Kerala High Court
The Secretary vs State Of Kerala on 22 January, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:6000
LA.App. Nos.172/20, 135/21, CO 68/20
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 22ND DAY OF JANUARY 2025 / 2ND MAGHA, 1946
LA.APP. NO. 172 OF 2020
AGAINST THE JUDGMENT AND DECREE DATED 30.1.2020 IN
LAR NO.123 OF 2013 OF PRINCIPAL SUB COURT, KOLLAM
APPELLANT/ADDL.2ND RESPONDENT:
THE SECRETARY
KOTTAMKARA GRAMA PANCHAYATH, KOTTAMKARA, KOLLAM
- 691005.
BY ADV PRATHEESH.P
RESPONDENTS/1ST RESPONDENT & CLAIMANT:
1 STATE OF KERALA
REPRESENTED BY THE DISTRICT COLLECTOR, CIVIL
STATION, KOLLAM- 691013.
2 KAMALA BAI
D/O. KESEVAN, KESEVA BHAVAN, 103 UPASANA NAGAR,
NEAR SANKERS HOSPITAL, KOLLAM REPRESENTED BY
POWER OF ATTORNEY HOLDER PRASANNA KUMAR, KAVERI,
BABUJI NAGAR, PONGUMMOODU, THIRUVANANTHAPURAM
DISTRICT- 695006.
BY ADVS.
SRI.N.SUKUMARAN (SR.)
SRI.S.SHYAM
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LA.App. Nos.172/20, 135/21, CO 68/20
2
SRI.KIRAN PETER KURIAKOSE
SRI.VINAY KUMAR VARMA
SRI.T.K.SHAJAHAN, SR. GOVERNMENT PLEADER FOR R1
THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD
ON 22.01.2025, ALONG WITH LA.App..135/2021 AND CROSS
OBJECTION NO.68/2020 IN L.A.APPEAL NO.172 OF 2020, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:6000
LA.App. Nos.172/20, 135/21, CO 68/20
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 22ND DAY OF JANUARY 2025 / 2ND MAGHA, 1946
LA.APP. NO. 135 OF 2021
AGAINST THE JUDGMENT AND DECREE DATED 30.1.2020 IN
LAR NO.123 OF 2013 OF PRINCIPAL SUB COURT, KOLLAM
APPELLANT/1ST RESPONDENT:
THE STATE OF KERALA
REPRESENTED BY DISTRICT COLLECTOR, KOLLAM.
BY ADV.T.K.SHAJAHAN, SR.GOVERNMENT PLEADER
RESPONDENTS/CLAIMANT & ADDL. 2ND RESPONDENT:
1 KAMALA BHAI
D/O.KESAVAN, KESAVA BHAVAN, 103 UPASANA NAGAR,
NEAR SANKERS HOSPITAL, KOLLAM, REPRESENTED BY
POWER OF ATTORNEY HOLDER PRASANNA KUMAR, KAVERI,
BABUJI NAGAR, PONGUMMOODU, THIRUVANANTHAPURAM,
PIN - 695017.
2 THE SECRETARY, KOTTAMKARA GRAMA PANCHAYATH
KOTTAMKARA, KOLLAM, PIN - 691 005.
BY ADVS.
N.SUKUMARAN (SR.)FOR R1
S.SHYAM
V.K.BALACHANDRAN
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LA.App. Nos.172/20, 135/21, CO 68/20
4
SHRI.PRATHEESH P., SC, KOTTAMKARA GRAMA
PANCHAYAT
THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD
ON 22.01.2025, ALONG WITH LA.App..172/2020 AND CROSS
OBJECTION NO.68/2020 IN L.A.APPEAL NO.172 OF 2020, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:6000
LA.App. Nos.172/20, 135/21, CO 68/20
5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 22ND DAY OF JANUARY 2025 / 2ND MAGHA, 1946
CO NO. 68 OF 2020
IN
L.A.APP NO.172/2020
FILED AGAINST THE JUDGMENT AND DECREE DATED 30.1.2020
IN LAR NO.123 OF 2013 OF THE PRINCIPAL SUB COURT, KOLLAM
CROSS OBJECTOR/2ND RESPONDENT:
KAMALA BAI, D/O.KESAVAN
KESAVA BHAVAN, 103 UPASANA NAGAR, NEAR SANKERS
HOSPITAL, KOLLAM, REPRESENTED BY POWER OF
ATTORNEY HOLDER PRASANNA KUMAR, KAVERI, BABUJI
NAGAR, PONGUMMOODU, THIRUVANANTHAPURAM, PIN -
695006.
BY ADVS.
N.SUKUMARAN (SR.)
SRI.S.SHYAM
SRI.KIRAN PETER KURIAKOSE
SRI.VINAY KUMAR VARMA
RESPONDENTS/1ST RESPONDENT & APPELLANT:
1 THE STATE OF KERALA
REPRESENTED BY DISTRICT COLLECTOR, CIVIL
STATION, KOLLAM - 691 013.
2 THE SECRETARY, KOTTAMKARA GRAMA PANCHAYATH
KOTTAMKARA, KOLLAM, PIN - 691 005.
BY ADV.T.K.SHAJAHAN, SR.GOVERNMENT PLEADER
ADV.PRATHEESH.P, SC FOR R2
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LA.App. Nos.172/20, 135/21, CO 68/20
6
THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY
HEARD ON 22.01.2025, ALONG WITH LA.App..172/2020 AND CROSS
OBJECTION NO.68/2020 IN L.A.APPEAL NO.172 OF 2020, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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LA.App. Nos.172/20, 135/21, CO 68/20
7
JUDGMENT
[LA.App. Nos.172/2020 & 135/2021
and
Cross Objection 68/2020 in L.A.App.No.172/2020]
Easwaran S., J.
These appeals and the cross objection arise from the judgment
and decree passed by the Principal Sub Court, Kollam in LAR
No.123/2013.
2. The brief facts for the disposal of the cases are as follows:
An extent of 31.40 Ares of land in survey No.263/2010 of Kottamkara
Village of Kollam Taluk was acquired for establishment of a public
market. Section 4(1) notification was issued on 3.11.2010. The land
acquisition officer fixed the land value at Rs.1,01,083/- per Are and
an award was passed on 17.7.2013. Dissatisfied with the award, the
claimant sought reference under Section 18 of the erstwhile Land
Acquisition Act, 1894 before the Principal Sub Court, Kollam. The
claimant contended that the land acquired would fetch a market
value of Rs.3,00,000/- to Rs.5,00,000/- per cent. On behalf of the
claimant, Exts.A1 to A3 documents were produced and marked, and
AW1 to AW3 were examined. On the side of the respondents, RW1
was examined and Exts.R1 to R7 were marked. Advocate
commissioner for local inspection submitted two reports, which were
marked as Exts.C1 and C2.
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3. The reference court, on appreciation of evidence, refixed
the land value at Rs.2,88,750/- per cent and ordered compensation
along with statutory benefits. Aggrieved by the quantum so fixed,
the State as well as the requisitioning authority have come up before
this Court in these appeals seeking to set aside the judgment of the
reference court, whereas the claimant has filed a cross objection in
the appeal by the requisitioning authority (L.A.App.No.172/2020)
contending that the amount fixed by the reference court as the
market value is incorrect and is to be enhanced.
4. We have heard Sri.T.K.Shajahan, the learned Senior
Government Pleader on behalf of the State, Sri.Pratheesh P., the
learned counsel appearing for the requisitioning authority (the
appellant in L.A.App. No.172/2020) and Sri.N.Sukumaran, the
learned Senior Counsel, assisted by Sri.S.Shyam appearing for the
claimants/cross objector.
5. The prime contention on behalf of the State, as well as
the requisitioning authority, is that the reference court erred
egregiously in fixing the market value at Rs.2,88,750/- per cent. The
reference court failed to appreciate that Ext.A1 is a commercial
transaction, and commercial entities usually quote higher price for
the purchase of land. Deduction of 30% from Ext.A1 sale deed is not
sufficient. The reference court ought to have deducted more amount
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while fixing the land value even if it was of the opinion that the land
value fixed by the land acquisition officer was on the lower side.
6. On the other hand, the learned counsel appearing for the
requisitioning authority, Kottamkara Panchayat, contended that the
base document is more in proximity to the Highway as reported by
the advocate commissioner, whereas the relied on exemplar by the
claimant is situated interior and therefore, cannot be considered as
similar.
7. The learned Senior Counsel, Sri.N.Sukumaran,
appearing on behalf of the claimant, pointed out that the land
acquisition officer completely erred in relying on the basic document,
which is landlocked. With reference to Ext.A2, which is sale deed
No.2367/2009 dated 01.10.2009, the learned Senior Counsel pointed
out that all four boundaries of the aforesaid land are in possession of
respective owners and in order to enter into the said property, the
vendor has provided a three metre pathway. But for this pathway,
the land covered by the basic document would remain landlocked
and therefore, the land acquisition officer could not have considered
the said land for the purpose of fixing the land value.
8. We have considered the rival submissions raised across
the bar and are of the considered view that the order of the reference
court has to be interfered with for the reasons to follow:
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9. A reading of the report of the advocate commissioner
shows that the land acquired having an extent of 31.40 Ares is well
demarcated and covered by compound wall on four sides. It is also
reported by the advocate commissioner that substantial
developments were carried out by the claimant in the land sought to
be acquired. The commercial importance of the land acquired is also
specifically noticed by the advocate commissioner. He further
reported that towards the eastern side of the property, Nengayyath
Junction - Perur road and towards north, Karikkode-Temba road and
towards the western side, there is godown of the warehousing
corporation. Further, in the land sought to be acquired, there existed
12 concrete beams and a foundation for construction of a basement.
10. We must also note that the claimant was successful in
countering the defence set up by the requisitioning authority that
Ext.A1 document was purchased for a fanciful consideration. The
claimant examined the Secretary of Ideal Publication Trust as AW3
for the purpose of providing that the transaction entered between
the parties in Ext.A1 was genuine. On going through the evidence
of AW3, we are satisfied that nothing has been brought out to
discredit the evidence of AW3 and therefore, the reference court
rightly accepted Ext.A1 and proceeded to fix the market value.
11. However, the question before us is whether the reference
court was justified in deducting 30% of the value of Ext.A1 in order
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to arrive at the land value. It is pertinent to note that Ext.A2
document, i.e. sale deed No.2367/2009, could not have been
considered as an exemplar because of the peculiar nature of the land
qua the land acquired. The reference court completely erred in
looking into the commercial importance of the land acquired. It must
be borne in mind that the valuable constitutional right to hold
property under Article 300A was being infringed by the local
authority by using the State machinery for the acquisition of the land
in order to establish a public market. Therefore, the beneficiary is
certainly the local authority. However, before us, it is contended by
the local authority that its financial position is not encouraging so as
to satisfy any immediate increase in the land value. We are of the
view that the local authority should have thought about it before
venturing into acquisition of the land of the claimant.
12. Having found that the reference court completely
misdirected itself towards reworking the market value by not
considering the disadvantage of the basic document taken by the
land acquisition officer, the question before us is what should be the
extent of depreciation to be applied from Ext.A1 document. The
reference court following the decision of the Hon'ble Supreme Court
in Lalchand v. Union of India [AIR 2010 SC 170] held that even if the
acquired lands have situational advantages, the minimum deduction
from the market value of a small presidential plot to arrive at the
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LA.App. Nos.172/20, 135/21, CO 68/20
market value of a larger agricultural land will be in the range of 20%
to 25%. However, we cannot agree with the aforesaid finding,
especially when it is shown that the land sought to be acquired is not
an agricultural land and, on the contrary, it is far more commercially
important than that of the basic document. Still further, it must be
noted that the notification under Section 4(1) was issued on
3.11.2010, whereas Ext.A1 was executed on 24.3.2010. Normally,
we would have taken the value reflected under Ext.A1 itself for the
purpose of arriving at the market value, but we note that the land
acquired is having an extent of 31.40 Ares of land which comes to
77.558 cents (1 Are =2.47 cents), whereas the value reflected in
Ext.A1 is for an extent of 9.31 Ares, which comes of 22.9957 cents.
Therefore, we are of the considered view that the right approach
towards determining the market value of the land acquired would be
to apply 10% depreciation from the value shown in Ext.A1.
13. In Ext.A1, 9.31 Ares of land is seen purchased for
Rs.88,55,000/-, which would come to Rs.9,51,128/- per Are
(Rs.3,85,072/- per cent) and applying 10% depreciation, the value
would come to Rs.3,46,565/- per cent (Rs.8,56,015/- per Are). Thus,
we fix the value of the land acquired at Rs.3,46,565/- per cent
(Rs.8,56,015/- per Are).
14. As an upshot of the above discussions, the appeals
preferred by the requisitioning authority as well as the State are
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liable to be dismissed. However, costs made easy. The cross
objection preferred by the claimant is thus allowed. The judgment
and decree of the reference court dated 30.1.2020 in LAR
No.123/2013 is modified and the value for the land acquired is fixed
at Rs.3,46,565/- per cent. The claimant is also entitled to all
statutory benefits and interest from the date of the notification as
well as proportionate costs in the appeals.
15. We, however, note that the claimant has limited her claim
to Rs.40,00,000/-and paid court fee accordingly. Taking note of the
submissions of the learned Senior Counsel, Sri.N.Sukumaran, that if
this Court is inclined to enhance the land value, his client may be
granted sufficient time to pay the deficit court fee, we grant one
month time to the claimant to make good for the deficit of the court
fee. Registry shall issue the decree only after the claimant remitting
the balance court fee.
Ordered accordingly.
Sd/-
DR.A.K. JAYASANKARAN NAMBIAR,
JUDGE
Sd/-
EASWARAN S.,
JUDGE
jg
