Remanded

Abdul Rafeeq v. State of Kerala

Kerala HC16 Mar 2018LA.App./737/2014

Case brief

AI extract

What is this about?

This Court allowed appeals against land acquisition awards, holding that appellants successfully challenged the basic document but failed to prove comparability of submitted exemplars. The Court remanded reference cases for fresh disposal to ascertain just market value.

What did the court decide?

Impugned awards set aside; reference cases remitted to Additional Sub Court, Thrissur for fresh disposal within four months.

Abdul Rafeeq Vs State of Kerala — Land Acquisition | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MRS. JUSTICE SHIRCY V.

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FRIDAY, THE 16TH DAY OF MARCH 2018 / 25TH PHALGUNA, 1939 LA.App..No. 737 of 2014

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LAR. NO.24/2002 of II ADDL. SUB COURT, THRISSUR.

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APPELLANT/CLAIMANT

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ABDUL RAFEEQ, AGED 48, BUSINESS, S/O. ABDUL KHADAR HAJI, ERACHAM VEETTIL HOUSE, CHAVAKKAD TALUK, THRISSUR DISTRICT.

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BY ADVS.SRI.P.G.DEVADAS

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SRI.VINOD SINGH CHERIYAN.

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RESPONDENTS/RESPONDENTS:

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1. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, THRISSUR-680 003.

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2. SPL. TAHSILDAR(LA), GURUVAYOOR DEVASWOM, GURUVAYOOR-680 101.

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3. THE ADMINISTRATOR, GURUVAYOOR DEVASWOM, GURUVAYOOR-680 101.

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R1 & R2 BY SR. GOVT. PLEADER SRI.A.K. SUKUMARAN. R3 BY ADV. SRI.P.GOPAL.

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THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 16-03-2018, ALONG WITH LAA NO.738 OF 2014 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs. 20/03/2018.

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C.K.ABDUL REHIM, J. &

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SHIRCY.V, J.

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================================= L.A.A.Nos.737, 738, 744, 750, 756 and 757 of 2014 ================================= Dated this the 16^th day of March 2018

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JUDGMENT

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C.K.Abdul Rehim, J.

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Since all the above appeals are instituted against a common judgment of the Additional Sub Court, Thrissur dated 31.1.2014 and since all the cases arise out of the very same acquisition, these appeals were considered together and disposed of through this common judgment.

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An extent of about 13 Acres of land was acquired for rehabilitation of the evictees from the vicinity of Guruvayoor Temple and for providing parking facility for the pilgrims visting the Temple, based on a requisition

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made by the 3^rd respondent, the Administrator of Guruvayoor Devaswom. By the impugned judgment, a total number of 20 reference cases were disposed of together. The claimants in six reference cases alone had approached

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this Court in appeal. It is submitted that, one more reference case, (L.A.R. 19/2002) arising out of the same acquisition was disposed of by the Additional Sub Court separately, against which the claimants therein had filed appeal as L.A.A.No.417/2006, which was already disposed of by this court through a judgment dated 1.4.2011.

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The Land Acquision Officer (LAO) had split up the property acquired into 4 (four) blocks based on the survey numbers. Award No.2/2002 was passed with respect to properties coming under Block No.1. Award No.3/2002 was passed with respect to properties coming under Block No.2. Award No.4/2002 was passed with respect to properties

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coming under Block No.3. The LAO awarded different rates of land value in the above said three awards. In Award No.2/2002, the land value fixed is Rs.43,818/- per Are corresponding to Rs.17,740/- per cent. But in the same award with respect to properties described as 'nancha' the value fixed was only Rs.10,954/- per Are corresponding to Rs.4,434.80/- per cent. In award No.3/2002 the LAO fixed different land value for three types of properties, at Rs.22,555.80/- per cent, Rs.17,740/- per cent and Rs.6,484/per cent. In award No.4/2004 the land value fixed was Rs.23,750/- per cent. The reference court found that the properties covered under all the 20 reference cases are situated in more or less similar nature and circumstances and are situated adjacent to each other; and are acquired for the same purpose. The reference court was convinced that, most of the acquired lands are 'kudikidappu'

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properties, which are garden lands. Therefore it was found that, the method adopted by the LAO in classifying the land under different blocks and in allowing different land value based on the descriptions of the land in the revenue records, cannot be sustained. The reference court accepted the contention that of the claimants that the properties are to be valued in the same manner as if all the properties are situated alike. The reference court noticed the evidence available on record, which would prove that the acquired properties in all the cases are lying with similar characteristics and most of the claimants are residing in the acquired property itself. Having found that there is no meaning in describing the land as 'nancha' for giving a lesser valuation, it was held that all the properties are to be valued alike, considering their similarities and prominence at the time of the acquisition.

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Even though the claimants have produced several

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documents to prove the market value prevailing at the time of the acquisition, the reference court observed that, none of the parties to those transactions or anybody acquainted with such transactions were examined; and no Advocate Commissioner was deputed to inspect the properties covered under those documents in order to ascertain the comparability of those properties with that of the acquired properties. Further, it was observed that, the claimant have not made any attempt to prove that the property covered under the basic document relied on by the LAO is not similar in nature or similarly situated. On the other hand it was noticed that, the LAO when examined as RW1 had deposed that the property covered under the basic document is situated only at a distance of 25 meters away from the acquired properties land and it is similarly

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situated.

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The reference court noticed that

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L.A.R.No.19/2002, arising from Award No.4/2002, has already been disposed of by enhancing the land value to Rs.29,619/- per cent. It was also noticed that, in the appeal filed from the said case this court had enhanced the land value to Rs.33,250/- per cent, in LAA No.417/2006. The court below had taken note of the fact that the highest land value allowed in Award No.4/2002 at Rs.58,663/- per Are, equivalent to Rs.23,750/- per cent, which can be construed as the value awarded by the LAO in all the reference cases. Having found that the reference court had enhanced the land value to Rs.29,690/- in LAR No.19/2002 and further enhancement was granted in the appeal to Rs.33,250/- per cent, it was decided to award the same land value in all the cases. Accordingly the reference court had re-fixed the land

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value at Rs.33,250/- per cent, which is equivalent to Rs.88,128/- per Are. The appellants are approaching this court being aggrieved by fixation of the land value and is seeking enhancement of the compensation.

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Learned counsel appearing for the appeallants contended that, the court below went highly erred in discarding the exemplars produced as Exts.A21 to A27. It is the further contention that, the court below had failed in considering Ext.A64 deed of assignment, which pertains to the re-sale of a portion of the acquired land to one of the evictees for the purpose of rehabilation. A further contention raised is that, the court below had wrongly discarded the reports of the Advocate Commissioners available in each of the reference cases. While controverting contentions of the appellants, the learned Government Pleader as well as the Standing Counsel

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appearing for the 3^rd respondent had pointed out that, the claimants in these cases have not succeeded in proving through any convincing evidence that they were entitled for enhanced compensation than what was fixed by the LAO. It is pointed out that, the appellants had no case before the reference court that the land covered under the basic document is not similar or similarly situated. No evidence was adduced to discard the basic document or to disprove its similarity. It is also contended that, apart from adducing evidence by way of production of certain sale deeds, no attempt was made to prove its contents or to establish that the properties covered under those documents are similar in nature and comparable with the acquired properties. Therefore it is contended that no interference is warranted in these appeals for enhancing the land value fixed by the reference court.

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While analysing the rival contentions we take note of the fact that, the LAO had relied on Sale Deed No.666/1998 of the Sub Registrar Office, Kottappady for fixing the land value of the acquired properties. It is a document executed on 19.5.1998. The notification under Section 4(i) of the Land Acquisition Act in the present cases was published on 15.10.1999. Therefore it is evident that the document No.666/1998 was executed one year and 5 months prior to the date of publication of the notification. The document in question relates to assignment of 16.7 cents of land. The land value reflected therein, after deducting the value of improvements, was considered as Rs.3,96,500/-. Therefore the value per cent reflected in the said document was taken as Rs.23,743/-. The LAO found that the property covered under the said document is comprised in Survey No.166/5 and is a land coming within

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block No.4. Therefore the value reflected in the said document is taken as basis for fixing value of the acquired properties. The appellants had pointed out that, it was brought out in evidence before the reference court that the value reflected in the said document is not genuine and true and it does not reflect the real market value prevalent in the locality at the relevant time. Learned Counsel for the appellant had drawn our attention to the testimony of AW19, who is the son of the assignor in the said document. He deposed that the land in question was obtained as 'Kudikidapu' by his father and it was assigned back to the landlords on their request, for the purpose of construction of Hotel blocks in the said property. Therefore, it is contended that, considering the particular relationship of the parties in the above said document, it is not reflecting the true market value which prevailed in the locality in

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question at the relevent time. It is also pointed out that the reference court had also taken note of the peculiar relationship existed between the vendor and vendee of the said document and therefore found that the consideration reflected in the said document cannot be acepted as basis of the market value prevailed.

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According to learned Counsel for the appellants, the court below was not at all justified in discarding the exemplar of Document No.1934/1996, dated 28.12.1996 of SRO Kottapady, which was produced as Ext.A23. It is pointed out that, it is evident from the 'Notes to Award' marked as Ext.R21(a) that the above said document (Ext.A23) was considered by the LAO in the award enquiry. The property conveyed through the said document is 10.98 cents of land situated in the same village, which was sold for a total consideration of Rs.14,82,300/-. The LAO had

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noticed that the property covered under the said document is situated only at a distance of 600 Meters from the acquired properties. The purchasor is a company named 'Sterling Holiday Resorts Private Ltd'. The LAO had rejected the said document by assigning the reason that the purchasor company owned some land lying contiguous to the property transacted and that the purchase was for the purpose of construction of huge multi storied flat in the property. It is admitted in the 'Notes to Award' that the consideration reflected in the said document is Rs.1,30,082/- per cent. But, without any basis the LAO observed that, the property covered under the said document is not similar in nature to the acquired property. Learned Counsel for the appellant contended that the reference court ought to have considered Ext.A23 and the other exemplars produced by the appellants for the

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purpose of fixation of the land value.

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We take note of the fact that the claimants have produced certain documents in order to prove comparable sale instances. But the claimants have failed in proving those documents through any convincing evidence to establish that the property covered under those documents are situated in the nearby vicinity and that they are similar in nature or similarly situated as that of the acquired properties. The reports of the Advocate Commissioners, produced in all the reference cases, are with respect to inspections conducted in the acquired properties, before the LAO had taken over possession. Those reports reflects the lie and nature of the acquired properties as well as its locational importance. Those are reports of the Advocate Commissioners deputed from the Munsif Court in different suits filed. The comparability with respect to location and

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prominance of the exemplars was not brought in evidence by taking out any commission from the reference court. None of the witnesses had deposed anything about the nature and lie of the properties covered under those exemplars or with respect to the comparability of the properties covered under those documents with the acquired properties. Even though learned Counsel for the appellants had placed much reliance on Ext.A23 document, there is no proper evidence adduced in order to place reliance on the same.

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It is further contended that the court below ought have accepted the market value assessed by the Advocate Commissioners, mentioned in various reports marked in evidence. It remains now trite in law that the market value assessed by Advocate Commissioners, which is not based on any proper and acceptable method of valuation and not

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based on any materials or data, cannot be accepted for the purpose of fixing the market value of the acquired properties. Therefore, the contention in that respect cannot be accepted.

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Much arguments were advanced based on Exts.A64 and A65. Ext.A64 is an assignment deed executed by the requisitioning authority with respect to allotment of land in favour of one of the evictess. Ext.A65 is the copy of the judgment of this court in a writ petition filed in connection with the allotment of the land for rehabilitation of the evictees. We are of the considered opinion that, Ext.A64 cannot be adopted as basis for fixing the market value prevailed at the time of the acquisition, because the said deed was executed in the year 2010, after about 11 years from date of the acquisition. Being a post notification document, with considerable difference of time, the value

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shown therein cannot be accepted for fixing the market value of the acquired properties prevailed at the relevant time.

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As already observed, it has come out in evidence through oral testimony of AW19 that the basic document relied on by the LAO is with respect to re-conveyance of a 'Kudikidappu' property, executed by the 'Kudikidappukaran' in favour of the landlord. From the testimony of AW19 it is evident that the vendor and vendee were in close relationship of master and servant and the consideration might have fixed taking into consideration of such relationship between the parties. There is also a chance that the true consideration might have been suppressed for the purpose of saving stamp duty. As contended by learned counsel for the appeallants, it cannot be considered that the value shown in the said document reflects the true and

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correct market value prevailed in the area at the relevant time of the acquisition. In LAR No.19/2002, finding of the reference court was that the acquired property in that case is not having any road access and that a Railway line is passing through the eastern side of the said property. On going through the judgment in LAR No.19/2002 it is evident that, there was no evidence adduced to challenge the reliance placed by the LAO on the basic document. But in the present cases, the evidence on record would reflect that there is road access to the acquired properties. There is also evidence availabe to show that the basic document has not reflected the true and correct market value prevailed at the time of acquisition. In LAR 19/2002 the reference court found that the property covered under the basic document is lying at a distance of only 25 Meters from the acquired property and it has got road frontage. Considering the time

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gap of 1 year and 5 months between the date of the basic document and the date of acquision, the reference court allowed enhancement of 25% from the value fixed by the LAO. Accordingly the land value was re-fixed at Rs.29,690/per cent. When the claimants in LAR No.19/2002 had approached this court in appeal, in the judgment in LAA No.417/2006 dated 1.4.2011, it was found that the court below was very miserly in applying the rule of thump. Without mentioning any specific reasons or without relying on any basis, this court had re-fixed the land value by granting 40% increase from the value awarded by the LAO and accordingly re-fixed land value at Rs.33,250/- per cent. It is relying on the judgment in LAA No.417/2006 that the reference court had re-fixed the land value in the present cases. It is to be noted that, neither the State Government nor the Requisitioning Authority had challenged the said re-

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fixation.

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Question mooted for decision is whether the appellants were successful in establishing before the reference court through any convincing evidence that they are entitled for enhanced compensation than what was awarded by the LAO. As already discussed, the appellants were successful in establishing that the reliance placed by the LAO on the basic document, for fixing the land value of the acquired properties, was not correct and sustainable. But, despite the production of various exemplars, the appellants had not succeeded in proving the comparability regarding the nature of the lands covered under those transactions with that of the acquired properties. Ext.A64 upon which reliance was placed by the appellants cannot be accepted as basis, it being a post notification document with a time gap of 11 years. We are of the considered opinion

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that the appellants were successful in proving that the consideration reflected in the basic document (Sale Deed No.666/1998), is not the true and real market value, which prevailed in the area in question at the time of the acquisition. The enhancement awarded by the reference court in LAR No.19/2002 is based on the above said document. More over the further enhancement awarded in L.A.A.No.417/2006 is not based on any acceptable evidence, but merely on a thump rule. It remains settled through various precedents of the Hon'ble Supreme Court and this court that, when acceptable sale instances are available to assess the market value, adoption of thump rule for granting enhancement without any basis, is not a sustainable method. But at the same time, we cannot accept any of the exemplars for re-fixation of the land value, because the appellants have not produced any acceptable

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evidence with respect to comparability of the property covered under such exemplars with that of the acquired properties. Under such circumstances, in order to ensure that the owners of the acquired property is getting just and reasonable compensation and also in order to ensure that no excess amount is compelled to be paid from the public exchequer, it is necessary to have a fresh disposal of the reference cases by permitting the parties to adduce proper evidence for proving the market value existed in the area in question at the time of the acquisition. We are of the opinion that a remand of the reference cases for a fresh disposal by the reference court, would serve the ends of justice.

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In the result, the above appeals are hereby allowed. The impugned awards in all these cases are hereby set aside. The respective reference cases are remitted back

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to the court below for fresh disposal. The reference court shall dispose of the reference cases afresh, after affording opportunity to the claimants as well as to the respondents to adduce fresh evidence, if they desire. The reference cases shall be disposed of by taking into consideration of the observations and findings contained hereinabove and based on the existing as well as additional evidence, if any adduced, without placing reliance on the decision in LAR No.19/2002 and LAA No.417/2006.

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Having considered the fact that the refrences are of the years 2002 and 2003, the court below shall take all earnest endeavor to dispose of the cases at the earliest possible, at any rate within a period of four months from the date of appearance if the parties before that court.

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Since the reference cases are remanded for fresh disposal, the appellants will be entitled for refund of full

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court fee paid.

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For a speedy disposal of the reference cases remanded through this judgment, the parties are directed to appear before the Additional Sub Court Thrissur on 30.5.2018.

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sd/

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C.K.ABDUL REHIM JUDGE

sd/

SHIRCY.V.

JUDGE

jm/

\ True copy \

PA to Judge

Abdul Rafeeq v. State of Kerala

Case brief

What is this about?

What did the court decide?

Abdul Rafeeq v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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