Sunitha K.E. v. State of Kerala represented by Special Tahsildar (Land Acquisition), Cochin Refineries Ltd., Vyttila and Chief Executive Officer, Info Park

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MRS. JUSTICE SHIRCY V.** **FRIDAY, THE 23RD DAY OF MARCH 2018 / 2ND CHAITHRA,1940** **LA.App..No. 571 of 2013** **AGAINST THE JUDGMENT IN LAR 131/2008 of III ADDITIONAL SUB COURT, ERNAKULAM** **APPELLANT/1ST CLAIMANT :** **SUNITHA.K.E., W/O.MUHAMMED P.K., PUKKATTU HOUSE, KANGARAPPY, VADACODE P.O.** **BY ADVS.SRI.S.SREEKUMAR (SR.) SRI.V.N.RAMESAN NAMBISAN** ## **RESPONDENTS/RESPONDENT AND ADDITIONAL RESPONDENT NO.2:** **1. STATE OF KERALA REPRESENTED BY SPECIAL TAHSILDAR (LAND ACQUISITION), COCHIN REFINERIES LTD., VYTTILA, PIN 682016.** **2. THE CHIEF EXECUTIVE OFFICER, INFO PARK, KUSUMAGIRI, KAKKANAD, PIN 682030.** **R1 BY SR.GOVERNMENT PLEADER SRI.A.K.SUKUMARAN R2 BY ADVS. SRI.ANIL THOMAS, SC, INFOPARK SRI.K.A.ABDUL SALAM, SRI.SUNIL V.MOHAMMED R(3RD PARTY) BY ADV. SRI.K.J.KURIACHAN** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 23-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DSV/-** ## **C.K.ABDUL REHIM & SHIRCY V., JJ.** ======================== L.A.A. No. 571 of 2013 ======================== Dated this the 23[rd] day of March, 2018 ## **JUDGMENT** C.K.Abdul Rehim, J. The 1[st] claimant in L.A.R.No.131 of 2008 on the files of the Sub Court, Ernakulam is the appellant herein. An extent of 52.19 Ares of land comprised in Sy.No.666/5 of Kakkanad Village was acquired for the expansion of INFO Park, Kakkanad, by virtue of Section 4(1) notification published on 16.01.2006. The Land Acquisition Officer awarded compensation by fixing the land value at ₹48,900/- per Are, which is equivalent to 19,798/- per₹ cent. Based on a reference made under Section 18 of the Act, the court below enhanced the land value to ₹1,42,288/- per Are, which is equivalent to 57,606/- per₹ cent. Being not satisfied with the enhancement awarded, the appellant has filed this appeal. 2. Heard; Senior Counsel Sri.S.Sreekumar 2 L.A.A.No.571/13 appearing for the appellant, Government Pleader appearing for the 1[st] respondent and Advocate.K.A.Abdul Salam, Standing Counsel for the 2[nd] respondent. 3. It is fairly pointed out by learned Senior Counsel that a connected case has already been disposed of by this court through judgment in L.A.A.No.1012 of 2010, dated 17.06.2016. The said appeal arise out of judgment in L.A.R.No.22 of 2008. In both cases the acquisition is for the very same purpose made through the same notification. It is also pointed out that the properties in both the cases are comprised in the very same survey number. In the said case also the reference court had refixed the land value at the very same rate. 4. In L.A.A.No.1012 of 2010 this court had enhanced the land value to 80,500/- per cent. But₹ learned Senior Counsel had pointed out that, the evidence of Exhibit-A9 produced in the present case (L.A.R.No.131 of 2008) was not available in L.A.R.No.22 of 2008. It is pointed out that, Exhibit-A9 is a Sale Deed executed as L.A.A.No.571/13 3 Document No.1406 of 2007 of the Sub Registrar Office, Thrikkakkara. The said document was executed on 22.03.2007. The property conveyed through the said document is having an extent of 39.60 Ares. Value reflected in the said document is about 4,40,000 per₹ cent. It is pointed out that, the said document along with some other documents were produced in L.A.A.No.1012 of 2010 along with an interlocutory application filed seeking acceptance of those documents as additional evidence, by invoking Order XLI Rule 27 of the C.P.C. But this Court had rejected the request for accepting additional evidence stating various reasons and also relying on various legal precedents. 5. Contention on behalf of the appellant is that, since Exhibit-A9 is a better exemplar available on records before the reference court, it has to be taken into consideration. Question to be decided is as to whether Exhibit-A9 Sale Deed can be taken into consideration as the best exemplar available in order to fix the land value 4 L.A.A.No.571/13 with respect to the acquired property in the present case. 6. On a perusal of the impugned judgment, it is clear that the reference court found that Exhibit-A4 is the best exemplar available. But having found that the property covered by Exhibit-A4 is situated in a more prominent situation than the acquired property, the land value was fixed by giving 50% reduction from the value reflected in Exhibit-A4. Exhibit-A4 produced in the present case was marked as Exhibit-A2 in L.A.R.No.22 of 2008. While deciding L.A.A.No.1012 of 2010, this Court found that Exhibit-A2 therein is the best exemplar available. But instead of reduction at the rate of 50%, this court held that a reduction at the rate of 30% will be justifiable. It is to be noted that while discarding acceptance of additional evidence of Annexures-A1 to A4 produced, which include Exhibit-A9 in the present case, this court in L.A.A.No.1012 of 2010 had observed specifically that, those are all post notification documents, which cannot be considered for fixing the market value 5 L.A.A.No.571/13 prevailing as on the date of the Section 4(1) notification. It was also held that, there is no evidence available with respect to comparability of the properties covered under those documents with that of the acquired property. We take note of the fact that the date of execution of ExhibitA9 is more than one year after publication of Section 4(1) notification in the present case. But learned Senior Counsel for the appellant had pointed out that, the vendor of Exhibit-A9 document was examined in the present case as AW5 and from his deposition it was revealed that the acquired property is situated only at a distance of 500 to 600 feet from the land conveyed through Exhibit-A9. We are of the considered opinion that the appellant was not successful in proving before the reference court about comparability of the land conveyed through Exhibit-A9 with that of the acquired property. There is no clear evidence forthcoming with respect to the similarity in the lie and nature etc. of both the lands. 7. Learned Government Pleader as well as Standing 6 L.A.A.No.571/13 Counsel appearing for the 2[nd] respondent had pointed out that, despite the fact that the claimants have taken out a commission in the reference case, comparability of land covered under Exhibit-A9 was not examined and brought in evidence. It is further pointed out that, while examining the claimant as AW1, to a specific question put in the cross-examination, she deposed that she has not seen the property covered under Exhibit-A9 document. Therefore it is contended that Exhibit-A9 cannot be considered as an acceptable exemplar to arrive at the market value prevailing as on the date of acquisition. 8. Apart from the above said aspects, we take note of the settled legal position that a post notification document cannot be accepted as exemplar for fixing the market value, especially when best exemplars, which are pre-notification documents are available. It remains settled through a catena of decisions that post notification sale instances cannot be taken into consideration for determining compensation of the acquired land. The 7 L.A.A.No.571/13 dictum has been reiterated by the honourable Supreme Court in a latest decision in **Maya Devi and Others v, State of Haryana and Another [(2018) 2 SCC 474].** 9. For the reasons mentioned as above, we are of the opinion that Exhibit-A9 cannot be accepted as the best exemplar for fixing market value prevailing in the area as on the date of the acquisition. We find no reason to interfere with the decision taken by the reference court relying on Exhibit-A4 to arrive at the correct market value. However, since this court had granted further enhancement in an identical situation in L.A.A.No.1012 of 2010, we are inclined to grant the same rate of compensation in this case also. Hence, following the decision in L.A.A.No.1012 of 2010, it is held that the claimants will be entitled for re-fixation of the land value at the rate of 80,500/- per cent. ₹ 10. It is pointed out that, the 1[st] claimant before the reference court alone has come up in appeal seeking enhancement of the land value. Learned Senior Counsel 8 L.A.A.No.571/13 appearing for the appellant had pointed out that, all the claimants are the co-owners holding undivided share in the property acquired. Therefore, in a case filed by one of the co-owners, the other co-owners are also entitled for enhancement of the compensation on a pro-rata basis in accordance with the extent of their shares. The decision of the honourable Supreme Court in **A.Viswanatha Pillai and Others v. The Special Tahsildar for Land Acquisition No.IV and Others [(1991) 4 SCC 17]** is pointed out in this regard. It is a case where the coparcenary property was partitioned in equal shares amongst four brothers; but kept in common under management of the eldest brother prior to acquisition. The reference was sought by him alone, expressly averring about the prior partition and about the equal shares held, but without expressly stating that the reference was sought on behalf of his brothers as well. It was held that the reference court granting enhanced compensation only to the person who sought for the 9 L.A.A.No.571/13 reference, cannot be sustained. It is held that the denial of shares in the enhanced compensation to other coowners, merely because they have not jointly asked for reference, is not justifiable. The honourable apex court found that, the co-owners are also owners of the entire property and entitled to receive the compensation on a pro-rata basis. It is held that, the brother, who had applied for reference, has to be construed as acting on behalf of his other brothers as well. It is further found that, it is not justifiable on the part of the State to adopt technical pleas to deny compensation in such cases after granting enhancement. The honourable Supreme Court has also referred to the personal law and held that a coowner can file a suit and recover a property against the strangers and the decree would enure to all the co-owers. 11. Based on the dictum contained in the ruling cited as above, we are of the opinion that the technicality of non-joining of all the co-owners as appellants, will not be taken as a ground to deny the benefit of enhancement 10 L.A.A.No.571/13 to all the co-owners, who were claimants in the reference case before the court below. 12. Under the above mentioned circumstances, the above appeal is hereby allowed in part, to the extent of enhancing and re-fixing the land value at the rate of ₹80,500/- per cent, with respect to the acquired property in this case. It is held that all the claimants will be entitled for the enhanced compensation as re-fixed above, along with all statutory benefits available under Sections 23(1A), 23(2) and 28 of the Land Acquisition Act, along with proportionate cost. While computing the interest under Section 28 of the Land Acquisition Act, the period of 1028 days for which the delay in filing the appeal was condoned through order in C.M.Application No.700 of 2013, dated 02.07.2014, need to be exempted. Sd/- ## **C.K.ABDUL REHIM, JUDGE** Sd/- **SHIRCY V., JUDGE** DSV/26/3/18