Sosa and others v. State of Kerala and Indian Oil Corporation Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 14[TH] DAY OF SEPTEMBER 2023 / 23TH BHADRA, 1945 LA.APP. NO. 99 OF 2009** **AGAINST THE JUDGMENT DATED 30.07.2008 IN LAR NO.151 OF 1997 OF THE III ADDITIONAL SUB COURT, ERNAKULAM** **APPELLANTS/CLAIMANTS:** - **1 SMT. SOSA, W/O K.V.MATHEW, MOHAN VILLA, THEKKUMBHAGAM, TRIPUNITHURA.(DIED)*** - **2 VARGHESE K.MATHEW, S/O.K.V.MATHEW, MOHAN VILLA, THEKKUMBHAGAM, TRIPUNITHURA.** - **3 PAUL K.MATHEW, S/O.K.V.MATHEW, MOHAN VILLA, THEKKUMBHAGAM, TRIPUNITHURA. (DIED)*** - **4 ANIL K.MATHEW, S/O.K.V.MATHEW, MOHAN VILLA, THEKKUMBHAGAM, TRIPUNITHURA.** - **5 VALSA THOMAS, D/O.K.V.MATHEW, MOHAN VILLA, THEKKUMBHAGAM, TRIPUNITHURA.** - **6 SANTHA KURUVILA, D/O.K.V.MATHEW, MOHAN VILLA, THEKKUMBHAGAM, TRIPUNITHURA.** - **7 AJI PAUL, D/O.K.V.MATHEW, MOHAN VILLA, THEKKUMBHAGAM, TRIPUNITHURA.** - **8 NEENA THOMAS, D/O.K.V.MATHEW, MOHAN VILLA, THEKKUMBHAGAM, TRIPUNITHURA.** - **9** ROHIT K. PAUL, S/O LATE PAUL K. MATHEW AGED 31 YEARS RESIDING AT KANJIRAKOTTU HOUSE, HOC TWONSHIP ROAD, BMC NAGAR COLONY, IRUMPANAM, ERNAKULAM DISTRICT – 682 309.** 2 L.A.A.No.99 of 2009 - **10** RITHU K.PAUL, D/O LATE PAUL K. MATHEW AGED 24 YEARS RESIDING AT KANJIRAKOTTU HOUSE, HOC TWONSHIP ROAD, BMC NAGAR COLONY, IRUMPANAM, ERNAKULAM DISTRICT – 682 309.** ***MEMO DATED 24.07.2023 REGARDING DEATH OF APPELLANTS 1 AND 3 IS RECORDED AS PER ORDER DATED 27.07.2023.** ****THE LEGAL HEIRS OF DECEASED APPELLANT NO.3 ARE IMPLEADED AS ADDITIONAL APPELLANTS 9 AND 10 AS PER ORDER DATED 14.08.2023 IN I.A.NO.2 OF 2023 IN LAA NO.99 OF 2009.** **APPELLANTS 1 AND 3 TO 8 REPRESENTED BY THEIR POWER OF ATTORNEY HOLDER APPELLANT NO.2 VARGHESE K.MATHEW.** **BY ADVS.** **A1, A3 TO A8 BY SRI.P.P.THAMPI A1, A3 TO A8 BY SRI.SOMAN P.PAUL** **A9 AND A10 BY YASH THOMAS MANNULLY** ## **RESPONDENTS/RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, ERNAKULAM.** - **2 INDIAN OIL CORPORATION LTD. WITH REGISTERED OFFICE AT G9, ALIYAVUR JUNG MARG, BANDRA EAST, MUMBAI – 51, ITS COCHIN MARKETING, TERMINAL AT IRUMPANAM REP. BY ITS PROJECT, MANAGER AND POWER OF ATTORNEY HOLDER.** **BY ADVS.** **R1 BY SRI.T.K.SHAJAHAN, SPECIAL GOVERNMENT PLEADER** **R2 BY K.RAJEEV** **R2 BY SRI.E.K.NANDAKUMAR** **THIS LAND ACQUISITION APPEAL HAVING COME UP FOR FINAL HEARING ON 21.08.2023, THE COURT ON 14.09.2023 DELIVERED THE FOLLOWING:** 3 L.A.A.No.99 of 2009 ## **JUDGMENT** ## P.G. Ajithkumar, J. The claimants are the appellants. An extent of 55.49 Ares of dryland and 62.51 Ares of wetland comprised in survey Nos.50/5, 50/6, and 50/9 of Thiruvankulam Village belonging to them were acquired for the purpose of installing storage tanks of Indian Oil Corporation. The notification under Section 4(1) of the Land Acquisition Act, 1894 was published on 19.12.1994. The Land Acquisition Officer awarded Rs.33,480/- per Are for the dry land and Rs.4,780/- per Are for the wetland. The claimants protested. In the reference, L.A.R.No.151 of 1997, the Sub Court, Ernakulam refixed the land value for the dry land as Rs.46,872/- per Are and for the wetland, Rs.7,170/- per Are. 2. Aggrieved by that judgment claimants filed this appeal under Order XLI, Rule 1 of the Code of Civil Procedure, 1908 and Section 54 of the Land Acquisition Act, 1984. 3. As per the judgment dated 11.06.2010 this Court enhanced the land value; Rs.50,000/- per Are for the dry land 4 L.A.A.No.99 of 2009 and Rs.11,875/- for the wetland. Dissatisfied with that, the claimants-appellants filed Civil Appeal No.9830 of 2013 before the Apex court. The appeal was allowed in part and the matter was remitted to this Court to decide the appeal for redetermination of the value of the wetland. The operative part in the judgment of the Apex Court dated 15.03.2023 is as follows: “10. Having considered the rival submissions, it appears to us that though the wetland cannot be equated with dry land for the purpose of determination of the market value, however, there cannot be any disparity in the rate of compensation for the wetland which is acquired through the same acquisition process. The entire wet land acquired under the subject - acquisition, deserves to be assessed at the same rate, save and except, where specific reasons are assigned to differentiate the potentiality and utility of scattered parcels of the wetland. In the absence of any such distinction available on record, it appears to us that the rate of wetland of the appellants requires re-determination by the High Court, especially keeping in view the award dated 30.11.2000 which according to the Appellants was passed in respect of the same acquisition. 5 L.A.A.No.99 of 2009 11. We, thus, deem it appropriate to remit the case to the learned High Court for re-determination of value of the wetland of the appellants, for which the parties shall be at liberty to raise their respective pleas before the High Court. 12. For the reasons afore-stated, the appeal is allowed in part; the impugned Judgment of the High Court dated 11.06.2000 is modified to the extent of determination of the market value of the wetland. The High Court is requested to re-determine the value of the wet land, taking into consideration the relevant material including the Award dated 30.11.2000 passed by the Reference Court which, as it appears from the record, was not relied upon as an example before the High Court at the time of hearing of Land Acquisition Appeal No.99 of 2009 filed by the appellants. 13. The parties are directed to appear before the High Court on 10.04.2023.” 4. Both sides entered appearance. Appellants No.2 and 4 to 8 filed I.A No.1 of 2023 producing therewith Annexures A2(a) to A2(i) invoking the provisions of Order XLI, Rule 27 of the Code. 5. Heard the learned counsel appearing for appellants 2 and 4 to 8, the learned counsel appearing for additional 6 ## L.A.A.No.99 of 2009 appellants 9 and 10, the learned Special Government Pleader and the learned Standing Counsel for the 2[nd] respondent. 6. The value of the dry land under the acquisition was refixed by this Court as per the judgment dated 11.06.2010 as Rs.50,000/- per Are. The Apex Court did not interfere with that part of the judgment. The value for 62.51 Ares of wetland of the appellants was fixed by this Court as Rs.11,875/- per Are. It was submitted before the Apex Court that the Reference Court as per the judgment dated 30.11.2000 in L.A.R.No.3 of 1998 fixed value of the wetland of similar category and acquired under the same notification at Rs.31,923/- per Are and the appellants claimed that they were also entitled to get compensation for wetland at the same rate. It is seen that nothing has been produced before the Apex Court to find whether or not the award in L.A.R.No.3 of 1998 was challenged in appeal. 7. In such circumstances, the Apex court after setting aside the judgment of this Court dated 11.06.2010 to the 7 ## L.A.A.No.99 of 2009 extent it relates to the value of the wetland remitted the matter for re-determination of compensation. 8. Appellants No.2 and 4 to 8 filed I.A.No.1 of 2023 for permission to adduce additional evidence. Except Annexures A2(a) and A2(b), which are copies of death certificates of appellant Nos.1 and 3, who expired pending this appeal, all the documents are produced for the purpose of proving that the acquired properties would fetch more value. The learned counsel appearing for appellants No.2 and 4 to 8 as well as the learned counsel appearing for additional appellants No.9 and 10 would submit that this appeal was remitted for re-determination of the value of the land and therefore the whole matter got reopened. Therefore, a fresh decision on appreciation of the evidence already on record and also the additional documents is essential. The learned counsel appearing for appellant Nos.9 and 10 would further submit that when the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short “Fair Compensation Act”) 8 L.A.A.No.99 of 2009 replaced the Land Acquisition Act, 1894, a more pragmatic view has to be taken in the matter of payment of compensation for the acquired land. It is submitted that computation of compensation shall be done bearing in mind the principle under Article 300A of the Constitution of India, which guarantees right to property as a Constitutional right. In view of that, the compensation entitled by the appellants for the whole property is sought to be redetermined so as to ensure just compensation to the appellants. 9. The learned counsel appearing for the appellants further would submit that the Reference Court refused to accept Annexures A9 and A11 as exemplar to fix value of the land under acquisition saying that those are post notification transactions. The learned counsel for the appellants assails the said finding and submits that the post- notification transaction can certainly be acted upon, subject, of course, to the required variations. It is further submitted that the purpose for which the acquisition was made also is a relevant fact, but the Reference Court did not consider that aspect. In 9 ## L.A.A.No.99 of 2009 order to fortify the said contention, the learned counsel appearing for additional appellant Nos.9 and 10 placed reliance on **Uttar Pradesh Awas Evam Vikash Parishad v. Asha Ram (Dead) through LRs. and others [AIR 2021 SC 2832]** and **S.Shankaraiah Thro.GPA Holder and others v. Land Acquisition Officer and Revenue Divisional Officer Peddapalli Karimnagar Dist. and others [AIR 2022 SC 5702]** . In the said decisions, the Apex Court held that the potentiality of the acquired land is one of the primary factors while determining the market value and while considering that aspect, the purpose for which it was acquired also is a relevant aspect. 10. The Apex Court in the order of remand, it was categorically held that insofar as determination of the market value of the dry land is concerned, no interference is required. Concerning the wetland alone, the contentions of the appellants were accepted. That too, in the light of the fact that the value fixed for the wetland of the same category acquired under the same notification, more compensation was 10 L.A.A.No.99 of 2009 granted by the Reference Court in LAR No. 3 of 1998. The Apex Court observed that though the wetland cannot be equated with a dry land for the purpose of determining the market value, there cannot be any disparity in the rate of compensation for different wetlands acquired through the same acquisition process. It was held that the entire wetland acquired under the subject acquisition deserves to be assessed at the same rate, save and except, where specific reasons are assigned to differentiate the potentiality and utility of scattered parcels of the wetland. The further observation is that ‘in the absence of any such distinction available on record, it appears to us that the rate of wetland - of the appellants requires re determination by the High Court, ’ especially keeping in view the award dated 30.11.2000 . Therefore, the scope of consideration in this appeal is about differentiation, if any, of the potentiality and utility of the acquired wetland from the property involved in the award dated 30.11.2000 in L.A.R.No.3 of 1998. 11 L.A.A.No.99 of 2009 11. Annexure A2(c) produced by the appellants along with I.A.No.1 of 2023 relates to acquisition of dry land for the same purpose. Annexure A2(d) and A2(e) are copies of documents of the years 2015 and 2017, whereas the subject acquisition was in the year 1994. Annexure A2(f) relates to acquisition of land for Metro Rail project in the year 2022. Those documents and other documents which are revenue records have no bearing in determination of market value of the wetland in question. Therefore, the said documents are not liable to be accepted as additional evidence in this case. Further, the contentions put forth by the appellants that are mentioned in paragraph No. 8 and 9 above also, in the above circumstances, are not liable to be countenanced. 12. In the award dated 30.11.2000 in L.A.R.No.3 of 1998 value of the wetland was fixed as Rs.31,923/- per Are. Neither the learned Special Government Pleader nor the Standing Counsel for the 2[nd] respondent has a case that the award in L.A.R.No.3 of 1998 was challenged in appeal. The findings of the Reference Court that 62.51 Ares of land 12 ## L.A.A.No.99 of 2009 acquired from the possession of the appellants was wetland is based on cogent evidence. At this stage, there is no scope for assailing such a finding, especially, when AW4, an independent witness stated that coconut saplings were planted intermittently in the property by forming sand dunes, while retaining the remaining area with the character of wetland. In such circumstances, we are of the view that there is absolutely no reason to find that the potentiality and utility of the acquired land are different from the land involved in L.A.R.No.3 of 1998. Both were abutting the Seaport-Airport Road (Irumpanam-Kakkanad Road) and they were in the process of reclamation. We are, therefore, of the view that the value of 62.51 Ares of land belonging to the appellants is liable to be refixed at Rs.31,923/-. 13. The learned Standing Counsel for the 2[nd] respondent would submit that this appeal has been protracted this far due to the inaction on the part of the appellants and therefore they are not entitled to get interest for the enhanced compensation. The learned Standing Counsel placed 13 L.A.A.No.99 of 2009 reliance on **Shivangouda Ninganagouda Keri since deceased by his LRs. v. Special Land Acquisition Officer, UKP, Bilagi District, Bagalkot [(2018) 11 SCC 327], Ningappa Thotappa Angadi (Dead) Through LRs. v. Special Land Acquisition Officer and another [(2020) 19 SCC 599]** and **Tara Chand and others v. State of Haryana [(2020) 20 SCC 567]** in this regard. The Apex Court in those cases held that the respective claimants were not entitled to get interest for the period of delay occurred in filing the appeal. The said principle cannot be applied in this case. The obligation of the State as also the acquisitioning authority to pay just compensation to the owner of the acquired land cannot be decimated. Compensation for wetland involved in L.A.R.No.3 of 1998, which is similar to the land acquired from the possession of the appellants, was determined by the Reference Court on 30.11.2000. It was equally the obligation of the State as well as the 2[nd] respondent to bring that fact to the Reference Court or to this Court. As such, the 2[nd] respondent cannot now complain that the appellants failed to 14 L.A.A.No.99 of 2009 place the award in L.A.R.No.3 of 1998 in time before this Court and for that inaction they should be denied interest. The statutory right under Article 28 of the Land Acquisition Act of the 2[nd] respondent cannot be denied for such a reason. The appeal is allowed accordingly. The appellants shall be paid enhanced compensation for 62.51 Ares of wetland at the rate of Rs.31,923/- per Are together with all statutory benefits, after deducting the compensation already paid. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 15 L.A.A.No.99 of 2009 ## **APPENDIX OF LA.APP. 99/2009** ## **PETITIONER ANNEXURES** - **ANNEXURE A2(A) TRUE COPY OF DEATH CERTIFICATE OF APPELLANT NO.1, SMT. SOSA** - **ANNEXURE A2(B) TRUE COPY OF DEATH CERTIFICATE OF APPELLANT NO.3, SRI. PAUL MATHEW** - **ANNEXURE A2(C) ONLINE CERTIFIED COPY OF JUDGMENT DATED 11-11-2009 IN LA. APP. NO. 681 OF 2005 OF THIS HON'BLE COURT** - **ANNEXURE A2(D) CERTIFIED COPY OF DOCUMENT NO. 661/1/2017 OF THRIPUNITHURA SRO** - **ANNEXURE A2(E) CERTIFIED COPY OF DOCUMENT NO. 679/1/2015 OF THRIPUNITHURA SRO** - **ANNEXURE A2(F) NOTARISED COPY OF THE PROCEEDINGS IN LAC NO 29/13 DATED 28-02-2014 OF SPECIAL TAHASILDAR (L.A.) NO. 1, KOCHI METRO RAIL PROJECT, ERNAKULAM** - **ANNEXURE A2(G) NOTARISED COPY OF THE AWARD NO. 56/22 DATED 16-02-2022 IN LAC NO 229 OF 2021 OF SPECIAL TAHASILDAR (L.A.) NO. 1, KOCHI METRO RAIL PROJECT** - **ANNEXURE A2(H) NOTARISED COPY OF LAND TAX RECEIPT DATED 23-11-2022 OF THANDAPEER NO. 25202 OF NADAMA VILLAGE, KANAYANNUR TALUK** - **ANNEXURE A2(I) NOTARISED COPY OF LAND TAX RECEIPT DATED 13-06-2023 OF THANDAPEER NO. 25202 OF NADAMA VILLAGE, KANAYANNUR TALUK**