State of Kerala v. P. I. James (Review Petitions)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 28TH DAY OF MARCH 2017/7TH CHAITHRA, 1939** **RP.No. 1124 of 2016 IN LA.App..637/2013 --------------------------------------------** **AGAINST THE JUDGMENT IN LA.App. 637/2013 of HIGH COURT OF KERALA DATED 21-06-2016** **REVIEW PETITIONER(S)/RESPONDENTS:** **--------------------------------** ## **1. STATE OF KERALA** - **REPRESENTED BY DISTRICT COLLECTOR THIRUVANANTHAPURAM 695 001** **2. THE EXECUTIVE ENGINEER** **PWD, N.H DIVISION, THIRUVANANTHAPURAM 695 001** **BY SPECIAL GOVERNMENT PLEADER SMT.LATHA T.THANKAPPAN** **RESPONDENT(S)/APPELLANT:** **------------------------** **P.I. JAMES S/O. G ISSAC, HOUSE NO 25, UDAYA GARDENS, ULLOOR MEDICAL COLLEGE P.O, THIRUVANANTHAPURAM THE POWER OF ATTORNEY HOLDER OF I.G VARGHESE, PEEDIKAYIL VEEDU, PARAKODE VILLAGE, ADOOR, PATHANAMTHITTA** ## **R BY SRI.LAL GEORGE** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 28-03-2017 ALONG WITH R.P.14 OF 2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** rmm ## **P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.** ================================ ## **R.P.No.1124 of 2016 in L.A.A.No.637 of 2013 &** ## **R.P.No.14 of 2017 in L.A.A.No.238 of 2013** ================================ **Dated this the 28[th] day of March, 2017** ## **O R D E R** ## **ANIL K.NARENDRAN, J** These Review Petitions arise out of the judgment of this Court dated 21.6.2016 in L.A.A.Nos.637 of 2013 and 238 of 2013 respectively. 2. In L.A.A.No.637 of 2013 filed by the respondent/ claimant arising out of judgment and decree of the reference court in L.A.R.No.653 of 2009, an extent of 0.16 Ares of land owned by the claimant, situated in Re-survey No.439/41 of Kudappanakunnu Village in Thiruvananthapuram Taluk was acquired pursuant to Section 4(1) notification dated 31.1.2005 for the purpose of widening of Mannanthala-Kesavadasapuram Road. The Land Acquisition Officer awarded land value at the rate of 2,69,906/- per₹ Are. On a reference made under Section 18 of the Act, the reference court by the judgment and decree dated 14.9.2012 in L.A.R.No.653 of 2009 re-fixed the land value at the rate of ₹9,16,000/- per Are, relying on the judgment in L.A.R.No.577 of 2009. In L.A.A.No.637 of 2013, the claimant claimed enhanced land value at the rate of 24,00,000/- per Are for the acquired land,₹ relying on the judgment of the reference court in L.A.R.No.825 of 2009. In L.A.A.No.229 of 2013 filed by the State against the R.P.Nos.1124 of 2016 & 14 of 2017 2 judgment and decree of the reference court in L.A.R.No.653 of 2009 it was contended that the re-fixation of land value by the reference at the rate of 9,16,000/- per Are is legally unsustainable.₹ 2.1. By a common judgment dated 21.6.2016 in L.A.A.No.86 of 2013 and connected cases, this Court dismissed L.A.A.No.229 of 2013 filed by the State and L.A.A.No.637 of 2013 filed by the claimant, thereby confirming the judgment and decree of the reference court in L.A.R.No.653 of 2009. Para.9 of the said judgment reads thus; “9. L.A.A.No.229 of 2013 filed by the State and L.A.A.No.637 of 2013 filed by the claimant arise out of the judgment and decree of the reference court in L.A.R.No.653 of 2009. In L.A.A.No.229 of 2013 filed by the State it is contended that the re-fixation of land value by the reference court is legally unsustainable. Per contra, in L.A.A.No.637 of 2013 the claimant is claiming enhanced land value at the rate of ₹24,00,000/- per Are, relying on the judgment of the reference court in L.A.R.No.825 of 2009. The brief facts of the case has already been stated in Para.3.3. hereinbefore. Section 4(1) notification in the instant case was on 31.1.2005. For the acquired land having an extent of 0.16 Ares, the Land Acquisition Officer fixed land value at the rate of 2,69,906/- per Are. The reference court, relying on the₹ judgment in L.A.R.No.557 of 2009 re-fixed the land value at ₹9,16,000/- per Are. The judgment of the reference court in L.A.R.No.825 of 2009, relied on by the claimant in support of the claim for enhanced land value, is pending in appeal in L.A.A.No.732 of 2013 filed by the State. Further, the R.P.Nos.1124 of 2016 & 14 of 2017 3 re-fixation of land value at the rate of 24,00,000/- per Are in₹ that reference was based on the land value re-fixed at that rate in L.A.R.No.827 of 2009. In this judgment, while refixing the land value of the acquired land in L.A.A.No.280 of 2013 arising out of L.A.R.No.827 of 2009, we have affirmed the re-fixation of land value made by the reference court at the rate of 9,16,000/- per Are and thereafter, re-fixed the₹ land value of the acquired land in L.A.R.No.827 of 2009 at the rate of 10,07,600/- per Are (10% above the re-fixed land₹ value at the rate of 9,16,000/- per Are, since the land falls₹ under 'A' Category), as against land value at the rate of ₹24,00,000/- per Are re-fixed by the reference court. In the instant case the acquired property falls under a different category, for which the land value awarded by the Land Acquisition Officer is only 2,69,906/-. The re-fixation of land₹ value at the rate of 9,16,000/- per Are for similar lands has₹ attained finality in L.A.A.No.79 of 2013. In that view of the matter, and also for the reasons stated in Para.7 hereinbefore, we find absolutely no reason either to interfere with or enhance the land value re-fixed by the reference court for the acquired land in L.A.R.No.635 of 2009 at the rate of 9,16,000/- per Are. In the result, L.A.A.No.229 of₹ 2013 filed by the State and L.A.A.No.637 of 2013 filed by the claimant are dismissed, thereby confirming the judgment and decree of the reference court in L.A.R.No.653 of 2009.” 3. In L.A.A.No.238 of 2013 filed by the respondent/ claimant arising out of the judgment and decree of the the reference court in L.A.R.No.839 of 2009, an extent of 0.08 Ares of land in Re-Survey No.440/44 of Kudappanakunnu Village in R.P.Nos.1124 of 2016 & 14 of 2017 4 Thiruvananthapuram Taluk owned by the claimant was acquired pursuant to Section 4(1) notification dated 31.1.2005 for the purpose of widening of Mannanthala-Kesavadasapuram Road. The Land Acquisition Officer awarded land value at the rate of ₹2,69,900/- per Are. On a reference made under Section 18 of the Act, the reference court by the judgment and decree dated 16.7.2012 in L.A.R.No.839 of 2009 re-fixed the land value at the rate of ₹9,16,000/per Are, relying on the judgment in L.A.R.No.684/2009. However, the reference court rejected case of the claimant as to the total extent of land acquired and also the claim for compensation for structures. The reference court held that, the extent of land acquired is only 0.08 Ares and that, the claimant is not justified in claiming compensation for the structures admittedly removed by him from the acquired land. In L.A.A.No.238 of 2013, the claimant challenged the finding of the reference court as to the actual extent of the acquired land, the value of the structures, and also claimed enhanced land value at the rate of ₹24,00,000/- per Are for the acquired land, relying on the judgment of the reference court in L.A.R.No.671 of 2009. In L.A.A.No.86 of 2013 filed by the State against the judgment and decree of the reference court in L.A.R.No.839 of 2009 it was contended that the re-fixation of land value by the reference at the rate of 9,16,000/-₹ R.P.Nos.1124 of 2016 & 14 of 2017 5 per Are is legally unsustainable. 3.1. By a common judgment dated 21.6.2016 in L.A.A.No.86 of 2013 and connected cases, this Court dismissed L.A.A.No.86 of 2013 filed by the State and L.A.A.No.238 of 2013 filed by the claimant, thereby confirming the judgment and decree of the reference court in L.A.R.No.839 of 2009. Paras.7 and 8 of the said judgment read thus; “7. L.A.A.No.86 of 2013 filed by the State and L.A.A.No.238 of 2013 filed by the claimant arise out of the judgment and decree of the reference court in L.A.R.No.839 of 2009. In L.A.A.No.86 of 2013 filed by the State it is contended that the re-fixation of land value by the reference court is legally unsustainable. Per contra, in L.A.A.No.238 of 2013 the claimant is claiming enhanced land value at the rate of ₹24,00,000/- per Are, relying on the judgment of the reference court in L.A.R.No.671 of 2009. The brief facts of the case has already been stated in Para.3.2. hereinbefore. Section 4(1) notification in the instant case was on 31.1.2005. For the acquired land having an extent of 0.08 Ares, the Land Acquisition Officer fixed land value at the rate of 2,69,900/- per Are. The reference court, relying on the₹ judgment in L.A.R.No.684 of 2009 re-fixed the land value at the rate of 9,16,000/- per Are. The land value re-fixed by₹ the reference court at the rate of 9,16,000/- per Are in₹ respect of properties covered by Section 4(1) notification dated 31.1.2005 has already attained finality in L.A.A.Nos.26 of 2013 and 79/2013, in the absence of any challenge by either side. The judgment of the reference court in L.A.R.No.671 of 2009, relied on by the claimant in support of R.P.Nos.1124 of 2016 & 14 of 2017 6 the claim for enhanced land value, is pending in appeal in L.A.A.No.546 of 2015 filed by the State. Further, the refixation of land value at the rate of 24,00,000/- per Are in₹ that reference was based on the land value re-fixed at that rate in other cases like L.A.R.No.827 of 2009. In this judgment, while re-fixing the land value of the acquired land in L.A.A.No.280 of 2013 arising out of L.A.R.No.827 of 2009, we have affirmed the re-fixation of land value made by the reference court at the rate of 9,16,000/- per Are and₹ thereafter, re-fixed the land value of the acquired land in L.A.R.No.827 of 2009 at the rate of 10,07,600/- per Are₹ (10% above the re-fixed land value at the rate of 9,16,000/-₹ per Are, since the land falls under 'A' Category), as against the land value at the rate of 24,00,000/- per Are re-fixed by₹ the reference court. In the instant case the acquired property falls under a different category, for which the land value awarded by the Land Acquisition Officer is only 2,69,900/-.₹ In the absence of any reliable materials, in terms of the law laid down by the Apex Court in Karnataka Urban Water Supply and Drainage Board's case and Kapil Mehra's case referred to supra, which can merit a consideration in the matter of fixation of land value of the acquired land in L.A.R.No.839 of 2009, the only course available for this Court is to re-fix the land value in the instant case based on the land value of 9,16,000/- per Are re-fixed by the reference₹ court in connected references which has attained finality in L.A.A.No.79 of 2013. In that view of the matter, we find absolutely no reason either to interfere with or enhance the land value re-fixed by the reference court for the acquired land in L.A.R.No.839 of 2009 at the rate of 9,16,000/- per₹ Are. 8. In L.A.A.No.238 of 2013, the claimant has also challenged R.P.Nos.1124 of 2016 & 14 of 2017 7 the rejection of his case as to the total extent of the land acquired and also the claim for compensation for structures. Before the reference court, the claimant has not taken out a commission to identify or measure out the acquired land and also the remaining extent under his possession. After considering the materials on record, the reference court held that the claimant failed to establish his case as to the total extent of the acquired land in excess of 0.08 Ares of land. Regarding the compensation for structures, the reference court found that, admittedly the claimant removed the structures from the acquired land, with the permission of the requisitioning authority, for the construction of another building and hence the deduction of 1,07,525/- made by the₹ Land Acquisition Officer is legal. In the absence of any vitiating circumstances, we find absolutely no grounds to interfere with the reasoning of the reference court in rejecting his claim under these heads. In the result, L.A.A.No.86 of 2013 filed by the State and L.A.A.No.238 of 2013 filed by the claimant are dismissed, thereby confirming the judgment and decree of the reference court in L.A.R.No.839 of 2009.” 4. Now petitioner/State is before this Court in these Review Petitions seeking review of the judgment of this Court dated 21.6.2016 in L.A.A.No.637 of 2013 and L.A.A.No.238 of 2013 on the ground that there is error apparent on the face of the record, inasmuch as, the acquired land in L.A.R.Nos.653 of 2009 and 839 of 2009 falls under 'B' Category, which factual aspect of the matter was never brought to the attention of this Court. Therefore, the land value of 'B' Category has to be re-fixed in between the land value R.P.Nos.1124 of 2016 & 14 of 2017 8 re-fixed by this Court for 'A' Category and 'C' Category lands. 5. Heard arguments of the learned Special Government Pleader for the petitioner/State and also the learned counsel for the respondent/claimant. 6. In the course of arguments, it is not disputed before this Court that, the acquired land in L.A.R.Nos.653 of 2009 and 839 of 2009 falls under 'B' Category. Without noticing the said fact, the reference court re-fixed the land value at 9,16,000/- per Are,₹ which is the land value re-fixed by the reference court for 'D' Category land. This factual aspect of the matter was never brought to the attention of this Court while L.A.A.No.637 of 2013 and L.A.A.No.238 of 2013 were finally heard along with a batch of connected appeals. On an erroneous assumption that the acquired land falls under 'D' Category, this Court proceeded with the matter and confirmed the judgment and decree of the reference court in L.A.R.No.653 of 2009 and L.A.R.No.839 of 2009 by which the reference court re-fixed the land value of the acquired land at ₹9,16,000/- per Are. 7. In the common judgment dated 21.6.2016 in L.A.A.No.86 of 2013 and connected cases, this Court found that, in the absence of any reliable materials, in terms of the law laid down by the Apex Court in **Karnataka Urban Water Supply and** R.P.Nos.1124 of 2016 & 14 of 2017 9 ## **Drainage Board v. K.S.Gangadharappa (2009 (11) SCC 164)** and in **Kapil Mehra v. Union of India (2015 (2) SCC 262)** , which can merit a consideration in the matter of fixation of land value of the acquired land, the only course available was to re-fix the land value in L.A.R.No.827 of 2009 based on the land value of ₹9,16,000/- per Are re-fixed by the reference court in connected references. In the said judgment, this Court has also taken note of the specific stand taken by the claimants in L.A.R.No.827 of 2009 and connected cases that they could not produce any documents before the reference court since there were no sale transactions during the relevant period in respect of the acquired land or of any land adjacent thereto, having similar advantages. Based on the refixation so made, this Court re-fixed the land value of 'A' Category land at the rate of 10,07,600/- per Are (10% above the re-fixed₹ land value at the rate of 9,16,000/- per Are for 'D' Category land)₹ and the land value of 'C' Category land at the rate of 9,61,800/-₹ per Are (5% above the re-fixed land value at the rate of ₹9,16,000/- per Are for 'D' Category land). Adopting the very same ' ' - method, the land value of B Category land can be re fixed at the **-** - rate of ₹ **9,84,700/** per Are (7.5% above the re fixed land value at - ' ' the rate of 9,16,000/₹ per Are for D Category land). R.P.Nos.1124 of 2016 & 14 of 2017 10 In the result, these Review Petitions are disposed of by refixing the land value of the acquired land in L.A.A.Nos.637 of 2013 and 238 of 2013, arising out of the judgment and decree of the reference court in L.A.R.No.653 of 2009 and L.A.R.No.839 of 2009, at the rate of ₹ **9,84,700/-** per Are, together with interest and other statutory benefits. The judgment of this Court dated 21.6.2016 in L.A.A.No.637 of 2013 and L.A.A.No.238 of 2013 is reviewed and the judgment and decree of the reference court in L.A.R.No.653 of 2009 and L.A.R.No.839 of 2009 are modified to the extent indicated above. Sd/- **P.R.RAMACHANDRA MENON, JUDGE** Sd/- ## **ANIL K.NARENDRAN, JUDGE** rmm/