Kerala High Court
The State Of Kerala vs V.J.Mathew on 4 April, 2024
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
"C.R."
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
THURSDAY, THE 4TH DAY OF APRIL 2024 / 15TH CHAITHRA, 1946
LA.APP. NO. 107 OF 2019
AGAINST THE JUDGMENT DATED IN LAR NO.15 OF 2017 OF II
ADDITIONAL DISTRICT COURT,ERNAKULAM
APPELLANT/S:
THE STATE OF KERALA,
REPRESENTED BY SPECIAL TAHSILDAR (LA) NO.1, KOCHI
METRO RAIL PROJECT, CIVIL STATION, KAKKANAD,
ERNAKULAM
BY ADVS.
SHRI K.P.JAYACHANDRAN, ADDL.ADVOCATE GENERAL
SHRI.JAFARKHAN Y., (SR.GOVERNMENT PLEADER)
RESPONDENT/S:
1 V.J.MATHEW
S/O. VARKEY JOSEPH, VALLANATTUR,PACHALAM, KOCHI -
682 012
2 THE MANAGING DIRECTOR
KOCHI METRO RAIL LTD., REVENUE TOWER, ERNAKULAM
BY ADVS.
SRI.C.P.WILSON
MANU VYASAN PETER
SMT.ROSE MICHAEL
(Sr.)P.B.KRISHNAN(K/1193/1994)
LAA Nos. 46/2019, 107/2019 & 49/2023
& CO 58/2023 in LAA 49/2023
-:2:-
P.B.SUBRAMANYAN(K/1145/2009)
SABU GEORGE(K/000711/1998)
K.JAYAKUMAR (SR.)(J-97)
THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON
27/3/2024, ALONG WITH LA.App..49/2023, 46/2019 AND CONNECTED
CASES, THE COURT ON 4/4/2024 DELIVERED THE FOLLOWING:
LAA Nos. 46/2019, 107/2019 & 49/2023
& CO 58/2023 in LAA 49/2023
-:3:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
THURSDAY, THE 4TH DAY OF APRIL 2024 / 15TH CHAITHRA, 1946
LA.APP. NO. 49 OF 2023
AGAINST THE JUDGMENT DATED 30.09.2021 IN LAR NO.36 OF 2017 OF
II ADDITIONAL DISTRICT COURT,ERNAKULAM
APPELLANT/S:
1 STATE OF KERALA
REPRESENTED BY DISTRICT COLLECTOR, ERNAKULAM, PIN -
682030
2 THE SPECIAL TAHSILDAR
REPRESENTED BY THE SPECIAL TAHSILDAR , LA NO.III
VYTTILA, PIN - 682019
BY SHRI K.P.JAYACHANDRAN, ADDL.ADVOCATE GENERAL
SHRI.JAFARKHAN Y., (SR.GOVERNMENT PLEADER)
RESPONDENT/S:
1 JABEENA ABRAHAM D/O C.V. PAUL
CHENNAKKAT,STADIUM LINK ROAD,IMAA HALL,SKYLINE
IMPERIAL GARDER , FLAT BARRON 14-B, ERNAKULAM, PIN -
682026
LAA Nos. 46/2019, 107/2019 & 49/2023
& CO 58/2023 in LAA 49/2023
-:4:-
2 ANJANA ABRAHAM , D/O JABEENA ABRAHAM
CHENNAKKAT,STADIUM LINK ROAD,IMAA HALL,SKYLINE
IMPERIAL GARDER , FLAT BARRON 14-B, ERNAKULAM, PIN -
682025
3 THE PROJECT DIRECTOR
ERNAKULAM, PIN - 682016
4 THE MANAGING DIRECTOR
ERNAKULAM, PIN - 682017
BY ADVS.
Rose Michael Michael
Subramanyan P B
P.B.KRISHNAN(Sr.)(K/1193/1994)
SABU GEORGE(K/000711/1998)
MANU VYASAN PETER(K/000652/2013)
C.P.WILSON(K/000170/1988)
MICHAEL PAUL CHITTINAPPILLY(K/001266/2022)
THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON
27/3/2024, ALONG WITH LA.App..107/2019 AND CONNECTED CASES,
THE COURT ON 4/4/2024 DELIVERED THE FOLLOWING:
LAA Nos. 46/2019, 107/2019 & 49/2023
& CO 58/2023 in LAA 49/2023
-:5:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
THURSDAY, THE 4TH DAY OF APRIL 2024 / 15TH CHAITHRA, 1946
LA.APP. NO. 46 OF 2019
AGAINST THE JUDGMENT DATED 14.01.2019 IN LAR NO.15 OF 2017 OF
II ADDITIONAL DISTRICT COURT,ERNAKULAM
APPELLANT/S:
V.J.MATHEW,
AGED 42 YEARS
S/O. VARKEY JOSEPH, VELLANNATTU HOUSE, PACHALAM,
KOCHI-682 012, REPRESENTED BY HIS P.A.HOLDER SONY
MATHEW, S/O. V.J.MATHEW
BY ADVS.
C.P.WILSON
SMT.ROSE MICHAEL
K.JAYAKUMAR (SR.)(J-97)
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY SPECIAL TAHSILDAR (L.A.),NO.1,KOCHI
LAA Nos. 46/2019, 107/2019 & 49/2023
& CO 58/2023 in LAA 49/2023
-:6:-
METRO RAIL PROJECT, CIVIL STATION KAKKANAD,
ERNAKULAM-682 018
2 MANAGING DIRECTOR,
KOCHI METRO RAIL LTD, REVENUE TOWER, ERNAKULAM-682
031
BY ADVS.
MANU VYASAN PETER
P.B.KRISHNAN (Sr.)(K/1193/1994)
P.B.SUBRAMANYAN(K/1145/2009)
SABU GEORGE(K/000711/1998)
SHRI K.P.JAYACHANDRAN, ADDL.ADVOCATE GENERAL
SHRI.JAFARKHAN Y., (SR.GOVERNMENT PLEADER)
SHRI.T.K.SHAJAHAN, (SR.GOVERNMENT PLEADER)
THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON
27/3/2024, ALONG WITH LA.App..107/2019 AND CONNECTED CASES,
THE COURT ON 4/4/2024 DELIVERED THE FOLLOWING:
LAA Nos. 46/2019, 107/2019 & 49/2023
& CO 58/2023 in LAA 49/2023
-:7:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
THURSDAY, THE 4TH DAY OF APRIL 2024 / 15TH CHAITHRA, 1946
CO NO. 58 OF 2023
AGAINST THE JUDGMENT DATED IN LA.App. NO.49 OF 2023 OF HIGH
COURT OF KERALA
CROSS OBJECTOR/S:
1 ]ABEENA ABRAHAM.
AGED 64 YEARS
D/O C.V. PAUL, CHENNAKKATTU, STADIUM LINK ROAD IMA
HALL SKYLINE IMPERIAL GARDEN, FLAT BARRON 14 B,
ERNAKULAM., PIN - 682017
2 ANJANA ABRAHAM
AGED 40 YEARS
D/O ]ABEENA ABRAHAM , CHENNAKKATTU, STADIUM LINK
ROAD IMA HALL SKYLINE IMPERIAL GARDEN, FLAT BARRON
14 8, ERNAKULAM,, PIN - 682017
BY ADVS.
ROSE MICHAEL
C.P.WILSON
MICHAEL PAUL CHITTINAPPILLY
LAA Nos. 46/2019, 107/2019 & 49/2023
& CO 58/2023 in LAA 49/2023
-:8:-
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY THE DISTRICT COLLECTOR, ERNAKULAM
CIVIL STATION KAKKANAD, KOCHI., PIN - 682030
2 THE SPECIAL TAHSIDAR
(LA) NO.III VYTTILA KOCHI., PIN - 682019
3 THE PROJECT DIRECTOR.
KOCHI METRO RAIL LIMITED ERNAKULAM., PIN - 682017
4 MANAGING DIRECTOR.
KOCHI METRO RAIL LIMITED ERNAKULAM., PIN - 682017
BY
ADVS.
MANU VYASAN PETER
P.B.KRISHNAN (Sr.)(K/1193/1994)
P.B.SUBRAMANYAN(K/1145/2009)
SABU GEORGE(K/000711/1998)
SHRI.JAFARKHAN Y., (SR.GOVERNMENT PLEADER)
SHRI.T.K.SHAJAHAN, (SR.GOVERNMENT PLEADER)
THIS CROSS OBJECTION HAVING BEEN FINALLY HEARD ON 27/3/2024,
ALONG WITH LA.App..107/2019 AND CONNECTED CASES, THE COURT ON
4/4/2024 DELIVERED THE FOLLOWING:
LAA Nos. 46/2019, 107/2019 & 49/2023
& CO 58/2023 in LAA 49/2023
-:9:-
A.MUHAMED MUSTAQUE & M.A.ABDUL HAKHIM, JJ.
------------------------------------------------
LAA.Nos.46/2019, 107/2019 & 49/2023 "C.R."
&
Cross Objection No.58/2023 in L.A.A. No.49/2023
------------------------------------------------
Dated this the 4th day of April, 2024
J U D G M E N T
A.Muhamed Mustaque, J.
These appeals are filed under Section 74 of the Right to
Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 [for short, the "Act
30 of 2013"]. The common question involved in all these cases is
how the value has to be determined under Section 26 of the Act
30 of 2013.
L.A.A. Nos.46/2019 and 107/2019:
2. These appeals are filed by the claimant and the State
respectively. On a reference under Section 64 of the Act 30 of
LAA Nos. 46/2019, 107/2019 & 49/2023
2013, the reference authority the Additional District Judge,
Ernakulam, enhanced the market value. The claimant V.J.Mathew
was the owner of 2.06 Ares of land in Ernakulam Village in the
heart of Ernakulam town. This was acquired pursuant to the
notification issued under Section 4(1) of the Land Acquisition
Act, 1894 dated 25/12/2012 for the purpose of Seematti Corridor
of the Metro Rail Project. The Land Acquisition Officer passed
an award under Section 24(1) of the Act 30 of 2013 on 5/4/2017
awarding Rs.52,12,721/- per Are and also awarded compensation of
Rs.21,52,784/- for the structural value. The land value was
enhanced by the reference court to a sum of Rs.3,82,66,253/-.
The reference court also awarded a 12% additional market value
under Section 30(3) of the Act 30 of 2013 in respect of value of
structures. The reference court placed reliance on the Ext.A1
document executed on 15/11/2007 and gave a cumulative increase
of 12% each per year of the land value shown in Ext.A1. The land
value in Ext.A1 is Rs.1,16,09,907/. Challenging the award as
above, the State has preferred the appeal. The claimant also
preferred the appeal as not satisfied with the award. The
claimant claimed further enhancement based on Ext.A3 to Ext.A5
LAA Nos. 46/2019, 107/2019 & 49/2023
judgments. Exhibit A2 is the certified copy of the sale deed
dated 19/1/2011. Exhibits A3 and A4 are the judgments in the
land acquisition matter under Land Acquisition Act, 1894. The
reference court did not rely on Exhibits A2 to A5 as the
Commissioner had not referred to the potentiality of the land.
L.A.A. No.49/2023 and Cross Objection No.58/2023:
3. In this appeal also the land belonging to the claimant
having an extent of 0.73 Ares with a building was acquired for
the purpose of widening Banerji Road in connection with Kochi
Metro Rail Project. Section 4(1) notification under the Land
Acquisition Act, 1894 was issued on 15/6/2011. Land value was
awarded at Rs.65,10,725/-per Are, and Rs.2,16,58,858/- towards
the value of the building. The reference court gave a further
enhancement of the land value at Rs.62,29,922/-. The reference
court also allowed 12% market value under Section 30(3) to the
building. While fixing the land value, the reference court relied
on Ext.A1 a sale deed executed on 15/11/2007 and also Ext.A2
dated 20/1/2011. Ext.A2 was not relied by the Land Acquisition
Officer stating that the value in Ext.A2 is fancy price. The
claimant also filed cross objection as the reference court did
LAA Nos. 46/2019, 107/2019 & 49/2023
not rely on Exts.A3 and A4 judgments in reference under the Land
Acquisition Act, 1894.
4. The submissions of the learned Government Pleader as
well as the Senior Counsel Shri P.B.Krishnan who appeared for
the requisition authority - Metro are as follows:
According to the learned Senior Counsel, the reference authority
can only decide whether the determination of the amount of
compensation by the Collector is by following the procedure and
parameters under Section 26 to 30 of Chapter V of the Act 30 of
2013. The learned Counsel further submits that the manner in
which determination of compensation is regulated is in accordance
with the parameters under Section 26, and therefore no sale deed
beyond three years can be considered by the authority for
determination of the compensation. According to the learned
Counsel, the authority cannot award a cumulative rate of increase
of 12% based on the market value of land in prior deeds at the
relevant time to calculate market value of the land acquired as
on the date of notification. It is further argued that when the
Collector had assigned reasons for the exclusion of a deed, the
reference authority cannot review that decision in a reference
LAA Nos. 46/2019, 107/2019 & 49/2023
under Section 64 of the Act 30 of 2013. It is also argued that
no additional market value on structure can be awarded under
Section 30(3) of the Act 30 of 2013 as the structure is not
included within the meaning of land.
5. The learned counsel for the claimant submits that there
is no bar under the law in relying on a deed beyond three years
if it is advantageous to the claimant. The restriction on
considering deeds for a period up to three years, as contemplated
under explanation 1 of Section 26 is to protect the interest of
the claimant; therefore, any deed showing a higher value beyond
three years can be accepted and relied upon. The learned counsel
also submits that there is also no embargo under law on placing
reliance on the awards and judgments of the higher courts based
on the Land Acquisition Act, 1894.
6. We find the following points arise for consideration:
i. Whether the authority in a reference under Section 64 of
Act 30 of 2013 is competent to re-determine the amount of
compensation?
LAA Nos. 46/2019, 107/2019 & 49/2023
ii. How to determine average sale price for determining the
market value of the land under Section 26 of the Act 30 of 2013.
iii. In determination of the average sale price, can any sale
deed preceding three years from the year in which the acquisition
of land is made be relied upon or not?
iv. Whether any award or judgment based on Land Acquisition
Act 1894 can be relied on for determination of market value under
the Act 30 of 2013?
v. What is the scope of discounting indicative value in
a deed for the purpose of calculating market value?
vi. Is the claimant entitled for additional market value on
structure under Section 30(3) of the Act 30 of 2013?
Point No.i :
7. The reference authority has to consider whether the
Collector has followed the parameters under Sections 26 to 30
of the Act 30 of 2013 while determining the amount. It is
apposite to refer the judgment of the High Court of Bombay in
Pune Municipal Corporation v. Mr.Rajeev L.Sangtani and Ors.
LAA Nos. 46/2019, 107/2019 & 49/2023
[(2019) 0 Supreme (Bom) 1171] wherein at paras.52 and 53 it was
held as follows:
52. A conjoint reading of the provisions contained in
sections 51, 64 and 69 of the Act, 2013 leads to an inescapable
inference that the Authority constituted under section 51 is invested
with the jurisdiction to decide the dispute relating to compensation,
determine whether the Collector has followed the parameters set out
in sections 26 to 30 and thereafter determine the compensation by
adding thereto the amount calculated @ 12 % per annum under section
69(2) and solatium of 100% over the total compensation amount.
Undoubtedly, the Authority is also constituted to deal with the
disputes relating to rehabilitation and resettlement, as well. In
fact, if the provisions of section 18 of the Old Act are compared and
contrasted with the provisions of section 64 of the Act, 2013 which
envisage reference to the Authority, the only additional feature for
which the reference can be made to the Authority, is objection with
regard to the right of rehabilitation and resettlement under Chapters
V and VI of the Act, 2013. This additional investiture of power of
disposition of disputes, however, does not dilute the primary
character of the Authority as the authority for adjudication of the
disputes as to compensation, and determination of the compensation,
on a reference.
We are in agreement with the opinion expressed by the High Court
of Bombay.
8. It is appropriate to refer Sections 64 and 69 of the
Act 30 of 2013 which read thus:
LAA Nos. 46/2019, 107/2019 & 49/2023
64. Reference to Authority.-(1) Any person interested who has
not accepted the award may, by written application to the
Collector, require that the matter be referred by the Collector
for the determination of the Authority, as the case may be,
whether his objection be to the measurement of the land, the
amount of the compensation, the person to whom it is payable,
the rights of Rehabilitation and Resettlement under Chapters V
and VI or the apportionment of the compensation among the persons
interested: Provided that the Collector shall, within a period
of thirty days from the date of receipt of application, make a
reference to the appropriate Authority:
Provided further that where the Collector fails to make such
reference within the period so specified, the applicant may apply
to the Authority, as the case may be, requesting it to direct
the Collector to make the reference to it within a period of
thirty days.
.................
69. Determination of award by Authority.-(1) 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.
(2) In addition to the market value of the land, as above
provided, the Authority shall in every case award an amount
calculated at the rate of twelve per cent. per annum on such
market value for the period commencing on and from the date of
the publication of the preliminary notification under section 11
in respect of such land to the date of the award of the Collector
LAA Nos. 46/2019, 107/2019 & 49/2023
or the date of taking possession of the land, whichever is
earlier.
Explanation.--In computing the period referred to in this
sub-section, any period or periods during which the proceedings
for the acquisition of the land were held up on account of any
stay or injunction by the order of any Court shall be excluded.
(3) In addition to the market value of the land as above
provided, the Authority shall in every case award a solatium of
one hundred per cent. over the total compensation amount."
9. Section 69 postulates that in order to determine the
compensation, the authority has to conduct an enquiry as to
whether the Collector has followed the procedure set out in
Section 26 to 30.
10. Under Section 64, a right is conferred on any person
interested who has not accepted the award, to make an application
requesting the Collector to make a reference for determination
of the authority, which includes his objection as to the amount
of compensation.
11. Section 73 also states that when the authority
concerned allows any amount of compensation in excess of the
amount awarded by the Collector under Section 23 of the Act 30
LAA Nos. 46/2019, 107/2019 & 49/2023
of 2013, all persons interested in other land covered by the
same notification would be entitled for re-determination of the
compensation based on the award of the authority. This provision
is similar to Section 28A of the Land Acquisition Act, 1894.
Thus, it is clear from Section 64, 69 and 73 of Act 30 of 2013
that the authority is vested with the power to re-determine the
compensation.
Point No.ii:
12. The method and formula determining compensation had
undergone a substantial change from the Land Acquisition Act,
1894 to the Act 30 of 2013. The Collector had wide power to
determine the market value under both the Land Acquisition Act,
1894 and Section 23 of the aforesaid Act. Claimants would also
be entitled for 30% solatium on the market value under the Land
Acquisition Act, 1894. However, under Section 26 of the Act 30
of 2013, a scientific method of calculating market value was
brought in.
13. It is appropriate to refer Section 26 of the Act 30 of
2013 which reads thus:-
LAA Nos. 46/2019, 107/2019 & 49/2023
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
LAA Nos. 46/2019, 107/2019 & 49/2023
provisions of this Act on an earlier 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.
(2) The market value calculated as per sub-section (1) shall be
multiplied by a factor to be specified in the First Schedule.
(3) Where the market value under sub-section (1) or sub-section (2)
cannot be determined for the reason that-
(a) the land is situated in such area where the transactions in land
are restricted by or under any other law for the time being in force
in that area; or
(b) the registered sale deeds or agreements to sell as mentioned in
clause, (a) of sub-section (1) for similar land are not available for
the immediately preceding three years; or
(c) the market value has not been specified under the Indian Stamp Act,
1899 (2 of 1899) by the appropriate authority,
the State Government concerned shall specify the floor price or minimum
price per unit area of the said land based on the Price calculated in
the manner specified in sub-section (1) in respect of similar types of
land situated in the immediate adjoining areas:
LAA Nos. 46/2019, 107/2019 & 49/2023
Provided that in a case where the Requiring Body offers its shares to
the owners of the lands (whose lands have been acquired) as a part
compensation, for acquisition of land, such shares in no case shall
exceed twenty-five percent, of the value so calculated under sub-section
(1) or sub-section (2) or sub-section (3) as the case may be:
Provided further that the Requiring Body shall in no case compel any
owner of the land (whose land has been acquired) to take its shares,
the value of which is deductible in the value of the land calculated
under sub-section (1):
Provided also that the Collector shall, before initiation of any land
acquisition proceedings in any area, take all necessary steps to revise
and update the market value of the land on the basis of the prevalent
market rate in that area:
Provided also that the appropriate Government shall ensure that the
market value determined for acquisition of any land or property of an
educational institution established and administered by a religious or
linguistic minority shall be such as would not restrict or abrogate the
right to establish and administer educational institutions of their
choice.
14. It is open for the Collector to rely on any of the
modes for determination of market value, prescribed under Section
26(1)(a) to (c) of the Act 30 of 2013. However, he has to opt
for a higher mode if all modes of criteria exist. Explanation
(1) to (4) of this Section further regulates the mode of
determination under Section 26(1)(b). Explanation (1) states
that the average sale price shall be determined by taking into
LAA Nos. 46/2019, 107/2019 & 49/2023
account the sale deeds or all other instruments referred therein
immediately preceding three years of the year in which such
acquisition of land is proposed to be made. Therefore, all sale
deeds will have to be taken into account to arrive at an average
sale price. If more than one sale deed is available within three
years, the Collector cannot opt for one of such sale deeds for
determination of sale price. Same is the case with the
authority. However, it is open for the Collector and the
Authority to exclude any of the sale deeds on the opinion that
it is not indicative of actual prevailing market value for any
reasons to be recorded in the light of explanation 4.
Point No.iii:
15. Explanation 1 to Section 26(1) of Act 30 of 2013 states
as follows:
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.
16. This provision is advantageous for claimants. If the
Collector is allowed to rely upon any sale deeds beyond three
LAA Nos. 46/2019, 107/2019 & 49/2023
years, in normal course it may adversely affect the claimant as
the presumption is that the market value escalates every year.
See the Judgment of the Apex Court in G.M., Oil & Natural Gas
Corporation Ltd. v. Rameshbhai Jivanbhai Patel & Anr. [(2008) 14
SCC 745]. Therefore, this being a beneficial provision, it has
to be construed as a provision not to restrict any advantage if
available to the claimant based on a deed prior to three years,
but not to adversely affect a claimant by placing reliance on a
deed beyond three years. If the provision is understood as above,
there is no harm in placing reliance on a deed beyond three years
if it is beneficial to the claimant. We make it clear that if it
is not beneficial to the claimant, it cannot be relied upon. The
Legislature, in fact, intended to adopt any criteria which is
higher and beneficial to the claimant. Therefore, there is no
embargo under the law in placing reliance on a deed beyond three
years provided it is beneficial to the claimant.
Point No.iv.:
17. The determination of the compensation under the Act
1894 is totally based on different parameters and criteria.
Therefore, the judgment under the Land Acquisition Act, 1894 for
LAA Nos. 46/2019, 107/2019 & 49/2023
determining compensation cannot be relied upon for determining
compensation under Section 26 of Act 30 of 2013. Section 26
provides different criteria for determining market value of land.
The criteria for determining market value are different in both
the enactments, thus, no reliance can be placed on the judgment,
or the award passed under the Land Acquisition Act, 1894.
Point No.v:
18. Explanation 4 to Section 26(1), grants the Collector
the authority to exclude any sale deed if he is of the opinion
that it is not indicative of actual prevailing market value. The
fancy price normally does not reflect the market value. The
market value is determined by the factors of various market
forces. It is primarily determined by the interplay of demand
and supply between willing buyers and willing sellers. If there
is a huge difference in market value among the sale deeds which
is comparable from others, the Collector will have to find out
whether it is indicative of the actual prevailing value or not.
Privy Council in Narayana Gajapathiraju v. Revenue Divisional
Officer, Vizagapatam (1939-2 Mad LJ 45 at p. 52: (AIR 1939 PC 98
at p. 102) defined market value as follows:
LAA Nos. 46/2019, 107/2019 & 49/2023
".. what a willing vendor might reasonably expect to obtain
from a willing purchaser, for the land in that particular position and
with those particular potentialities.."
19. Therefore, the compensation must be determined with
reference to the price which the willing seller might reasonably
expect to obtain from a willing purchaser. If there are multiple
sale deeds, some indicating a standard average price, and other
deeds showing substantial differences, opinion can be arrived at
by the Collector to exclude such deeds showing substantial
difference from consideration on the question of average sale
price. In light of the principles of average sale price, if
numerous deeds are present, it is an easy job for the Collector
to exclude such deeds if there is substantial difference with
average sale price in all other deeds. The Collector must
provide reasons for exclusion of such deeds and will have to
reckon the value of the land shown in all other comparable deeds
to discount such deeds from consideration. This is merely an
enabling power to be exercised cautiously and carefully.
LAA Nos. 46/2019, 107/2019 & 49/2023
Point No.vi:
20. Section 3(p) of the Act 30 of 2013 defines land as
follows:
(p) "land" includes benefits to arise out of land, and things
attached to the earth or permanently fastened to anything attached to
the earth.
21. Section 30(3) of the Act 30 of 2013 states as follows:
30. Award of solatium.
(3) In addition to the market value of the land provided under section
26, the Collector shall, in every case, award an amount calculated at
the rate of twelve per cent. per annum on such market value for the
period commencing on and from the date of the publication of the
notification of the Social Impact Assessment study under sub-section
(2) of section 4, in respect of such land, till the date of the award
of the Collector or the date of taking possession of the land,
whichever is earlier.
22. The reference court relied upon the judgment in
Chaturbhuj. Panda & Ors vs The Collector, Raigarh [AIR 1969 SC
255] to hold that additional market value is also allowable for
things attached to the earth. If the Legislature had intention
to exclude definition of land in the context of Section 30(3),
that ought to have been mentioned there. Thus, we hold that the
LAA Nos. 46/2019, 107/2019 & 49/2023
additional market value of the land referred in Section 30(3)
covers the structure as well.
The disputes in these appeals:
L.A.A.Nos. 46/2019 and 107/2019:
23. These appeals are based on the reference of V.J.Mathew.
The reference court relied on Exhibit.A1 sale deed executed on
15/11/2007. The reference court also awarded a cumulative
increase of 12% per year on the land value shown in the above
deed. In the light of the discussions in the matter, the
authority could not have granted a cumulative increase of 12% on
the value shown in Ext.A1 sale deed. Ext.A1 can be taken into
consideration if it is beneficial to the claimant. However, it
shall be taken into account along with the other sale deed relied
on by the Collector. This was not done in the matter. However,
we affirm 12% additional market value granted to the claimant
for the structure. Therefore, the matter requires
reconsideration as to the determination of the market value of
the land alone in the light of our discussions in the foregoing
paragraphs.
LAA Nos. 46/2019, 107/2019 & 49/2023
LAA 49/2023 and Cross Objection 58/23:
24. The claimant relied on Ext.A2 sale deed dated
20.01.2011. The authority relied on Ext.A1 sale deed of the year
2007. Taking note of the price of land in Exts.A1 and A2, the
authority arrived at an average sale price. This according to us
is an erroneous approach. If at all Ext.A1 can be relied upon,
all the sale deeds including those relied by the District
Collector will have to be reckoned along with Ext.A2 to determine
the average sale price. The authority cannot selectively choose
one or two sale deeds to arrive at an average sale price. The
law mandates that all sale deeds referred to in explanation 1
will have to be taken into account to determine the average sale
price immediately preceding three years from the year in which
land acquisition was made. As we observed earlier, sale deeds
prior to three years also can be taken into account provided it
is beneficial to the claimant. Thus, all such deeds will have
to be taken into account to arrive at an average sale price.
Therefore, we hold that the matter requires reconsideration for
determining the market value of the land. However, we affirm
LAA Nos. 46/2019, 107/2019 & 49/2023
12% additional market value allowed to the structure. Thus, in
the result, we dispose of the appeals as follows:
25. We order a remand of the appeals for fresh
consideration in determining the market value of the land in the
light of the discussions in points i to vi. We make it clear
that any of the sale deeds relied on can also be excluded if it
is not indicative of the true value in the light of explanation
4, while redetermining the market value. We affirm 12%
additional market value granted to the claimant for the
structure. In claimant's appeals and cross objection, they are
entitled for refund of the court fee.
Sd/-
Sd/-
A.MUHAMED MUSTAQUE, JUDGE
Sd/-Sd/-
M.A.ABDUL HAKHIM, JUDGE
ms
