Unnikrishnan v. Special Tahsildar (LA), Kozhikode & Kerala State IT Infrastructure Ltd.

## **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 28TH DAY OF MAY 2018 / 7TH JYAISHTA, 1940** **LA.App..No. 20 of 2015** **AGAINST THE JUDGMENT IN LAR 111/2013 of PRL.SUB COURT, KOZHIKODE DATED 21-10-2014** ## **APPELLANT/CLAIMANT:** **UNNIKRISHNAN, S/O. NARAYANAN KUTTI NAIR THIYYATHINA, DHANYAM HOUSE, MP.O. NELLIKODE KOZHIKODE TALUK.** **BY ADV.SRI.K.A.SALIL NARAYANAN** ## **RESPONDENTS/RESPONDENTS::** **1. THE SPECIAL TAHSILDAR (LA), KOZHIKODE** ## **2. THE MANAGING DIRECTOR, KERALA STATE IT INFRASTRUCTURE LIMITED, THIRUVANANTHAPURAM.** **R2 BY ADV. SRI.K.A.ABDUL SALAM, SC, KERALA STATE IT INFRASTRUCTURE LTD. R 1 BY GOVERNMENT PLEADER SRI T.K. SHAJAHAN** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 28-05-2018, ALONGN WITH L.A.A. Nos. 60/2017 & CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ks.** ## **C.K. ABDUL REHIM, J. & SHIRCY V., J.** ------------------------------------------------- **L.A.A. Nos. 20/2015 & 105/2015 (LAR No.111/2013) L.A.A. Nos. 73/2015 & 66/2015 (LAR No.90/2013) LAA No.46/2017 (LAR No.18/2013) LAA No.59/2017 (LAR No.41/2013) LAA No.60/2017 (LAR No.14/2013) LAA Nos.138/2016 & 202/2016(LAR No.25/2013) LAA Nos.213/2016 & 403/2016 (LAR No.24/2013) LAA No.195/2016 & C.O.No.149/2017 (LAR No.29/2013) LAA Nos.139/2016 & 204/2016 (LAR No.33/2013) LAA Nos.232/2016 & 404/2016(LAR No.105/2013) LAA Nos.256/2016 & 399/2016(LAR No.109/2013) LAA No.217/2016 & C.O No.110/2016 (LAR No.20/2013) LAA No.207/2016 & C.O.No.116/2016 (LAR No.23/2013) LAA No.208/2016 & C.O.No.106/2016 (LAR No.30/2013) LAA No.210/2016 (LAR No.26/2013) LAA Nos.216/2016 & 119/2016 (LAR No.110/2013) LAA Nos.211/2016 & 183/2016 (LAR No.112/2013) LAA Nos.172/2016 & 71/2016( LAR No.108/2013) LAA Nos.171/2016 & 72/2016 (LAR No.106/2013) LAA No.321/2017 (LAR No.31/2013) LAA No.333/2017 (LAR No.2/2014) LAA No.54/2017 (LAR No.40/2013) LAA Nos.55/2017 & 283/2016 (LAR No.115/2014) LAA No.262/2016 (LAR No.5/2014) LAA No.178/2016 (LAR No.104/2013) LAA No.187/2016 (LAR No.122/2013) LAA No.169/2016 (LAR No.4/2014) L.A.A.No.259/2016 (LAR No.141/2014), L.A.A.Nos.220/2016 & 101/2016 (LAR No.6/2014), L.A.A.No.247/2016 & C.O.No.114/2017 (LAR No.114/2013), L.A.A.No.52/2017 & C.O.No.110/2017 (LAR No.113/2013), L.A.A.No.214/2016 (LAR No.1/2014) L.A.A.No.160/2015 & C.O.No.8/2016 (LAR No.107/2013), L.A.A.Nos.71/2017 & 431/2015 (LAR No.123/2013) L.A.A.Nos.488/2015 & 146/2016 (LAR No.22/2013), L.A.A.No.245/2016 & C.O.No.7/2017 (LAR No.223/2014) L.A.A.Nos.81/2016 & 503/2015 (LAR No.89/2013), L.A.A.Nos.89/2016 & 504/2015 (LAR No.125/2013)** -2- **LAA No.20/2015 & connected cases** ## **L.A.A.No.252/2017 & C.O.No.102/2017 (LAR No.576/2015) L.A.A.No.241/2017 (LAR No.181/2013) L.A.A.No.165/2017 (LAR No.21/2013)** ------------------------------------------------- DATED THIS THE 28[th] DAY OF MAY, 2018 ## **J U D G M E N T** ## Abdul Rehim, J: All the above appeals and cross objections are arising from a batch of cases decided by the Subordinate Judge's court, Kozhikode (Reference Court) with respect to the acquisition of properties situated in Nellikode and Panthirankavu Villages, for construction of the I.T. Park at Kozhikode, by the Kerala State I.T. Infrastructure Ltd. In one of the cases, the acquisition is made for rehabilitation of evitees from the acquired lands. The Notification under Section 4 (1) of the Land Acquisition Act (herein after referred as 'the Act' for short) was published in all these cases on 21-08-2009. The Land Acquisition Officer (LAO) passed different awards by categorising the properties under acquisition into 3; (i) Category No.1 described as garden land with road access (ii) Category No.2 described **LAA No.20/2015 & connected cases** -3- as garden land without road access and (iii) Category No.3 described as wet land. Relying on two basic documents, Sale Deed Nos.84/2008 & 85/2008, the LAO fixed land value @ Rs.45,897/- per cent with respect to properties included in category No.1 and Rs.27,807/- per cent with respect to category No.2. The value fixed by the LAO with respect to property included in category No.3 is Rs.16,294/- per cent. All the appeals and cross objections arise from judgments passed by the Subordinate Court in reference made under Section 18 of the Act.. 2. On the factual matrix, it is evident that, the acquired property in all these cases are situated on the eastern side of NH-17 Byepass Road at Kozhikode. The acquired properties are situated at a distance of about 60 Meters to 2 Kilo Meters from the NH Byepass. Even with respect to those property which was claimed to be at 60 Meter, there exists a dispute regarding the distance from NH Byepass. However, we notice that the LAO had fixed the very same land value with respect to property included in **LAA No.20/2015 & connected cases** -4- each of the categories. The reference court also had fixed the same rate with respect to the acquired properties in all the cases. Of course, there is a difference in rate in two batches of cases. On a perusal of evidence in most of the common judgments passed by the reference court, which was followed in other cases, and on taking into consideration of the above said aspects we are of the considered opinion that a uniform value can be fixed for the acquired properties covered in all these cases, subject to difference in categorisation. Therefore we are of the opinion that, individual appeals and cross objections can be considered after discussing about fixation of the land value with respect to the properties covered under different categories. 3. We take note of the fact that the reference court had decided the land value mainly in two common judgments, which were followed in the rest of the cases. The first is among these two basic judgments is the common judgment in LAR No.90/2013 and 111/2013 passed on **LAA No.20/2015 & connected cases** -5- 21-10-2014. This judgment was seen followed in various subsequent decisions. Another judgment in which a different rate of land value fixed by the reference court is the judgment in LAR No.107/2013, dated 31-10-2014. This judgment was also followed in some other subsequent cases. We take note of the fact that no better exemplars were produced from the side of the claimants in any other cases, than which were produced in the above said 2 cases decided by the Reference Court. Therefore we are of the opinion that, for the purpose of refixing appropriate market value for the acquired properties, this court need to consider only the merits of the issues based on the evidence on record and based on the findings contained in the above said two judgments of the Reference Court. Different counsel appearing for the party claimants have also conceded that no other better exemplar was produced in any other cases dealt with in these batch of appeals and cross objections. **LAA No.20/2015 & connected cases** -6- 4. It is pertinent to note that, in few cases included in this batch, the LAO had awarded land value @ Rs.27,807/- per cent, for the acquired properties therein, included in category No.2 as garden land without road access. In all such cases the reference court found that the property were having access from sub roads or motorable pathways. Therefore the reference court while refixing the compensation had included those properties also in category No.1 as garden land having road access. Eventhough learned Standing Counsel appearing for the requisitioning authority had raised contentions assailing such findings, it is pointed out by learned counsel appearing for the appellants/claimants that no specific ground is taken in the appeals filed by the State in this regard. More over a detailed evaluation of the impugned judgments we are convinced that the re-categorisation was made based on convincing factual materials available on record in each such cases. Therefore we are not inclined to interfere with the findings of the court below to the extent it **LAA No.20/2015 & connected cases** -7- re-categorised properties included by the LAO in the 2[nd] category. 5. In the common judgment in LAR No.90/2013 and 111/2013, as already observed, the LAO had fixed land value at Rs.45,897/- per cent by relying on the document, Sale Deed No.84/2008 of SRO Chevayur. The claimants therein contended that, the basic land is much inferior in quality when compared to the acquired properties and that the LAO had purposefully discarded several other documents of sale instances. In the report of the Advocate Commissioner which is marked as Ext.X1 along with Ext.X2 sketch appended, it is stated that, the basic land is a property situated at a distance of 3 Kms away from the acquired land and it is situated at a distance of 200 meters away from NH Bye-pass. But the reference court found that, the acquired properties in those cases also does not have direct access to the Bye-pass. However it was noticed that the distance of the acquired properties from NH Bye-pass was not specifically mentioned by the Advocate **LAA No.20/2015 & connected cases** -8- Commissioner in the report. Eventhough the claimants raised a contention that the plots are situated very near to the NH Bye-pass, the court below noticed from the deposition of AW1 that there exist 4 plots in between the Bye-pass and the acquired properties and that the properties have no direct access to NH Bye-pass. With respect to the distance from NH Bye-pass the claimants made attempt to substantiate that the distance is only 20 meters. But the case of the respondents is that the acquired property is situated at 200 meters from the Bye-pass. However, the court below found that, the acquired properties are not situated at a distance of 200 meters as in the case of the basic land. It was found that, though the basic land can claim a slightly higher proximity to the town centre, in fact it is situated on a cut road at a height of about 10 feet from the road. Referring to the testimony of AW1 and the report of the Advocate Commissioner and also the testimony of RW1, who is the LAO, it was found that, the basic land was having access only through a 6 feet mud **LAA No.20/2015 & connected cases** -9- road at the time of Section 4 (1) Notification. Whereas it was categorically found that the acquired properties were having access to a well defined road capable of taking lorries. Taking note of all the circumstances, the reference court had discarded the view taken by the LAO that the basis land and the acquired property are similar in nature and similarly situated. Referring to a decision of this court in **Mathai Paulose V. State of Kerala (1987 KHC 414)** it was held that, the Reference Court is not necessarily bound to follow the method of valuation adopted by the LAO and it is free to adopt such principles which will enable it to arrive at the true value of the acquired properties, either through capitalized value method or on comparison of comparable sale instances. Reliance was also placed in this regard on the decision of the hon'ble Supreme Court in **Shaji Kuriakose V. Indian Oil Corporation Ltd. (2002 KHC 82)** . 6. The claimants in the above said cases have produced Ext.A1 to A6 documents which according to them **LAA No.20/2015 & connected cases** -10- are comparable sale instances, which can be relied on for fixing the market value available as on the date of Section 4 (1) Notification. Among the said exemplars, the best sale instances projected was Ext.A1 document, which is a Sale Deed registered as Document No.5337/2008 of SRO, Chevayur. The consideration reflected in the said document is Rs.4,14,545/- per cent. Exhibit A2 is another sale deed registered as Document No.242/2010 which reflected a sale consideration of Rs.3,94,996/-. With respect to Ext.A3 to A6, the reference court found that, those are properties situated in the heart of Kozhikode City near to the Mofussil Bus Stand in Mavoor Road, Malaparamba Junction etc; and those are properties situated at far away areas. But, with respect to Ext.A1 & A2, the respondents contended that, those are properties purchased by a Builder named Hi-lite Builders (P) Ltd. Further it was found that those properties cannot be equated with the acquired properties since they are situated at an elevated level with an excellent view from the National Highway. It was also noticed that Ext.A2 is a **LAA No.20/2015 & connected cases** -11- post-notification document. The reference court also pointed out that Ext.A1 to A6 cannot be accepted for the reason that apart from producing those documents before the Advocate Commissioner, the claimants have not shown the properties to the Commissioner nor they have examined anybody who are parties to the transactions. But, on the basis of the finding that the fixation of land value made by the LAO was not correct, the court below proceeded to fix a reasonable market value for the acquired properties as on the date of acquisition. In this regard the court below had discarded the opinion expressed by the Advocate Commissioner that the acquired property will fetch Rs.10,00,000/- per cent at the time of the acquisition. The court below relied on the deposition of AW1, one among the claimants who answered to the question put at the time of cross examination that a nearby plot of Dr.Vimalraj was bought by the State under negotiated purchase for Rs.1,00,000/- per cent. It was further noticed by the court below that, AW1 has clarified that property of Dr. Vimalraj **LAA No.20/2015 & connected cases** -12- is a water logged ditch. Observing that the said statement made by AW1 was not challenged by putting further questions, the court below arrived at a conclusion that the acquired lands are situated on a much higher footing than the property of Dr. Vimalraj. Therefore it was found that there should be a substantial increase of at least 100% from the value of the negotiated purchase. Based on such finding, by making a guess work, which according to the learned sub Judge is permitted, the land value of the acquired properties were fixed at Rs.2,00,000/- per cent. 7. LAR No.107/2013 is another judgment of the very same Reference Court, which was pronounced after 10 days from pronouncing the judgment in LAR No.90/2013 and 111/2013. Despite the fact that Rs.2,00,000/- was fixed as the land value in the earlier cases, only an amount of Rs.83,421/- per cent was fixed as the land value with respect to the property involved in LAR No.107/2013. It is surprising to note that, how the learned Judge had omitted notice of his previous judgment, which was pronounced only **LAA No.20/2015 & connected cases** -13- 10 days before, with respect to a case involved in the very same acquisition made through the very same Notification. In LAR 107/2013 also, the learned Sub Judge had discarded the reliance placed by the LAO on the basic document, by observing that it is situated at a distance of 3 Kilo Meters from the acquired land and is not similar in nature as that of the acquired property. It was noticed that, in accordance with the report of the Advocate Commissioner, access to the basis land is only through a mud road, whereas the road leading to the acquired land is a tarred road. In order to prove the market value prevailing as on the date of the acquisition, the claimants placed relied on Ext.A1 Document, Sale Deed No.5337/2008 of SRO, Chevayur (which is the same document produced as Ext.A1 in LAR No.90/2013 and 111/2013). The learned Sub Judge observed that he could not appreciate the contentions of the requisitioning authority that the property was purchased by a builder at a location of their choice for a fancy price. Further it was noticed that, AW1 who is the claimant in the **LAA No.20/2015 & connected cases** -14- said case, had conceded in evidence that the property covered under Ext.A1 is situated very close to the sprawling commercial complex of the builders. The court below observed that, it can probably be in the vicinity of the shopping complex and that a fancy price was paid for the same. Further it was observed that, the value reflected in a document with respect to a property situated abutting the property of NH Bye-pass cannot be taken as basis for determination of compensation for the acquired land, which is situated on the side of a pocket road at a distance of approximately 1 Kilo Meter from the NH Bye-pass. Therefore the court below had discarded the version of the Advocate Commissioner that both the properties are similarly situated. Another sale instance of Ext.A3 was also discarded by the court below by observing that the same is also a sale made in favour of Hi-lite Builders (P) Ltd. and that it is a post-notification document. Exhibit A2 and A4 were also discarded as post-notification documents and also because the properties are situated at Malaparamba and on **LAA No.20/2015 & connected cases** -15- the side of the Medical College Road at Chevayur, which are not comparable locations. The Reference Court in that case found that, the document produced by the respondents are also not of any help to fix the appropriate market value. It was noticed that, with respect to Ext.R3 (Document No.85/2008) and Ext.R11 (Document No.1934/2009), the Advocate Commissioner has specifically reported that those properties are not having proper road access. With respect to the other documents it was observed that, the 2[nd] respondent had failed to take any steps to bring in evidence about the comparability of the land covered under those document with the acquired properties. After having observed as above, the learned Sub Judge proceeded to consider the locational importance of the acquired land in the said case. It was found that, the land in question is situated in Nellikode Village which is part of Kozhikode city in a residential area and that nobody can dispute the fact that the value in the locality is much higher than what was fixed by the Land Acquisition Officer. By observing that, the **LAA No.20/2015 & connected cases** -16- compensation cannot be fixed with mathematical precision and that a reasonable amount of intelligent guess work is permitted, a reasonable estimation to give 300% increase than the land value fixed by the Land Acquisition Officer was ordered. Thus the reference court refixed the land value at Rs.83,421/- per cent. 8. In all these appeals filed by the claimants, they are seeking enhancement from the amount of compensation fixed by the Reference Court, based on the contention that the market value determined by the court below was not the actual market value prevailed as on the date of the acquisition. On the other hand, in all the appeals filed by the State, challenge is against the quantum of land value fixed by the Reference Court as excessive and unreasonable. 9. We heard various counsel appearing for the appellants/claimants, the Government Pleader appearing for the 1[st] respondent/State, and Adv.Sri.K.A.Abdul Salam, Standing Counsel appearing for the requisitioning authority. ## **LAA No.20/2015 & connected cases** -17- 10. From the side of the appellants/claimants it is mainly contended that, the non-acceptance of the Sale Deeds registered as Document Nos.5337/2008 and 242/2010 (Exts.A1 and A2 in LAR Nos.90/2013 and 111/2013) by the reference court as comparable sale instances inorder to fix the land value, was illegal, erroneous and unsustainable. It is contended that the properties covered under those documents are also not situated abutting to N.H Bypass and those are also properties situated at a distance of about 60 Metres away from the N.H Bypass. It is further pointed out that, there were only access through small sub roads/pathways to those properties from N.H bypass. It is contended that the properties covered under those documents are situated at a distance of only ½ Kms. from the acquired property. In Ext.X1 report of the Advocate Commissioner, marked in L.A.R.Nos.90/2013 and 111/2013, it is stated that the property covered under Ext.A1 is a garden land situated in Re-sy.No.14/1 of Pantheeramkavu Village and the extent is **LAA No.20/2015 & connected cases** -18- only 8 ¼ cents. It is stated that the purchaser of the property is M/s.Hilite Builders Private Limited. According to the Advocate Commissioner, there is only a 4 feet way to this property and the property is situated at a hilly area and the entrance is through a private way. It is reported that the property is situated at a height of 40 feet from NH bypass. It is also reported that the distance of the acquired property from the above said property is nearly ½ Kms. According to the Advocate Commissioner, on a comparison, the acquired properties are having more importance because of their locality. It is reported that the acquired properties are situated on the eastern side of NH Bye-pass whereas the property covered under Ext.A1 is situated on the western side. It is also stated in the report that the acquired properties are within the limits of Corporation area and the property covered by the document is within the limits of a Panchayath area. 11. In LAR No.107/2013, Ext.C1 is the report of the Advocate Commissioner. With respect to property covered ## **LAA No.20/2015 & connected cases** -19- under Document No.5337/2008, it is stated that, the property is located at about 60 Mtrs. above the NH bypass and a road named Palazhipalam road is lying adjacent to this land. There also, it was found that, the said property is similar and similarly situated and comparable to the acquired land. The judgment in LAR No.25/2013 and connected cases of the same Sub Court relates to the very same acquisition. Twelve cases were disposed of through the common judgment, in which the judgment in LAR No.90/2013 and 111/2013 was marked as Ext.A9, which was relied upon for fixing the land value. Exts.X1 and X2 are the report of the Advocate Commissioner and the sketch attached thereto, which were produced and marked in that case (LAR No.25/2013 and connected cases). The report of the Advocate Commissioner, while evaluating comparability of the land covered under Document No.5337/2008, points out that, at the time of inspection there is no direct road access to the said property from NH bypass road and there is only 4 feet way to this property. But it is stated that, later **LAA No.20/2015 & connected cases** -20- the purchaser had constructed road to this property. The report is to the effect that the property is situated at a hilly area at a height of about 40 feet from NH Bypass. There also the Commissioner had stated that, on a comparison the acquired property it is found to be better having more prominence. 12. Counsel appearing for the appellants in some other cases also pointed out that, the report of the Advocate Commissioners appointed in those cases would clearly indicate that, on inspection of the property covered under Document No.5337/2008 it was found that the acquired properties remained in a better position than the said land. 13. In L.A.R Nos.90/2013 and 111/2013 the respondents have produced certified copies of sale deed Nos.3969/2008 and 4209/2008 as Exts.B4 and B9, respectively. Both these are sale transactions which occurred during the year 2008, approximately one year before date of the acquisition. The property conveyed through Ext.B9 is comprised in Re-sy.No.14/1 of **LAA No.20/2015 & connected cases** -21- Pantheerankavu Village. The extent of the property conveyed through that document is 10 cents. The purchaser of the land is none other than M/s. Hilite Builders Private Limited. It is evident that the value reflected in the said document is only at the rate of Rs.49,770/-. Similarly, Document No.3969/2008 (B4) is another property purchased by M/s. Hi-lite Builders having an extent of 28.10 cents. The centage value reflected in the said document is Rs.39,493/- per cent. In Ext.X1 report marked in L.A.R No.25/2013 and connected cases it is stated that the Advocate Commissioner had inspected the property covered under Document No.3969/2008. According to the Advocate Commissioner, the boundaries of this land was not properly identifiable. It is stated that, the description of the land noted in the document is as 'thottam'. According to the Advocate Commissioner the said property comes within the limits of Olavanna Panchayath and a comparison between the said land and the acquired property is irrelevant. Evidence let in by the respondents in LAR No.90/2013 and **LAA No.20/2015 & connected cases** -22- 111/2013, through examination of RW1 who is the Land Acquisition Officer and RW2 who is the Special Officer of the Requisitioning Authority, would clearly reveal that, the properties covered under Document Nos.5337/2008 and 4538/2010 produced by the claimants as well as the properties covered under Document Nos.3969/2008 and 4209/2008 produced by the respondents are situated as neighbouring properties. Oral testimony of RW1 and RW2 are to the effect that, all these properties are purchased by M/s. Hi-lite Builders Private Ltd and a huge mall costing more than Rs.1000/- Crores is built in the said property. The deposition of RW2 is to the effect that property covered under Document No.3969/2008 is the property which is situated at the entry of the establishments owned by M/s.Hilite Builders. With respect to the property covered under Document No.4209/2008 it is stated that the said property purchased by M/s. Hi-lite Builders is situated in the very same Re-sy.No.14/1. His evidence is to the effect that the property covered under Document No.5337/2008 was **LAA No.20/2015 & connected cases** -23- purchased by M/s. Hi-lite Builders for their commercial purpose on a fancy price and the said property is having access from the bypass through a broad road. It is deposed that the said property is remaining adjacent to other properties of the said company and it was purchased only because it became inevitable to provide road facility to the property situated behind. In the cross examination of RW2, the claimants have not disputed the fact that the properties covered under the above said four documents are situated adjacent and it is purchased by the common vendor, M/s. Hi-lite Builders. He deposed in cross examination that at the time of the acquisition the mall of Hi-lite Builders was not in existence and the same was opened after 2012. 14. It is to be noted that the advocate commissioner in all these cases have examined the properties in the year 2013. But in none of the reports the Advocate Commissioners have mentioned about the present nature of the lands covered under these documents. If they would have mentioned about the present nature, definitely it **LAA No.20/2015 & connected cases** -24- would have been brought out that, the properties covered under those documents are part of an establishment, namely the 'Hi-lite Mall' and they are lying as a single plot, owned by the same builder. Therefore, the question mooted for consideration is as to whether document No.5337/2008 and 4568/2010 produced on behalf of the claimants can be accepted as comparable sale instances. Out of the above two sale instances, the transaction under document No.4568/2010 is a post-notification event. It remains settled that, when comparable pre-notification sale instances are available, court cannot look into any postnotification document for the purpose of fixing the market value. Then the remaining exemplar need to be considered is Ext.A1 Document, Sale Deed No.5337. Can it be taken as a comparable sale instances for the purpose of fixing the market value, is the question. It is evident that the consideration reflected in the said document is Rs.4,14,545/- per cent. But it is to be taken note of that, Sale Deed Nos.3969/2008 and 4209/2008 are purchases **LAA No.20/2015 & connected cases** -25- made by the same buyer with respect to adjacent properties, during the same period. The value reflected therein are only Rs.39,493/- and Rs.49,770/- per cent, respectively. Therefore we find force in the contention raised on behalf of the 2[nd] respondent that the small extent of 8.25 cent of land covered under Document No.5337 was purchased by M/s.Hi-lite Builders at a fancy price, because the said piece of land became inevitable for the proper usage of their huge establishment of Hi-lite Mall constructed. Further, as observed above, in none of the reports of the Advocate Commission, the lie and nature of the said property covered under the said document, at on the date of inspection, is not clearly mentioned. This court cannot omit to take judicial notice of the fact that the Mall owned by M/s.Hi-lite Builders Pvt.Ltd., which started functioning after the acquisition, is a multi crore project established abutting to NH Bye-pass. Even though the said project is situated within a short distance in the Bye-pass from the area of the acquired land, it cannot be presumed **LAA No.20/2015 & connected cases** -26- that the location of the acquired land had any prominence or importance in the year 2008, because of the subsequent establishment of the Hi-lite Mall and its existence abutting to the Bye-pass, at present. Therefore in all probability, the purchase made by the builders through Document No.5337/2008 can only be at a fancy price because of their dire need to get the property for the proper construction and enjoyment of the Mall. Hence we are of the opinion that the sale instance in this regard, proved by the claimants, cannot be treated as a comparable exemplar for fixing the market value of the acquired land as on the date of acquisition. 15. Leaned counsel for the appellants/claimants had raised a further contention that, all other sale instances relied upon by them were rejected by the reference court as not comparable, on a mis-appreciation of the evidence on record. Evidently, most of the other documents produced were rejected as post-notification sale instances. But there are certain documents produced, which are sale instances **LAA No.20/2015 & connected cases** -27- taken place prior to the Section 4(1)Notification. But those are properties situated near the 'Mofussil Bus Stand', Mavoor Road, Thondayad Junction, Medical College etc. We do not find any fault with the Reference Court in rejecting the comparability of those lands with the acquired properties, taking into consideration of the importance of the locations and commercial potentiality of those lands, being properties situated in more prominent localities within the city having more commercial potential. 16. Remaining evidence adduced on behalf of the claimants are certain sale instances, wherein properties within the notified area itself were purchased by M/s. Kerala State IT Infrastructure Ltd., the requisitioning authority itself. In most of those documents the properties were purchased for value of Rs.1 lakh per cent. In Ext.X3 Additional Report of the Advocate Commissioner in L.A.R No.25/2013 and connected cases, it is revealed that the Advocate Commissioner had examined some of the properties purchased by the requisitioning authority. It is ## **LAA No.20/2015 & connected cases** -28- reported that the property covered under Document No.1786/2010 was purchased by the requisitioning authority at a negotiated price of Rs.1 lakh per cent and it is situated adjoining to the property in LAR No.105/2013; and that both the properties share the same features in appearance. Likewise the property covered under Document No. 3350/2010 was reported as lying adjacent to the property acquired in LAR No.24/2013. Similarly, with respect to property covered under Document No.1357/2010, it is stated that, the property is similarly situated as that of the property in LAR No.33/2013. It is also stated that the property in LAR No.19/2013 is comparable with the property covered under Document No.415/2010. But at the same time, with respect to properties covered under Document Nos.1111/2010, 3348/2010, 2722/2010 etc. it is reported that those are wet lands not suitable for construction purposes and is inferior in quality when compared to the acquired land in other cases. **LAA No.20/2015 & connected cases** -29- 17. From the evidence discussed as above, it is clear that, the requisitioning authority had purchased land on the basis of negotiation from various owners within the notified area at a sale consideration of Rs.1 lakh per cent. Learned Standing Counsel appearing for the requisitioning authority submitted that, a total extent of 28.89 Acres were purchased from 145 land owners in the like manner. Therefore, question remains is as to whether those purchases can be relied upon as comparable sale instances for fixing the market value of the acquired properties prevailed at the time of the acquisition. 18. Learned Standing Counsel for the 2[nd] respondent contended that, the negotiated value for direct purchase was fixed by the requisitioning authority on taking into consideration of the components of additional market value and solatium etc. also, which they will be made liable to pay if the acquisition is proceeded on the basis of the notification. Therefore it was argued that the amount of Rs.1 lakh per cent reflected in those documents cannot be **LAA No.20/2015 & connected cases** -30- taken as the actual value of the land. On the contrary, counsel appearing for various appellants/claimants had pointed out that, those land owners who had agreed to sell their property under the negotiation made by the District Level Purchase Committee (DLPC) were persuaded only by the fact that they would get the money easily without awaiting for the prolonged legal battle before the Reference Court. It was also submitted that, the parties were put to pressure from various corners to surrender possession of their properties, at the price offered by the DLPC. In the common judgment in LAR No.25/2013 and connected cases there is a finding to the effect that some of the documents produced with respect to the DLPC purchase, marked as Exts.R12 to R19, would indicate that, those are wet lands having no road access. However, we take note of the fact that there is no evidence adduced from the side of the 2[nd] respondent to substantiate their contention that, the negotiated value was fixed by taking into consideration of the components like additional market value and solatium. **LAA No.20/2015 & connected cases** -31- On the other hand, it is to be noticed that, a large number of land owners have not conceded for the price offered by the DLPC. If that price was the reasonable market price available in the locality, as contended by the appellants/claimants, they would not have waited for the prolonged legal battle and would not have lost their chance of getting money easily without any delay. As already observed, the evidence on record available in different cases would also suggest that, the acquired properties in these batch of cases are better in various respects than the properties purchased under negotiation held by the DLPC. 19. In the above context it is to be considered as to whether the guess work made by the learned Sub Judge in LAR No.90/2013, 111/2013 for granting 100% increase than the value reflected in the documents of negotiated purchase, was sustainable or justifiable. We are constrained to observe that, such a wild guess work made by the learned Sub Judge has no basis at all. As revealed in evidence, the land purchased by the 2[nd] respondent through **LAA No.20/2015 & connected cases** -32- negotiation conducted by the DLPC are also lands situated within the area notified for acquisition. Probably, in some cases those lands may be slightly inferior in quality than the land covered under these appeals. But that will not in any manner justify awarding of 100% increase from the value reflected in those negotiated purchases. But we think a reasonable enhancement than the value reflected in the negotiated purchase will be just and reasonable, considering the difference in the quality of land acquired in those cases. In this regard we take note of the fact that the method adopted in LAR No.107/2013, which was followed in few other cases by the reference court is, to the extent of awarding 300% increase from the value fixed by the LAO, on a mere guess work. This is a totally perverse approach. Taking into consideration of the entire evidence on record and the circumstances prevailing, we feel it quite reasonable to give 35% increase from the value reflected in the documents of negotiated purchase made by the 2[nd] respondent. Hence, we are inclined to refix the **LAA No.20/2015 & connected cases** -33- compensation with respect to properties included under category No.1, dry land having access to road, at Rs.1,35,000/-per cent. 20. It is noticed that the LAO had fixed the land value with respect to the properties having no road access, at about 60% of the value fixed for the properties included in category No.1. The same yardstick was seen followed in common judgment in LAR No.25/2013 and connected cases. We are also persuaded to fix the land value with respect to properties included in category No.2 by adopting the same yardstick. A reduction to 60% of the value fixed as above would work out Rs.81,000/- per cent. But, we are persuaded to round of the figure at Rs.90,000/- per cent, for properties included in category No.2. We take note of the fact that, in these batch of appeals, there are no acquired properties included in category No.3. Therefore, we are not fixing the value for category No.3 in this judgment. 21. On the basis of the fixation of land value made as mentioned above, we will now deal with each cases **LAA No.20/2015 & connected cases** -34- separately; ## (1) **LAA Nos.73/2015 and 66/2015 (LAR No.90/2013) LAA Nos.20/2015 and 105/2015 (LAR No.111/2013)** The State as well as the claimants have filed appeals against the common judgments in L.A.R NO.90/2013 and 111/2013. The property involved in both the cases are included in Category No.I. Hence, in view of the findings arrived by this court, the above appeals are disposed of by refixing the land value at the rate of Rs.1,35,000/- per cent. ## **(2) LAA No.46/2017 (LAR No.18/2013) LAA No.59/2017 (LAR No.41/2013) LAA No.60/2017 (LAR No.14/2013)** State is the appellant in all the above cases. Properties are included in Category No.I and the reference court had awarded land value at the rate of Rs.2,00,000/- per cent. In view of the findings arrived by this court as above, the appeals are allowed in part by reducing the land value to Rs.1,35,000/- per cent. **(3) LAA Nos.138/2016 & 202/2016(LAR No.25/2013) LAA Nos.213/2016 & 403/2016 (LAR No.24/2013)** ## **LAA No.20/2015 & connected cases** -35- **LAA No.195/2016 & C.O.No.149/2017 (LAR No.29/2013) LAA Nos.139/2016 and 204/2016 (LAR No.33/2013) LAA Nos.232/2016 and 404/2016(LAR No.105/2013) LAA Nos.256/2016 and 399/2016(LAR No.109/2013)** In all these cases both the State as well as the claimants have filed appeals or Cross Objections against the impugned judgments. The property involved are included in Category No.I and the Reference Court had awarded compensation fixing the land value at Rs.2 lakhs per cent. Based on the findings of this court mentioned as above, the appeals filed by the State are allowed in part. The land value is refixed at Rs.1,35,000/- per cent. The appeals/Cross Objections filed by the claimants are hereby dismissed. (4) **LAA No.217/2016 & C.O No.110/2016 (LAR No.20/2013) LAA No.207/2016 & C.O.No.116/2016 (LAR No.23/2013) LAA No.208/2016 & C.O.No.106/2016 (LAR No.30/2013) LAA No.210/2016 (LAR No.26/2013)** The State had filed these appeals challenging the common judgment in all these cases. The claimants have filed Cross Objections, except in LAA No.210/2016. The properties involved in all these cases are included in the ## **LAA No.20/2015 & connected cases** -36- category No.2, described as dry land without road access and the Reference Court had awarded land value at the rate of Rs.1,25,000/- per cent. In view of the findings rendered by this court as above, the appeals filed by the State are hereby allowed in part by reducing the land value to Rs.90,000/- per cent. The Cross Objections filed by the claimants are hereby dismissed. - **(5) LAA Nos.216/2016 & 119/2016 (LAR No.110/2013) LAA Nos.211/2016 & 183/2016 (LAR No.112/2013) LAA Nos.172/2016 & 71/2016( LAR No.108/2013)** - **LAA Nos.171/2016 & 72/2016 (LAR No.106/2013)** In all these cases, the State as well as the claimants have filed appeals against the judgments of the Reference Court. The Reference Court had included the properties involved in these cases under Category No.I and awarded land value at the rate of Rs.2 lakhs per cent. Based on the findings arrived by this court, the appeals filed by the State are allowed in part by reducing the land value to Rs.1,35,000/- per cent. The appeals field by the claimants are hereby dismissed. **LAA No.20/2015 & connected cases** -37- ## **(6) LAA No.321/2017 (LAR No.31/2013) LAA No.333/2017 (LAR No.2/2014)** State had filed appeals against the common judgment. The Reference Court had included the properties in Category No.2 and awarded land value at the rate of Rs.1,25,000/- per cent. There are no appeals or Cross Objections filed by the claimants. In view of the findings arrived by this court as above, the appeals are allowed in part. The land value is refixed at Rs.90000/- per cent. ## **(7) LAA No.54/2017 (LAR No.40/2013)** State had filed the appeal against the judgment of the Reference Court, which awarded land value at the rate of Rs.2 lakhs per cent by including the acquired property under Category No.I. The claimants have not filed any appeal or Cross objection. In view of the findings arrived by this court as above, the appeal is allowed in part by refixing the compensation at Rs.1,35,000/- per cent. ## **(8) LAA Nos.55/2017 & 283/2016 (LAR No.115/2014) LAA No.262/2016 (LAR No.5/2014) LAA No.178/2016 (LAR No.104/2013)** -38- **LAA No.20/2015 & connected cases** ## **LAA No.187/2016 (LAR No.122/2013) LAA No.169/2016 (LAR No.4/2014)** State had filed the appeals against the judgment of the Reference Court in all the above cases. LAA No. 283/2016 is an appeal filed by the claimants. In all these cases the reference court had included the acquired properties in Category No.I and awarded land value at the rate of Rs.2 lakhs per cent. In view of the findings arrived by this court as above, the appeals filed by the State are allowed in part by reducing the land value to Rs.1,35,000/per cent. The appeal filed by the claimants are hereby dismissed. **(9) L.A.A.No.259/2016 (LAR No.141/2014), L.A.A.Nos.220/2016 & 101/2016 (LAR No.6/2014), L.A.A.No.247/2016 & C.O.No.114/2017 (LAR No.114/2013), L.A.A.No.52/2017 & C.O.No.110/2017 (LAR No.113/2013), L.A.A.No.214/2016 (LAR No.1/2014)** In all these cases the State had filed appeals. Claimants have filed appeals or cross objections in some of the cases. The property involved in all these cases are included by the Reference Court in category No.1 and **LAA No.20/2015 & connected cases** -39- awarded land value at the rate of Rs.2,00,000/- (Rupees two lakhs only) per cent. In view of the findings arrived by this court as above, the appeals filed by the State are allowed in part by refixing the land value at Rs.1,35,000/- (Rupees one lakh thirty five thousand only) per cent. Appeals and cross objections by the claimants are hereby dismissed. **(10) L.A.A.No.160/2015 & C.O.No.8/2016 (LAR No.107/2013), L.A.A.Nos.71/2017 & 431/2015 (LAR No.123/2013)** In the above cases the State had filed appeals against the judgments in both the cases. The claimants have filed appeals/cross objections. The reference court in these cases had reversed the finding of the Land Acquisition Officer that the property is remaining without road access. There is no effective challenge against such finding. Therefore we uphold the finding of the reference court that the property covered under these cases shall be included in category No.1. The reference court awarded Rs.83,412/(Rupees eighty three thousand four hundred and twelve only) per cent (Rs.83,421/- in LAR No.107/2013) as land ## **LAA No.20/2015 & connected cases** -40- value. In view of the findings arrived by this court mentioned as above, the land value with respect to property included in category No.1 is refixed at Rs.1,35,000/(Rupees one lakh thirty five thousand only) per cent. Under such circumstances, L.A.A.No.431/2015 filed by the claimants in L.A.R.No.123/2013 as well as the cross objection No.8/2016 in L.A.A.No.160/2015 (LAR No.107/2013) are allowed in part. The compensation allowed is enhanced and refixed at Rs.1,35,000/- (Rupees one lakh thirty five thousand only) per cent. The appeals filed by the State are hereby dismissed. **(11) L.A.A.Nos.488/2015 & 146/2016 (LAR No.22/2013), L.A.A.No.245/2016 & C.O.No.7/2017 (LAR No.223/2014)** The State as well as the claimants have filed appeal against the judgment in L.A.R.No.22/2013. The State had filed appeals and claimants have filed cross objection against the judgment in L.A.R.No.223/2014. The property involved in both the cases was found to be having road access. Hence the properties need to be included in **LAA No.20/2015 & connected cases** -41- category No.1. The reference court in L.A.R.No.22/2013 had refixed the land value at RS.1,25,000/- (Rupees one lakh twenty five thousand only) per cent by granting 25% addition from the value reflected in the document of negotiated purchase. The judgment in L.A.R.No.22/2013 was followed in L.A.R.No.223/2014. In view of the findings arrived by this court, the land value refixed with respect to category No.1 is Rs.1,35,000/- (Rupees one lakh thirty five thousand only) per cent. Hence we are of the view that the claimants in these cases are entitled to get the land value refixed at the same rate. Under such circumstances, the appeals filed by the State are hereby dismissed. L.A.A.No.488/2015 and Cross Objection No.7/2017 in L.A.A.No.245/2016, filed by the claimants are hereby allowed in part. The land value in both cases are refixed at Rs.1,35,000/- (Rupees one lakh thirty five thousand only) per cent. **LAA No.20/2015 & connected cases** -42- ## **(12) L.A.A.Nos.81/2016 & 503/2015 (LAR No.89/2013), L.A.A.Nos.89/2016 & 504/2015 (LAR No.125/2013)** Both State as well as the claimants have filed appeals against the judgments of the Reference Court in the above two cases. Factually, it was found that the properties involved are having road access and is to be included in category No.1. Even though the Reference Court had noticed the refixation of land value at the rate of Rs.2,00,000/- (Rupees two lakhs only) allowed in L.A.R.Nos.90/2013 and 111/2013, the Reference Court had allowed only Rs.1,75,000/- (Rupees one lakh seventy five thousand only) per cent in these cases, stating the reason that the properties are situated at more distance from N.H. Bypass. However, in view of the findings arrived by this court as above, the land value with respect to category No.1 has to be refixed at Rs.1,35,000/- (Rupees one lakh thirty five thousand only). Under such circumstances, the appeals filed by the State are allowed in part by refixing the land value at Rs.1,35,000/- (Rupees one lakh thirty five thousand **LAA No.20/2015 & connected cases** -43- only) per cent. The appeals filed by the claimants are hereby dismissed. ## **(13) L.A.A.No.252/2017 & C.O.No.102/2017 (LAR No.576/2015)** The State had filed appeal against the judgment of the Reference Court and the claimants have filed cross objection. Admittedly, the finding arrived by the Land Acquisition Officer as well as the reference court is to the effect that the property involved is not having any road access. Taking into consideration of the earlier judgments awarding land value at the rate of Rs.1,25,000/-, (one lakh twenty five thousand only) the reference court found that the property is situated only at a distance of 50 meters of away from N.H. Bypass. Therefore a slight increase was awarded and the land value was fixed at Rs.1,50,000/- (one lakh fifty thousand only) per cent. In the findings arrived in this judgment, this court had categorized all the lands acquired under the very same notification into two categories based on road access. Therefore we do not find any ground to differentiate this case from category No.2 **LAA No.20/2015 & connected cases** -44- described as land having no road access. The land value fixed for such properties is Rs.90,000/- (Rupees ninety thousand only) per cent. Under the above mentioned circumstances, the appeal filed by the State is allowed in part. The land value awarded by the Reference Court is reduced and refixed at Rs.90,000/- (Rupees ninety thousand only) per cent. The cross objection filed by the claimant is hereby dismissed. ## **(14) L.A.A.No.241/2017 (LAR No.181/2013)** The above appeal is filed by the State challenging the judgment of the Reference Court refixing the land value at the rate of Rs.1,20,000/- (Rupees one lakh twenty only) per cent. It is a clear finding arrived by the Reference Court that the property is having road access. Hence the property involved in this land acquisition case needs to be included in category No.1. The findings arrived by this court mentioned above is to the extent of refixing the land value for the property involved in category No.1 at Rs.1,35,000/(Rupees one lakh thirty five thousand only). Therefore we **LAA No.20/2015 & connected cases** -45- are not inclined to interfere with the land value fixed. The court below had found that the extent of the property acquired is 16.75 cents and that the claimant is entitled to get the land value for the said extent. We do not find any ground to interfere with the said finding also. Consequently, the appeal filed by the State is hereby dismissed. ## **(15) L.A.A. No.165/2017 [LAR No.21/2013]** The State had filed the appeal against the judgment of the Reference Court. The Reference Court had included the acquired properties in category No.1 and re-fixed the land value at Rs.2,00,000/- per cent. In view of the findings arrived at by this court as mentioned above, the land value for properties included in category No.1 is Rs.1,35,000/per cent. Hence, the appeal is allowed in part by re-fixing the land value at Rs.1,35,000/-(Rupees one lakh thirty five thousand only) per cent. 22. In all the above cases, the claimants are entitled to all statutory benefits as provided under Sections 23(1)A, **LAA No.20/2015 & connected cases** -46- 23(2) and 28 of the Land Acquisition Act, on the revised compensation fixed by this court. 23. The Registry shall take note of exemption if any ordered in any of the cases, with respect to the payment of interest under Section 28 of the Act, for the period for which delay in filing the appeals are condoned, subject to ordering such exemptions. 24. If the court fee paid by the appellants/claimants in any case is deficit on the basis of the amount of compensation re-fixed by this court, the appellants are provided with an opportunity to make payments of the deficit court fee within a period of 15 days from the date of receipt of a certified copy of this judgment, in view of the decision of the Hon'ble Supreme Court in **Chandrashekar and others v. Additional Special Land Acquisition Officer** [(2009) 14 SCC 441]. 25. While drawing the decree in each of the cases, the Registry shall take note of the above said aspects. In case there is any failure to make payment of the deficit court fee, **LAA No.20/2015 & connected cases** -47- the decree shall be drawn only to the extent of the claim made by the appellants/claimants in the Memorandum of Appeal. ## Sd/- **C.K. ABDUL REHIM, JUDGE** . Sd/- **SHIRCY V., JUDGE** . **AMG/Smm/Ks/Smm/acd/ul**