Thachambalath Gopesh and others v Special Tahsildar (LA), Kozhikode and Secretary, Kozhikode Corporation and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** ## **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY ,THE 21ST DAY OF FEBRUARY 2019 / 2ND PHALGUNA, 1940** **LA.App..No. 878 of 2014** **AGAINST THE JUDGMENT IN LAR 38/2007 of PRINCIPAL SUBORDINATE JUDGE, KOZHIKODE DATED 30-07-2014** ## **APPELLANTS/SUPPLEMENTARY CLAIMANTS B TO G AND K TO M:** - **1 THACHAMBALATH GOPESH AGED 40 YEARS S/O.LATE HARIHARAN, NALLALAM AMSOM AND DESOM, GOPAL NIVAS, NALLALAM PO, KOZHIKODE DISTRICT** - **2 THACHAMBALATH SHERITHA AGED 45 YEARS D/O..LATE HARIHARAN, NALLALAM AMSOM AND DESOM, GOPAL NIVAS, NALLALAM PO, KOZHIKODE DISTRICT** - **3 THACHAMBALATH RAMADEVI AGED 67 YEARS** - **W/O.LATE HARIHARAN, NALLALAM AMSOM AND DESOM, GOPAL NIVAS, NALLALAM PO, KOZHIKODE DISTRICT** - **4 THACHAMBALATH DEVI AGED 77 YEARS W/O.THACHAMBALATH BALAN, NALLALAM AMSOM DESOM, PO NALLALAM , KOZHIKODE DISTRICT** - **5 THACHAMBALATH PRADEEP KUMAR AGED 58 YEARS S/O.THACHAMBALATH DEVI, NALLALAM AMSOM DESOM, PO NALLALAM , KOZHIKODE DISTRICT** - **6 THACHAMBALATH BABU AGED 51 YEARS S/O.THACHAMBALATH DEVI, NALLALAM AMSOM DESOM, PO NALLALAM , KOZHIKODE DISTRICT** - **7 THACHAMBALATH PUSHPALATHA AGED 67 YEARS** & 38 of 2015 2 L.A.A.Nos.878 of 2014, 32 of 2015 **W/O.LATE NARAYANAN,, NALLALAM AMSOM DESOM, PO NALLALAM , KOZHIKODE DISTRICT** - **8 THACHAMBALATH SHYJI AGED 46 YEARS D/O.THACHAMBALATH PUSHPALATHA,NALLALAM AMSOM DESOM, PO NALLALAM , KOZHIKODE DISTRICT** - **9 THACHAMBALATH SHIMJI** - **AGED 42 YEARS** **D/O.THACHAMBALATH PUSHPALATHA,NALLALAM AMSOM DESOM, PO NALLALAM , KOZHIKODE DISTRICT** ## **BY ADV. SRI.P.V.KUNHIKRISHNAN** ## **RESPONDENTS/RESPONDENTS AND CLAIMANTS H TO J:** - **1 SPECIAL TAHSILDAR (LA) KOZHIKODE 673 020** - **2 SECRETARY, KOZHIKODE CORPORATION 673 220** - **3 THACHAMBALATH KOUSU, AGED 73 YEARS, W/O.SADASIVAN,KAILAMADOM AMSOM DESOM, PO PANTHEERANKAVU, KOZHIKODE DISTRICT 673 019** - **4 THACHAMBALATH ASOKAN AGED 57 YEARS** - **S/O.THACHAMBALATH KOUSU,,KAILAMADOM AMSOM DESOM, PO PANTHEERANKAVU, KOZHIKODE DISTRICT 673 019** - **5 THACHAMBALATH ANILA AGED 56 YEARS D/O.THACHAMBALATH KOUSU,,KAILAMADOM AMSOM DESOM, PO PANTHEERANKAVU, KOZHIKODE DISTRICT 673 019** ## **SRI. T.K.SHAJAHAN-SR.GP FOR R1** SRI.T.G.RAJENDRAN FOR R3 TO R5 **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 19.02.2019, ALONG WITH LA.App..32/2015, LA.App..38/2015, THE COURT ON 21.02.2019 DELIVERED THE FOLLOWING:** L.A.A.Nos.878 of 2014, 32 of 2015 & 38 of 2015 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** ## **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY ,THE 21ST DAY OF FEBRUARY 2019 / 2ND PHALGUNA, 1940** ## **LA.App..No. 32 of 2015** **AGAINST THE JUDGMENT IN LAR 37/2007 of PRINCIPAL SUBORDINATE JUDGE, KOZHIKODE DATED 30-07-2014** ## **APPELLANTS/SUPPLEMENTARY CLAIMANTS B TO G AND K TO M:** - **1 THACHAMBALATH GOPESH AGED 40 YEARS S/O.LATE HARIHARAN, NALLALAM AMSOM AND DESOM, GOPAL NIVAS, NALLALAM P.O., KOZHIKODE DISTRICT.** - **2 THACHAMBALATH SHERITHA AGED 45 YEARS D/O.LATE HARIHARAN, NALLALAM AMSOM AND DESOM, GOPAL NIVAS, NALLALAM P.O., KOZHIKODE DISTRICT.** - **3 THACHAMBALATH RAMADEVI AGED 67 YEARS W/O.LATE HARIHARAN, NALLALAM AMSOM AND DESOM, GOPAL NIVAS, NALLALAM P.O., KOZHIKODE DISTRICT.** - **4 THACHAMBALATH DEVI, W/O.THACHAMBALATH BALAN AGED 77 YEARS NALLALAM AMSOM DESOM, P.O.NALLALAM, KOZHIKODE DISTRICT.** - **5 THACHAMBALATH PRADEEP KUMAR AGED 58 YEARS S/O.THACHAMBALATH DEVI, NALLALAM AMSOM DESOM, P.O.NALLALAM, KOZHIKODE DISTRICT.** L.A.A.Nos.878 of 2014, 32 of 2015 & 38 of 2015 4 **6 THACHAMBALATH BABU AGED 51 YEARS S/O.THACHAMBALATH DEVI, NALLALAM AMSOM DESOM, P.O.NALLALAM, KOZHIKODE DISTRICT.** - **7 THACHAMBALATH PUSHPALATHA AGED 67 YEARS W/O.LATE NARAYANAN, S/O.THACHAMBALATH DEVI, NALLALAM AMSOM DESOM, P.O.NALLALAM, KOZHIKODE DISTRICT.** - **8 THACHAMBALATH SHYJI AGED 46 YEARS D/O.THACHAMBALATH PUSHPALATHA, NALLALAM AMSOM DESOM, P.O.NALLALAM, KOZHIKODE DISTRICT.** - **9 THACHAMBALATH SHIMJI AGED 42 YEARS D/O.THACHAMBALATH PUSHPALATHA, NALLALAM AMSOM DESOM, P.O.NALLALAM, KOZHIKODE DISTRICT.** ## **BY ADV. SRI.P.V.KUNHIKRISHNAN** ## **RESPONDENTS/RESPONDENTS AND CLAIMANTS H TO J:** - **1 SPECIAL TAHSILDAR (LA) KOZHIKODE - 673 020.** - **2 SECRETARY KOZHIKODE CORPORATION - 673 220** - **3 THACHAMBALATH KOUSU, AGED 73 YEARS W/O.SADASIVAN, KAILAMADOM AMSOM DESOM, P.O.PANTHEERANKAVU, KOZHIKODE DISTRICT - 673 019.** - **4 THACHAMBALATH ASOKAN AGED 57 YEARS** **S/O.THACHAMBALATH KOUSU, KAILAMADOM AMSOM DESOM, P.O.PANTHEERANKAVU, KOZHIKODE DISTRICT - 673 019.** - **5 THACHAMBALATH ANILA AGED 56 YEARS** **D/O.THACHAMBALATH KOUSU, KAILAMADOM AMSOM DESOM, P.O.PANTHEERANKAVU, KOZHIKODE DISTRICT - 673 019.** 5 L.A.A.Nos.878 of 2014, 32 of 2015 & 38 of 2015 **SRI. T.K.SHAJAHAN-SR.GP FOR R1 BY ADV. SRI.T.G.RAJENDRAN FOR R3 TO R5** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 19.02.2019, ALONG WITH LA.App..878/2014, LA.App..38/2015, THE COURT ON 21.02.2019 DELIVERED THE FOLLOWING:** L.A.A.Nos.878 of 2014, 32 of 2015 & 38 of 2015 6 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** ## **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY ,THE 21ST DAY OF FEBRUARY 2019 / 2ND PHALGUNA, 1940** ## **LA.App..No. 38 of 2015** **AGAINST THE JUDGMENT IN LAR 39/2007 of PRINCIPAL SUBORDINATE JUDGE, KOZHIKODE** ## **APPELLANTS/SUPPLEMENTARY CLAIMANTS B TO G AND K TO M:** - **1 THACHAMBALATH GOPESH AGED 40 YEARS S/O.LATE HARIHARAN, NALLALAM AMSOM AND DESOM, GOPAL NIVAS, NALLALAM P.O, KOZHIKODE DISTRICT.** - **2 THACHAMBALALTH SHERITHA AGED 45 YEARS** - **D/O.LATE HARIHARAN, NALLALAM AMSOM AND DESOM, GOPAL NIVAS, NALLALAM P.O, KOZHIKODE DISTRICT.** - **3 THACHAMBALATH RAMADEVI WO.LATE HARIHARAN AGED 67 YEARS** - **NALLALAM AMSOM AND DESOM, GOPAL NIVAS, NALLALAM P.O, KOZHIKODE DISTRICT.** - **4 THACHAMBALATH DEVI AGED 77 YEARS** - **W/O.THACHAMBALATH BALAN, NALLALAM AMSOM DESOM, NALLALAM P.O, KOZHIKODE DISTRICT.** - **5 THACHAMBALATH PRADEEP KUMAR AGED 58 YEARS** - **S/O.THACHAMBALATH DEVI, NALLALAM AMSOM DESOM, NALLALAM P.O, KOZHIKODE DISTRICT.** - **6 THACHAMBALATH BABU** - **AGED 51 YEARS, S/O.THACHAMBALATH DEVI, NALLALAM AMSOM DESOM, NALLALAM P.O, KOZHIKODE DISTRICT.** & 38 of 2015 7 L.A.A.Nos.878 of 2014, 32 of 2015 - **7 THACHAMBALATH PUSHPALATH AGED 67 YEARS** **W/O.LATE NARAYANAN, NALLALAM AMSOM DESOM, NALLALAM P.O, KOZHIKODE DISTRICT.** - **8 THACHAMBALATH SHYJI AGED 46 YEARS D/O.THACHAMBALATH PUSHPALATHA, NALLALAM AMSOM DESOM, NALLALAM P.O, KOZHIKODE DISTRICT.** - **9 THACHAMBALATH SHIMJI AGED 42 YEARS D/O.THACHAMBALATH PUSHPALATHA, NALLALAM AMSOM DESOM, NALLALAM P.O, KOZHIKODE DISTRICT.** **BY ADV. SRI.P.V.KUNHIKRISHNAN** ## **RESPONDENTS/RESPONDENTS AND CLAIMANTS H TO J:** - **1 SPECIAL TAHSILDAR KOZHIKODE - 673020** - **2 SECRETARY KOZHIKODE CORPORATION - 673 220** - **3 THACHAMBALATH KOUSU AGED 73 YEARS** **W/O.SADASIVAN, KAILAMADOM AMSOM DESOM, P.O.PANTHEERANKAVU, KOZHIKODE DISTRICT - 673 019** - **4 THACHAMBALATH ASOKAN AGED 57 YEARS** **S/O.THACHAMBALATH KOUSU, KAILAMADOM AMSOM DESOM, P.O.PANTHEERANKAVU, KOZHIKODE DISTRICT - 673 019** ## **5 THACHAMBALATH ANILA AGED 56 YEARS** **D/O.THACHAMBALATH KOUSU, KAILAMADOM AMSOM DESOM, P.O.PANTHEERANKAVU, KOZHIKODE DISTRICT - 673 019** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 19.02.2019, ALONG WITH LA.App.32/2015, LA.App..878/2014, THE COURT ON 21.02.2019 DELIVERED THE FOLLOWING:** L.A.A.Nos.878 of 2014, 32 of 2015 & 38 of 2015 8 ## **V.CHITAMBARESH &** ## **R.NARAYANA PISHARADI, JJ.** ************************** L.A.A.Nos.878 of 2014, 32 of 2015 & 38 of 2015 ---------------------------------------------Dated this the 21[st] day of February, 2019 ## **J U D G M E N T** ## **R.Narayana Pisharadi, J** These appeals arise out of the common judgment dated 30.07.2014 passed by the Sub Court, Kozhikode in L.A.R.Nos.37/2007 to 39/2007. 2. Dry as well as wet lands, owned by the appellants, situated in Panniyankara Village, were acquired for the purpose of construction of a bus shelter at Meenchantha in Kozhikode. Notification under Section 4(1) of the Land Acquisition Act, 1894 was published on 24.02.2006. The Land Acquisition Officer granted compensation by fixing the value of the dry land comprised in survey Nos.206/2 and 207 at Rs.17,457.91/- per cent and for the dry land comprised in survey No.208/4 at Rs.20,949.50/- per cent. The Land Acquisition L.A.A.Nos.878 of 2014, 32 of 2015 & 38 of 2015 9 Officer fixed the value of the wet lands at Rs.13,966.33/- per cent. The reference court enhanced the compensation by refixing the value of the dry land at Rs.80,000/- per cent and for the wet land at Rs.48,000/- per cent. Dissatisfied with the award passed by the reference court, some of the claimants have filed these appeals. 3. We have heard learned counsel for the appellants and the learned Government Pleader. We have also perused the records. 4. Exts.A1 to A3 are the documents produced by the claimants before the reference court in support of their claim for enhancement of compensation for land. 5. Ext.A1 is the copy of the judgment of the reference court in L.A.R.No.31/07. A perusal of this judgment shows that it was not a case filed for enhancement of compensation but it was a case filed for apportionment of compensation under Section 30 of the Land Acquisition Act. Learned counsel for the appellants has not explained the purpose of production of Ext.A1 document before the reference court. 6. Ext.A2 is the copy of document No.310/2008. As per this document, nine cents of land was sold for a total consideration of Rs.90,00,000/-. The date of the transaction covered by Ext.A2 L.A.A.Nos.878 of 2014, 32 of 2015 & 38 of 2015 10 document is 25.01.2008. The date of publication of notification of acquisition is 24.02.2006. The value of land shown in post notifications documents cannot be adopted as the basis for fixation of the market value of the land acquired as on the date of notification (See _**Maya Devi v. State of Haryana : AIR 2018 SC 645**_ ). Therefore, Ext.A2 document cannot be relied upon to fix the market value of the acquired lands as on the date of notification. 7. Ext.A3 is the copy of document No.3545/95. The date of the transaction covered by Ext.A3 document is 11.12.1995. As per this document, four cents of reclaimed land was purchased by a private company for a total consideration of Rs.4,00,000/-. The boundaries of the property shown in Ext.A3 document reveal that there was no access to this property from any road or way at the time of the transaction. The report of the Advocate Commissioner shows that the land covered by Ext.A3 document is part of a larger extent of property having an area of 30 cents where the showroom of an automobile company is functioning. 8. Learned counsel for the appellants would contend that even in the year 1995, the property covered by Ext.A3 document, which had not even road frontage, had value of Rs.1,00,000/- per cent and L.A.A.Nos.878 of 2014, 32 of 2015 & 38 of 2015 11 therefore, the value of the acquired land on 24.02.2006, more than ten years after that transaction, cannot be lower than the value shown in that document. 9. The aforesaid contention overlooks the fact that the transaction covered by Ext.A3 document was not an ordinary transaction of sale. The land covered by that document was purchased by an automobile company, most probably, with the intention to construct a showroom of the company. This is evident from the report of the Advocate Commissioner who has reported the existence of an automobile show room now in that property. When a private company finds a suitable place for the construction of an automobile showroom, it may purchase such property by giving whatever price demanded by the owner. The reason is that the company would find it difficult to obtain a land suitable for its specific purpose in a suitable locality. Therefore, the value of the land shown in Ext.A3 document cannot be adopted as the basis for fixation of the market value of the lands acquired in the instant cases. 10. The reference court has fixed the value of the land acquired in the instant cases on the basis of the judgment of that court in L.A.R.No.15/2008 and connected cases. The copy of the judgment in L.A.A.Nos.878 of 2014, 32 of 2015 & 38 of 2015 12 those cases is not seen marked. The aforesaid cases related to acquisition of land situated in the same village for the same purpose but under a different notification dated 29.06.2002. The reference court refixed the value of the land acquired in the instant cases by enhancing the value of the land fixed in L.A.R.No.15/08 by 15% per year. 11. Normally, recourse is taken to the mode of determining the market value by providing appropriate escalation over the proved market value of nearby lands in previous years (as evidenced by sale transactions or acquisition), where there is no evidence of any contemporaneous sale transactions or acquisitions of comparable lands in the neighbourhood. The said method is reasonably safe where the relied on sale transactions/acquisitions precedes the subject acquisition by only a few years, that is upto four to five years. As the percentage of increase is always with reference to the previous year's market value, the appropriate method is to calculate the increase cumulatively and not applying a flat rate (See General Manager, Oil Natural Gas Corporation Limited v. Rameshbhai Jivanbhai Patel : (2008) 14 SCC 745). 12. The value of the dry land fixed as per the judgment in L.A.A.Nos.878 of 2014, 32 of 2015 & 38 of 2015 13 L.A.R.No.15/2008 was Rs.50,000/- and the value of the wet land fixed was Rs.30,000/- per cent. The date of notification of acquisition of land in L.A.R.No.15/2008 is 29.06.2002 and the date of publication of notification in the instant case is 24.02.2006. The time gap between the date of the two notifications is three years and eight months. If the amount of Rs.50,000/- is increased by 15% per year on a cumulative basis for the aforesaid period, it would come to Rs.83,648/-. The value of the wet land fixed in L.A.R.No.15/08 was Rs.30,000/- per cent. If the amount of Rs.30,000/- is enhanced by 15% per year on cumulative basis for a period of three years and eight months, it would come to Rs.50,189/-. 13. At this juncture, we shall take note of two aspects. The lands acquired are situated in urban area, in Kozhikode city. The commercial importance of the locality cannot be disputed. Secondly, after the first acquisition of properties in the year 2002, the rate of increase in land value in that locality would have been much faster. Considering these aspects, we find that value of the lands acquired in the instant cases can be fixed at an amount slightly higher than the figures indicated earlier. The value of the dry land can be refixed at Rs.90,000/- per cent and the wet land at Rs.53,000/- per cent. In our L.A.A.Nos.878 of 2014, 32 of 2015 & 38 of 2015 14 opinion, it would be just and reasonable compensation for the lands acquired. 14. Accordingly, the appeals are partly allowed. The value of the dry (garden) land acquired in the instant cases is refixed at Rs.90,000/- (Rupees ninety thousand only) per cent and the value of the wet land is refixed at Rs.53,000/- (Rupees fifty three thousand only) per cent. The appellants are entitled to get enhanced amount of compensation for land at the aforesaid rates. They are also entitled to get all other statutory benefits. No costs. ## (sd/-) ## **V.CHITAMBARESH, JUDGE** ## (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr/20/02/2019 True Copy PS to Judge