This land acquired lies at a distance of 4 ½ k.m.away from Edavannappara. The learned counsel appearing for the claimants would place reliance upon a ruling of the Apex Court reported in 2003(3) KLT SN 67 in Ravinder Narain v. Union of India. In the above ruling the Apex court was inclined to observe that the sale of small plots cannot be a safe criteria but in appropriate cases in the absence of other materials such instances may be used for comparison. In the above ruling the principles are discussed. The speculation is reduced to the minimum on the following principles for fixation of market value with reference to the comparable sales. The sale of the land must be a land adjacent to the land acquired. It also must possess similar advantage. The land in Ext.A1 is not lying adjacent to the land under acquisition. Admittedly the above land is lying at a distance of 4 ½ k.m. from the land under acquisition. It is situated in a town with commercial importance. The land under acquisition though lying adjacent to a public road it cannot claim_ L.A.A.Nos.376, 377, 638, 642 & 676 of 2014 7 _commercial advantage in respect of a land which lies at Edavannappara town. The principles elucidated in the ruling relied upon by the claimants cannot be applied to the instant case since the evidence on record would go to show that the land referred in Ext.A1 is having high commercial importance and it is a sale pertaining to a bit land. The speculation is possible if the above land lies at a nearer proximity to the land under acquisition with similar advantages. The claim raised by the claimants on the basis of Ext.A1 to order the enhancement cannot be allowed in view of the above discussed circumstance._ _27. The second document relied upon by the claimants is the certified copy of judgment passed by a Land Reference Court in respect of the land which lies within Kozhikode District. As per Ext.A2 Kozhikode Sub Court has ordered enhancement of compensation to the tune of Rs.20,000/-, Rs.24,000/- per cent respectively. The above judgment ceases to exist since the Hon'ble High Court was inclined to set aside the_ L.A.A.Nos.376, 377, 638, 642 & 676 of 2014 8 _same in appeal. So Ext.A2 cannot be taken into account for fixing the market value of the land under acquisition. Moreover, the lands lying at the other side of the river is entirely in a different situation which fact was reported by the Advocate-commissioner. So Ext.A2 also does not help the court in resolving the dispute._ _28. The reports filed by the Advocatecommissioners were attacked by the respondent on the ground that the reports of the commissioners do not reflect the market value of the property as on the date_ _of publication of 4(1) notification. Though the commissioners attempted to visualise the situation which was prevailing at the time of 4(1) notification they reported that such an assessment is impossible due to_ _the time gap. The land acquisition proceedings were initiated in 1993 whereas the initial inspection were done in 1997. But the distance from the land under acquisition to the basis land, the distance from the land under acquisition to the property referred in Ext.A1 can_ L.A.A.Nos.376, 377, 638, 642 & 676 of 2014 9 _be ascertained from the materials on record. The potential significance pertaining to the land under acquisition was brought out through the evidence tendered by AW1 to AW6. The reports of the commissioners can also be taken into account to ascertain the lie of the land and its commercial importance. The land under acquisition is lying adjacent to a public road with bus route. The public road starts from Edavannappara and reaches to Feroke College. The importance of the land under acquisition with regard to its fertility, its suitability to convert the same as commercial building site and all other potential factors this court is inclined to fix the market value of the land which have road frontage in L.A.R.22/95, 23/95 and 11/95 as Rs.8500/- per cent. The land which has no road frontage in L.A.R.20/95 is fixed as Rs.7500/- per cent. No enhancement is ordered in respect of the properties involved in L.A.R.21/95 and 25/95 since the compensation in respect of those lands was awarded by adopting capitalisation method which_ L.A.A.Nos.376, 377, 638, 642 & 676 of 2014 10 _is more beneficial to the claimants in those references._ _Their claim to fix compensation on the basis of land value cannot be accepted since the land value fixed by this court is lesser than the centage rate already received by those claimants. 0.0005 hectare of land involved in L.A.R.20/95, 0.0510 hectare of land involved in L.A.R.23/95 and 0.0015 hectare of land involved in L.A.R.24/95 by adopting capitalisation method is also beneficial to the claimants since the rate fixed by the court is lesser than the centage rate received by the claimants in respect of the lands where the capitalisation method was adopted.”_ 10. On proper reasons it was found that the land value for garden lands involved in L.A.R.Nos.11 of 1995 and 23 of 1995 could be fixed as `8,500/- per cent since the properties had a road frontage. Land value for the property involved in L.A.R.No.20 of 1995 was fixed as `7,500/- per cent finding that it had no road frontage, although it was found to be a garden land. In respect of wet land involved in L.A.R.No.24 of 1995, the court below considered its importance and ultimately value of the property involved in L.A.R.No.24 of 1995 was fixed at `6,000/- per cent. Having L.A.A.Nos.376, 377, 638, 642 & 676 of 2014 11 regard to the facts and circumstances, I do not find any reason to hold that the court below erred in fixing the land value in accordance with the principles in the binding decisions. 11. Learned counsel for the appellants pointed out that there are enough materials to show that on account of the acquisition, the lands in question had suffered various injuries. Its enjoyment has been restricted because of the reduction in area. That apart, the approach road built runs at a higher level and the level difference between the road and the property is more than 6 ½ ft. This causes much reduction in the value of the property, contended the learned counsel for the appellants. 12. It is seen from the impugned judgment that the court below has granted only `5,000/- as lumpsum compensation for the injurious affection. Court below has not mentioned any reason for fixing the quantum in lumpsum. Considering the nature of injurious affection, I am of the view that the compensation under this head should have some nexus to the area of land acquired in the proceedings. Having regard to the facts and circumstances, I am of the view that a minimum of 25% of the land value determined should have been granted as compensation for injurious affection. Therefore, the garden land with road frontage will get `2,125/(8,500x25/100), the garden land without road frontage will get `1,875/- L.A.A.Nos.376, 377, 638, 642 & 676 of 2014 12 (7,500x25/100) and the wet land will get `1,500/- (6,000x25/100) as compensation for injurious affection. Having regard to the facts and circumstances, I find no reason to enhance the land value fixed by the court below. With the above modification, the appeals are allowed. It is made clear that in all other respects, the judgment of the trial court is confirmed. **A.HARIPRASAD, JUDGE.** **cks**