Thomas (Appellant/Claimant) v. State of Kerala rep. by Special Tahsildar (LA), ICTT, Vallarpadam, Eloor; Cochin Port Trust Ltd; Addl R3, National Highway Authority of India

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **&** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **MONDAY, THE 19TH DAY OF MARCH 2018 / 28TH PHALGUNA, 1939** **LA.App..No. 287 of 2017** **AGAINST THE ORDER/JUDGMENT IN LAR 198/2009 of III ADDL.SUB COURT, ERNAKULAM DATED 21-12-2013** ## **APPELLANT/CLAIMANT** **THOMAS AGED 74 YEARS, S/O.KARLOSE, RESIDING AT MANCHUVATTIL HOUSE, CHERANELLOOR, ERNAKULAM DISTRICT.** **BY ADVS.SRI.S.KRISHNAMOORTHY SRI.K.S.SREEJITH (CHERTHALA) SRI.TONY AUGUSTINE** ## **RESPONDENTS/RESPONDENTS:** **1. STATE OF KERALA REP.BY SPECIAL TAHSILDAR (LA), ICTT, VALLARPADAM, ELOOR.** ## **2. COCHIN PORT TRUST LTD** **REPRESENTED BY ITS CHAIRMAN, KOCHI.** ## **3. ADDL R3** **NATIONAL HIGHWAY AUTHORITY OF INDIA, RAK TOWER, EDAPPALLY, KOCHI -682024** **ADDL. R3 IMPLEADED VIDE ORDER DATED 23.10.2017 IN I.A. NO.295/2017** **R1 BY GOVERNMENT PLEADER SMT.RASHMI.K.M** **R2 BY ADV. SRI.K.ANAND (SR.)** **R2 BY ADV. SMT.LATHA ANAND, SC, COCHIN PORT TRUST ADDL.R3 BY ADV. SMT.I.SHEELA DEVI** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 19-03-2018 ALONG WITH LAA 446/2017 AND CONNECTED CASES,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **LA.App..No. 287 of 2017** ## **APPENDIX** ## **PETITIONERS ANNEXURES** **ANNEXURE A1 COPY OF THE JUDGMENT IN LAA NO.503/2011 DATED 20.9.2011 ANNEXURE A1(a) COPY OF THE ORDER IN C.M.APPLN.NO.1141/2011 IN LA APPLN. NO.503/2011 DATED 26.8.2011 ANNEXURE A2 COPY OF THE JUDGMENT IN LAA NO.225/2012 DATED 12.4.2012 ANNEXURE A3 COPY OF THE LETTER OF RELINQUISHMENT ISSUED BY THE LAWYER** ## **RESPONDENTS ANNEXURES** ## **NIL** **TRUE COPY** **P.A TO JUDGE** ## **SMM** ## **C.K. ABDUL REHIM, J. & SHIRCY V., J.** ------------------------------------------------- ## **L.A.A. Nos. 287, 298 & 446 OF 2017** ------------------------------------------------DATED THIS THE 19[th] DAY OF MARCH, 2018 ## **J U D G M E N T** ## Abdul Rehim, J: Since all the above three appeals arise out of judgments passed by the Sub Court, Ernakulam in connected cases pertaining to the same acquisition, they were considered together and disposed through this common judgment. LAA No.287/2017 arise out of the judgment in LAR No.198/2009. LAA No.298/2017 arises out of the judgment in LAR No.200/2009. The reference court had disposed of the above said two cases through a common judgment, along with another reference case, LAR No.199/2009. LAR No.446/2017 arises out of the judgment in LAR No.201/2009. The claimants in all these cases have filed the appeals, being not satisfied with the enhancement granted by the reference court, with respect to the compensation awarded by the Land Acquisition Officer (LAO). **LAA Nos.287, 298 & 446/2017** -2- 2. The acquisition was for construction of the “Four line connectivity Road” between ICTT Vallarpadam and NH 47 at Kalamassery. The properties acquired in all these cases are situated in Mulavukad village. The acquisition was effected based on the Section 4(1) notification published on 26.10.2005. The property acquired in LAR No.198/2009 is having an extent of 77.26 Ares comprised in Sy.No.31/2-5 part. The property acquired in LAR No.200/2009 is having an extent of 62.34 Ares comprised in the same Sy Number of 31/2-5 Part. The property acquired in LAR No.201/2009 is having an extent of 67.06 Ares comprised in Sy.No.31/3-7. The LAO awarded land value at the rate of Rs.12,852/- per Are in LAR No.198/2009 and 201/2009, including the acquired properties in Category No.II. The LAO had awarded land value at the rate of Rs.15,646/- per Are in LAR No.200/2009. For fixing the land value he had relied upon 3 documents, Sale Deed Nos.5024/2005, 5018/2005 and 5138/2005 of the Sub Registrar Office, Ernakulam. The average value reflected in those documents was Rs.10,644/per Are. The LAO fixed land value with respect to properties **LAA Nos.287, 298 & 446/2017** -3- included in category No.III by granting an increase of 5% on the said amount, taking into consideration of the time gap between the date of execution of those documents and the date of the acquisition. Accordingly, LAO had fixed the land value for category No.III at Rs.11,176/- per Are. By giving 15% increase from the value fixed for category No.III, the LAO had fixed the land value for Category No.II at Rs. 12,852/- per Are. With respect to property included in Category No.1 the land value was fixed at Rs.15,646/- per Are by giving 40% increase from the value fixed for Category No.III. The reference court had enhanced the land value to Rs.98,862/- per Are in LAR No.198/2009 and 201/2009. The land value refixed by the reference court in LAR 200/2009 is at Rs.1,08,748/- per Are, based on the finding that the property in that case is included in Category No.I. 3. One of the main contention raised by the appellants is that, the properties comprised in all these cases ought to have been included in Category No.I since the acquired properties in all the three cases had the benefit of access **LAA Nos.287, 298 & 446/2017** -4- from a road situated on the side of the said properties. It is evident from the reference file which is available in the records, that the properties covered under these three cases are situated in block No.III of Mulavukad village and the nature of the properties described in the revenue records is as 'Nilam' (wet land). In the 'notes to award' it is mentioned by the LAO that the properties were used for fish farming (chemmeenkettu). It is further evident that, those properties which are situated adjacent to the point where the 3 metre wide road ends on the northern terminal were included in the 1[st] category. The said category is described in the 'notes to award' as property having access to the pathway from the 3 Metre road and the properties which are situated as Nilam/Chemmeenkettu. The properties included in Category No.I are properties situated in Block No.3. The properties which are not included in Category No.I are certain specified properties identified through Survey Numbers including the acquired properties in these cases, which are included in Category No.II. The properties included in Category No.III are the Nilam/Chemmeenkettu **LAA Nos.287, 298 & 446/2017** -5- comprised in Block No.2. 4. The question to be determined is as to whether the categorization made by the Land Acquisition Officer is correct and justifiable or not. It has come out in evidence that the properties covered under these cases are situated on the northern end of Mulavukad island, which is connected to the Gosri/Vypeen road through a 3 Metre wide road passing north-south through the entire length of the Mulavukad island. In the Mahazar prepared in LAR No.198/2009 it is mentioned by the LAO that, the property acquired is situated at a distance of 100 metres south east from the main terminal where the jeep service is ending in Mulavukad Village. It is described that the properties are remaining without any road access. In the Mahazar in LAR No.200/2009 it is mentioned that the acquired property is situated at a distance of 30 Metres towards north from the above said jeep service terminal and it is situated on the eastern side of the pathway leading from the said terminal. In the Mahazar prepared in LAR No.201/2009 it is stated that, the acquired properties are situated on the northern **LAA Nos.287, 298 & 446/2017** -6- end of the main land in Mulavukad village, abutting to the river. But it is evident from the sketch prepared along with the Mahazar that the properties covered in all the three cases are remaining as adjoining plots. The property in LAR No.200/2009 is situated on the western end. The property in LAR 198/2009 is situated on the eastern side of the property in LAR No.200/2009 sharing a common boundary having the length of 62.4 Mtrs. Likewise the property in LAR No.201/2009 is situated on the eastern side of the property in LAR No. 198/2009 sharing a common boundary having a length of 59.5 Mtrs. Therefore it is evident that all the three properties are situated adjoining to each other, lying east west by sharing common boundaries. In the report of the Advocate commissioner, which is marked as Ext.X1 in LAR No.201/2009. Along with that Ext.X1(a) sketch is produced, which would indicate that the properties in these three cases are situated on the eastern side of “Mulavukad Panchayath road”, which is a 3 Mtr. road which is described in the mahazars prepared by the LAO. It is specifically marked in Ext.X1(a) sketch that a **LAA Nos.287, 298 & 446/2017** -7- road having width of 4.5 Mtrs.is passing through the southern side of all the three properties, starting from the Panchayath road, leading towards east. In all probability this is the road about which mention is made by the LAO in the mahazar prepared in LAR No.200/2009, as pathway leading from the Jeep service terminal. Since all the three properties are situated adjoining each other on east west direction, it is clear that the pathway is leading through the southern side of all the properties and the properties in all the three cases were having access to the said pathway. 5. Learned Government Pleader appearing for the respondents had raised vehement contentions to the effect that, the nature of the property described in Ext.X1 cannot be accepted, because the inspection by the Advocate commissioner was conducted after the lapse of more than five years from the date of the acquisition. It is contended that in all probability the 4.5 Mtr. Road mentioned in the report might have been developed subsequently, after construction of the four line connectivity road through the acquired properties. We take note of the fact that the **LAA Nos.287, 298 & 446/2017** -8- claimants in LAR No.198/2009, 200/2009 are husband and wife. The property under ownership of the husband and wife covered under the two awards are situated contiguous and is remaining as a compact plot. It is held by this court in **Lillykutty v. State of Kerala [2012(4)KLT 428]** that the properties of the husband and wife, lying together and contiguously in same condition and enjoyed as a common holding of the family, should be included in the same category. Therefore we have no hesitation to hold that the properties comprised in LAR Nos. 198/2009 and 200/2009 need to be treated alike, in the matter of categorisation. So also as already observed, the property in LAR No.201/2009 is situated on the eastern side of the property belonging to the claimants in LAR No.198/2009 and 200/2009. Since it is reported that the pathway (reported as 4.5 Mtr. road in the commission report) was passing through the southern side of these properties, with all the three properties having direct access to the said pathway, we are inclined to hold that the property in all the three cases need to be included in category No.1. This is especially because, the Advocate **LAA Nos.287, 298 & 446/2017** -9- Commissioner had reported that the properties are having road access to a road having a width of 4.5 Mtrs. situated on the southern side of the claimant's properties, which road was created by virtue of sale deed No. 2638/2000 of the Sub Registrar's office, Ernakulam. A copy of the said sale deed is produced as Ext.A2 in LAR No.201/2009. The said sale deed was executed by the claimants in all the 3 cases with respect to purchase of the right of pathway. Evidently the purchase of the property covered under the said document was made for facilitating road access to the properties. The said document was executed in the year 2000, whereas the acquisition was only in the year 2005. Therefore it is evident that there existed a right of way to all the acquired properties in all the three cases, at the relevant time of the acquisition. Learned Government Pleader had raised a further contention that the benefit of the dictum contained in **Lillykutty's case (supra)** cannot be extended to the case of the claimant in LAR No.201/2009. It is further contended that there was no issue seen raised in the judgment in LAR No.201/2009 with **LAA Nos.287, 298 & 446/2017** -10- respect to category change. First of all we may affirm that the finding regarding change of category with respect to the property in LAR No.201/2009 is based on Ext.A2 document and the report of the Advocate commissioner. It is true that the claimant in LAR No.201/2009 may not be entitled for the benefit of the dictum contained in **Lillykutty's case (supra)** . But the evidence adduced before the reference court would clearly prove the existence of a right of pathway to the properties of the said claimants. Learned counsel appearing for the appellants have specifically pointed out that, the claimant in LAR No.201/2009 filed an additional claim statement before the reference court seeking for change of category, which was omitted notice of the reference court. Hence, we are inclined to hold that the properties covered in all these three cases ought to have been included in category No.1, which are properties having access to the pathway leading to the 3 Mtr. wide road. 6. The next question to be considered is regarding justifiability of the land value fixed by the reference court. **LAA Nos.287, 298 & 446/2017** -11- The Judgment in LAR No.201/2009 is first among the judgments challenged in these appeals. The reference court had observed that basic document relied on by the LAO cannot be accepted because it was reported that the property covered by the said document is situated at a distance of about 1.5 Kms. away from the acquired properties; and is not situated within the same block. It is also mentioned that two of the basic documents are executed on consecutive days and therefore it cannot be considered as genuine. The reference court considered Ext.A3 document produced by the claimant which is a sale deed with respect to purchase of 40 cents of land by the Kerala State Electricity Board executed on 9.1.2001. The consideration reflected therein is Rs.29,500/- per cent. From the report of the Advocate commissioner it is revealed that, the said property is situated at about 7 metres away from the acquired property on the southern side. The reference court also considered other sale deeds produced by the claimants marked as Exts.A4, A5, A6, A7 and A8. But it is found that except Ext.A3 none of those documents can **LAA Nos.287, 298 & 446/2017** -12- be accepted for fixing land value of the acquired property, because the lands covered under those documents were found as not comparable. On considering Exts.A31 and A32, copies of judgments in L.A.A.Nos.503/2011 and 223/2011, the reference court observed that, those were properties acquired through different notifications published after the notification in the reference cases concerned. So those judgments were discarded as post notification judgments. The reference court found that Ext.A3 document was executed at a time gap of about 4 years, before the date of the section 4(1) Notification in this case. It was found that the property covered under Ext.A3 document is having the very same features as that of the acquired properties. The evidence let in through the oral testimony of AW2, the assignor of Ext.A3 document, was also taken into consideration. His testimony was to the effect that, the property in question was remaining waterlogged having a considerable depth. The property is accessible only through a pathway, in which autorickshaw can be plied. From such evidence available, it was held by **LAA Nos.287, 298 & 446/2017** -13- the reference court that, the property comprised in Ext.A3 document is similar in nature and similarly situated when compared with the acquired properties. It was found that, since the property was purchased by KSEB, the true value of the property would have definitely reflected in Ext.A3. Having found so, the reference court expressed an opinion that, an increase of 7.5% per year can be granted from the value mentioned in Ext.A3, taking into consideration of the time gap of 4 years and 9 months. Such a finding was arrived on the basis that the properties situated in Mulavukad village cannot be treated as properties situated in an urban area and it can only be considered as property situated in a rural area, as classified in the decision of the hon'ble Supreme Court in **ONGC Ltd. v. Ramesh Bai Jeevan Bai Patel [ (2008)14 SCC 745].** Therefore the reference court had refixed the land value by granting an increase of Rs.10,509/- per cent over and above the value of Rs.29,500/- reflected in Ext.A3 document. Accordingly the land value was refixed at Rs.40,009/- per cent, which is equivalent to Rs.98,862/- per Are. **LAA Nos.287, 298 & 446/2017** -14- 7. In the common judgment in LAR No.198/2009 and 200/2009, the reference court had refixed the land value basing on the judgment in LAR No.201/2009. The reference court found that, the property covered under LAR No.198/2009 is similar and similarly situated as that of the property covered under LAR No. 201/2009. Hence it was held that the same value as fixed in LAR No.201/2009 can be given to the claimant in LAR No.198/2009. Finding that the property covered under LAR No.200/2009 is having direct access to the road, 10% increase in the land value was awarded to the claimant in LAR No.200/2009, over and above the value fixed in LAR No.201/2009. Accordingly, the reference court allowed enhancement of the land value at the rate of Rs.98,862/- per Are in LAR No. 198/2009 and Rs.1,08,748/- per Are in LAR No.200/2009. The appellants are challenging the judgments in all the cases based on the contention that the land value fixed is highly inadequate and that the rejection of the exemplars by the reference court was not legal and proper. 8. One of the main contention raised by the **LAA Nos.287, 298 & 446/2017** -15- appellant is against the discarding of Ext.A7 sale deed by the reference court. Learned counsel for the appellants contended that, the property transacted through Ext.A7 document is a land which is comparable and having similarity in nature with the acquired properties. Exhibit A7 is a document executed on 29-03-2005 with respect to the sale of 4 Acres of low lying land, having trees thereon, situated in Sy. No.231/3 of Mulavukad village. The court below observed that, property covered by the said document is situated in Block No.2, whereas the acquired properties are situated in Block No.3. Therefore it was found that the property in question is not situated near to the acquired properties. In Ext.X1 report of the Advocate Commissioner it is stated that, the property covered under Ext.A7 is situated at about 2Kms. away from the acquired properties, adjacent to the bridge being newly constructed opposite to the Container Terminal at Vallarpadam. It is stated that the property is having access to a 10 feet wide road situated in the southern and eastern side of the property, which starts from Ernakulam-Vypin road. It is **LAA Nos.287, 298 & 446/2017** -16- specifically pointed out that the property is situated is very near to Vallarpadam Container Terminal. The opinion of the Advocate Commissioner itself is that, the lie and nature of the said property is not comparable with the acquired properties. It has come out in evidence that the acquired properties are situated on the northern end of Mulavukad island which is connected to the Ernakulam-Vypin road by a 3 meter wide road. Whereas it is evident that Ext.A7 property is situated just opposite to the compound wall of the Container Transshipment Terminal. It is connected to Ernakulam-Vypin road through a 10 feet wide road; and the property under Ext.A7 document is situated at a distance of 2 Kms away from the acquired properties. Therefore we are of the considered opinion that the property covered under Ext.A7 is not at all comparable with the acquired properties and it is not similar in nature or similarly situated. 9. Learned counsel for the appellants raised contentions against the non-acceptance of Ext.A31 & A32 judgments in LAA No. 507/2011 and 223/2012. The reference court while deciding LAR No.201/2009 found **LAA Nos.287, 298 & 446/2017** -17- that, those judgments arise out of LAR Nos.33/2009 and 48/2009, respectively. It was found that, eventhough the properties were acquired for the same purpose, the acquisition was based on a different notification, which is later in point of time with that of the notification in the present cases. Hence it was observed that, Ext.A31 & A32 are post notification judgments. Further, it was also observed that, the property covered under those judgments are not similar in nature and similarly situated. It is pertinent to note that, the date of publication of notification under Section 4 (1) with respect to the acquisitions covered under LAA Nos.503/2011 and 223/2012 are on 13-02-2008 and 08-05-2007, respectively. Admittedly those are post notification judgments, because the date of publication of Section 4 (1) notification in the present case is on 26-102005. But learned counsel for the appellants contended that eventhough the date of publication of Section 4 (1) notification was on 26-10-2005, properties covered under the above cases were taken over possession only on 07-082007. Therefore it is contended that the value awarded in **LAA Nos.287, 298 & 446/2017** -18- Ext.A31 & A32 can be granted in the present cases also. It is contended that, the date of taking over possession in both the above said land acquisition appeals as well as the date of taking over possession of the acquired properties herein are almost simultaneous. The above contention cannot be accepted legally because it remains trite law that the date of acquisition need to be considered as the last date of publication of Section 4 (1) notification. If there is considerable gap of time between the date of publication of Section 4 (1) notification and the date of taking over possession of the property, the claimant may be entitled to seek compensation or to seek enhancement in the land value. But it is not seen raised in the present cases. Therefore we are of the opinion that the findings of the court below that Ext.A31 & A32 are post notification judgment, which cannot be depended for fixing the land value in the present cases, need to be confirmed. Learned counsel for the appellants contended that in LAR No.48/2009 from which LAA No.223/2012 (Ext.A32) arose, the reference court had taken into consideration of Ext.A3 **LAA Nos.287, 298 & 446/2017** -19- document produced in these cases. It is pointed out that while deciding LAR No.48/2009 the reference court had given 90% increase from the value reflected in Ext.A3 for the time gap of 6 years, computing the increase @ 15% per year. Further a 10% increase was also allowed based on the finding that the acquired property in LAR No.48/2009 is situated with more proximity to a public road. Accordingly, by giving 100% increase in the value of Ext.A3 document, the reference court had fixed land value in that cases at Rs.1,45,768/- per Are. It is pointed out that, by virtue of Ext.A32 judgment of this court the land value in the said case was further enhanced to Rs.3,50,000/- per Are, relying on the judgment in LAA No.503/2007 (Ext.A31). Based on the above aspects it was contended that, the appellants are entitled to get the land value refixed atleast at Rs,3,50,000/per Are. We are of the opinion that the contention in this respect cannot be accepted for more than one reason. As already observed, Ext.A31 & A32 are post notification judgments, which cannot be accepted as exemplar in the present cases. Further, merely because the reference court **LAA Nos.287, 298 & 446/2017** -20- given 15% increase per year for the time gap between Ext.A3 and the date of requisition, we cannot accept the same. As already pointed out, it is specifically stipulated in **ONGC's case** (supra) that the rate of increase to be adopted with respect to rural areas is only 7.5% per year. In the cases at hand, there is a specific finding of the reference court that the acquired properties are situated in Mulavukad village which is not an urban area. Therefore the contention that 90% increase should be given from Ext.A3 cannot be accepted. Further the time gap between Ext.A3 and the notification in the present case is only 4 years and 9 months. Apart from these aspects there is no evidence available with respect to comparison of the land acquired under LAR No.48/2009 with the acquired properties in the present cases. Therefore the basis for fixation of the land value cannot be evaluated in these cases, especially when there is a time gap of about more than 1 ½ years between the Section 4 (1) notifications. Hence we are not at all persuaded to accept the contentions based on Ext.A31 and A32. **LAA Nos.287, 298 & 446/2017** -21- 10. Learned Government Pleader appearing on behalf of respondents had fairly conceded before this court that, with respect to property acquired for the same purpose pursuant to a notification published with a gap of almost one month, this court in LAA No.160/2011 had refixed the land value at Rs.47,000/- per cent which is equivalent to Rs.1,16,137/- per Are. Admittedly the property covered under the said case (LAA No.160/2011) was included in category No.II. As already found in the foregoing paragraphs, the acquired properties in the present cases need to be included in category No.I. Therefore we think it appropriate to grant a proportionate increase in the value than what was awarded in LAA No.160/2011. The Land Acquisition Officer had fixed the land value based on the average value of the basic documents at Rs.10,644/- per Are. It is evident that land value for property under category No.III was fixed by giving 5% increase from the value of the basic land. For category No.I the Land Acquisition Officer had given 40% increase from the value fixed for category No.III. With respect to property under **LAA Nos.287, 298 & 446/2017** -22- category No.II the value fixed by the Land Acquisition Officer is at 15% increase from the value fixed for category No.III. On an arithmetical calculation, it can be seen that the proportion adopted between category No.1 & II by the Land Acquisition Officer is 22% increase. Since we have decided to include the property covered in these cases under category No.I we are of the opinion that an increase of land value at 25% from the value awarded in LAA No.160/2011 can be given in these cases. Therefore we are inclined to refix the land value @ Rs.1,45,171/- per Are. 11. Learned counsel for the appellant contended that, since the reference court had awarded 10% increase to the property in LAR No.200/2009, such an increase should be granted in the two cases arising from LAR Nos.198/2009 and 200/2009, because both the properties belong to husband and wife remaining as a compact plot. But it is to be noted that the increase was granted based on comparison with LAR No.201/2009. Hence the property covered under LAR No.160/2011 was included in category No.II. We have already found that the acquired property in **LAA Nos.287, 298 & 446/2017** -23- all the 3 cases were need to be included in category-I. On that basis 25% increase is awarded. So there is no scope for further increase of 10%. 12. In the result the above appeals are allowed in part. The land value for which the claimants are entitled is refixed at Rs.1,45,171/- per Are. The appellants/claimants will be entitled for all statutory benefits as provided under Section 23 (1A), 23 (2) and 28 of the Land Acquisition Act. It is made clear that while computing interest, the period for which delay in filing the above was condoned shall be exempted in all the 3 cases, the extent of which is 1231 days in LAA No.287/2017, 1206 days in LAA No.298/2017 and 1758 days in LAA No.446/2017. It is also ordered that the appellants will be entitled for proportionate cost in all these appeals. Sd/- ## **C.K. ABDUL REHIM, JUDGE** . Sd/- ## **SHIRCY V., JUDGE** . ## **Smm/Ks/AMG** True copy P.A. to Judge