Partly allowed

Dr.Biju Remesh v. State of Kerala

Kerala HC14 Jun 2018LA.App./827/2013

Case brief

AI extract

What is this about?

The High Court allowed land acquisition appeals in part by remanding cases to re-examine categorization of properties held by husband and wife. While the reference court's fixed land values were largely confirmed, the lower court was directed to determine if contiguous properties should be treated as a single family holding.

What did the court decide?

Land acquisition appeals allowed in part. Common judgment of the reference court set aside for re-examination of category claim. Cases remanded to the lower court to decide on category refixation with

Dr.Biju Remesh Vs State of Kerala — Public Procurement and Tenders | Kerala HC (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. 817, 823, 824 & 827 OF 2013

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DATED THIS THE 14^th DAY OF JUNE, 2018

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C O M M O N J U D G M E N T

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Abdul Rehim, J.

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All the 4 land acquisition appeals arise out of a

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common judgment passed by the Sub Court, Thiruvananthapuram, dated 28^th February, 2013. The acquisition was for the establishment of 'Electronics Technology Park' at Kazhakkoottam. The 2^nd respondent is the requisitioning authority. The land acquisition proceedings was initiated based on Section 4(1) notification published on 17.12.2003. The Land Acquisition Officer(LAO) passed awards by including the acquired properties in 10 categories, with the description as follows;

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Category No.1 Properties having road frontage of National Highway Bye-Pass. Category Nos.2 & 3- Properties which lie away from National Highway Bye-Pass road.

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LAA Nos.817, 823, 824 & 827/2013

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-2-

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Category No.4 Properties having no road access. - Category No.5 Wet land having 2 mtr. depth from P.W.D. Bye-Pass road. - Category No.6 Properties lying just behind properties included in category Nos. 1 and 2. - Category No.7 Wet land near to the properties under categories 1, 2, 3 and 5. Category Nos. 8 & 9- Wet land having pathway. - Category No.10 Wet land without any passage. The Land Acquisition Officer awarded different rates of compensation, with respect to the properties included in different categories as follows;

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Category No.1 Rs.1,30,500/Are - Category No.2 Rs.1,05,224/Are - Category No.3 Rs.27,234/Are - Category No.4 Rs.25,873/Are - Category No.5 Rs.68,397/Are - Category No.6 Rs.54,718/Are - Category No.7 Rs.18,747/Are - Category No.8 Rs.17,967/Are - Category No.9 Rs.17,186/Are - Category No.10 Rs.15,623/Are

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LAA Nos.817, 823, 824 & 827/2013 -3-

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The reference court enhanced the land value fixed

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in all the categories, based on settlements arrived in a large number of other connected cases, on the intervention of the District Legal Services Authority, Thiruvananthapuram and also based on Ext.A9 judgment passed by this Court in LAA Nos.468/2011 and 504/2011. The reference court refixed the land value with respect to category Nos.1 to 10 respectively at the rates of Rs.2,82,000/-, Rs.2,45,000/Rs.1,40,000/-, Rs.1,40,000/-, Rs.1,26,000/-, Rs.2,24,000/-, Rs.2,10,000/-, Rs.1,12,000/-, Rs.1,12,000/- and Rs.1,04,400/-

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per Are. The appellants are challenging the judgment of the reference court contending that the land value refixed is inadequate, insufficient and disproportionate.

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Contentions of the appellants are that, the categorization made by the Land Acquisition Officer, which was approved by the reference court, is highly illegal, erroneous and improper. It is pointed out that, the claimant in LAA No.827/2013 [LAR No.719/2008] is the husband of the claimant in the other cases. According to the

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LAA Nos.817, 823, 824 & 827/2013 -4-

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appellants, the husband and wife are holding the properties which are lying contiguous with frontage to the Bye-Pass road. Therefore all the properties ought to have been included in the same category of No.1, described as property having frontage to the Bye-Pass road, is the contention.

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We take note of the fact that, the claimants have raised a contention before the reference court that, the properties are lying on the eastern side of National Highway Bye-pass with direct access to the said road and is lying as a compact plot. But the court below found that the claimants could not prove such a contention with any reliable and satisfactory evidence. On the other hand, referring to the files of the Land Acquisition Officer, the court below found that the properties were categorized depending upon their lie and nature. It was found that, the mere fact that the claimants are husband and wife shall not be sufficient to hold that the properties are lying as a compact plot. It was noticed that, other claimants are also

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LAA Nos.817, 823, 824 & 827/2013 -5-

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having properties in the same 'field number' and that the claimants in the present case have not taken any steps to ascertain or to bring before the court any evidence to show that their properties are lying as a compact plot. Further it was found that the claimants have not made any dispute before the LAO with respect to the categorisation. Therefore it was held that the categorisation made by the LAO need to be sustained.

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Learned Senior Counsel appearing for the appellants/claimants contended that, the reference court had failed to appreciate the documents contained in the files of the LAO or the 'Survey Sketch' produced by the claimants, in order to ascertain whether the properties in these cases are lying as compact plot or not. However, it was conceded that there is no dispute for the claimants with respect to refixation of the land value arrived by the reference court with respect to the different categories. This is especially because, the land value was arrived on the basis of a judgment of this court passed in other connected

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LAA Nos.817, 823, 824 & 827/2013 -6-

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cases involved in the same acquisition. On behalf of the appellants, learned Senior Counsel made an appeal to this court to remit the cases for affording opportunity to the claimants to convince the reference court that, the properties covered under all these cases are lying together as a compact plot and is being enjoyed with frontage to NH Bye-pass.

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In this regard, it is pertinent to note a Division Bench of this court in Lillykutty V. State of Kerala (2012 (4) KLT 428) . It is held that, properties of husband and wife lying together contiguously in the same condition and being enjoyed as a common holding of the family, should be included in the same category. In such cases, whatever advantages the husband's property was enjoying, were available to the wife's property also, through the husband's property. Under the social conditions prevailing in the State, there is justification for treating the property of husband and wife lying together and contiguously, as one single holding of the family, is the findings.

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LAA Nos.817, 823, 824 & 827/2013

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-7-

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Based on the dictum contained in the above said

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ruling, it is necessary to ascertain the exact nature and lie of the acquired properties, in order to ascertain whether they are lying together contiguously and as to whether they are enjoyed as common holding of the family. It is also necessary to ascertain whether the acquired property in all the cases are having the same nature. It remains settled through various legal precedents that, the reference court should make all earnest efforts to award just and reasonable compensation based on the nature and lie of the properties acquired, taking into consideration of the market value prevailing as on the date of the acquisition. We notice that, the reference court had not made any elaborate probe in the records and materials available, including the files of the LAO, in order to ascertain the above said aspects. We also notice that the claimants have failed in producing any convincing evidence in this regard. Under such circumstances, we are of the view that the request of the appellants for a remand of the cases in order to ascertain

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LAA Nos.817, 823, 824 & 827/2013 -8-

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the above said aspects, need to be acceded. However we are inclined to confirm the land value refixed by the court below for different categries. The only question which is to be examined is with respect to the claim for the change of category.

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Under the above mentioned circumstances, the above Land Acquisition Appeals are hereby allowed in part. The common judgment passed by the reference court in LAR Nos.718/2008, 684/2008, 361/2006 & 719/2008 are hereby set aside, to the extent as mentioned above. The reference cases are remanded for a fresh decision of the court below on the aspect of the claim for refixation of category. Needless to observe that, the court below shall permit the parties to adduce additional evidence if any, in this respect, with opportunity afforded to the opposite site to controvert.

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Taking into consideration of the fact that the reference cases are of the year 2006 - 2008, the court below shall take all earnest efforts to dispose of the matter afresh

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LAA Nos.817, 823, 824 & 827/2013 -9-

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at the earliest possible, at any rate, within a period of 4

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months from the date of receipt of a copy of this judgment.

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It is made clear that, in case of any enhancement

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in the compensation is awarded on the basis of change in the category of properties, the claimants shall not be entitled for interest under Section 28 of the Land Acquisition Act on such enhanced amounts for the period from 28-02-2013 till 14-06-2018.

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The parties shall appear before the court below on 31-07-2018.

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In view of the remand ordered the appellants will be entitled for refund of the court fee.

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The Registry shall re-transmit the records if any kept in this court, forthwith.

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Sd/- C.K. ABDUL REHIM, JUDGE .

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Sd/- SHIRCY V., JUDGE .

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ul/AMG

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True copy

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P.A. to Judge

Dr.Biju Remesh v. State of Kerala

Case brief

What is this about?

What did the court decide?

Dr.Biju Remesh v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

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