Remanded

The Managing Director v. Thulaseesharan Nair

Kerala HC7 Jun 2018LA.App./76/2017

Case brief

AI extract

What is this about?

This land acquisition appeal challenged a reference court judgment that enhanced compensation based on estimative guesswork due to lack of proven property comparability. The High Court set aside the judgment and remitted the matter for a fresh disposal after providing the claimant an opportunity to adduce evidence proving similarity, proximity, and nature of the exemplar property versus the acquir

What did the court decide?

Appeal allowed; impugned judgment set aside; matter remitted for fresh consideration and disposal; parties permitted to adduce evidence.

The Managing Director Vs Thulaseesharan Nair — 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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THURSDAY, THE 7TH DAY OF JUNE 2018 / 17TH JYAISHTA, 1940

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LA.App..No. 76 of 2017

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AGAINST JUDGMENT IN LAR 139/2012 of SUB COURT, ATTINGAL DATED 17-11-2015

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APPELLANT(S)/2ND RESPONDENT IN LAR

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THE MANAGING DIRECTOR KERALA STATE INDUSTRIAL DEVELOPMENT CORPORATION LTD, KESTON ROAD, KOWDIAR THIRUVANANTHAPURAM - 695 003.

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BY ADV.SRI.P.U.SHAILAJAN, SC, KSIDC

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RESPONDENT(S)/(CLAIMANT IN LAR):

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THULASEEDHARAN NAIR S/O. GOPALA PILLAI, "ATHIRA" 16TH STONE, CHEMBAKAMANGALAM VEILOOR, THIRUVANANTHAPURAM - 695 003.

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STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, CIVIL STATION, KUDAPPANAKKUNNU, THIRUVANANTHAPURAM-695 003.

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R1 BY ADV. SRI.R.S.KALKURA

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R1 BY ADV. SRI.M.S.KALESH

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R1 BY ADV. SRI.HARISH GOPINATH

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R1 BY ADV. SMT.R.BINDU

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R1 BY ADV. SMT.P.ANJANA

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R2 BY GOVERNMENT PLEADER

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THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 07-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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C.K. ABDUL REHIM & SHIRCY V, JJ.

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L.A.A. No. 76 OF 2017

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------------------------------------------------------- Dated this the 7^th day of June, 2018

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J U D G M E N T

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Abdul Rehim, J.

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The second respondent in L.A.R.No.139/2012 on the file of the Subordinate Judge's Court, Attingal is the appellant herein, challenging the judgment passed on 17.11.2015. The appellant is the requisition authority, for whom an extent of 4.05 Ares of property comprised in Sy. No.181/2-68 of Veiloor Village was acquired for the purpose of the development of 'Life Science Park' at Thiruvananthapuram. While passing the

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L.A.A. No. 76 OF 2017

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award, the Land Acquisition Officer relied on Ext.B1 document in which the consideration reflected was at the rate of 1,23,456.79 per Are. Considering the time gap of one year, the claimant in this case was granted compensation by fixing the land value at 1,38,273/- per Are. Being not satisfied with the award, the first respondent/claimant sought reference under Section 18 of the Land Acquisition Act. The impugned judgment was passed by the Subordinate Judge's Court in the said reference.

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The reference court had enhanced the land value to `2,43,211.72 per Are. The appellant herein is challenging the judgment of the reference court on the premise that the enhancement granted is excessive and unreasonable.

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Heard the learned counsel appearing for the appellant, learned Government Pleader appearing for the second respondent and learned counsel appearing for the first respondent claimant.

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L.A.A. No. 76 OF 2017

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Before the reference court the respondents therein had produced Ext.B1 document which was relied upon by the Land Acquisition Officer for fixing the land value, along with Ext.B2 sketch showing its lie and locality. From the side of the claimant Ext.A2 document was produced which is a sale instance revealing consideration at the rate of `5,47,263.68 per Are. The reference court while appreciating the rival evidence had referred to certain legal precedents settled by the Hon'ble Supreme Court in order to arrive at a conclusion that, the general rule is that the highest of the exemplars need to be adopted, if it is satisfied that it is a bona fide transaction. It was further observed that, when there is a compulsory acquisition, the land owner is entitled to get the highest value at which similar land in the locality is shown to have fetched in a bona fide transaction entered into between a willing purchaser and a willing seller. On the said basis, it was upheld that the highest exemplar available is Ext.A2 document. But, it was found that no materials are available for the comparison with respect to

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L.A.A. No. 76 OF 2017

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the quality between the acquired property and the property covered under Ext.A2. The court below found that there is only an oral assertion made by the claimant that both the properties are lying on the opposite sides of a country way and is similar in all manner. But the court below specifically found that there is no material like factual reporting by an Advocate Commissioner, in order to ascertain whether the properties are similar in nature or similarly situated. At the same time, the court below found that the property covered under Ext.A2 document and the acquired properties are comprised in the very same survey number, only with a difference in the number of the sub division. Hence, it was found that the property under the exemplar of Ext.A2 belongs to the same locality. But the court categorically found that, it is not enough to appreciate the comparability of these two properties. It was also found that the extent comprised in the said survey number is relatively large and some of the properties in the said survey number are having road frontage and some may not. While summing up

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L.A.A. No. 76 OF 2017

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the discussions, the learned Subordinate Judge observed that, without the materials for comparison available on record, compensation for the acquired property cannot be enhanced in par with the consideration reflected in Ext.A2 document. At the same time, the court below observed that, there is evidence to the effect that there occurred a steep hike in the market value prevailing in the locality. In arriving at such a conclusion, the learned Judge had analysed the values reflected in Ext.A1 document[title deed of the claimant] executed in the year 2007, Ext.B1 document executed in the year 2008 and Ext.A2 document produced as exemplar by the claimant. Under such circumstances, the reference court ventured upon a guess work. It was found that the value reflected in Ext.A2 document cannot be granted for the acquired property, since there are no materials to prove the comparability. However, an enhancement of 60% from the value reflected in Ext.B1 property was found to be entitled to the claimant. But the court below again observed that when compared to Ext.A2 the said

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enhancement will fall below the true value of the properties in the locality. Therefore, by taking into account of the fact that Ext.A2 property is situated in the very same locality, a further enhancement of 25% is computed. Thus, based on the guess work, the land value was enhanced and refixed at `2,43,211.72 per Are.

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Contention of the appellant is that, the value fixed based on the guess work made by the reference court has no basis. It is pointed out that the burden lies totally on the claimant to prove through convincing materials that the market value prevailing at the time of acquisition is higher than the value awarded by the Land Acquisition Officer. According to the appellant, the claimant had failed in discharging such burden. Since no evidence was adduced with respect to comparability of the land covered under the exemplar document produced, we find merit in the contention that the reference court went wrong in placing any sort of reliance on Ext.A2, after having been found that there is no evidence to prove the comparability.

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L.A.A. No. 76 OF 2017

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The enhancement given based on the guess work, by merely finding that there existed a steep hike, cannot be sustained as a judicial approach which is prudent and justifiable. Therefore we are of the opinion that the impugned judgment is liable to be interfered with.

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At this stage, learned counsel for the first respondent/claimant made a request to this court to remit the matter for a fresh consideration and disposal, based on the plea that he may be afforded with sufficient opportunity to prove the aspect of comparability between the property covered under Ext.A2 document and the acquired property. It is pointed out that the factual scenario existed at the time of acquisition is that the prevailing market value was much higher than what was reflected in Ext.B1 basic document.

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We take note of the settled legal principle that the courts dealing with the reference under Section 18 of the Act is at an obligation to ensure that fair and just compensation is awarded to the land owners taking into consideration of the

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market value prevailing in the locality at the time of acquisition. In the case at hand, the claimant had produced Ext.A2 as the best exemplar document and given evidence to the effect that Ext.A2 reflects the true market value which prevailed as on the date of acquisition. But, as observed by the reference court, the value reflected in Ext.A2 as such cannot be accepted, because there was total lack of evidence regarding the comparability of the land in the matter of similarity, proximity, prominence, nature and lie of the land. In order to ensure complete justice, we are inclined to take a lenient view to accede to the request made on behalf of the claimants, to afford a further opportunity to adduce proper evidence before the reference court. This is all the more with the view that the reference court can be equipped with ample materials on record to arrive at a just conclusion with respect to the market value of the land which prevailed in the locality at the time of the acquisition.

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L.A.A. No. 76 OF 2017

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Under the above mentioned circumstances, we are inclined to allow the appeal by setting aside the impugned judgment and also to remit the reference for a fresh consideration and disposal.

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In the result, this Land Acquisition Appeal is hereby allowed. The impugned judgment passed by the Subordinate Judge's Court, Attingal in L.A.R. 139/2012 is hereby set aside. The reference case is remitted back to the court below for a fresh consideration and disposal. The parties on either side shall be permitted to adduce evidence, if they so desire. The reference court shall consider all materials on record and shall pass a fresh judgment in the matter. Taking into consideration of the fact that the reference is of the year 2012, we direct the court below to have an expeditious disposal of the matter, at any rate, within a period of three months from the date of receipt of a copy of this judgment. The parties shall appear before the court below on 28.06.2018.

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Since the Appeal is allowed to the extent of

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remanding the matter for fresh disposal, the appellant will be entitled for refund of the court fee paid.

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All the pending interlocutory applications in this appeal are closed.

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C.K. ABDUL REHIM, JUDGE .

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SHIRCY V., JUDGE .

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ul/-

The Managing Director v. Thulaseesharan Nair

Case brief

What is this about?

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The Managing Director v. Thulaseesharan Nair

Case brief

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