Regina @ EEEVY v. State of Kerala and The Deputy Chief Engineer, Southern Railway

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 14TH DAY OF OCTOBER 2014/22ND ASWINA, 1936** **LA.App..No. 83 of 2012 ( ) ---------------------------** **AGAINST THE JUDGMENT AND DECREE IN LAR 313/2008 ON THE FILE OF THE III ADDL.SUB COURT, ERNAKULAM DATED 24.6.2010** ## **APPELLANTS/CLAIMANTS:** ## **---------------------** ## **1. REGINA @ EEEVY** - **W/O.CYRIL, AGED 60, RESIDING AT ATHIPOOZHIL HOUSE MANASSERY, MUNDAMVELI P.O., KOCHI.** **2. SMT.PHILOMINA @ LEENA W/O.LATE A.C.JOB, AGED 62, ALINGAL HOUSE PONNARIMANGALAM, MULAVUKAD.** **3. LAILA @ MARY LAILA W/O.K.J.TOMY, AGED 55, RESIDING AT KURISHINGAL PONNARIMANGALAM, MULAVUKAD P.O.** ## **4. LAIJU** - **S/O.PHILOMINA, AGED 39, RESIDING AT ALINGAL HOUSE PONNARIMANGALAM, MULAVUKAD.** **BY ADVS.SRI.S.SREEKUMAR (SR.)** **SRI.P.MARTIN JOSE** **SRI.P.PRIJITH** **SRI.S.VAIDYANATHAN** ## **RESPONDENTS/RESPONDENTS:** **--------------------------** **1. STATE OF KERALA** - **REPRESENTED BY SPECIAL TAHSILDAR (LA), RAILWAYS ERNAKULAM.** **2. THE DEPUTY CHIEF ENGINEER** ## **SOUTHERN RAILWAY, ERNAKULAM.** **R1 BY GOVERNMENT PLEADER SRI. R.PADMARAJ R2 BY ADV. JOHN MATHEW -S.C. RAILWAYS.** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 14-10-2014, ALONG WITH L.A.A. NO. 99/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AL/-** ## **T.R.RAMACHANDRAN NAIR & P.V.ASHA, JJ.,** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** L.A.A. Nos.83/2012 & 99/2012 **- - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 14[th] day of October 2014 # **JUDGMENT** ## **Ramachandran Nair, J.,** These appeals are filed respectively from the judgment and decree in L.A.R. No. 313 of 2008 and L.A.R. No. 28 of 2009 on the files of IIIrd Additional Sub Court, Ernakulam. The claimants before the lower court are the appellants herein and the parties are the same. 2. Having regard to the respective dates of notification under Section 4(1) of the Act, L.A.R. No. 313/2008 is the first reference case. The relevant dates, the compensation awarded by the Land Acquisition Officer and the rate at which it has been awarded and the land value fixed by the court are given in a table in the face page of the judgment itself. We reproduce the same. L.A.A. No.83/2012 & 99/2012 :2: |**_Sl.No._**||**_LAR 313/08_**|**_LAR 28/09_**| |---|---|---|---| |a)|Purpose of acquisition|For the purpose of<br>rail connectivity road<br>from Vallarpadom to<br>Edappally|| |b)|Date of 4(1)notification|09/04/07|15.11.08| |c)|Date of taking possession|10/07/08|31.12.08| |d)|Date of award|08/07/08|01/01/09| |e)|Compensation awarded by the<br>LAO|Rs.91,14,515/-|Rs.37,83,510/-| |f)|The rate of which compensation is<br>awarded|Rs.2,52,054/per Are|Rs.3,50,450/per<br>Are| |g)|Land value|Rs.41,51,329/-|Rs.2,85,266/-| ||Buildingvalue|Rs.21,20339/-|Rs.16,942/-| |h)|Whether the court has enhanced<br>compensation or not|Yes|| |(i)|Whether the court has enhanced<br>compensation for the relevant<br>breakup figure||| ||Land value|Rs.72,64,818/-|Rs.49,92,156/-| ||(Centage @ Rs.../Are|Rs.4,41,094/-|Rs.6,13,287/-| ||Building value|Rs.27,56,440/-|| 3. The purpose of acquisition is for rail connectivity from Vallarpadom to Edappally. We heard the learned Sr.Counsel for the appellants Sri.S.Sreekumar, Learned Standing Counsel for the Railway Sri. John Mathew and learned Sr.Government Pleader Sri.Padmarajan for the State. L.A.A. No.83/2012 & 99/2012 **==> picture [14 x 9] intentionally omitted <==** 4. The property under acquisition was divided into different categories. The acquired property in L.A.R. No. 28 of 2009 is included in category No. I. It is dry land having Panchayat road access and the extent involved is 8.14 ares. The acquired property in L.A.R. No. 313 of 2008 is included in category No. II. i.e. dry land having access to 2 meter's path way and back water and the extent involved is 16.47 ares. The basic document adopted by the Land Acquisition Officer is document No. 3764/06. For the land included in the category No.I, 30% increase over the value reflected in basic document and thereafter, by giving a decrease of 10% less in view of the importance of the basic land involved has been adopted. Accordingly, the value has been fixed at `. 3,50,450/- per are for category No.I and by giving 10% decrease from category No.I, the land value has been fixed for category No.2 is at the rate of `.2,52,054/- per are. 5. The claim for enhancement is at the rate of `.35 lakh per cent. Before the reference court, Exts.A1 to A15 documents have been produced in evidence by the claimants. Exts. C1 and C2 are L.A.A. No.83/2012 & 99/2012 **==> picture [14 x 9] intentionally omitted <==** the Commissioner's report and AW1 to AW6 have been examined. AW2 is the Advocate Commissioner and AW6 has been examined to prove Exts. A2 to A15. 6. First we will come to the manner in which the reference court has considered the claim for enhancement. What we find is that Exts. A2 to A15 documents have not been accepted on the premise that AW6 who was examined is not a competent witness. After finding about the importance of the locality and the potential value of the land, even though, no suitable or comparable evidence was produced by the claimant, 75% increase over the land value fixed by the Land Acquisition Officer, has been granted and accordingly, the value has been re-fixed. In L.A.R.No.28/2009 the land value has been re-fixed at `.6,13,287/- per are. In L.A.R. No.313/08 it has been fixed at `.4,41,094/-. 7. Learned Sr.Counsel of the appellant Sri.S.Sreekumar submitted that the reports of the Commissioner Exts.C1 & C2 will show that, the properties of the petitioners are situated in an important locality. There are a number of institutions, L.A.A. No.83/2012 & 99/2012 **==> picture [14 x 9] intentionally omitted <==** Government offices etc. lying in and around the acquired properties. It is only 2km away from the gosree bridge which is an important location. It is submitted that the respondents have not challenged in any manner the evidence given by AW6 or his capacity to give evidence in the matter. Exts.A2 to A15 properties was purchased by a Company known as Jain Housing Construction Company Ltd., for a hotel project. AW6 is the Senior Manager of the said company. When the competency of the witnesses is not challenged by the respondents, it is submitted that the reference court was not right in rejecting the evidence in toto. 8. It is submitted that Exts.A2 to A15 sale deeds have recorded the transactions which have been undertaken prior to the notification under section 4(1) of the Act. The details of the properties covered by Ext.A2 to A15 will show that they are not situated on the side of the main road. There is nothing to show that the transaction therein was undertaken for a fancy price also. Therefore, the learned Sr.Counsel for the appellant submitted that the property in Mulavukad island generally being L.A.A. No.83/2012 & 99/2012 **==> picture [14 x 9] intentionally omitted <==** located in two sides of Panchayat road and in the light of the fact that the acquired properties are bounded by the Vallarpadom connectivity road which was under construction, it cannot be said that Exts.A2 to A15 sale deeds are not documents in respect of similar transactions. It is therefore, submitted that the view taken by the court below is not correct. 9. Our attention was brought to each of the documents Exts.A2 to A15. The learned Government Pleader submitted that Exts.A2 to A15 have been purchased for a hotel project viz., for a commercial venture, The acquired property is 80ft. away from Poozhikara junction in the Panchayat road. The basic land is on the side of the Panchayat road at a distance of 400 meters from the acquired property. Even if the reference court was not pleased to accept the transaction reflected in the basic land, Exts.A2 to A15 being transactions in respect of different parts of the land lying in a more important locality, having commercial importance, none of the documents can be accepted to fix the land value of the acquired property. It is submitted therefore, that the view taken by the reference court is definitely justified. L.A.A. No.83/2012 & 99/2012 **==> picture [14 x 9] intentionally omitted <==** The learned standing counsel for the railway also supported the above arguments. 10. The first issue is with regard to the location importance of the acquired land. In this context, we will refer to the report of the Commissioner marked as Ext.C1. The acquired property is a level land and the Commissioner found that in the remaining property in the portion of the claimants land, there are cultivations like coconut trees, arecanut trees, mango trees etc. With regard to the important institutions lying in and around the locality, it is stated that the acquired property is only two km from the High Court viz., on the south eastern side, within one or two km from the acquired property, institutions like National Institute of Oceanography, petrol pump belonging to Bharath Petroleum Corporation, several flats under construction, the first gosree bridge etc. are situated. Apart from the same, Ponjikkara temple, St.Sebastians Church, Telephone Exchange, Muvalukad, Hidayathul Islam High School, Muthoot Finance Ltd., State Bank of Travancore, Mulavukad Police station etc. are situated within 50 to 500 meters south east on the acquired property. It is also L.A.A. No.83/2012 & 99/2012 **==> picture [14 x 9] intentionally omitted <==** stated that on the north eastern side, within 50 to 2 kms the Primary Health Centre, Mulavukad, Sree Bhuvaneswary Temple, Ponnarimangalam, St.Francis Anglo Indian L.P.School, Bolgatty, St.Mary's Parish hall, Ponnarimangalam St.Mary's Church, Boat jetty, Panchayat office, office of the Kudumbashree Unit, Village Office, etc. are situated. According to the Commissioner, the acquired properties are having much potential value and importance. 11. With regard to the access available in the acquired properties in paragraph 3 the details have been specified. Going by the same, the acquired property in L.A.R. No. 313/2009 is lying on the side of Mulalvukad Panachayat Road, at a distance of 80 meters from Ponjikkara Junction and a road having 4 meter width and fit for taking car etc. reaches the acquired property. Ext.C2 relates to the property involved in LAR 28/2009. It is a dry land having mud road access from the Mulavukad Panchayat Road. The mud road is having a width of 2 meters. Paragraph 2 details the important institutions nearby. L.A.A. No.83/2012 & 99/2012 **==> picture [14 x 9] intentionally omitted <==** 12. The total extent of the land with the claimant was 2.10 acres. It is lying as one plot. It is also stated that the basic land is not comparable with the acquired land, as the acquired land is having more importance. 13. With regard to the documents Exts.A2 to A15, it is stated that all those items are situated one km towards southern side, the same are lying near Ponnarimangalam junction and very near to the gosree bridge. 14. At the time of inspection, the property has not been developed. It is stated that the acquired properties are situated within 80 meters of the Mulavukad Panchayat Road. 15. The Commissioner was examined as AW2. He has spoken to the details of the report in his evidence also. 16. We will now come to the evidence of the claimants and AW6. AW1 is one of the claimants who was stated about the importance of the locality and as well as the potentiality of the acquired land in tune with the claim statement. 17. In the oral evidence given by AW6 he has stated that he is the Regional Manager of the Jain Housing Construction L.A.A. No.83/2012 & 99/2012 **==> picture [20 x 9] intentionally omitted <==** Company Ltd, which had purchased the properties in Mulavukad Village and Exts.A2 to A15 are the documents. In the cross examination what we find is that the competency of the witnesses has not been challenged and he has deposed that he has been working in the institution since 2005. The properties were purchased for a hotel project and more or less similar price was also given for the various parcels of land. According to him, the gosree bridge is situated at 25 metes from the said plot. 18. Ext.A2 is in respect of two cents of land which was sold for a price of Rs.16 lakhs, Ext.A3 is in respect of 8.30 cents of land which was sold for a price of Rs.7,97579/-, Ext.A4 is in respect of 3 cents of land which was sold for a price of Rs.25 lakhs, Ext.A5 is in respect of 8.150 cents of land which was sold for a price of Rs.8 lakh per cent. Ext.A6 is in respect of 4.3 cents of land which was sold for a price of Rs.8,83721/-. Ext.A7 is in respect of 2.4 cents of land which was sold for a price of Rs.10 lakh percent. Ext.A8 is in respect of 11.13 cents of land which was sold for a price of Rs. 8,61,383/- per cent. Ext.A9 is L.A.A. No.83/2012 & 99/2012 **==> picture [19 x 9] intentionally omitted <==** in respect of 6.153 cents of land which was sold for a price of Rs.8 lakh. Ext.A10 is in respect of 13.410 cents of land which was sold for a price of Rs. 9,79,083/- per cent. Ext.A11 is in respect of 6.078 cents of land was which sold for a price of Rs. 7,96,709/- per cent. Ext.A12 is in respect of 3 cents of land which was sold for a price of Rs.8 lakh per cent. Ext.A13 is in respect of 4.44 cents of land which was sold for a price of Rs.8 lakh per cent. Ext.A14 is in respect of 3.70 cents of land which was sold for a price of Rs. 8 lakh per cent. Ext.A15 is in respect of 2.569 cents of land which was sold for a price of Rs.8 lakh per cent. 19. The reference court rejected all these documents on the finding that the authority to show that AW6 is the Sr.Manager of the Jain Construction company has not been produced. But we find that his authority and competency has not been challenged in cross examination. There is nothing to show that he is not a competent witness to prove the genuineness of Exts.A2 to A15 sale transactions. Therefore, on that ground it cannot be said that the court below was right in discarding the documents. L.A.A. No.83/2012 & 99/2012 **==> picture [20 x 9] intentionally omitted <==** 20. The property in question is in Mulavukad Village and the Mulavukad Panchayat road is the important road nearby. Going by the evidence of PW6, the gosree bridge is only 25 metres from the properties covered by Exts.A2 to A15. Whereas the acquired property is at a distance of two km from the gosree bridge. 21. The basic land has not been accepted by the court below as the nature of the land whether it is dry or wet land has not been proved in evidence. As far as the acquired property is concerned it is a dry land which is a part of a level plot of a large extent of 2.10 acres. The Apex Court has considered the acceptability in evidence of documents relating to smaller plots for fixing the land value of the acquired properties. The law is settled that the sale deeds of small plots cannot be discarded on that ground alone. The court will have to consider its acceptance by assessing various aspects and relevant factors including the genuineness of the transactions. The plus factors like proximity to road, frontage on a road, nearness to developed area and minus factors like situated in an interior place from the main road, remoteness from developed locality etc. have to be verified. L.A.A. No.83/2012 & 99/2012 **==> picture [20 x 9] intentionally omitted <==** Various principles have been considered recently by the Apex Court in the decision reported in **Union of India v. Raj Kumar Baghal Singh (Dead) Th.Lrs. & Ors). (2014 (10) SCALE 365) and A Natesan Pillai v. Special Tahsildar L.A., Thiruchy (2010 (9) SCC 118.** Therefore, as far as fixing of land value is concerned, the court will be justified in relying upon the bonafide transaction of sale and in the absence of a similar transaction it is permissible to take into account transaction of nearest land around the date of notification under Section 4 by making a suitable allowance. 22. The settled principles will show that while computing the potential value, the expenses required for developing roads, then adopting a percentage of reduction for the importance of the relied on documents and further reduction based on the distance from the acquired properties from those lands are the reasonable methods which can be adopted. 23. If we consider the whole aspects in this case the above lines what we find is that the properties covered by transactions of Exts. A2 to A15 are in a more important locality than compared L.A.A. No.83/2012 & 99/2012 **==> picture [20 x 9] intentionally omitted <==** to the acquired property viz., they are near to the gosree bridge whereas the acquired property is not near the first gosree bridge. The average price for the properties covered by Exts.A2 to A15 sale deeds is `.7.50 lakhs. 24. Learned Sr.Government Pleader submitted that being a hotel project, the Company was in dire need of the property and therefore, the said factor may have influenced the parties. All these plots have been obtained together for constructing the hotel. In the light of the location importance of those properties covered by Exts.A2 to A15 and the fact that, it is for a commercial activity, whereas the acquired property is a residential property which was cultivated with permanent improvements, and a building was also there in one item, we find that a deduction of 35% has to be adopted for fixing the value of the acquired land. If the average price is taken as `.7.50 lakhs for Exts.A2 to A15 after deducting 35% the balance will be `.4,87,500/- per cent. 25. The acquisition in this case is by two different notifications. The first notification is dated 9.4.2007 and the 2[nd] L.A.A. No.83/2012 & 99/2012 **==> picture [20 x 9] intentionally omitted <==** notification is dated 15.11.2008. It is evident that the potentiality of the land cannot be disputed, as far as the acquired property is also concerned. But since the properties were acquired by two different notifications, as far as the land involved in L.A.R 313/ 2008 is concerned a lesser percentage can be deducted from the amount of `. 4,87,500/-. 26. Apart from that as far as the property involved in L.A.R. No.313/2008 is concerned it is included in category II i.e. dry land having access to two meters path way from the back waters and the land involved in L.A.R.No.28/09 is under category No.I, i.e. dry land having Panchayat road access. The land value for category II has been fixed by giving 10% decrease from category No.I by the Land Acquisition Officer and the same method can be adopted herein also. 27. In the light of the above discussion, we are of the view that the land value can be fixed at the rate `.4,50,000/- per cent for the land involved in L.A.R. no. 28/09 and for the land involved in L.A.R. No. 313/08, it will be 10% less i.e. `. 4,05,000/- per cent. L.A.A. No.83/2012 & 99/2012 **==> picture [20 x 9] intentionally omitted <==** 28. We find from the judgment of the reference court that apart from granting land value, an increase of the value of the building also has been granted. There is no challenge against the same in the appeal and therefore we are confirming the value of the building as granted by the reference court. Accordingly, these appeals are allowed. The appellants are also entitled to all statutory benefits as granted by the court below. Both the appeals have been filed along with applications for condoning delay and in the respective orders passed by this Court condoning delay, it has been made clear that, if the appeal is allowed, the enhanced compensation to the appellants will not carry interest applicable under Section 28 A of the Land Acquisition Act during the period of 306 days in L.A.A. 83 /2012 and for a period of 184 days in L.A.A. 99/2012 and we affirm the same. Sd/- **T.R.RAMACHANDRAN NAIR (JUDGE)** Sd/- **P.V.ASHA (JUDGE)** AL/- L.A.A. No.83/2012 & 99/2012 **==> picture [20 x 9] intentionally omitted <==** +++