State of Kerala & Kerala Infrastructure Development Corporation (KINFRA) v. S. Sivakumar & State of Kerala (LA.App. No. 310/2007 & Cross Objection No. 33/2007; L.A.R. Nos. 63/2005 et al.)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE KURIAN JOSEPH** **& THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID** **THURSDAY, THE 17TH JULY 2008 / 26TH ASHADHA 1930** **LA.App..No. 310 of 2007 & Cross Objection No.33/2007** **---------------------------------------------------------------------------LAR.63/2005 OF III ADDL.SUB COURT, ERNAKULAM** **....................** ## **APPELLANT/ 2ND RESPONDENT:** **------------------------------------------------** **THE MANAGING DIRECTOR, KERALA INDUSTRIAL INFRASTRUCTURE DEVELOPMENT CORPORATION (KINFRA), KINFRA HOUSE ANNEX, T.C.NO.9/2585, ELANKOM GARDENS, VELLAYAMBALAM, THIRUVANANTHAPURAM-10.** **BY ADV. SRI.G.S.REGHUNATH.** ## **RESPONDENTS/ CLAIMANT & 1ST RESPONDENT:** **-----------------------------------------------------------------------** **1. S.SIVAKUMAR, POWER-OF-ATTORNEY HOLDER OF MR.JOY, SREEVILLA, A.K.ROAD, ERNAKULAM.** **2. STATE OF KERALA, REP.BY THE SPECIAL TAHSILDAR (LA), KOCHI REFINERIES LTD., VYTTILA, N.F.GATE, TRIPUNITHURA, ERNAKULAM DISTRICT.** **GOVT. PLEADER SRI. K.J. MOHAMMED ANZAR FOR R2, ADV. SRI.K.C.CHARLES FOR R1, ADV. SRI.A.BALAGOPALAN FOR R1, ADV. SRI.C.MURALI FOR R1.** **THIS LAND ACQUISITION APPEAL & CROSS OBJECTION HAVING BEEN FINALLY HEARD ON 17/07/2008, ALONG WITH L.A. APPEAL NO. 857/2007 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **KURIAN JOSEPH & HARUN-UL-RASHID, JJ.** **---------------------------------------------------------------L.A.A.NOS. 310, 849, 850, 851, 852, 853, 854, 855, 856, 857, 1463, 1464, 1465, 1660, 1693, 1710, 1717, 1735, 1764, 1790, 1800, 1811, &1824 OF 2007 &** **1, 6, 35, 38, 45, 82, 97, 116, 153, 173, 223, 257, 272, 273, 274, 286, 287, 353, 381, 389, 392, 398, 422, 423, 432, 454, 457, 466, 495, 498, 559, 587, 588, 637, 656, 657, 659, 667, 695, 697, 702, 709, 728, 734, 739, 758, 761, 778, 780, 834, 839, 868, 1057, 1067, 1075, 1095, 1099,1135, 1137, 1147, 1171, 1172,& 1174 OF 2008 & CROSS OBJECTION NO.33 OF 2007 IN L.A.A. NO.310 OF 2007** **----------------------------------------------------------------** Dated this the 17th day of July, 2008 ## **JUDGMENT** ## **Harun-Ul-Rashid, J.** The above batch of appeals filed by the State of Kerala and by the Managing Director Kerala Industrial Infrastructure Development Corporation (KINFRA) are directed against the judgment and decree passed by the Sub Court, Ernakulam in various Land Acquisition References. In many appeals, orders are yet to be passed on the applications for condonation of dealy. The reference court granted enhancement in all the cases. Aggrieved by the grant of additional compensation for the lands acquired, the present appeals are filed. The parties herein are referred to as claimants and respondents as in the reference cases. _L.A.A.NO.310/2007 & CONNECTED CASES_ 2 2. The properties in question are acquired for expansion of KEPIP for KINFRA. Notification under Section 4(1) of the Land Acquisition Act is dated 24.10.2003. The properties are comprised in different Survey Nos. of Kakkanad Village, Kanayannur Taluk. For the purpose of passing the award, the Land Acquisition Officer classified the acquired lands into ten categories, the details of which are as follows: - Category No.I : Dry land having access from MLA road on the west. - Category No.II : Dry land with access from 12 to 15 meters wide private tarred road. - Category No.III : Dry land with access from untarred private road. - Category No.IV : Dry land without any access. - Category No.V : Nilam with access from untarred way as well as from private way. - Category No.VI : Wet land without access. - Category No.VII : land lying as thodu or lake with access from private way. - Category No.VIII : Wet land lying as thodu without way. - Category No.IX : Wet land without way lying at a higher level. - Category No.X : Private land lying as road. _L.A.A.NO.310/2007 & CONNECTED CASES_ 3 The extent of property acquired in all the above cases except in L.A.R. No.53 of 2005 (L.A.A. NO.851 of 2007), L.A.R. No.87 of 2005 (L.A.A. Nos.1464 & 1660 of 2007) and L.A.R. No.119 of 2005 (L.A.A. No.381 of 2008) is below 20 Ares. The extent of land acquired in L.A.R. No.53 of 2005 is 20.80 Ares, in L.A.R. No.85 of 2005 is 20.33 Ares and in L.A.R. No.119 of 2005 is 20.40 Ares. In majority of the cases, the extent of land acquired is between 2 and 5 Ares. The cases in which the land acquired is between 5 and 20 Ares are given below: L.A.R.No.59/2005 (L.A.A. Nos.855/2007 & 657/2008) : 10.24 Ares L.A.R. No.86/2005 (L.A.A.No.587/2008) : 10.60 Ares L.A.R.No.112/05 (L.A.A. No.173/2008) : 11.24 Ares L.A.R.No.117/2005 (L.A.A. No.353/2008) : 13.30 Ares L.A.R.No.118/2005 (L.A.A.No.35/2008) : 12.55 Ares L.A.R. No.164/2005 (L.A.A. No.588/2008) : 19.05 Ares L.A.R. No.198/2005) (L.A.A. No.423/2008) : 12.05 Ares L.A.R. No.202/2005 (L.A.A. No.590/2008) : 14.52 Ares _L.A.A.NO.310/2007 & CONNECTED CASES_ 4 L.A.R. No.206/2005 (L.A.A. No.1463/2007) : 15.32 Ares L.A.R. No.215/2005 (L.A.A. No.466/2008) : 10.27 Ares Thus, in the majority of cases, the lands acquired are small plots belonging to different claimants. The Land Acquisition Officer considered 60 sale deeds for the purpose of fixing the land value and the rate of compensation was fixed category wise. The lands acquired in the above cases come under Category Nos.I to IV except a negligible extent of 0.8 Ares in L.A.R.No.164 of 2005 which comes under Category No.VI. and 0.13 Ares of land in L.A.R. No.215 of 2005 under Category No.X. The land value fixed by the Land Acquisition Officer for Category Nos. I to IV are as follows: Category No.I : Rs.54,098/- per Are Category No.II : Rs.50,916/- per Are Category No.III : Rs.47,734/- per Are Category No.IV : Rs.44,552/- per Are Since the lands acquired in the above cases come under Category Nos.1 to IV, it is not necessary to mention the details of the price in respect of _L.A.A.NO.310/2007 & CONNECTED CASES_ 5 Category Nos.V to X. The reference court, on a consideration of all the relevant facts and circumstances and the evidence on record refixed the land value for Category Nos. I to IV as follows: Category No.I : Rs.94,600/- per Are Category No.II : Rs.86,000/- per Are Category No.III : Rs.81,700/- per Are Category No.IV : Rs.75,039/- per Are In the case of Category No. III, the reference court deducted 5% from the value fixed for Category No. II. 3. In the claim statement filed by the claimants, it is contended inter alia that the value awarded by the Land Acquisition Officer for the land and the structures therein is not adequate and reasonable, that the acquired lands are dry lands situated in a very important locality near Civil Station, Ernakulam, that the properties are facing tarred roads and private roads, that the properties were purchased by them for the purpose of construction of residential buildings and that the properties are having high potentiality and commercial value. They also contended that various important institutions like Special Economic Processing Zone(SEPZ), _L.A.A.NO.310/2007 & CONNECTED CASES_ 6 V.S.N.L., Info Park, T.V. Station, Akashavani, Company Law Board, NPOL, Government Press, Nationalised Banks, Cochin Refineries Ltd, Indian Oil Corporation, Bharat Petroleum etc. are functioning within a radius of 1-3 Kms. from the acquired lands. The claimants further contended that educational institutions like Rajagiri College of Engineering & Technology, Rajagiri College of Management Studies, Christu Jayanthi Public School, Bhavan's Adarsha Vidhyalaya, Kalabhavan School, Marthoma School, Al Ameen Public School etc. are situated at a distance of 75 to 100 metres from the acquired property. It is also contended by them that Model Engineering College, Kochi Cooperative Medical College, Bharatamatha College, Cochin University etc. are located at about 3-4 Kms. away from the acquired lands. It is also submitted that various shopping centres and places of worship are located in the vicinity. The claimants also submitted that the Sea port - Air port road passes about 1 Km. away from the acquired lands and also narrated in detail the potentiality of the lands due to the proximity of the very many institutions and commercial centres. Most of the claimants claimed land value at the rate of Rs.75,000/- and 1,50,000/- per cent. 4. The contesting respondents opposed the prayer for enhancement of compensation. It is contended inter alia that the Land Acquisition _L.A.A.NO.310/2007 & CONNECTED CASES_ 7 Officer had awarded adequate compensation to the acquired lands, that the properties acquired are wet lands and not dry lands as claimed by the claimants and that the acquired lands are neither situated in important localities nor near to Civil Station. According to them, the averment that important institutions are located near the acquired lands is not correct and that the lands are lying in a remote location. The respondents further contended that the Sea port-Air port road passes about 2 Kms. away from the acquired property and the claim for enhancement of compensation is, therefore, unsustainable. 5. L.A.R. No.63 of 2005 and nine other cases were jointly tried and a common judgment was passed . Other reference cases were also grouped together and common judgments were passed. For the purpose of deciding the issues in the above appeals, we refer to the oral and documentary evidence and the judgment passed in L.A.R. No.63 of 2005 (L.A.A.No.310 of 2007). The reference court examined AWs.1 to 6 on the side of the claimants and marked Exts.A1 to A40. On the side of the respondents, RWs.1 to 4 were examined and Exts.R1 to R40 were marked. Exts.C1 to C3 are court exhibits and Exts.X1 to X1(c) are witness exhibits. 6. In Ext.C1 commission report, it is reported that the properties _L.A.A.NO.310/2007 & CONNECTED CASES_ 8 covered by the above references were reclaimed dry lands and that the plots are house plots as against the case of KINFRA that the properties are water logged wet lands and were in an abandoned condition at the time of acquisition. AW.1, the claimant in L.A.R. No.53 of 2005 and who was the Director of Halifax Developers testified before the court below that there was a proposal for a housing colony in the acquired property and that developments were carried out by constructing roads, drainages and drawing of electric lines and pipe lines. He further deposed that many of the acquired lands were demarcated with granite wall foundation on its boundary and that the properties demarcated as house plots are having direct access either to tarred road or metalled road. AW.1 admitted that as per Ext.R4 title deed, the nature of the property is described as paddy field. He also stated that the properties covered by his title deeds were developed and reclaimed and that at the time of acquisition it was dry land. According to him, Exts.R20 to R39, the notes to award and mahazar clearly show that at the time of acquisition, the acquired lands were reclaimed wet lands with granite wall foundation on its boundary. In the light of the above material, the contention of the respondents that the properties were abandoned water logged wet lands does not merit consideration. _L.A.A.NO.310/2007 & CONNECTED CASES_ 9 7. The location and the situation of the properties under acquisition would go to show that the said properties have potential value and were of commercial importance. It is also true, as spoken to by AW.1 that Kakkanad Area was developing fast and that he had taken necessary steps to carry out construction of a housing colony in the land under acquisition by name "World Malayali Nagar". The evidence tendered by AW.1 and Ext.A5 series of photographs would go to show that developments were carried out in the acquired lands by constructing roads, drainages and drawing of electric lines and pipe lines. This fact is not seriously disputed by the respondents. It is a proved fact that the properties are facing roads having sufficient width and that the Sea port-Air port road is passing near the acquired lands. It is also an undisputed fact that important institutions, educational institutions, commercial establishments and places of worship as noted in paragraph 3 of the judgment are situated a few kilometres away from the acquired properties. The importance of the locality was reported by the Commissioner in Ext.C1 report. The Commissioner also noted in the report that the Civil Station is 3.600 Kms. away from the acquired lands and the Sea port-Air port road is only 1Km. distance from the acquired lands. The various important institutions, educational institutions, shopping complex banks etc. situated near the acquired lands were also reported by the Commissioner. The reference _L.A.A.NO.310/2007 & CONNECTED CASES_ 10 court relied on the report of the Commissioner who was examined as RW.1. Further, note to the award shows that the Land Acquisition Officer considered 60 title deeds before fixing land value for the various categories of lands. Ext.R5 is the title deed which was relied on by the Land Acquisition Officer as the basic document for fixing the land value of the properties coming under Category Nos. I to IV. Ext.R5 is in respect of 19.71 Ares of land in the same village and the land value fixed for the said property is Rs.63,645/- per Are. The property covered by Ext.R5 being dry land without having any access, the Land Acquisition Officer deducted 30% of the value for the purpose of fixing the value of the land coming under Category No. IV and thus fixed Rs.44,552/- per Are. After taking Ext.R5 as the basic document and after fixing the land value of Category No. IV, the Land Acquisition Officer relied on the very same document for fixing the land value of Category Nos. I to III by deducting 15%, 20% and 25% respectively from the documental value. 8. The reference court took into consideration the important fact that there is a 15 metre wide tarred road leading to some of the properties, and 12 metre wide tarred road leading to some other properties. The reference court also noted the fact that there are facilities for electric and water connection to the acquired lands coming under Category No. II _L.A.A.NO.310/2007 & CONNECTED CASES_ 11 and rightly held that such property cannot be compared to the property covered by Ext.R5 which has no road access. The Commissioner had also reported in Ext.C1 report that the acquired properties and the property covered by the basic document are not similar and similarly situated and that the acquired lands have more importance than the property covered by Ext.B5. Taking into consideration all these facts, the reference court rightly concluded that the land value fixed by the Land Acquisition Officer based on the land value in Ext.R5 document is not fair and reasonable. The reference court considered the documents produced by the claimants in support of their claim for enhanced compensation. After placing reliance on Exts.A10 to A17 and other documents and after considering the relative importance of the lands under acquisition, the reference court held that Ext.R5 and other documents relied on by the Land Acquisition Officer cannot be taken as the basis for fixing land value for the acquired lands. The claimants also produced Exts.A9, A38, A39 and A40 documents which according to them relate to neighbouring properties to the acquired lands and which are similar in nature and similarly situated. In support of the proof of consideration shown in the above documents, the claimants relied on the evidence of AW.2, the Secretary of Ernakulam Co-operative House Construction Society. From the evidence recorded in support of this contention, we find that there is nothing to show that the _L.A.A.NO.310/2007 & CONNECTED CASES_ 12 sale consideration shown in those documents were not reflecting the prevailing market value. The reference court also accepted the fact that the property covered by those documents are similar in nature and similarly situated as that of the acquired lands. The reference court also noted that the awarding officer as well as the respondents admitted the said fact. The reference court also took into consideration the additional facilities of the acquired lands in comparison with the properties covered by the above documents and also the time gap of one year from the date of Ext.A9 document till the date of Section 4(1) notification and fixed Rs.94,600/- per Are for Category No. I, Rs.86,000/- per Are for Category No. II, Rs.81,700/- for Category No. III by deducting 5% from the value fixed for Category No. II and Rs.75,039/- per Are for Category No.IV. For the structures in the property, on the basis of the report of the expert, the reference court granted 20% enhancement. 9. The contention of the learned Government Pleader and the counsel for the appellants is that the lands claimed were once wet lands which were reclaimed by the land owners without obtaining the permission under the Kerala Land Utilisation Order and, therefore, the claimants are entitled to land value only at the rate fixed for the lands which come under the category of wet lands. We have made it clear that _L.A.A.NO.310/2007 & CONNECTED CASES_ 13 these are undisputed facts and that the acquired lands were reclaimed wet lands which were developed for construction of residential buildings. For the purpose of fixing compensation under the Land Acquisition Act, the location, potentiality and other important factors of the land as on the date of Section 4(1) notification should be taken into account. It is an admitted fact that as on the date of Section 4(1) notification, the acquired properties were reclaimed wet lands. Admittedly nobody had initiated any proceedings against the claimants on the alleged reclamation done long back. Therefore, the claimants are entitled to land value prevailing in the locality at the time of Section 4(1) notification for the reclaimed wet lands. Permission from the authorities under the Kerala Land Utilisation Order is not germane for the purpose of fixing land value at the time of Section 4 (1) notification. The reference court rightly held that the properties are reclaimed lands with granite wall foundation on its boundary and having road access. Therefore, the contention of the appellants that the acquired lands are water logged wet lands and that the same cannot be treated as dry lands is unfounded. 10. Learned counsel further contended that the reference court went wrong in fixing the land value equally for small plots and larger plots. The appellants relied on the decision of the Supreme Court reported in _L.A.A.NO.310/2007 & CONNECTED CASES_ 14 ## **Atma Singh (Dead) through LRs. & Others v. State of Haryana &** **Another, 2008(2) SCC 568** and pointed out that 10% has to be deducted in the case of larger plots towards development charges. The claimants contended that all the properties were fully developed with electric and water connection and, therefore, there is no justification in making any deduction in the compensation fixed for larger plots. 11. We have mentioned in the preceding paragraphs that in majority of the cases, the extent of land acquired is between 2 and 5 Ares and in few cases, the extent is between 5 and 20 Ares. Hence, the contention raised by the learned counsel for the appellants is not applicable as far as these appeals are concerned. 12. The materials discussed above would clearly show that the fixation of land value for the properties under acquisition are based on materials which are relevant and proper for considering the market value of the property. The location of the acquired lands, its potentiality and other features and the oral and documentary evidence were considered elaborately by the reference court while refixing the land value. The enhancement of land value for Category Nos. II to IV is 68.9%, 71.15% and 57.12% respectively. We are of the view that the market value fixed _L.A.A.NO.310/2007 & CONNECTED CASES_ 15 by the reference court is just and proper. The grounds raised and the arguments advanced by the appellants are not sufficient enough to record a divergent finding and to take a contrary view than the one taken by the reference court. 13. Cross objection No.33 of 2007 is filed by the claimant in L.A.A. No.310 of 2007 claiming enhanced land value at the rate of Rs.1,15,000/per Are for the property coming under Category No.II. It is contended by the claimant that the property coming under Category Nos. I, II and III are much more valuable than the properties covered by Exts.A9, A38, A39 and A40 and, therefore, compensation should have been refixed at an enhanced rate than the rate fixed by the reference court. 14. We have discussed the materials on record in the preceding paragraphs. We have also examined and analysed all the documents. We find that the land value fixed by the reference court for Category No.II is just, adequate and reasonable and the reasons stated for such fixation is correct. In the result, the Land Acquisition Appeals and Cross Objection No. 33 of 2007 in L.A.A. No.310 of 2007 are dismissed. The applications for _L.A.A.NO.310/2007 & CONNECTED CASES_ 16 condonation of delay and stay filed in the above appeals are also dismissed. There will be no order as to costs. ## **(KURIAN JOSEPH, JUDGE)** **(HARUN-UL-RASHID, JUDGE)** ## **sp/** The judgment dated 17/07/2008 in L.A.A. No.559 of 2008 is recalled vide order dated 27/08/2009 in R.P. 794 of 2009. (Registrar Judicial) _L.A.A.NO.310/2007 & CONNECTED CASES_ 17 ## **KURIAN JOSEPH & HAURN-UL-RASHID, JJ.** **L.A.A.NOS. 310, 849, 850, 851, 852, 853, 854, 855, 856, 857, 1463, 1464, 1465, 1660 1693, 1710, 1717,1735, 1764, 1790, 1800, 1811, &1824 /07** **&** **1, 6, 35, 38, 45, 82, 97, 116, 153, 173, 223, 257, 272, 273, 274, 286, 287, 353, 381, 389, 392, 398, 422, 423, 432,454, 457, 466, 495, 498, 559, 587, 588, 637, 656, 657, 659, 667, 695, 697, 702, 709, 728, 734, 739, 758,761, 778, 780, 834, 839, 868, 1057, 1067, 1075,1095,1099,1135, 1137, 1147, 1171, 1172,& 1174 OF 2008 & CROSS OBJECTION NO. 33 OF 2007 IN L.A.A. NO. NO.310 OF 2007** _L.A.A.NO.310/2007 & CONNECTED CASES_ 18 ## **JUDGMENT** **17th July, 2008**