Sosa w/o K.V. Mathew & Others v. State of Kerala & Indian Oil Corporation Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** **THE HONOURABLE MR. JUSTICE KURIAN JOSEPH** **&** **THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID** **THURSDAY, THE 3RD JANUARY 2008 / 13TH POUSHA 1929** **LA.App. No. 238 of 2002(D)** **--------------------------------LAR.151/1997 of III ADDL.SUB COURT,ERNAKULAM ....................** ## **APPELLANTS/CLAIMANTS IN THE L.A.R:** **-----------------------------------------------** **1. SOSA W/O. K.V. MATHEW, MOHAN VILLA, THEKKUMBHAGOM,TRIPUNITHURA.** **2. VARGHESE K.MATHEW, S/O. DO. DO** **3. PAUL K.MATHEW, S/O. DO. DO.** **4. ANIL K.MATHEW, S/O. DO. DO.** **5. VALSA THOMAS, D/O. DO. DO.** **6. SANTHA KURUVILLA, D/O. DO. DO.** **7. AJI PAUL, D/O. DO. DO.** **8. NEENA THOMAS, D/O. DO. DO. (APPELLANTS 1 AND 3 TO 8 REPRESENTED BY THEIR POWER OF ATTORNEY HOLDER 2ND APPELLANT VARGHESE K.MATHEW, MOHAN VILLA,THEKKUMBHAGAM, TRIPUNITHURA)** **BY ADV. SRI. SOMAN P.PAUL** ## **RESPONDENTS/RESPONDENTS/RESPONDENTS 1 & 2 IN THE LAR:** **-----------------------------------------------------** **1. STATE OF KERALA, NOTICE FOR WHOM MAY BE SERVED ON THE CHIEF SECRETARY TO GOVERNMENT SECRETARIAT,TRIVANDRUM.** **LA.App. No. 238 of 2002(D)** **...2...** **2. INDIAN OIL CORPORATION LTD., REGD.** **OFFICE AT G-9, ALIYAVUR JUNG MARG, BANDRA EAST, MUMBAI-51, ITS COCHIN MARKETING TERMINAL AT IRIMPANAM, REPRESENTED BY ITS PROJECT MANAGER, AND POWER OF ATTORNEY HOLDER, I.O.C., IRIMPANAM.** **BY GOVERNMENT PLEADER SRI. K.V. MANOJKUMAR. SRI.A.M.SHAFFIQUE SRI.P.SANTHALINGAM** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 03/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ----------------------------------------L.A.A. NO. 238 OF 2002** **----------------------------------------Dated this the 3[rd] day of January, 2008.** ## **J U D G M E N T** ## **- - Harun Ul Rashid, J.** This appeal is filed by the claimants in L.A.R. No. 151/1997 against the judgment and decree dated 31.07.2000 on the file of the III Additional Sub Judge, Ernakulam. An extent of 55.49 Ares of dry land and 62.51 Ares of wet land has been acquired for the purpose of installing storage tanks for Indian Oil Corporation. The Land Acquisition Officer valued dry land at Rs.33,480/- per Are and wet land at Rs.4,780/- per Are. Section 4(1) notification was published on 19.12.1994. 2. According to the claimants, acquired lands are situated in an industrial belt, by the side of Ambalamughal-Alwaye road. In the claim statement filed, they have stated the location of various public and private institutions and public limited companies near to the acquired lands. **L.A.A. 238/02 2** 3. In support of the claim for compensation, claimants examined AW1 to AW6. Exhibits A1 to A12 are also marked to establish their claim. The respondents examined RW1 and marked Exhibits B1 and B2. The court below considered Exhibits A5 to A12 documents. But all the said documents were rejected for the reasons stated in paragraphs 21 and 22 of the judgment under appeal. 4. According to the learned Sub Judge, the documents relating to small patches of land cannot be taken into consideration for valuing large extents of land. We find that the above said documents not only relates to small patches of land but also relates to bigger plots having 86 cents and 19 cents as well. The court below also find fault with the claimants for not taking out a commission to bring out the comparative merits and demerits of the acquired lands and Exhibits A5 to A12 lands. 5. Learned counsel for the appellants brought to our notice the decision of the Apex Court reported in _**Lucknow Development Authority vs. Krishna Gopal Lahoti (2007(4)**_ _**KLT 1046 (SC)**_ ) wherein it is held that it cannot be laid down as an absolute proposition that the rates fixed for the small plots **L.A.A. 238/02 3** cannot be the basis for fixation of the rate. The Apex Court further held that where there is no other material it may in appropriate cases be open to the adjudicating court to make comparison of the prices paid for small plots of land with necessary deductions/adjustments to be made while determining the prices. 6. The next question argued before us is as to whether the entire land involved in the LAR case was dry land on the date of notification. We have noticed the fact that as per the village records, only portions of the acquired land were dry and the balance extent were wet lands. Learned counsel for the claimants submitted before us that Exhibits A2 and A3 registered mortgage deeds, oral evidence adduced by the claimants and the notification published by the Government under Section 4(1) of the Land Acquisition Act will go to show that the entire land is dry land and should have been categorized as Category No. 1. 7. The court below after rejecting Exhibits A5 to A12 documents granted 25% increase on the land value fixed by the Land Acquisition Authority taking into account the fact that document No. 68/98 dated 06.01.1994 was executed 11 months **L.A.A. 238/02 4** prior to the date of Section 4(1) notification and further that there is a tendency to under value the property in the documents of sale to save stamp duty. For the wet lands, the court below held that 40% increase on the land value fixed by the Land Acquisition Authority is a reasonable price. 8. On the basis of the conclusions we have taken note of in the preceding paragraphs and on the basis of the contentions raised by the counsel for the appellants, we are of the view that a reconsideration of the land value is to be made in the interests of justice. The court below shall reappreciate the evidence including Exhibits A5 to A12 in order to arrive at a proper and reasonable land value. The appellants-claimants shall also be given an opportunity to take out a commission for the purpose of establishing the location and importance of the acquired lands. Regarding the categorization also, we find that a reappreciation of the facts shall be resorted to by the court below for the purpose of finding out the correct categorization. In the result, we set aside the judgment and decree under appeal and remand the case for fresh consideration in accordance with law. The appellants are entitled to refund of the court fee **L.A.A. 238/02 5** paid. Parties shall appear before the court below on 31.01.2008. The court below shall dispose of the case within a period of six months from the date of appearance of the parties. There will be no order as to cost. ## **KURIAN JOSEPH JUDGE** **HARUN-UL-RASHID JUDGE** smp **L.A.A. 238/02 6** **KURIAN JOSEPH & HARUN-UL-RASHID, JJ.** **L.A.A. NO. 238 OF 2002** **J U D G M E N T** **03.01.2008**