Kerala High Court
John vs State Of Kerala on 12 April, 2024
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
LA.APP. NO. 576 OF 2022
AGAINST THE ORDER/JUDGMENT DATED IN LAR NO.144 OF 2018 OF II ADDITIONAL
DISTRICT COURT,ERNAKULAM
APPELLANT:
JOHN,
S/O OUSEPH, KOLENCHERIYIL HOUSE, THANKALAM KARA,
THRIKKARIYOOR VILLAGE, KOTHAMANGALAM-686691.
BY ADVS.
C.P.WILSON
ROSE MICHAEL
MICHAEL PAUL CHITTINAPPILLY
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY DISTRICT COLLECTOR, ERNAKULAM. 682 630 .
2 SPECIAL TAHSILDAR (LA) GENERAL,
CIVIL STATION, KAKKAND -682030.
3 THE EXECUTIVE ENGINEER
PWD ROADS DIVISION, MUVATTUPUZHA, ERNAKULAM.
THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY
HEARD ON 26.03.2024, THE COURT ON 12.04.2024 DELIVERED
THE FOLLOWING:
LAA No. 576/2022
2
"CR"
A.MUHAMED MUSTAQUE & M.A ABDUL HAKHIM, JJ
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LAA No.576/2022
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Dated this the 12th day of April 2024
JUDGMENT
M.A Abdul Hakhim, J
1. The Claimant in L.A.R No.144/2018 on the files of the Court of the Land Acquisition Rehabilitation and Resettlement Authority Ernakulam (the Reference Authority) is before us claiming enhancement of compensation in this Appeal filed under 74 of the Right To Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement act 2013 (the LARR Act 2013).
2. An extent of 6.98 Are comprised in Sy. No.376/8-5 of the Thrikkariyoor village in Kothamangalam Taluk out of 7.69 Ares belonged to the Appellant as per Ext.A2 document dated 06.07.2005 was acquired for the construction of Kakkanad- Kothamangalam road First Phase. The Notification for acquisition was issued under Section 4(1) of the Land Acquisition 1894 on 13.09.2013. Since the LARR Act 2013 came into force in the meantime the Land Acquisition Officer passed Award No. 5/2018 dated 3.5.2018 which is marked as Ext.R1 under the provisions of the LARR Act 2013.
LAA No. 576/20223
3. The Land Acquisition Officer awarded a total compensation of Rs.53,72,114/- to the appellant which included all the benefits under the LARR Act 2013 fixing the land value at Rs.3,00,000/- per Are. The possession of the acquired land was taken by the Land Acquisition Officer on 30.05.2018.
4. Though the Land Acquisition Officer considered documents marked as Ext. R17 series, he relied on Fair Value Notification dt 01.04.2010 marked as Ext.R11 to fix the land value since he found that the land value calculated as per the R17 series of documents is lesser than the fair value shown in Ext.R11 Notification.
5. Since the appellant was aggrieved by the inadequacy of compensation, he preferred Ext.R9 Request for referring the matter to the Reference Authority, and accordingly, the Land Acquisition Officer referred the matter to the authority under S. 64 of Act.
6. To substantiate the claim for enhancement of compensation before the Reference Authority, the appellant examined himself as AW1 and examined the Trustee of the Church who was the purchaser in Ext.A1 document as AW2 and marked Ext.A1 and A2 documents. Ext.A1 is the certified copy of the Sale deed No.1246/1/13 of Kothamangalam SRO dated 07.03.2013 and Ext.A2 is the title deed of the appellant dated 06.07.2005. On the side of the respondents, the Revenue Inspector was examined as RW1, and the Advocate Commissioner who prepared Exts.C1 and C1(a) was examined as RW2 and marked the award documents and document relied in the LAA No. 576/2022 4 award as Ext.R1 to R17(c). The Commission Report dt 10.02.2020 is marked as Ext.C1 and the Rough Sketch dt. 10.02.2020 attached with Ext.C1 is marked as Ext. C1(a).
7. The Reference Authority took the date relevant for fixing land value at 01/04/2014 relying on an unreported judgment of the Hon'ble Supreme Court in Hori Lal V. State of Uttar Pradesh and Others Civil Appeal No.1462 of 2019 wherein the Hon'ble Supreme Court confirmed the judgment of the High Court holding that the compensation payable would be determined on the basis of market value as it was prevalent on 01.01.2014 placing reliance on the order of the Central Government issued under Section 113 of the LARR Act, since the Notification was issued under the old LA Act and Award was passed under the new LARR Act. The Respondents have not challenged the said finding of the Reference Authority.
8. The Reference Authority passed judgment fixing compensation @ Rs.4,35,000/- per are relying on Ext.R11 Fair Value Notification giving reasonable increase @12% per annum for the time gap between Ext.R11 Notification and S.4(1) Notification. The Reference Authority relied on the decisions of the Hon'ble Supreme Court in Mehrawal Khewaji Trust, Faridkot and others v. State of Punjab 2012(5) SCC 432, Ranjith Singh v. Union Territory of Chandigarh (1992)3 SCC 659, Delhi Development Authority V. Baliram Sharma and Others 2004(6) SCC 533, LAA No. 576/2022 5 ONGC Limited V. Ramesh Bai Jeevan Bai Patel 2008(14) SCC 745 and Union of India V. Haripat Singh and Others 2009(14) SCC 375 gave increase @12% per annum for the period from Ext.R11 Notification to S.4(1) Notification. The claim of the appellant for injurious affection to the remaining extent of 71 Square Meters was dismissed by the Reference Authority.
9. Challenging the judgment passed by the Reference Authority and claiming enhancement of compensation the claimant has filed this appeal.
10. We heard the Counsel for the appellant and the Government Pleader for the respondents.
11. The Learned Counsel for the appellant argued that the Reference Authority ought to have fixed compensation relying on the Ext.A1 document and to have awarded compensation @ 100% of the Land value for the remaining land of 71 Square Meters injuriously affected by the acquisition. On the other hand, the Learned Government Pleader argued that the Reference Authority rightly fixed the compensation relying on Ext.R11 Notification giving reasonable increase since there was no legal evidence on the part of the appellant to prove the land value and that the Reference Authority rightly rejected the claim for injurious affection since the appellant did not discharge his burden to prove injurious affection.
LAA No. 576/20226
12. The documents relevant for consideration of this appeal are Ext.A1 sale Deed, Ext.R11 which is the Attested copy of the Fair value of Land downloaded from the Website of the Registration Department of the State, Exts.R17(a), (b) & (c) which are the certified copies of the Sale Deeds relied on by the Land Acquisition Officer and Exts.C1 and C1(a).
13. Going by the records of the Reference Authority, the evidence on the part of the appellant to prove the land value consists of only Exts.A1, C1 &C1(a) and the oral evidence of AW 1 and AW2. The Reference Authority rejected Ext.A1 Sale deed finding that Ext.A1 document is not a comparable document to fix the land value for the acquired land. We find from the evidence that the property involved in the Ext.A1 Sale Deed was purchased by Kothamangalam Marthoma Cheriyapalli since the same is a neighboring property of the Church property. That apart, the Ext.A1 property is situated nearly 1.7 km away from the acquired land as revealed from Ext. C(1). Though the Counsel for the appellant submits that Ext.A1 property lies 300 meters away from Aluva - Munnar road and 150 meters away from Marthoma Cheriyapalli, we find from the evidence that Ext.A1 property is situated inside the town surrounded by several business establishments, whereas the acquired property is situated in a residential area away from the town. Ext.C1 and C1 (a) do not help assess the potentiality of the acquired land as on the date of S. 4 (1) Notification dt 13.09.2013 as the Advocate Commissioner who prepared Exts.C1 and C1(a) visited the acquired LAA No. 576/2022 7 property and Ext.A1 property only on 04.02.2020. By the time the Bypass road for which the land was acquired came into existence the entire area was developed. On account of these material points, we find that the Reference Authority is fully justified in rejecting the Ext.A1 document for fixing the land value of the acquired land.
14. We are of the view that the Land Acquisition Officer is fully justified in relying on Ext.R11 Fair Value Notification, under S.26(1)(a) of the LARR Act 2013 when he found that the market value assessed under S.26(1)(b) of the LARR Act 2013 based on R7 series of documents is lesser than the fair value.
15. The methodology for determining the land value under the old LA Act 1894 and under the new LARR Act 2013 is different as discernible from S.23 of the old LAA Act 1894 in comparison with S.26 of the new LARR Act, 2013. Section 23 under the old LA Act mandates the Court and the Collector (as made applicable under S.15), to consider the market value at the date of the publication of S.4(1) Notification without providing any criteria for finding out the market value. Section 26 of the new LARR Act, 2013 mandates the Collector to follow the criteria mentioned therein in assessing and determining the market value as on the date of issuance of S.11 Notification.
16. S.15 of the old LA Act makes Sections 23 and 24 applicable to the Collector. Thus both the Land Acquisition officer and the Reference Court are guided by the LAA No. 576/2022 8 same principles. There is no such provision in the new LARR Act 2013. The criteria for assessing and determining the land value provided in S.26 of the New Act applies to the Collector alone. It does not apply to the Reference Authority.
17. S.26(1) of the new LAAR Act reads as follows.
26. Determination of market value of land by collector (1) The Collector shall adopt the following criteria in assessing and determining the market value of the land, namely:--
(a) the market value, if any, specified in the Indian Stamp Act, 1899 (2 of 1899) for the registration of sale deeds or agreements to sell, as the case may be, in the area, where the land is situated; or
(b) the average sale price for similar type of land situated in the nearest village or nearest vicinity area; or
(c) consented amount of compensation as agreed upon under sub-section (2) of Section 2 in case of acquisition of lands for private companies or for public private partnership projects, whichever is higher:
Provided that the date for determination of market value shall be the date on which the notification has been issued under Section 11.
Explanation 1.-- The average sale price referred to in clause (b) shall be determined taking into account the sale deeds or the agreements to sell registered for similar type of area in the near village or near vicinity area during immediately preceding three years of the year in which such acquisition of land is proposed to be made.
Explanation 2.-- For determining the average sale price referred to in Explanation 1, one-half of the, total number of sale deeds or the agreements to sell in which the highest sale price has been mentioned shall be taken into account.
Explanation 3.-- While determining the market value under this section and the average sale price referred to in Explanation 1 or Explanation 2, any price paid as compensation for land acquired under the provisions of this Act on an earlier LAA No. 576/2022 9 occasion in the district shall not be taken into consideration.
Explanation 4.-- While determining the market value under this section and the average sale price referred to in Explanation 1 or Explanation 2, any price paid, which in the opinion of the Collector is not indicative of actual prevailing market value may be discounted for the purposes of calculating market value.
18. Under the Old LARR Act, the most common method adopted to determine the market value was the Sales Exemplar method. In the new LARR Act also, Sales Exemplar method is provided in section 26 (1) (b). But the criteria for applying the Sales Exemplar method is provided in Explanations 1,2 & 4 to the said Sub Section.
As per Explanation 1, average sale price referred in clause (b) is to be determined by taking into account comparable registered sale deeds or the agreements to sell within a period of 3 years immediately preceding the acquisition. As per Explanation 2, for determining average sale price referred in Explanation 1, one half of the total number of such documents in which highest sale price is mentioned shall be taken to account. As per Explanation 4, any price paid, which in the opinion of the collector is not indicative of actual prevailing market value may be discounted for the purpose of calculating market value under Section 26 and average sale price in Explanations 1 and 2. Thus criteria for determining the market value is absent in the old LA Act but criteria for determination of market value is specifically included in Section 26 of LARR Act.
19. The Hon'ble Supreme Court, while considering cases under the old LA Act, has LAA No. 576/2022 10 held in the decisions Mehrawal Khewaji Trust, Faridkot and others v. State of Punjab 2012(5) SCC 432 and Himmat Singh and Ors v State of M.P, 2013(16) SCC 392 that when there are several exemplars, the highest of the exemplars has to be considered and accepted if it is a bonafide transaction. This course is impermissible under the new LARR Act. In Mehrawal Khewaji Trust, the Hon'ble Supreme Court held that it is not desirable to take an average of various sale deeds placed before the Authority/Court for fixing fair compensation. But in the new LARR Act what permitted to the Collector is to take average of the comparable sale deeds alone under S.26(1)(b).
20. Under the New LARR Act, the power of the Reference Authority is restricted by S.69 (1) which provides that in determining the amount of compensation to be awarded for land acquired including the rehabilitation and resettlement entitlements, the Authority shall take into consideration whether the Collector has followed the parameters set out under Section 26 to Section 30 and the provisions under Chapter V of this Act. Thus, with respect to determination of market value, the Reference Authority can only consider whether the Collector has followed the criteria for determining the land value in S.26 (1). There is no such restriction in the power of the Reference Court in S.18 of the old LA Act when the matter is referred for the determination of the Court as to the amount of compensation. The only requirement under S.19(1) is that the Collector shall state the grounds on which the amount of LAA No. 576/2022 11 compensation was determined if the objection is to the amount of compensation. Under the old LA Act, it was permissible for the Land Acquisition officer and the Court to dteremine the land value relying on a single document, if it is found that the transaction is genuine and it reveals the correct market value in the area. Under S.26(1) of the new LARR Act, land value cannot be detemined relying on one single document. The Claimant can pray the Court to rework the compensation if an irrelevant document is included by the Collector, by excluding such document from the documents relied on by the Collector for determining the land value. Likewise, the Claimant can pray the Court to rework the compensation if a relevant document is excluded by the Collector, by including such document with documents relied on by the Collector for determining the land value.
21. In view of the aforesaid proposition of law, the prayer of the appellant to fix land value relying on the Ext.A1 document alone is not sustainable under the new LARR Act.
22. Apart from Ext.A1 and C1 and C1(a), there is no evidence on the side of the appellant to prove the land value of the acquired land. The time gap between the Ext.R11 Fair Value Notification dated 01.04.2010 and the date of Acquisition - 01.01.2014 is three years and nine months. The Reference Authority found that the appellant is entitled to get a 12% increase per year for the time gap between R11 Fair LAA No. 576/2022 12 Value Notification and S.4(1) Acquisition Notification. We are of the view that this was the only option available to the Reference Authority to fix the land value for the acquired land as on the date of the Acquisition . The Reference Authority fixed land value at the rate of Rs.4,35,000/- per Are { Rs.3,00,000 + [Rs.3,00,000 x 45% ( 12% per annum for 3 years 9 months)] } and accordingly awarded additional compensation of Rs.30,36,300/-. We are of the view that the compensation awarded by the Reference Authority is correctly determined and we affirm the same.
23. The Counsel for the appellant claimed compensation for injurious affection for the balance land of 71 Sq. meters covered by Ext. A 2 Title Deed on the ground that the said 71 Sq. meters was divided into two plots on both sides of the acquired property and therefore he cannot enjoy the property for any purpose and that the said two parts had become shapeless and thereby useless. The Reference Authority considered the claim for injurious affection for the appellant as Point No.2 and rejected the same stating that there is no reliable evidence to substantiate the same apart from the self-interested oral testimony of AW1. The Reference Authority was of the view that the burden has to be discharged by the appellant and only if the initial burden on that behalf is discharged the burden would shift to justify the compensation offered by the Land Acquisition Officer. The Reference authority relied on the decision of the Hon'ble Supreme Court in Gafar v. Moradabad Development Authority [2007(7) SCC 614] and entered a finding that the appellant did not LAA No. 576/2022 13 discharge the initial burden to substantiate the claim.
24. We are of the view that the approach made by the Reference Authority is erroneous on this point. Admittedly, the balance land is only 71 Sq. meters and that also is divided into two plots though the extent of those two plots is not revealed in evidence. It is highly probable that the said extent of 71 Sq. meters, when divided into two, would reduce its utility materially. During the hearing the Learned Government Pleader provided the Group Sketch prepared by the Special Tahsildar, Land Acquisition (General) Ernakulam showing the lie of the acquired land and other property. The said Group Sketch shows that the remaining extent of 71 sq. meters is divided into two plots in irregular shapes. The Reference Court entered a finding that an extent of 44 cents of the family property of the appellant is situated around the acquired property therefore the remaining 71 Sq. meters can be conveniently used by the appellant. We find that there is no legal evidence to prove that the family property of the appellant is situated around the acquired property at the time of acquisition. According to us the burden to prove that there is family property surrounding the remaining acquired property is on the respondents which they didn't discharge. We are of the view that the appellant is entitled to get compensation for injurious affection to the remaining extent of 71 Sq. meters on account of the material reduction of the utility of the said land. We are of the view that the appellant is entitled to get 50% of the land value for the remaining extent of land amounting to LAA No. 576/2022 14 Rs.1,54,425/- [435000 x 0.71)x 50%].
25. Accordingly we allow this Appeal in part awarding an additional compensation of Rs.1,54,425/- with all statutory benefits and interest available to the appellant under the LARR Act. The parties are directed to suffer their costs.
Sd/-
A.MUHAMED MUSTAQUE, Judge Sd/-
M.A ABDUL HAKHIM, Judge jma