STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, PATHANAMTHITTA v. KURIAN S/O.ABARAHAM

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **&** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **MONDAY, THE 26TH DAY OF MARCH 2018 / 5TH CHAITHRA, 1940** **LA.App.No. 201 of 2015** **AGAINST THE JUDGMENT IN LAR 98/2012 of SUB COURT, THIRUVALLA DATED 31-10-2014** ## **APPELLANT/R1 IN LAR** **STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, PATHANAMTHITTA** ## **BY GOVERNMENT PLEADER SRI A.K. SUKUMARAN** ## **RESPONDENT:** ## **KURIAN S/O.ABARAHAM, CHATHENKERIL, PUTHENPURAYIL, PADINJARUM MURI, NIRANAM-689621.** ## **R1 BY ADV. SMT.ASHA ELIZABETH MATHEW** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 26-03-2018 ALONG WITH L.A.A. NO. 236/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.K. ABDUL REHIM & SHIRCY V.,JJ.** ## **==============================** ## **L.A.A.Nos. 201 of 2015** ## **&** ## **236 of 2016** **============================== Dated this the 26[th] day of March, 2018** ## **JUDGMENT** ## **Abdul Rehim, J.** Since the land acquired in both these cases are situated in the nearby vicinity and since acquisition was for the very same purpose through the same notification, we have considered both these appeals together and dispose through this common judgment. 2. L.A.ANo.201/2015 arise out of the judgment in L.A.R.No.98/2012 of the Subordinate Judge's Court, Thiruvalla. L.A.A.No.236/2016 arises out of the judgment in L.A.R. No.99/2012 of the same court. In L.A.R.No.98/2012, an extent of 15.95 Ares of property comprised in Survey No.107/29 of Niranam Village was acquired for the purpose L.A.A.Nos. 201 of 2015 & 236 of 2016 2 of construction of 'Kadapra-Viyyapuram' Road in Thiruvalla Taluk. The last date of publication of the notification under section 4(1) of the Land Acquisition Act was on 8.12.2010. In LAR No.99/2012 an extent of 4.80 Ares comprised in Survey No.99/6 and 4.40 Ares comprised in Survey No. 107/6, totalling an extent of 9.20 Ares were acquired for the very same purpose through the very same notification. Land Acquisition Officer awarded land value at the rate of Rs.31,577/- per Are in L.A.R No.98/2012 and Rs.26,314/per Are in L.A.RNo.99/2012. The property in L.A.R No.98/2012 was included in the first category described as land having frontage to Panchayath road, whereas the land in L.A.R No.99/2012 was included in the second category described as property having no road frontage. Both the cases were referred for determination of enhanced compensation, under Section 18 of the Act. 3. In L.A.R No.98/2012 the claimants have adduced 3 L.A.A.Nos. 201 of 2015 & 236 of 2016 evidence of Ext.C1 Commission report and Ext.C1(a) plan prepared by the Surveyor. Ext.A1 is the certified copy of sale deed No. 334/2009 of SRO, Kadapra. The claimant as well as the Advocate Commissioner were examined before the court as AW1 and AW2, respectively. The court below while considering the evidence on record found that, Ext.A1 is situated in the same village and had PWD road frontage. But without expressing any opinion regarding comparability of the land covered under Ext.A1 with that of the acquired property, the learned Sub Judge observed that, no sufficient amount has been awarded by the Land Acquisition Officer and considering the larger extent of the property acquired from the claimant, the claimant is entitled to get enhancement in the land value. Hence the reference was answered refixing the land value at the rate of Rs.3 lakh per Are, purely on a guess work. The State is challenging the judgment as unsustainable. L.A.A.Nos. 201 of 2015 & 236 of 2016 4 4. In LAR No. 99/2012 the reference court had considered Ext.A1 document as well as the judgment in LAR 98/2012, which is marked as Ext.A2. It was wrongly observed that the property covered under Ext.A2 judgment (LAR No.98/2012) is situated in Kadapra village and the acquired properties in LAR No.99/2012 is situated in Niranam Village. Therefore it is held that compensation awarded in Ext.A2 judgment cannot be followed as such. The reference court considered Ext.A1 document and found that the value shown in is not genuine, because there is a general tendency to undervalue the documents for evading stamp duty. Holding that the actual market price of the properties covered under Ext.A1 would be much more than the amount shown in it, it was found that more amount has to be granted than the value shown in Ext.A1. Observing that there is no hard and fast rule to fix the quantum of market value, the reference court refixed the land value in L.A.A.Nos. 201 of 2015 & 236 of 2016 5 the said case at Rs.2,50,000/-, merely on a guess work. The State is challenging the said judgment also. 5. Heard; learned Government Pleader appearing for the appellant and learned counsel appearing for the respondents in both these cases. 6. We take note of the fact that in both the judgments impugned, the reference court had gone into a mere guess work in fixing the land value, without any basis, through highly cryptic orders. It remains settled that, even though certain elements of guess work is necessary and permitted in fixing the compensation in land acquisition cases, the determination of value should be based on a good guess work, which should reflect some basis for doing such guess. In the case at hand, as observed in the judgment in LAR 99/2012, the only exemplar available for determination of land value was Ext.A1. Ext.A1 document is dated 27.4.2009. The property conveyed through the sale deed is L.A.A.Nos. 201 of 2015 & 236 of 2016 6 having an extent of 8 Ares 42 Sq.Mtrs. The value shown in the document is Rs.10 lakhs. Therefore it is evident that the value per Are reflected in the said document is Rs.1,18,765/-. But there is no evidence adduced by the claimants with respect to comparison of the property covered under Ext.A1 with the acquired properties. The claimants have not sought for any such comparison through the Advocate Commissioner deputed in these cases. Therefore the comparability of the land covered under the said document is not available in evidence. 7. Learned Government Pleader pointed out that the property covered under Ext.A1 document is having frontage of PWD road on one side. The above fact is revealed from the description of boundaries mentioned in the said document. It is pointed out that the acquired property in L.A.R.No.98/2012 was having frontage of only a Panchayath road, as on the date of acquisition. So also it is pointed out L.A.A.Nos. 201 of 2015 & 236 of 2016 7 that the property covered under LAR No.99/2012 was not having frontage of any road. 8. Per contra, learned counsel for the respondents in both these appeals had drawn our attention to Ext.C1 Commission Report. It is stated therein that the acquired property is situated in a prominent location with proximity to various public institutions like schools, churches, Government Ayurveda Hospital, Post office, Government Veterinary Hospital, Krishi Bhavan, District Co-operative Bank and other banks etc. It is also contended that various other institutions of public importance are situated nearby to the acquired properties. Hence it is contended that the reference court had rightly made the guess work taking note of the prominence of the location and the potentiality of the land. It is argued that while fixing the land value in Land Acquisition Cases the potentiality of the land in future also need to be considered and therefore the value fixed by the L.A.A.Nos. 201 of 2015 & 236 of 2016 8 Land Acquisition court in both the cases are reasonable. 9. While considering the rival contentions, as already observed, we could not accept the method followed by the reference court in fixing the land value on a total guess work, without any basis. It is pertinent to note that Ext.A1 is a comparable exemplar produced by the claimants themselves. Of course, it is evident that there is a time gap of one year and six months with respect to the date of execution of Ext.A1 sale deed from the date of the notification for the acquisition. Eventhough learned Government Pleader had contended that the land covered under Ext.A1 is situated with proximity to a PWD road, we notice that the acquired properties are having good locational importance with proximity to so many public institutions. Moreover we take note of the recitals contained in Ext.A1 which would reveal that a portion of the property is reclaimed wet land, which in the ordinary parlance will L.A.A.Nos. 201 of 2015 & 236 of 2016 9 fetch only a lesser value than pucca garden land. Taking note of all these aspects, we are of the opinion that refixation of the land value of the acquired property can be based on Ext.A1, with an increase of 10% granted thereon. It is held by the hon'ble supreme Court in **G.M.Oil & Natural Gas Corn.Ltd. v. R. Jeevanbhai Patel and Another [ 2008(SAR(Civil)) 894]** that court should avoid determination of market value with reference to subsequent/future transactions. But it is indicated that if it becomes inevitable, subsequent transactions can be relied on by applying greater caution in determining the market value by deducting a higher percentage per year than the percentage to be added, if pre-notification documents are relied on. In the case at hand, Ext.A1 is a pre-notification document having a time gap of 1 year and six months. The view expressed by the supreme court regarding increase in market value to be given for properties in urban and semi L.A.A.Nos. 201 of 2015 & 236 of 2016 10 urban areas is 10% to 15% per annum. The acquired property being situated in Thiruvalla which is an urban area, we are of the opinion that an increase of 15+7.5% (22.5%) can be granted from the value of 10% increase fixed as above. Therefore we are inclined to refix the land value of the acquired properties in LAR No.98/2012 at Rs.1,60,036/-. The property covered under LAR No.99/2012 is situated in a disadvantages position having no direct access to any road. Therefore we are inclined to reduce 10% of the value with respect to the acquired property in the said case. Accordingly the land value in the said case is fixed at Rs.1,44,032/-. In the result, the above appeals are allowed in part. The impugned judgments are modified to the extent of refixing the land value in LAR No.98/2012 at Rs.1,60,036/and in LAR No.99/2012 at Rs.1,44,032/-.The respondents/claimants will be entitled for all statutory L.A.A.Nos. 201 of 2015 & 236 of 2016 11 benefits as ordered in the impugned judgments based on the refixed land value. The appellant/Government shall take all earnest efforts to deposit the compensation without any further delay. **Sd/C.K. ABDUL REHIM JUDGE** **ks** Sd/- **SHIRCY V. JUDGE** **True copy** **P.S.To Judge**