Allowed

Bhasi Nair v. State of Kerala

Kerala HC10 Aug 2010LA.App./92/2009

Case brief

AI extract

What is this about?

The Court fixed the market value of 5.3-acre land acquired for a Women's Polytechnic. It awarded an enhancement to the original LAO rate based on a specific sale document but applied a statutory deduction for the large extent. The appeal by claimants was allowed to re-fix higher rates, while the Government's appeal regarding further enhancement was dismissed.

What did the court decide?

Reference Court directed to re-fix compensation at Rs. 1,35,000/- per Are. for Grade-I, Rs. 1,21,500/- per Are. for Grade-II, and Rs. 1,09,350/- per Are. for Grade-III.

Bhasi Nair Vs State of Kerala — Land Acquisition | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM

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TUESDAY, THE 10TH AUGUST 2010 / 19TH SRAVANA 1932

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LA.App..No. 92 of 2009() -----------------------LAR.155/1999 of SUB COURT, MAVELIKKARA

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APPELLANT(S)/CLAIMANTS:

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BHASI NAIR, VENMONY KIZHAKKUM MURI, VENMONY.

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JAYALEKSHMI, W/O.BHASI NAIR KARIMUNDEKAKATHIL, THODIYOOR MURI, KODAMBHAGAM.

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BY ADV. SRI.S.VINOD BHAT

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RESPONDENT/RESPONDENT:

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STATE OF KERALA, THROUGH SPECIAL TAHSILDAR LA(GEN.), OFFICE OF THE SPECIAL TAHSILDAR LA)GENERAL), ALAPPUZHA.

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GOVERNMENT PLEADER,I.V.PRAMOD

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THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 10/08/2010, ALONG WITH LAA NO. 870 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ.

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LAA. No. 92 & 870 of 2009

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Dated this the 10^th day of August, 2010

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J U D G M E N T

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Pius C.Kuriakose, J.

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The claimants and the Government are in appeals. LAA. No. 92 of 2010 is the appeal preferred by the claimants and LAA. No. 870 of 2010 is the appeal preferred by the Government. The property under acquisition was in Kayamkulam Village within the area of the Kayamkulam Municipal Town and the acquisition pursuant to Section 4(1) notification dated 17-9-1998 was for the purpose of establishing Women's Polytechnic. The total extent of the property was 5 acres and 3 cents. In fact in his draft award the L.A. Officer had recommended value of Rs.98,713/- per Are. The District Collector however, while granting approval to the draft, made a cut of 12.5% on the above rate, taking into account the largeness of the extent and would re-fix the value at Rs.86,485/- per Are. Accordingly award was

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LAA. Nos. 92 & 870 of 2009

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passed for Rs.86,485/- per Are. in the reference under Section 18 the evidence consisted of Exts.A1 to A12, R1 to R16, commission reports and mahazars C-1 to C3, the oral evidence of AWs. 1 to 5 and RWs. 1 to 3, apart from the evidence of the commissioner as CW-1. The Reference Court in the first instance re-fixed the value at Rs.1,04,870/- per Are uniformly for the entire extent of land under Acquisition. The Government preferred appeal to this Court as LAA. No. 465 of 2006. This Court by judgment dated 6^th February 2008 interfered with the award of the Reference Court and remanded the matter to the Reference Court for fresh decision. This Court at paragraph 11 of that judgment observed that it is not proper to award uniform rate for the entire extent of 5.03 acres acquired in this case. This Court directed belting method to be adopted considering the nature and lie of different portions of the acquired land. This court also disapproved the action of the Reference

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LAA. Nos. 92 & 870 of 2009

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Court in granting 50% increase over the value reflected in the basis document towards the time lag of 1 ½ years. In fact, after remand, parties adduced further evidence and the document other than A1 and A2 were produced actually after remand. The Reference Court has passed the impugned judgment on appreciating the entire evidence and under the impugned judgment, the Reference Court has divided the properties under acquisition into three groups/ grades. Included in group No.1 were properties adjoining the National Highway extending to 5.2 Ares. For these properties, the learned Sub Judge re-fixed the market value by granting 25% increase over what was awarded by the LAO. Thus market value of the properties in grade-I were re-fixed at Rs.1,08,106/- per Are. The Reference Court included 106.48 Ares covered by the three title documents R8, R9 and R10 in grade-II. For properties included in grade - II, the Court reducing the value given to property

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LAA. Nos. 92 & 870 of 2009

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in grade - I by 10%, re-fixed the value at Rs.97,295/-. The Reference Court included the rest of the properties extending to 87.48 Ares in grade - III and for these properties a further reduction of 10% was made and the market value was re-fixed at Rs.87,566/- per Are.

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In the appeal preferred by the claimants several grounds are made alleging market value re-fixed by the Reference Court is grossly inadequate. It is particularly urged that the market value fixed by the Reference Court is unsustainable. in the appeal preferred by the Government, it is urged that there was no justification for granting enhancement as granted under the impugned judgment.

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Sri.George Varghese, learned counsel for the claimants and Sri. I.V.Pramod, learned Sr. Govt. Pleader addressed extensive arguments before us based on the grounds raised in the respective appeal memoranda. They drew our attention to the various items of evidence made

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LAA. Nos. 92 & 870 of 2009

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available in the case. We have anxiously considered rival submissions addressed at the Bar. We have made a quick re-appraisal of the evidence, particularly, all those items of evidence to which our attention was drawn.

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We have made an analysis of the award and the notes accompanying the same. Exts. A1 to A6 are the six documents upon which the claimants relied mostly in support of their claim for enhancement in land value. The persuasive submissions of Mr.George Varghese notwithstanding we are not inclined to take into account Ext.A4 to A6 which are post notification documents for fixing the market value of the land under acquisition. Once A4 to A6 are discarded, we are left with A1 to A3. A1 is a prenotification document reflecting a land value of Rs.3,01,000/- per Are. According to us, the learned Subordinate Judge rightly discarded A1 and we endorse the reasons stated by the learned Sub Judge for discarding A1

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LAA. Nos. 92 & 870 of 2009

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from consideration. The same is the position as regards Ext.A3 which reflected a land value of Rs.2,24,545/- per Are. According to us A3 property was not comparable with the property under acquisition. The value reflected in A3 was higher than the market value of the acquired property,. We are now left with A2. A2 reflected a land value of Rs.1,35,803/-. A2 was executed about 1 ½ years prior to the notification under Section 4(1). As already stated, it was by giving an increase of 50% over the market value reflected in the basis document on the reason that there is a time gap of 1 ½ years between that document and the date of Section 4(1) notification that the Reference Ccourt in the first instance had fixed the market value. This Court by judgment in LAA. No. 465 of 2006 deprecated the action of the learned Sub Judge observing that 50% increase can never be granted for the passage of 1 ½ years time. We are also of the view that so much of increase cannot be

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LAA. Nos. 92 & 870 of 2009

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given in an area like Kayamkulam for passage of 1 ½ years time. A2 on our appreciation of the evidence on record is a document which can be safely relied on for fixing the market value. Relying on A2 and giving a reasonable increase for passage of time till the date of Section 4(1) notification, we conclude that the market value of the property covered by A2 as on the date of Section 4(1) notification in this case comes to Rs.1,50,000/- per Are.

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Admittedly and evidently it is a large extent which has been acquired in this case. The Supreme Court in Atma Sing (dead) through L.Rs. and others v. State of Haryana

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and another (2008) 2 SCC 568 has reiterated the principle that when large extents are acquired, suitable deductions are to be made from the market value of the property determined towards the largeness of the extent. The argument of Mr.George Varghese based on the order passed by the District Collector while passing the draft award

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LAA. Nos. 92 & 870 of 2009

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prepared by the L.A. Officer was that the District Collector himself having made a cut of 12.5% towards largeness of the extent, this court will not be justified in making a further cut. The above argument, according to us, has only superficial attractiveness. The District Collector had not relied on A2 document. We are now re-fixing the market value based on A2. We cannot ignore the fact that the land under acquisition is a very vast area. We are of the view that a cut of atleast 10% should be made. Making such a cut off, the market value of the land under acquisition included in grade - I of the best portion of the land under acquisition will have to be re-fixed at Rs.1,35,000/- per Are.

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We are unable to understand the basis of the categorisation done by the learned Sub Judge. There was sufficient indication in the judgment of this Court in LAA. No. 465 of 2006 itself that 47 Ares forming the front part of the acquired property should be included in the category

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LAA. Nos. 92 & 870 of 2009

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fetching the maximum value. We are therefore of the view that 47 Ares from out of the land under acquisition can be included in grade - I.

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As for the remainder property being the total extent of 156.66 Ares, we are of the view that 78.33 Ares situated in the middle can be included in grade - II and 78.33 Ares situated in the back can be included in grade - III. According to us the properties included in grade - II as above will have to be awarded market value at the rate of Rs.1,21,500/- and the property included in grade - III will have to be awarded land value at the rate of Rs.1,09,350/per Are. The market value of property included by us in grade - I to III are re-fixed accordingly.

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The result of the above discussion is that LAA. No. 92 of 2009 is allowed and LAA. No. 870 of 2009 stands dismissed. The parties are directed to suffer their respective costs. Needless to mention that the claimants

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LAA. Nos. 92 & 870 of 2009

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will be entitled to all statutory benefits admissible under Section 23(1A), 23(2) and Section 28 of the Land acquisition

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Act.

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(PIUS C.KURIAKOSE, JUDGE)

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(C.K.ABDUL REHIM, JUDGE)