State of Kerala v. Revathy Bai and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **&** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **TUESDAY, THE 27TH DAY OF MARCH 2018 / 6TH CHAITHRA, 1940** **LA.App..No. 295 of 2013** **AGAINST THE JUDGMENT IN LAR 20/2004 of PRINCIPAL SUB COURT,ATTINGAL DATED 26-02-2008** ## **APPELLANT(S)/RESPONDENT NO.1** ## **STATE OF KERALA** **BY ADV.GOVERNMENT PLEADER SRI. A.K.SUKUMARAN** ## **RESPONDENT(S)/CLAIMANTS IN LAR/2ND RESPONDENT:** ## **1. REVATHY BAI** **D/O. NARAYANAN, MANNAN MURI VEEDU, VAKKOM DESOM VAKKOM VILAGE (DIED)-695308** ## **2. SUKUMARAN** **MANNAN MURI VEEDU, VAKKOM DESOM, VAKKOM VILAGE (DIED)-695308** ## **3. YATHEENDRADAS** **MANNAN MURI VEEDU, VAKKOM DESOM, VAKKOM VILAGE-695308** **4. YAMUNADAS** - **MANNAN MURI VEEDU, VAKKOM DESOM, VAKKOM VILAGE-695308** ## **5. YEKSHA RAJ** **MANNAN MURI VEEDU, VAKKOM DESOM VAKKOM VILAGE, (POWER OF ATTORNEY HOLDER OF CLAIMANTS, 3 4 9 6 AS PER ORDER DATED 10/09/2007 IN I.A 837/2007** ## **6. YOGIDAS** - **MANNAN MURI VEEDU, VAKKOM DESOM VAKKOM VILAGE-695308** **ADDDL.7. SARASWATHY MANNAN MURI VEEDU, VAKKOM DESOM VAKKOM VILAGE ALSOHAVING KALPANA, S.N. JUNCTION, VAKKOM VILLAGE.`-695308** ## **8. SECRETARY** - **VARKALA MUNICIPALITY - 695308.** **R7 BY ADV. SRI.BASANT BALAJI** **R3-R6 BY ADV. SRI.VAKKOM N.VIJAYAN** **R3-R6 BY ADV. SMT.V.RENJU** **R3-R6 BY ADV. SRI.P.ANIYAN** **R8 BY ADV. SRI.V.RENJITH KUMAR, SC, VARKALA MUNICIPALITY** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 27-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.K.ABDUL REHIM & SHIRCY V.,JJ. -----------------------------------------------------L.A.A Nos.295/2013 and 437/2015 -----------------------------------------------------Dated this the 27[th] day of March, 2018** ## **JUDGMENT** ## **Shircy V, J.** These appeals arise from the common Judgment dated 26/02/2008 passed by the Sub Court, Attingal in LAR No.20/2004 and LAR No. 20/2006 whereby compensation awarded by the Land Acquisition Officer (LAO) was enhanced. The appellants herein were respondents/State of Kerala whereas the respondents herein were the claimants. 2. In order to appreciate the issue the relevant facts are mentioned herein as follows:- In LAR No.20/2004 an extent of 5.90 Ares of land comprised in Resurvey No.2154/5 of Varkala Village was acquired for the construction of a private bus stand at Varkala. In LAR No.20/2006 an extent of 4.05 Ares of land in Sy.No.2154/7 of the same village was acquired for the very same purpose. Notification under L.A.A Nos.295/2013 and 437/2015 2 Section 4(1) was published on 13.10.1997. The LAO awarded compensation by including the properties in four categories namely A, B, C and D. Dry land having road access was included in Category A. Property having no main road access was included in Category B. Dry land with access to pathway was included in Category C and property having no road access was included in Category D. 3. The LAO has taken document No.2418/1997 dated 30.6.1997 as the basic document to fix the land value. The land acquired in LAR No.20/2004 was included in category B and determined compensation at the rate of Rs.55,983/- per Are. The property acquired in LAR No.20/2006 was included in category D and the land value value was fixed as Rs.41,987/- per Are. However, the Reference Court included both the properties in Category B and based on the exemplar produced and marked as Ext.A1, enhanced the land value at the rate of Rs.2,77,875/- per L.A.A Nos.295/2013 and 437/2015 3 Are (1,12,500/- per cent). Apart from that compensation was also given to the building situated in the property as well for the improvements separately. The State preferred these appeals contending that the Reference Court granted an exorbitant amount as compensation. 4. We heard the learned Government Pleader and the learned counsel for the respondents/claimants. 5. The document relied on by the claimants before the Reference Court is Ext.A1 sale deed No.3777/1998 dated 14.10.1998. As per this document an extent of 2 cents of land was sold for a consideration of Rs.2,50,000/- per cent. It is of-course a post dated document as it was executed on 14.10.1998 and the notification for acquisition was on 13.10.1997. Exts.A2 and A2(a) are the certified copies of the Commission Report and valuation report of the building in the acquired land prepared with the assistance of an expert Engineer and filed in O.S.No.330/2003 on the files of L.A.A Nos.295/2013 and 437/2015 4 the Munsiff Court, Varkala. Ext.A3 is the Encumbrance certificate. Except these three documents no other document was made available by the claimants before the Reference Court. Of-course four witnesses were examined including the claimants in both the cases. AW1 is the co-owner of the property acquired in LAR No.20/2004. AW2 is a witness to Ext.A1, sale deed. He supported the case of the claimants that the acquired properties and the property covered under Ext.A1 are similar and similarly situated properties. It is also deposed by him that in fact the property in Ext.A1 is not having direct road access and is lying interior to a larger extent of property with only a pathway as access whereas the acquired properties are situated in a better place having frontage to the road leading to Varkala Mundeyil Beach Road and lying within the close vicinity of Varkala town. 6. AW3 is the Commissioner who has filed Ext.A2(a) in 5 L.A.A Nos.295/2013 and 437/2015 O.S.NO.330/2003 on the files of the Munsiff Court, Varkala. It is revealed from the Commission report that the property acquired is lying as a compact plot with yielding coconut trees as well as jackfruit trees. The report of the commissioner further reveals the potential value and commercial importance of the properties. As mentioned earlier except A1 no other exemplar is available. The contention of the learned counsel for the State is that the property involved in Ext.A1 is not a similarly situated property, but no evidence was adduced to establish that the acquired property is quite similar to the property involved in the basic document relied on to fix the land value though the burden to substantiate the same is on the State. In _**Chimanlal v. Special Acquisition Officer (AIR 1988 SC 1652)**_ it is held that the court cannot take into account the material relied upon by the Land Acquisition Officer in his award unless the same is produced and proved before court. 6 L.A.A Nos.295/2013 and 437/2015 Here no such evidence was adduced by the State. 7. Of- course Ext A1 is a post dated document. But in _**Chimanlal's case**_ (supra) it was held that a post document can also be taken into account if the property involved is proximate, genuine and the acquisition itself has not motivated the purchaser to pay a higher price on account of the resultant improvement in development prospects. The evidence of AWs1 to 4 and Exts.A1 to A4 would show that the acquired properties are lying in a more prominent place, in the heart of Varkala town that too in front of the main gate of the railway station where there are so may private, public institutions, schools, important institutions and Government offices are situated . It is also to be noted that it is situated very close to Maithanam Junction which is the heart of Varkala Town and also close to Sivagiri mutt. 8. The Reference Court on evaluation of the minus and plus factors of the acquired lands with that of Ext.A1, a 7 L.A.A Nos.295/2013 and 437/2015 deduction was made to the value of the document considering the fact that it was executed after one year of the notification and the extent involved is only 2 cents. Thus the land value was fixed as 1,25,000 per cent by deducting 50% to the value of the land fixed in Ext.A1. A further deduction of 10% (total 60% deduction) was made to the value of the property included in Category B and thus enhanced the land value of the acquired land in both the LARs was as Rs.2,77,875/- per Are (1,12,500 /- per cent). Thus 50% deduction was given to the land value, taking into consideration of the fact that the property involved in Ext.A1 is only 2 cents of property. Like that 10% deduction was made taking note of the fact that the document was executed after one year of notification. 9. We have gone through the entire facts involved and we find absolutely no reason to interfere with the land value fixed by the Reference Court as Rs.2,77,875/- by including L.A.A Nos.295/2013 and 437/2015 8 the acquired properties in category No.B. Therefore, we are of the view that the land value fixed by the Reference Court is quite reasonable and sufficient. 10. In LAR No.20/2004 the compensation awarded for the improvements is Rs.1905/- and for the improvements in the property in LAR No.20/2006 is Rs.1806/-. From Ext.R1 notes to award it could be seen that there were 12 yielding coconut trees, 8 jackfruit trees, 1 mango tree and a teak tree in the property acquired in LAR No.20/2004. 10. In LAR No.20/2006 there were 8 yielding coconut trees, 1 jackfruit tree, 1 mango tree and some other varieties of soft wood trees and a compensation of Rs.1806/- was awarded. It is revealed from the Commission Report marked as Ext.A2(a) that the yield from the coconut trees are 261 and on that basis the amount was calculated as 783/- and by calculating the multiplier of 10 years the value was enhanced to Rs.7967/- by adding Rs.137/-. The L.A.A Nos.295/2013 and 437/2015 9 Reference Court taking into consideration of the entire facts has fixed an amount of Rs.1000/- each for the yielding trees towards compensation for loss of improvements and allowed Rs.12,000/- as compensation towards loss of income from 12 yielding coconut trees in LAR No.20/2004. In LAR No.20/2006 an amount of Rs.5000/- was awarded as compensation towards loss of income for the 5 yielding coconut trees. 11. Now the question to be answered is whether the compensation awarded towards the loss of income for the yielding trees in both the acquired properties is exorbitant or not?. In _**State of Kerala vs. Sulaiman Sait (1972 KHC 113)**_ it is held that the only correct method to fix compensation to trees will be to determine the true market value on the basis of centage, and the timber value of the trees, whether yielding or non yielding, standing on it, added to the value so fixed. But in _**State of Kerala vs.**_ 10 L.A.A Nos.295/2013 and 437/2015 _**Mariamma Abraham and another (AIR 1969 KER 265**_ **)** it was observed as follows ''When the land has been fully planted to the best advantage from the point of view of income capitalization of the net annual income derived from the trees might be a safe mode of arriving at market value. But this method must fail where as in the present case the plantations are scattered here and there and the bulk of land is bare land. In such cases, where improvements yield an income, a fair way of assessing the value of the improved land would be to deduct from the total area necessary for or occupied by the improvements since that area would not be available for any other purpose and value the balance as bare land, and add to that the capitalized value of the income derived from the improvements. However, even on no yielding improvements (unless they are worthless and cannot really be regarded as improvements) would add to the market value of bare land and in case of such 11 L.A.A Nos.295/2013 and 437/2015 improvements their present cost less depreciation might be a proper addition. And where the improvements consist of non yielding trees, the fuel or timber value must, it is apparent be added to the value of the land as bare land without any deduction made for standing space. For if the trees are felled and sold, the entire area without any deduction in area would be available for sale as bare land. Of course the minimum would be the value of the entire land as bare land, plus fuel or timber value of the trees, whether yielding or non yielding standing on it and the deductions made on account of the standing space for yielding trees should have the result of reducing the land value below this minimum''. 12. It is evident from the record available before us that the plantations available in the acquired land are scattered here and there and so awarding compensation by giving only timber value of the trees added to the centage 12 L.A.A Nos.295/2013 and 437/2015 value is not correct and we do not think that the compensation awarded by the Reference Court as Rs.12,000/- for the yielding trees in LAR No.20/2004 as well as an amount of Rs.5000/- in LAR No.20/2006 warrant any interference 13. Apart from the same, as compensation towards loss of income from the business the Reference Court has awarded an amount of Rs.50,000/-. The claimant in LAR No.20/2006 has contended that an oil mill was functioning in the acquired land and the claimant was getting income from the business and the business was lost due to the acquisition. Before the Reference Court a demand for Rs.2,00,000/- was claimed for loss of income from the business and an amount of Rs.25000/- for shifting of the business to another suitable place by the claimants. Though, no independent evidence was adduced by the claimants to prove the actual income derived from her business, 13 L.A.A Nos.295/2013 and 437/2015 considering the fact that an oil mill and flour mill were functioning in the building situated in the property as evident from the notes to award marked as Ext.R1, a nominal amount of Rs.50,000/- towards loss on income from the oil mill in the property was awarded but, of-course no amount was awarded for shifting charges. We do not find any justifiable reason to interfere with the findings of the Reference Court on that aspect also especially for the reason that no evidence was adduced by the claimant to prove the exact income she was deriving from the business carried out and the amount spent money for shifting her business to some other suitable place though she had to strain to find out a suitable place for shifting the business. It is fairly conceded by the learned Government pleader for the State that there is no challenge regarding the enhanced compensation for the building awarded by the Reference Court. So in short, we find no justifiable reason to interfere L.A.A Nos.295/2013 and 437/2015 14 with the compensation awarded to the claimants. It is made clear that the claimants are not entitled to get 30% solatium with interest and 12% additional market value under Section 23 1(a) with respect to the compensation for improvements and loss of income from the business. The Land Acquisition Appeals are dismissed. Sd/- **C.K.ABDUL REHIM JUDGE** Sd/- **SHIRCY.V JUDGE** ## smm True copy P.A to Judge