SOUTHA BEEVI W/O MUHAMMED KUNJU; BEENA; ABDUL VARI S/O MUHAMMED KUNJU v. STATE OF KERALA and MANAGER, HINDUSTAN PETROLEUM CORPORATION LTD.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH TUESDAY, THE 8TH DAY OF AUGUST 2017/17TH SRAVANA, 1939 LA.App..No. 26 of 2012 () -------------------------- AGAINST THE ORDER/JUDGMENT IN LAR 54/1995 of ADDL.SUB COURT,KOLLAM DATED 17-03-2010 APPELANTS/CLAIMANTS: ---------------------- 1. SOUTHA BEEVI W/O.MUHAMMED KUNJU, EDAPPALLIL, MADAPPALLY, PANMANA, KARUNAGAPPALLY TALUK. 2. BEENA, D/O.MUHAMMED KUNJU, EDAPPALLIL, MADAPPALLY, PANMANA, KARUNAGAPPALLY TALUK. 3. ABDUL VARI, S/O.MUHAMMED KUNJU, EDAPPALLIL, MIDAPPALLY, PANAMANA, KARUNAGAPPALLY TALUK. APPELLANTS 1 TO 3 REPRESENTED BY THEIR POWER OF ATTORNEY ABDUL NAZAR, EDAPPALLIL VEEDU, MIDAPPALLY MURI, PANAMANA VILLAGE, KARUNAGAPPALLY TALUK. BY ADV. SMT.ASHA ELIZABETH MATHEW RESPONDENT(S)/RESPONDENTS: -------------------------- 1. STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, COLLECTORATE, KOLLAM-691001. 2. MANAGER, HINDUSTAN PETROLEUM CORPORATION LTD., REGIONAL OFFICE, MATHAI MANJOORAN ROAD, TATAPURAM, ERNAKULAM, COCHIN-14. R1 BY ADV. GOVERNMENT PLEADER SMT.RESHMI K.M. R2 BY ADV. SRI.T.R.RAVI THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 08-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **A.M. SHAFFIQUE & K.P.JYOTHINDRANATH, JJ.** =========================== LAA No. 26 of 2012 =============== Dated this, the 8[th] day of August, 2017 ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal is filed by the claimants in LAR No.54/1995. An extent of 12.95 Ares of land was acquired pursuant to notification under Section 4(1) of the Land Acquisition Act, 1894, published on 18/1/1992. The Land Acquisition Officer (LAO) fixed the land value after categorizing the land into three different categories. 2.08 Ares of land was categorized under Category 2, that is dry land between Edappally Kotta and Railway track. The land value fixed was `6,674/- per Are. 5.22 Ares of land came under Category No.4 which was treated as reclaimed wet land and land value awarded was `2,428/- per Are. In respect of 5.65 Ares, the property was treated as a road and accordingly categorized under Category 6. Only an amount of `100/- was fixed as compensation for the said land. LAA No.26/12 -:2:- 2. Claimants objected to the award and the matter was referred to the Sub Court under Section 18 of the LA Act. Initially, the reference was answered confirming the award passed by the LAO. The reference was restored to enable the claimants to adduce evidence on condition that the claimants will not be entitled for interest for the delay period of 2208 days if the compensation is enhanced. Accordingly, evidence was adduced in the case. The claimants relied upon Ext.A2 certified copy of the judgment in LAR No.55/1995 of Sub Court, Kollam. The power of attorney holder of the claimants was examined as AW1. Respondents produced Exts.R1 to R3, but no witnesses were examined. Reference Court found that Ext.A2 judgment cannot be relied upon as the property covered by Ext.A2 was not comparable with the land under acquisition. The Court below therefore enhanced the land value in respect of category No.2 at `4,338/- per Are, for category No.4 at `1,574/- per Are and for category No.6 at `65 per Are over and above the amount fixed by the LAO. 3. Learned counsel for the claimants while impugning the aforesaid judgment contended that Ext.A2 judgment ought to LAA No.26/12 -:3:- have been taken note of by the Reference Court to fix the land value. Ext.A2 judgment relates to acquisition for the very same purpose. Notification under Section 4(1) was issued on 30/9/1992. LAO fixed the land value at `10,300/- per Are for 3.90 Ares. The Sub Court enhanced the value to `24,700/- per Are. It is submitted that as per the evidence of AW1, the land covered by Ext.A2 is situated 100 metres west of the land and therefore the land involved in the present case is comparable with the land acquired in terms of Ext.A2 judgment. Learned counsel also placed reliance on the judgment of the Apex Court in Ali Mohammad Beigh and Others v. State of Jammu and Kashmir [(2017) 4 SCC 717], Chimanlal v. Special Land Acquisition Officer [(1988) 3 SCC 751], Kunjeliyamma Kuryan v. State of Kerala and another (2017 (1) KHC 111), Ittimathu Pavu v. State (1951 KHC 75), Sreedharan v. State of Kerala (1967 KHC 327), State of Kerala v. C.T.Hashim (2009 KHC 1342) and Ashok Kumar and another v. State of Haryana (2016 KHC 6169). These judgments had been placed for the purpose of contending the manner in which the land acquisition references are to be answered and how the market value has to be fixed. It is argued that even in respect LAA No.26/12 -:4:- of Ext.A2 judgment, though the notification is a few months after the date of notification in the present case, still, the said judgment can be relied upon to fix the market value of the land in the present case. It is also argued that in certain connected cases, requisitioning authority had settled various cases by paying additional amount of `1,000/- per cent for the claimants in order to have a finality of the issue. 4. On the other hand, learned Government Pleader supported the stand taken by the Reference Court. It is stated that Ext.A2 judgment cannot be relied upon for more reasons than one. Perusal of Ext.A2 would itself show that the said property was by the side of National Highway, whereas, admittedly the property of the claimants was between the Edapally Kotta Market and railway track. The property covered by Ext.A2 was not at all comparable with the property under acquisition in the present case and therefore in the absence of any evidence, the Court below was justified in making an assumption regarding the market value and fixing the land value at the rates aforesaid. It is also submitted that in most of the cases, enhancement by 65% has been approved by this Court and LAA No.26/12 ## -:5:- no enhancement was granted in that regard. 5. Learned counsel appearing for the requisitioning authority also supports the view taken in the matter. It is however fairly submitted that, in some cases, the requisitioning authority had agreed to pay `1,000/- per cent in addition to the amount awarded by the Sub Court. 6. Having heard the learned counsel on either side and having perused the records, the first question to be considered is whether Ext.A2 judgment can be relied upon to fix the value of land in the present case. Ext.A2 property is situated by the side of the National Highway as well as a very prominent locality and can have no comparison with the land under acquisition. Though AW1 had stated in his evidence that the property covered by Ext.A2 was 100 metres beyond the property on the western side of the acquired property, perusal of Ext.A2 would show that the Court has clearly indicated the nature and lie of A2 property as, by the side of National Highway. Under such circumstances, deposition of AW1 cannot be accepted to that extent. No other evidence was adduced in the matter and no reliance can be placed on Ext.A2 judgment. Even otherwise, perusal of Ext.A2 judgment would LAA No.26/12 -:6:- show that the Court did not rely upon any particular document as such for giving enhancement in the said case. In the said case also, after rejecting the sale deeds which had been produced in the case, the Court was only relying upon the judgment in an earlier case. Such factors cannot be taken note of while fixing the land value in the present case. Under such circumstances, we do not think that Ext.A2 will be a safe guide for fixing the land value in the present case. However, it is brought to the notice of this Court that the requisitioning authority had settled certain cases by giving enhancement of `1,000 per cent, in which event, the claimants are also entitled for the said enhancement. Accordingly, the land value can be enhanced by a further amount of `2,471/- per are. 7. In regard to Category No.6, land value was given only at `100/- per Are proceeding on the basis that 5.65 Ares is lying as a road. Admittedly, it is a private road which was being used by the claimants for his own purpose. It is is not a case where the road is kept as a public road. In so far as the claimants are the owners of the property, they are entitled for full land value as if it comes under Category No.2 Accordingly, we are of the view that LAA No.26/12 -:7:- in respect of 5.65 Ares, the value fixed in Category No.2 shall be applicable and the claimants shall be entitled for the said amount. In the result, this appeal is allowed as under:- (i) The land value for 5.22 Ares coming under Category 4 is fixed at `6,473/- (Rupees Six thousand four hundred and seventy three only) per Are. (ii) The land value for 2.08 Ares and 5.65 Ares coming under Category 2 is fixed at `13,483/- (Rupees Thirteen thousand four hundred and eighty three only) per Are. (iii) The claimants shall be entitled for the aforesaid land value after deducting the amount awarded by the LAO. (iv) Claimants shall also be entitled for interest and other benefits as decreed by the Court below. Sd/- ## **A.M. SHAFFIQUE, JUDGE** Sd/- ## **K.P.JYOTHINDRANATH, JUDGE** Rp9/8/2017 //True Copy// PS TO Judge