Allowed

State of Kerala, Rep.by the Special Tahsildar (La) v. Saramma

Kerala HC27 Feb 2018LA.App./94/2014

Case brief

AI extract

What is this about?

This judgment addresses land acquisition appeals concerning the development of the II phase of Infopark in Kakkanad. The court examined evidence regarding land classification and attached road access to determine appropriate compensation rates for reclaimed and wet lands.

What did the court decide?

Land value re-fixed at Rs.6,05,782/- per Are; statutory benefits under Sections 23(1A), 23(2), and 28 of the Land Acquisition Act granted.

State of Kerala, Rep.by the Special Tahsildar (La) Vs Saramma — Land Acquisition | Kerala HC (2018)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

¶4

¶5

THE HONOURABLE MRS. JUSTICE SHIRCY V.

¶6

TUESDAY, THE 27TH DAY OF FEBRUARY 2018 / 8TH PHALGUNA, 1939

¶7

LA.App..No. 94 of 2014

¶8

AGAINST THE ORDER/JUDGMENT IN LAR 55/2011 of SUB COURT, PERUMBAVOOR DATED 30-08-2013

¶9

APPELLANT/ 1ST RESPONDENT IN LAR

¶10

STATE OF KERALA, REP.BY THE SPECIAL TAHSILDAR (LA) KOCHI LTD, VYTILLA, TRIPUNITHURA

¶11

BY ADVS. GOVERNMENT PLEADER ADVOCATE GENERAL

¶12

RESPONDENTS/ CLAIMANTS & 2ND RESPONDENT IN LAR

¶13

1 SARAMMA ELENJERIYIL (KALAPURACKAL),KEERAMKUZHI,BRAHMA PURAM 682 303

¶14

2 ALIAMMA VARGHESE, KUNNATHU HOUSE, PINARMUNDA KUMARAPURAM 683565

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3 THE CHIEF EXECUTIVE OFFICER INFOPARK KUSUMAGIRI KAKKANAD 682 030

¶16

BY ADVS. SMT.A.A.GEETHA SRI.K.A.ABDUL SALAM SMT.T.MANASY SRI.MATHEWS K.PHILIP SRI.PAUL K.VARGHESE SRI.SUNIL V.MOHAMMED

¶17

THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 27.02.2018, ALONG WITH CO.34/2016, CO.No. 25 OF 2018 & L.A.A No.102/2014 CONNECTED CASES,, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶18

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶19

PRESENT

¶20

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

¶21

¶22

THE HONOURABLE MRS. JUSTICE SHIRCY V.

¶23

TUESDAY, THE 27TH DAY OF FEBRUARY 2018 / 8TH PHALGUNA, 1939

¶24

CO.No. 34 of 2016 IN LA.App.. 94/2014

¶25

AGAINST THE ORDER/JUDGMENT IN LA.App. 94/2014 of HIGHCOURT

¶26

CROSS OBJECTORS/ RESPONDENTS NO.2

¶27

ALEYAMMA VARGHESE @ M.ALEY W/O. LATE VARGHESE, AGED 77 YEARS KUNNATH, PINERMUNDA, KUMARAPURAM, ERNAKULAM - 683 565.

¶28

BY ADVS. SRI.PAUL K.VARGHESE SMT.A.A.GEETHA

¶29

RESPONDENTS/ APPELLANT/ RESPONDENTS NO.1 AND 3

¶30

1 STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, ERNAKULAM. 682 301

¶31

2 THE CHIEF EXECUTIVE OFFICER INFO PARK, KUSUMAGIRI, KAKKANAD - 682 030.

¶32

3 SARAMMA ELENGERIYIL (KALAPPURAKKAL), W/O. PHILIPOSE, KEEREMKUZHI, BRAHMAPURAM, ERNAKULAM - 682 303.

¶33

THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 27.02.2018, ALONG WITH CO.25/2018 & LA.App..94/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶34

¶35

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶36

PRESENT

¶37

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

¶38

¶39

THE HONOURABLE MRS. JUSTICE SHIRCY V.

¶40

TUESDAY, THE 27TH DAY OF FEBRUARY 2018 / 8TH PHALGUNA, 1939

¶41

CO.No. 25 of 2018 IN LA.App.. 94/2014

¶42

AGAINST THE ORDER/JUDGMENT IN ITR 94/2014 of HIGHCOURT

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CROSS OBJECTOR/ 1ST RESPONDENT/1ST CLAIMANT

¶44

SARAMMA

¶45

ELENGERIYIL (KALAPPURAKKAL), W/O. PHILIPOSE, KEEREMKUZHI, BRAHMAPURAM, ERNAKULAM - 682 303.

¶46

BY ADV. SRI.MATHEWS K.PHILIP

¶47

RESPONDENTS/APPELLANT AND RESPONDENTS 2& 3

¶48

1 STATE OF KERALA, REP.BY THE SPECIAL TAHSILDAR (LA) KOCHI LTD, VYTILLA, TRIPUNITHURA

¶49

2 ALEYAMMA VARGHESE @ M.ALEY W/O. LATE VARGHESE, AGED 77 YEARS KUNNATH, PINERMUNDA, KUMARAPURAM, ERNAKULAM - 683 565.

¶50

3 THE CHIEF EXECUTIVE OFFICER INFO PARK, KUSUMAGIRI, KAKKANAD - 682 030.

¶51

BY ADVS.

¶52

GOVERNMENT PLEADER

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SRI.K.A.ABDUL SALAM, SC, INFOPARK

¶54

THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 27.02.2018, LA.App..94/2014 & CO.No. 34 of 2016 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶55

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶56

PRESENT

¶57

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

¶58

¶59

THE HONOURABLE MRS. JUSTICE SHIRCY V.

¶60

TUESDAY, THE 27TH DAY OF FEBRUARY 2018 / 8TH PHALGUNA, 1939

¶61

LA.App..No. 150 of 2014

¶62

AGAINST THE ORDER/JUDGMENT IN LAR 56/2011 of SUB COURT, PERUMBAVOOR DATED 30-08-2013

¶63

APPELLANT/ 1ST RESPONDENT IN LAR

¶64

STATE OF KERALA REPRESENTED BY THE SPECIAL TAHSILDAR(LA),KOCHI REFINERIES LTD, VYTTILA,THRIPUNITHURA. BY ADVS.

¶65

GOVERNMENT PLEADER SRI.K.A.JALEEL ADDL. ADVOCATE GENERAL

¶66

RESPONDENTS/ CLAIMANTS & 2ND RESPONDENT IN LAR

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1 PATHROSE VARGHESE

¶68

**KUNNATHU HOUSE,PINARMUNDA,KUMARAPURAM,PIN-683565. 2 THE CHIEF EXECUTIVE OFFICER INFOR PARK,KUSUMAGIRI,KAKKANAD-682030. *R3 ELIYAMMA VARGHESE (ELY) W/O (LATE) K.P VARGHESE,, KUNNATH HOUSE, PINARMUNDA KARA, PERINGALA P.O 683 565(IMPLEADED AS PER ORDER DATED 06.11.2015 IN I.A 564/2015) *R4 DAISY VARGHESE, W/O CHERIAN. KARIYATH HOUSE, MORAKKALA KARA, NEAR PAPPARAKKADAVU, KAMARAPURAM P.O PIN 683 565(IMPLEADED AS PER ORDER DATED 06.11.2015 IN I.A 564/2015) R5 PETER K VARHESE S/O LATE K.P VARHESE, KUNNATHU HOUSE, THIRUVAMKULAM P.O KESAVANPADY KARA 682 305(IMPLEADED AS PER ORDER DATED 06.11.2015 IN I.A 564/2015) R6 PAUL K VARGHESE, S/O LATE K.P VARGHESE, KUNNATHU HOUSE, PINARMUNDA KARA, PERINGALA 683 565(IMPLEADED AS PER ORDER DATED 06.11.2015 IN I.A 564/2015) BY ADVS. SRI.K.A.ABDUL SALAM SMT.A.A.GEETHA SRI.K.P.S.JALALUDDEEN MOHMMED SRI.PAUL K.VARGHESE SRI.SUNIL V.MOHAMMED

¶69

THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 27.02.2018, ALONG WITH LA.App..97/2014, LA.App..240/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶70

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶71

PRESENT

¶72

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

¶73

¶74

THE HONOURABLE MRS. JUSTICE SHIRCY V.

¶75

TUESDAY, THE 27TH DAY OF FEBRUARY 2018 / 8TH PHALGUNA, 1939

¶76

CO.No. 33 of 2016 IN LA.App.. 150/2014

¶77

AGAINST THE ORDER/JUDGMENT IN LA.App. 150/2014 of HIGHCOURT

¶78

CROSS OBJECTORS/ RESPONDENTS NO.3 TO 6

¶79

1 ELIYAMMA VARGHESE (ELY) W/O (LATE) K.P VARGHESE,, KUNNATH HOUSE, PINARMUNDA KARA, PERINGALA P.O 683 565

¶80

2 DAISY VARGHESE, W/O CHERIAN. KARIYATH HOUSE, MORAKKALA KARA, NEAR PAPPARAKKADAVU, KAMARAPURAM P.O PIN 683 565

¶81

3 PETER K VARHESE S/O LATE K.P VARHESE, KUNNATHU HOUSE, THIRUVAMKULAM P.O KESAVANPADY KARA 682 305

¶82

4 PAUL K VARGHESE, S/O LATE K.P VARGHESE, KUNNATHU HOUSE, PINARMUNDA KARA, PERINGALA 683 565 BY ADV. SMT.A.A.GEETHA

¶83

RESPONDENTS/ APPELLANT/ RESPONDENTS NO. 1 AND 2

¶84

1 STATE OF KERALA

¶85

REPRESENTED BY THE SPECIAL TAHSILDAR(LA),KOCHI REFINERIES LTD, VYTTILA,THRIPUNITHURA.

¶86

2 THE CHEIF EXECUTIVE OFFICER, INFO PARK, KUSUMAGIRI KAKKANAD, PIN 682 030

¶87

3 PATHROSE VARGHESE, AGED 85 YEARS( DIED) KUNNATH HOUSE, PERINGALA P.O PINERMUNDA, KUMARAPURAM 682 030 BY ADVS. SRI.K.A.ABDUL SALAM GOVERNMENT PLEADER

¶88

THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 27.02.2018, ALONG WITH LA.App..150/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶89

¶90

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶91

PRESENT

¶92

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

¶93

¶94

THE HONOURABLE MRS. JUSTICE SHIRCY V.

¶95

TUESDAY, THE 27TH DAY OF FEBRUARY 2018 / 8TH PHALGUNA, 1939

¶96

LA.App..No. 240 of 2014

¶97

AGAINST THE ORDER/JUDGMENT IN LAR 53/2011 of SUB COURT, PERUMBAVOOR DATED 30-08-2013

¶98

APPELLANTS/ 1ST RESPONDENT IN LAR

¶99

STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR ERNAKULAM

¶100

BY ADVS. GOVERNMENT PLEADER SRI.P.C.IYPE ADDL. ADVOCATE GENERAL

¶101

RESPONDENTS/ CLAIMANT & 2ND RESPONDENT IN LAR

¶102

1 PATHROSE VARGHESE( DIED) KUNNATHU HOUSE, PINARMUNDA, KUMARAPURAM - 683 565.

¶103

2 THE CHIEF EXECUTIVE OFFICER INFO PARK, KUSUMAGIRI, KAKKANAD - 682 030.

¶104

*R3 ELIYAMMA VARGHESE (ELY) W/O (LATE) K.P VARGHESE,, KUNNATH HOUSE, PINARMUNDA KARA, PERINGALA P.O 683 565(IMPLEADED AS PER ORDER DATED 13.11.2015 IN I.A 1286/2015))

¶105

*R4 DAISY VARGHESE, W/O CHERIAN. KARIYATH HOUSE, MORAKKALA KARA, NEAR PAPPARAKKADAVU, KAMARAPURAM P.O PIN 683 565(IMPLEADED AS PER ORDER DATED 13.11.2015 IN I.A 1286/2015)

¶106

*R5 PETER K VARHESE S/O LATE K.P VARHESE, KUNNATHU HOUSE, THIRUVAMKULAM P.O KESAVANPADY KARA 682 305(IMPLEADED AS PER ORDER DATED 13.11.2015 IN

¶107

*I.A 1286/2015) R6 PAUL K VARGHESE, S/O LATE K.P VARGHESE, KUNNATHU HOUSE, PINARMUNDA KARA, PERINGALA 683 565 (IMPLEADED AS PER ORDER DATED 13.11.2015 IN I.A 1286/2015) BY ADVS. SRI.K.A.ABDUL SALAM SMT.A.A.GEETHA SRI.K.P.S.JALALUDDEEN MOHMMED SRI.PAUL K.VARGHESE SRI.SUNIL V.MOHAMMED

¶108

THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 27.02.2018, ALONG WITH CO NO. 37 OF 2016 AND LA.App..150/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶109

¶110

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶111

PRESENT

¶112

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

¶113

¶114

THE HONOURABLE MRS. JUSTICE SHIRCY V.

¶115

TUESDAY, THE 27TH DAY OF FEBRUARY 2018 / 8TH PHALGUNA, 1939

¶116

CO.No. 37 of 2016 IN LA.App.. 240/2014

¶117

AGAINST THE ORDER/JUDGMENT IN LA.App. 240/2014 of HIGHCOURT

¶118

CROSS OBJECTORS/ ADDITIONAL RESPONDENTS NO. 3 TO 6

¶119

1 ALEYAMMA VARGHESE @ M.ALEY

¶120

W/O. LATE VARGHESE, KUNNATH, PINERMUNDA,

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KUMARAPURAM, ERNAKULAM - 683 565.

¶122

2 DAISY VARGHESE DAISY CHERIAN

¶123

KARIATH HOUSE, MORAKKALA, KUMARAMANGALAM, ERNAKULAM - 683 565.

¶124

3 PETER VARGHESE S/O. VARGHESE, KUNNATH, PINERMUNDA, KUMARAPURAM, ERNAKULAM, NOW RESIDING AT THIRUVAMKULAM,

¶125

KESAVANPADY - 683 565.

¶126

4 PAUL VARGHESE S/O. VARGHESE, KUNNATH, PINERMUNDA, KUMARAPURAM, ERNAKULAM - 683 565.

¶127

BY ADV. SMT.A.A.GEETHA

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RESPONDENTS/ APPELLANT & RESPONDENTS NO.1 AND 2

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1 STATE OF KERALA

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REPRESENTED BY THE DISTRICT COLLECTOR, THE SPECIAL TAHSILDAR (LA), KOCHIN REFINERIES LTD., VYTTILA, TRIPUNITHURA.

¶131

2 THE CHIEF

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EXECUTIVE OFFICER, INFO PARK, KUSUMAGIRI, KAKKANAD - 682 030.

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3 PATHROSE VARGHESE(DIED) KUNNATHU HOUSE, PINARMUNDA, KUMARAPURAM - 683 565. BY ADVS.

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GOVERNMENT PLEADER SRI.K.A.ABDUL SALAM

¶135

THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 27.02.2018 ALONG WITH LAA NO 240/ 2014 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶136

¶137

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶138

PRESENT

¶139

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

¶140

¶141

THE HONOURABLE MRS. JUSTICE SHIRCY V.

¶142

TUESDAY, THE 27TH DAY OF FEBRUARY 2018 / 8TH PHALGUNA, 1939

¶143

LA.App..No. 97 of 2014

¶144

AGAINST THE ORDER/JUDGMENT IN LAR 54/2011 of SUB COURT, PERUMBAVOOR DATED 30-08-2013

¶145

APPELLANT/ 1ST RESPONDENT IN LAR

¶146

STATE OF KERALA REP. BY THE DISTRICT COLLECTOR, ERNAKULAM.

¶147

BY ADVS. GOVERNMENT PLEADER

¶148

SRI.K.A.JALEEL ADDL. ADVOCATE GENERAL

¶149

RESPONDENTS/CLAIMANT & 2ND RESPONDENT IN LAR

¶150

1 ALIAMMA VARGHESE

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KUNNATHU, PINERMUNDA, KUMARAPURAM, ALUVA- 690 548.

¶152

2 THE CHIEF EXECUTIVE OFFICER INFO PARK KUSUMAGIRI, KAKKANAD - 682 030.

¶153

BY ADVS. SMT.A.A.GEETHA SRI.K.A.ABDUL SALAM SRI.PAUL K.VARGHESE SRI.SUNIL V.MOHAMMED

¶154

THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 27.02.2018, ALONG WITH CO.31/2016 & & L.A.A No.102/2014 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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¶156

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶157

PRESENT

¶158

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

¶159

¶160

THE HONOURABLE MRS. JUSTICE SHIRCY V.

¶161

TUESDAY, THE 27TH DAY OF FEBRUARY 2018 / 8TH PHALGUNA, 1939

¶162

CO.No. 31 of 2016 IN LA.App.. 97/2014

¶163

AGAINST THE ORDER/JUDGMENT IN LA.App. 97/2014 of HIGHCOURT

¶164

CROSS APPELLANT/RESPONDENT NO.1/ APPELLANT

¶165

ALEYAMMA VARGHESE @ ALEY AGED 77 YEARS W/O LATE VARGHESE,KUNNATH,PINERMUNDA,KUMARAPURAM,ERNAKULAM,P IN-683565.

¶166

BY ADVS. SRI.PAUL K.VARGHESE SMT.A.A.GEETHA

¶167

RESPONDENTS/ APPELLANT/ RESPONDENTS NO.2

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1 STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR,ERNAKULAM-682301.

¶169

2 THE CHIEF EXECUTIVE OFFICER INFO PARK,KUSUMAGIRI,KAKKANAD,COCHIN-682030.

¶170

BY ADVS. GOVERNMENT PLEADER SRI.K.A.ABDUL SALAM

¶171

THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 27.02.2018, ALONG WITH LA.App..97/2014 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶172

¶173

C.K.ABDUL REHIM, J. &

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SHIRCY.V, J.

¶175

=======================================

¶176

LAA No.94 of 2014 and Cross Objection Nos.34 of 2016 and 25 of 2018

¶177

LAA No.150 of 2014 & Cross Objection No.33 of 2016

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LAA No.240 of 2014 & Cross Objection No.37 of 2016

¶179

LAA No.97/2014 and Cross objection No.31/2016

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======================================= Dated this the 27^th day of February, 2018

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JUDGMENT

¶182

C.K.Abdul Rehim, J.

¶183

The above appeals and cross objections arise out of the land acquisition proceedings initiated for establishment of the “II^nd phase development of INFOPARK in Kakkanad”. The land in question in all these cases are situated within the limits of Puthencruz Village. The date of publication of

¶184

L.A.A.Nos.94 of 2014 and connected cases

¶185

¶186

the Notification under Section 4(1) in all the cases is on 20.9.2007. The reference court had passed three other common judgments in different batches of reference cases arising out of the same acquisition. Appeals and cross objections arose from those three common judgments were disposed of by this court through a common judgment passed on today in LAA No.73/2014 and connected cases. This Court had categorised the properties included in the acquisition into 4 basic groups, ie., dry land, reclaimed land, wet land with coconut plantations on bunds and wetland. In each of those basic groups, 3 sub categories were also formed depending on accessibility of the properties to tar road, mud/gravel road, and properties without having access to any roads. By virtue of the said common judgment, different land value was fixed by this court with respect to all the 12 categories and enhancement of compensation was awarded on that basis. The Appellant/State or the cross-objectors have no case that any better evidence other than what was considered in the

¶187

L.A.A.Nos.94 of 2014 and connected cases

¶188

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above said common judgment is available, in order to claim

¶190

more value than what was fixed therein. Therefore, this Court is of the opinion that with respect to fixation of land value, the common judgment passed in LAA 73/2014 and connected cases dated 27.02.2018 can be adopted.

¶191

On the above basis, we will now deal with individual cases based on the separate contentions raised in each of above cases.

¶192

2. LAA No.97/2014 and Cross objection No.31/2016

¶193

(LAR No.54/2017)

¶194

The land Acquisition Officer (LAO) included the property in this case in Category No.14 classifying the same as “high level wet land having access to tar road”. The reference court found that the Mahazar prepared in the said case would show that the said property even though described as 'nilam' in the revenue records, is lying at a higher level than the adjacent properties. It is remaining well bounded with revertement and compound wall on all its sides with a gate provided for access. Ext.C1 commission

¶195

¶196

L.A.A.Nos.94 of 2014 and connected cases

¶197

report would show that the property is lying in the same level as that of the road. The Advocate Commissioner when examined as AW3 deposed that the property contains improvements like Coconut trees and Teak trees planted and bounded with compound wall. The LAO when examined as RW1 conceded about the improvements of Coconut and Teak tree plantations as well as about the existence of compound wall on granite foundation with entry restricted through a gate. The claimants contended before the reference court that merely because the description of the property remained as 'nilam' in the revenue records, it cannot be categorised as wetland. The reference court ultimately found that the acquired property in this case is remaining well bounded with compound wall and improved with various cultivation such as Coconut trees and Teak wood trees and therefore it cannot be considered as 'nilam'. Considering the entire evidence available on record, the reference court approved that the property in question can be considered as reclaimed land having tar road access.

¶198

L.A.A.Nos.94 of 2014 and connected cases

¶199

¶200

Contention of the cross objectors/claimants is to

¶201

the effect that the property was remaining in the nature of pucca dry land with grown up Coconut trees and Teak trees well bounded with compound wall and gate. Therefore it is contended that, the property need to be included in the category of dry land having tar road access for the purpose of fixation of land value. It is contended that the mere description of the land in the revenue records as paddy field would not in any manner disqualify the claimants from getting land value equivalent to dry land as fixed by this court.

¶202

Learned Counsel for the appellant had placed reliance on various decision of this court to contend that, reclamation made with respect to the land much before enactment of the Kerala Conservation of Paddy Land And Wet Land Act, 2008, cannot in any manner be considered as illegal or violative of the provisions contained in the said Act. It is also contended that the land in question can be utilised for any purposes other than for cultivation of food

¶203

L.A.A.Nos.94 of 2014 and connected cases

¶204

¶205

crops mentioned in the Kerala Land Utilisation Order, by procuring necessary permissions as contemplated under the said Kerala Land Utilisation order. Therefore, it is contended that, with respect to utility of the land the reclaimed land is remaining in par with the dry land in all the respects. He had placed reliance on a Division Bench decision of this Court in Local Level Monitoring Committee and Others Vs. Mariumma and another [2015 (2) KLT 516] . Referring to the decision of the Hon'ble Supreme Court in Revenue Divisional Officer Vs. Jalaja Dileep [2015 (2) KHC 109] , it is contended that there is still scope for correction in the Basic Tax Register, if the nature of land is converted either under provisions of the Kerala Conservation of Paddy Land And Wet Land Act, 2008 or under the KLU order. The finding of this court was that, if an order is passed by the authority under the KLU Order or under the Kerala Conservation of Paddy Land and Wet Land Act, changing description of the land, that cannot lead to a situation where section 18 of the Kerala Land Tax

¶206

L.A.A.Nos.94 of 2014 and connected cases

¶207

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Act is attracted. On the other hand, such a change of the description of the land would render the assessment already made under Section 6A of the Kerala Land Tax Act redundant. Then it will call for a fresh assessment in accordance with the said Act. It is found that, as a consequence of such change in the assessment it would be open to the authority to make appropriate additions in the Basic Tax Register. It is found that such a course is not forbidden by the principles laid down by the apex court in Jalaja Dileep's case (supra).

¶209

It is true that the owner of the land will be at liberty to obtain requisite statutory permissions for utilisation of the land in question for other purposes, despite inclusion of the land in the Basic Tax Register as wetland. If the owner could get all such statutory permissions, it may also be possible for him to get necessary changes in the Basic Tax Register. In other words, ultimately the owner of the land may succeed in getting category of land changed as dry land in the Basic

¶210

¶211

L.A.A.Nos.94 of 2014 and connected cases

¶212

Tax Register maintained in the Village records. But such a possibility is not the criteria to be taken into consideration for fixing quality of the land remaining at the time of the acquisition. It is not in dispute that on the date of acquisition, the property remained as reclaimed land, but included in the category of the wet land in the Basic Tax Register. It may be possible for the land owner to have the same utilisation of the land, for other purposes after obtaining requisite permissions or after getting the category change in the Basic Tax Register. But as on the date of Section 4(1) notification, definitely there exist a dissimilarity in the quality, because the land in question, even though remained as reclaimed was included in the category of wet land. Therefore, this Court is of the opinion that the land value fixed with respect to pucca dry land cannot be awarded for the reclaimed lands, even though it need to be treated at a high pedestal than wet land remaining without any reclamation.

¶213

In the judgment of this Court in LAA No.73/2014

¶214

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L.A.A.Nos.94 of 2014 and connected cases

¶216

and connected cases, the basic categories are fixed taking into consideration of the above aspects. The land value for reclaimed land was fixed slightly below the value of the dry land, but much above the value of the wetland. As held by the reference court in this case, the acquired property need to be included as reclaimed land having access to tar road. Therefore, we are of the opinion that the land acquired in this case need to be included in category No.II(a) fixed in the judgment of this Court in LAA 73/2014 and connected cases. Thus we hold that the cross objectors/claimants will be entitled to get land value re-fixed at Rs.6,05,782/- per Are based on the judgment in LAA No.73/2014 and connected cases.

¶217

LAA No.94/2014 and Cross Objections 34/2016 and 25/2018 in LAA No.94/2014

¶218

The LAO had categorized the acquired property in this case as 'Nilam' having direct access from tar road (Category

¶219

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L.A.A.Nos.94 of 2014 and connected cases

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No.13). The reference court found that, from the Mahazar prepared by the LAO as well as from his testimony before the Court when examined as RW1 would reveal that, there are plantations of coconut trees and other improvements. Further it was held that the acquired property need to be considered as “high level wet land with tar road access” and hence included in Category No.4. In this case also, it is to be accepted that the property in question was remaining as reclaimed land with Coconut plantations and other improvements. Therefore, it cannot be disputed that the property need to be included in Category No.II (a), 'reclaimed land having access to tar road' as described in the Judgment in LAA No.73/2014 and connected cases. The land value of the acquired property is liable to be refixed at Rs.6,05,782/- per Are. The Cross Objections are liable to be allowed to the above extent.

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8. LAA Nos.150/2014 and Cross Objection No.33/2016 and

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LAA Nos.240/2014 and Cross Objection No.37/2016

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The LAO included the acquired properties in these cases in Category No.11 which are “wet lands having access to mud road”. The Reference Court, on consideration of the evidence on record, found that the properties are liable to be included in Category No.5 which is “high level wet land having direct access to mud road”. In this regard reliance was placed on the report of the Advocate Commissioner who was examined as AW3 that, there existed Coconut cultivation within the acquired land and the properties remained as reclaimed land. The said finding is remaining not challenged, even though State had filed appeals challenging fixation of land value. Therefore, it is to be held that the acquired properties in these cases need to be included in Category No.II(b). But learned Counsel for the Cross Objectors/claimants had raised a contention that the acquired properties in these cases are actually having

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frontage to tar road and not to mud/gravel road. Evidently, such a contention was seen raised before the reference court. But the reference court observed that such a finding cannot be arrived merely relying on Ext.C1 report and the oral evidence of the witnesses examined on the side of the claimant. The reference court observed that in Ext.C1 report there is no clear reference regarding the direct access to a tar road. On the other hand, it has been evasively stated that the acquired properties in all the four cases are adjacent properties and are lying on the side of the Brahmapuram-Kakkanad road. The reference court found that the descriptions in the 'Notes to Award' is to the effect that, the properties in these two cases are abutting to a gravel road. But the claimants contended that the adjacent road is not a gravel road, but it is tarred one. The reference court found that the claimants have not adduced any satisfactory evidence to show clearly and specifically that the adjacent road is a tarred one. Therefore, the request for inclusion of the property is one having frontage

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to tar road was not accepted.

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We are persuaded to evaluate the evidence available on record to arrive at a just and proper conclusion with respect to the factual position, which is in dispute. In Ext.C1 Commission report it is mentioned that the properties covered under LAR Nos.53/2011, 54/2011, 55/2011 and 56/2011 are adjacent properties and lies on the side of the Brahmapuram-Kakkanad road, more specifically it lies between Padathikkara Junction and Memberpadi Junction. The Advocate Commissioner when examined as AW3 deposed that the acquired properties are having road frontage and it is situated in the road level. The road is having Bus route and the properties are situated in between Memberpadi Junction and Padathikkara Junction. He further reiterated that all the properties are having road frontage to the above said road. The claimants have examined independent witnesses as AW4, AW5 and AW7. AW4 had deposed that the acquired property in LAR No.54/2011 is situated in front of Brahmapuram Kakkanad

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tar road. He further deposed that the acquired property in LAR No.53/2011,55/2011 and 56/2011 are also having frontage to the above said road. AW5 had given evidence to the effect that the properties of the claimants in all these cases are facing public tar road and is abutting to Padathikkara Junction. Testimony of AW7 is that, the acquired property in all the four cases are situated adjacent to Padathikkara Junction and are situated at the same level facing the public road. From the evidence disclosed as above, it cannot be said that the claimant in these cases are not successful in proving that the acquired properties are having frontage to tar road. Of course, the evidence of RW1, the LAO is to the effect that, in Ext.R1(a) Mahazar the description of the property in LAR Nos. 53/2011 and 56/2011 are as having boundaries of public road. But to a specific question put to him regarding the nature of the road, he answered that it is gravel road, it is a road leading from the public road between Padathikkara Junction and Memberpadi junction. But it is to be noted that the LAO had

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not prepared any specific Mahazar describing the boundaries of each of the properties. Neither in the 'Notes to Award, there is no categoric mentioned regarding the nature of the road which is abutting the properties. Under the above mentioned circumstances, we are of the considered opinion that the evidence adduced from the side of the acquisitioning authority by way of Ext.R1(a) or the oral testimony of RW1 will not in any manner outway the evidence adduced by the claimants through Ext.C1 report and through the oral testimony of Aws3, 4, 5 and 7. Hence we are inclined to hold that the properties involved in these two cases are properties situated as reclaimed land having access to tar road. Hence the properties in question need to be included in Category II(a) as decided in LAA No.73/2014 and connected cases. The Cross Objectors and claimants in these cases are entitled for a refixation of the land value at Rs.6,05,782/- per Are.

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In the result, the above 4 appeals and 5 Cross Objections are hereby disposed of as follows;

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All the appeals filed by the State are hereby dismissed.

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The Cross Objections are allowed to the extent of refixation of land value with respect to the acquired properties at the rate of Rs.6,05,782/- per Are. The claimants will be entitled for all the statutory benefits under Section 23 (1A), 23(2) and 28 of the Land Acquisition Act, along with proportionate cost.

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With respect to Cross Objection No.25/2018 in LAA No.94/2014 the claimant will not be entitled for interest with respect to the period of 795 days, for which delay in filing the Cross Objection was condoned by this Court.

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It is made clear that, if in any of the above Cross Objections the claim made by the Cross Objectors/claimants is below the amount of enhanced compensation awarded through this judgment, they are permitted to make payment of deficit court fee in view of the decision of the Honorable Supreme Court in Chandrashekhar and others vs. Additional Special land Acquisition Officer [2009 (14)

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SCC 441], within 15 days, failing which the award will be

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limited to the amount claimed in the respective cases.

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Sd/

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C.K.ABDUL REHIM JUDGE

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