State of Kerala v Kunhu Muhammed Madathu Veettil House and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** ## **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY ,THE 29TH DAY OF JANUARY 2019 / 9TH MAGHA, 1940** ## **LA.App..No. 354 of 2015** **AGAINST THE JUDGMENT AND DECREE DATED 14-01-2015 IN LAR 31/2012 of SUB COURT, KOILANDY** ## **APPELLANT/1ST RESPONDENT IN L.A.R:** **STATE OF KERALA, REP.BY THE SPL. TAHSILDAR LAND ACQUISITION,KOYILANDY** **BY SRI.A.K.SUKUMARAN-SR.GP** ## **RESPONDENTS/CLAIMANT AND 2ND RESPONDENT IN L.A.R.:** - **1 KUNHU MUHAMMED MADATHU VEETTIL HOUSE, MOODADI KOYILANDY TALUK 673 531** - **2 HUSSAIN MADATHU VEETTIL HOUSE, MOODADI KOYILANDI KOYILANDY TALUK 673 531** - **3 MANAGING DIRECTOR RBDC,(ROADS AND BRIDGES DEVELOPMENT CORPORTION), PALARIVATTAM,KOCHI 682 025** **BY ADVS. SRI.R.PARTHASARATHY FOR R1 AND R2 SMT.SEEMA FOR R1 AND R2 SRI.SHYSON P.MANGUZHA SC FOR R3** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 17.01.2019, THE COURT ON 29.01.2019 DELIVERED THE FOLLOWING:** L.A.A.No.354 of 2015 2 ## **V.CHITAMBARESH &** **R.NARAYANA PISHARADI, JJ** ************************** L.A.A.No.354 of 2015 ---------------------------------------------Dated this the 29[th] day of January, 2019 ## **JUDGMENT** ## **R.Narayana Pisharadi, J** This appeal arises out of the judgment dated 14.01.2015 passed by the Sub Court, Koyilandy in L.A.R.No.31/2012. 2. An extent of 3.212 cents of garden land situated in Panthalayani Village, owned by the first and the second respondents, was acquired for the purpose of construction of railway overbridge at Koyilandy. The notification under Section 4(1) of the Land Acquisition Act, 1894 was published on 30.07.2010. The Land Acquisition Officer granted compensation for land by fixing the value of the land at Rs.75,786/- per cent. The reference court enhanced the compensation by refixing the value of the land at Rs.2,57,163/- per cent. Aggrieved by the award passed by the reference court, the State has filed this appeal. L.A.A.No.354 of 2015 3 3. We have heard the learned Government Pleader and the learned counsel for the respondents/claimants and also the learned counsel for the requisitioning authority. We have also perused the records. 4. Ext.C1 is the report filed by the Advocate Commissioner after inspecting the land acquired. Ext.C1 report shows that the land acquired is situated abutting the National Highway. It is situated opposite to the old bus stand in Koyilandy Town. Ext.C1 report also shows that the land acquired is situated in a commercially important locality. The railway station, taluk hospital, post office, police station, municipality office, court complex etc are located within a radius of 500 metres of the land acquired. 5. The Land Acquisition Officer adopted the value shown in Ext.R2 document as the basis for fixation of the market value of the land acquired. Ext.R2 document shows that on 07.06.2010, 4.10 Ares (10.127 cents) of land situated in Panthalayani Village was sold by its owner for a total consideration of Rs.7,00,000/-. The value of the land paid as per this document comes to Rs.69,122/- per cent. L.A.A.No.354 of 2015 4 6. The description of the property given in Ext.R2 document shows that there is no public road on any side of it and the access to that property is through the pathways lying on its eastern and northern sides. This property is located in a residential area. 7. There was absolutely no justification for the Land Acquisition Officer to adopt the value of the land shown in Ext.R2 document as the basis for determination of the market value of the land acquired. The land acquired is situated in Koyilandy Town, at a place having commercial importance. On the other hand, the land covered by Ext.R2 document has no access from any public road and it is situated in a residential locality, having no commercial importance. 8. Exts.A1 to A5 are the documents produced by the claimants before the reference court in support of their claim for enhancement of compensation for land. 9. Ext.A1 is the copy of document No.1930/1997. As per this document, on 20.08.1997, 4.20 cents of property was sold for a total consideration of Rs.3,00,000/-. It is situated at a distance of 100 metres from the National Highway but it has got L.A.A.No.354 of 2015 5 no direct road access. 10. Ext.A2 is the copy of document No.1257/2012. As per this document, on 28.05.2012, 01.31 Ares (3.23 cents) of property was purchased by a Co-operative Society for a total consideration of Rs.6,88,000/-. This is a post notification transaction. 11. Ext.A3 is the copy of document No.2988/2010. As per this document, on 01.11.2010, one-third right of a person in a property, having an extent of 04.29 Ares, was sold for a total consideration of Rs.6,87,000/-. The reference court has adopted the value of the land shown in Ext.A3 document, though it is a post notification transaction, as the basis for fixing the market value of the land acquired. The reference court fixed the value of the land acquired at Rs.2,57,163/- granting increase by 33.33% on the value of the land covered by Ext.A3 document. 12. Ext.A4 is the copy of document No.1010/2012. As per this document, on 16.04.2012, 21.49 Ares of property was sold for a total consideration of one crore and six lakhs and twenty five thousand rupees. This is also a post notification transaction. 13. Ext.A5 is the copy of document No.611/2004. As per L.A.A.No.354 of 2015 6 this document, on 08.03.2004, 25 cents of property was sold for a total consideration of Rs.35,90,000/-. This property consisted of the foundation and the pillars constructed for a shop room. The boundaries of the property shown in Ext.A5 document show that it has got no direct road access. ## 14. In **Maya Devi v. State of Haryana (AIR 2018 SC** **645),** the Apex Court has categorically held that post notification transactions cannot be taken into consideration for fixing the market value of the land acquired for granting compensation. Therefore, the value of the land shown in Exts.A2 to A4 documents, being post notification transactions, cannot be adopted as the basis for fixation of the market value of the acquired land. 15. The reference court has relied upon the value of the land shown in Ext. A3 document, though a post notification transaction, as the basis for fixation of the market value of the land acquired. The procedure adopted by the reference court appears to be not proper. Moreover, as per Ext.A3 document, the entire land was not sold. What was sold was only the fractional right of a person over the land. When fractional right over a L.A.A.No.354 of 2015 7 property is only sold, the document may not reflect the real market value of the property. 16. The value of the land shown in Exts.A1 and A5 documents also cannot be adopted as the basis for fixation of the market value of the land acquired. In the property covered by Ext.A5 document, there was the foundation and the pillars constructed for a shop room. This property had no road access. The transaction as per Ext.A1 document had taken place 13 years prior to the date of notification of acquisition. In such circumstances, it would not be proper to adopt the value of the land shown in Exts.A1 and A5 documents as the basis for fixation of the market value of the land acquired. 17. The claimants are expected to lead cogent and proper evidence in support of their claim for enhancement of compensation. The burden is on the claimants to establish that the amount awarded to them by the Land Acquisition Officer is inadequate and that they are entitled to more amount. But, it cannot be said that there is no onus whatsoever upon the State in such reference proceedings. The court cannot lose sight of the fact that obligation to pay fair compensation is on the State. In L.A.A.No.354 of 2015 8 the absence of any reliable documents to prove the market value of similar and similarly situated properties, the value of the lands acquired can be fixed on the basis of some guess work only. Depending on the facts and circumstances of the case, the court may have to take recourse to some guesswork while determining the fair market value of the land. The Court is entitled to apply some amount of reasonable guesswork to balance the equities and fix a just and fair market value (See **Trishala Jain v. State of Uttaranchal : AIR 2011 SC 2458** ). An exercise of computation of the amount of compensation necessarily involves some amount of approximation and guesswork. 18. As per the common judgment in the appeals L.A.A.Nos.257 of 2015, 273 of 2015, 323 of 2015, 324 of 2015 and 344 of 2015, we have today found that the value of the land fixed by the reference court at Rs.2,12,860/- per cent is just and reasonable. The aforesaid appeals also relate to acquisition of land in the same village, under the same notification, for construction of railway overbridge at Koyilandy. The properties acquired in those cases were also situated in the heart of Koyilandy Town. The property acquired in the instant case is also L.A.A.No.354 of 2015 9 situated in Koyilandy Town, in an area having equal commercial importance. In such circumstances, it is proper to fix the value of the land acquired in the instant case also at the same rate, that is, at Rs.2,12,860/- per cent. 19. Accordingly, the appeal is allowed. The impugned judgment of the reference court is modified and the value of the land acquired is refixed at at Rs.2,12,860/- (Rupees two lakhs and twelve thousand and eight hundred and sixty only) per cent. The claimants are entitled to get all other statutory benefits. No costs in the appeal. (sd/-) ## **V.CHITAMBARESH, JUDGE** (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr/29/01/2019 True Copy PS to Judge