Kerala High Court
Vellan vs Special Tahsildar (La) on 29 January, 2025
LA.APP.NO.25 OF 2014 1
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE SYAM KUMAR V.M.
WEDNESDAY, THE 29TH DAY OF JANUARY 2025 / 9TH MAGHA, 1946
LA.APP.NO.25 OF 2014
ARISING OUT OF THE JUDGMENT AND DECREE DATED
20.12.2012 IN LAR NO.158 OF 2007 OF SUBORDINATE JUDGES
COURT, SULTHANBATHERY
APPELLANT/CLAIMANT:
VELLAN
S/O.KELU, AGED 78 YEARS
PUTHENMITTOM HOUSE, 16TH MILE,
PADINJARATHARA, PUTHUSSERYKADAVU P.O.,
VYTHIRI TALUK, WAYANAD DISTRICT, PIN: 673 575.
BY ADV. SRI.PHILIP MATHEW
RESPONDENTS/RESPONDENTS:
1 SPECIAL TAHSILDAR (LAND ACQUISITION),
KARAPUZHA BANASURASAGAR IRRIGATION PROJECT,
KALPETTA - 673 122.
2 STATE OF KERALA
REPRESENTED BY THE DISTRICT COLLECTOR, WAYANAD,
KALPETTA, WYANAD DISTRICT - 673 122.
BY ADV.SMT.REKHA C.NAIR, SR.GOVERNMENT PLEADER
THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY
HEARD ON 29.01.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
LA.APP.NO.25 OF 2014 2
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JUDGMENT
Dated this the 29th day of January, 2025
This Land Acquisition Appeal is filed challenging the
judgment dated 20.12.2012 in LAR No.158 of 2007 of the
Subordinate Judges Court, Sulthan Battery. Appellant is the
claimant in the LAR. Respondents are the respondents therein.
(Parties are referred to hereinafter as per their status in the LAR)
2. An extent of 0.1810 hectares (44.72 cents) of dry land
comprised in Sy No. 25/10 of Padinjarethara Village was acquired
from the claimant for the purpose of Padinjarethara Branch Canal
Project coming under the Banasurasagar Project. Section 4 (1)
notification under the Land Acquisition Act, 1894 (hereinafter
referred to as "the Act of 1894"), was published on 07.08.2003 and
the land was taken possession of on 16.03.2005. An Award was
rendered by the Land Acquisition Officer on 23.01.2007 fixing a total
compensation of Rs.61,191/-. Aggrieved by the compensation and
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seeking enhancement, the claimant preferred an LAR No.158 of
2007. He claimed a compensation of Rs.1,24,031/- for coffee plants,
Rs.2,40,975/- for pepper vines and a land value of Rs.48,150/- for
0.0130 hectares (3.21 cents) of land @ Rs.15,000/- per cent. The
evidence tendered in the LAR comprised of the deposition of the
claimant as AW1 and Exts.A1 and A2. Though no oral or
documentary evidence was produced by the respondents in the
LAR, the reference file was marked as R1 series. The reference
court vide the impugned judgment enhanced the compensation to
Rs.25,189/- for the entire extent of the land. The land value for 3.21
cents was fixed at Rs.5,000/- per cent and for rest of the land
capitalisation/multiplier method was adopted. For the 105 coffee
plants an enhancement of Rs.9,568/- was granted and an amount of
Rs.5,244/- was granted as an enhancement for 63 pepper vines.
Thus a total enhancement of Rs.14,812/- was granted in respect of
the coffee and pepper adopting the capitalisation/multiplier method
taking 12 as the multiplier. Aggrieved by the said judgment in the
LAR, this LAA is filed.
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3. Heard Sri.Vinay Mathew, Advocate for the claimant
(appellant) and Smt.Rekha C.Nair, learned Senior Government
Pleader for the respondents.
4. The learned counsel appearing for the claimant submitted
that the judgment of the reference court is unsustainable on more
than one count. The learned counsel submits that the court erred in
appreciating Ext.A1 document, which had been produced by the
claimant to substantiate his claim for enhancement. Ext.A1 sale
deed was dated 29.03.2003 and revealed a very reliable sale
transaction wherein the Kerala State Electricity Board (KSEB) had
purchased an extent of 20 cents of land in the very same village
situated just 1 km away from the land acquired from the claimant for
an amount of Rs.9,155/- per cent. The 4 (1) notification date for the
acquisition of land of the claimant was 07.08.2003 which is
subsequent to the sale in Ext.A1. Rather than concluding that there
would have been an increase in the value of the land, the Sub
Court, concluded that the claimant was not able to prove that the
acquired land and the land in Ext.A1 are situated adjacent and
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comparable. It was concluded that there is no similarity in extent
since the land covered in Ext.A1 had an extent of 20 cents and the
acquired land had a larger extent of 40 cents. The learned counsel
submits that the Sub Court erred in arriving at these conclusions and
contended that the documents relied on by the LAO itself would
reveal that the claimant's land had road frontage and was situated in
a more prominent area closer to an angadi (market), thus entitling
an increase in land value as claimed. He places reliance on the
dictum laid down in Mohammad Raofuddin v. Land Acquisition
Officer [(2009) 14 SCC 367], wherein it was held by the Apex Court
that the judgments and awards passed in respect of the acquisition
of lands, made in the same village and/or neighbouring villages can
be accepted as valid piece of evidence and they provide a sound
basis to determine the market value of the land after suitable
adjustments with regard to positive and negative factors enumerated
in Sections 23 and 24 of the Act of 1894 and with some amount of
guesswork. He further contends that the Sub Court erred in mixing
both the land value method and capitalisation method while fixing
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the compensation amount in the LAR. The Sub Court had adopted
the land value method and granted an enhanced compensation of
Rs.10,377/- for 3.21 cents (0.0130 hectares) of land acquired and
as regards the remaining larger extent of 41.51 cents (0.1680
hectares) of land acquired, the Sub Court had followed the
capitalisation (multiplier) method based on the value of bearing
coffee plants, pepper vines and the standing trees. The learned
counsel submits that this clubbing of two methods by the Sub Court
is unsustainable. He places reliance on the dictum laid down by the
Supreme Court in Koyappathodi M. Ayisha Umma v. State of
Kerala (AIR 1991 SC 2027) wherein it had been held that it would
be open to the LAO or the court either to assess the lands with all its
advantages as potential value and fix the market value thereof or
where there is reliable and acceptable evidence available on record
of the annual income of the fruit bearing trees the annual net income
multiplied by the appropriate capitalisation of 15 years as it would be
a fair method to determine market value, but not both. Placing
reliance on the dictum laid down by the Supreme Court in Himmat
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Singh and others v. State of Madhya Pradesh and another
[(2013) 16 SCC 392], the learned counsel submits that though
capitalization of net income method is indeed accepted as one
among the different methods when it concerns the same parcel of
land, the same ought not to be used simultaneously along with other
methods especially when it leads to a substantial detriment to the
claimant as in the case at hand where a larger extent of land of
41.51 cents (0.1680 hectares) was assessed under the
capitalisation method and small portion of 3.21 cents (0.0130
hectares) of the very same land was assessed under land value
method leading to a paltry land value. The learned counsel further
contends that even while proceeding under the capitalisation
method, the Sub Court had based itself on the purported 'detailed
valuation statement' prepared unilaterally, which was part of the
reference file and was marked as R1 series and erred on the said
count too.
5. Per contra, the learned Senior Government pleader
submitted that the claimant having conceded to an assessment and
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valuation process which assesses a part of the land on capitalisation
method and the rest of the land on comparable land value method
cannot now turn around and contend that the said process is
unsustainable. Even in the LAR the claim put forth was only that
enhancement must be given taking note of the yield of the coffee
plants and pepper vines based on the annual income derived from
them. The enhancement in land value sought was confined to 3.21
cents (0.0130 hectares) of land and not for the entire extent of 44.72
cents (0.1810 hectares) of land. After having acquiesced to such a
process, the claimant cannot now challenge the method followed by
the LAO and by the Sub Court in the LAR. The learned Senior
Government Pleader further sought to buttress the said contention
by pointing out that if the said contention is accepted, the
compensation awarded would exceed the amount originally claimed
and the same cannot be permitted. It is submitted that the Sub Court
had accepted the contention of the claimant that the multiplier to be
adopted is 12 and had enhanced the compensation for yielding
plants. Hence there is no reason for the claimant to challenge the
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said finding. Further, relying on the dictum laid down in State of
Kerala v. Madhu Alias Madhavi Amma (1974 KLT 143), it is
contended that determination of the market value can be by
adopting one of the several accepted modes and there may be
cases where more than one of these methods may have to be
applied, because adoption of any one of these methods by itself
may not be appropriate. Hence the clubbing of the methods adopted
by the Sub Court is not per se illegal as contended by the claimant
in the appeal, submits the learned Senior Government Pleader. As
regards the reliance placed on Ext.A1 sale deed, it is contended by
the learned Senior Government Pleader that the property therein is
not comparable with the acquired land and hence the rejection of
the said document by the Sub Court was valid and tenable. It is
thus submitted that the judgment of the Sub Court does not merit
any interference and the LAA is fit to be dismissed.
6. After hearing both sides and perusal of the pleadings and
documents, it is noted that of a total extent of 44.72 cents (0.1810
hectares) of land had been acquired from the claimant pursuant to
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the notification issued on 07.08.2003. The LAO had computed the
compensation payable for the yielding crops, which mainly
comprised coffee plants (105 in number) and pepper vines (63 nos)
which stood on 41.51 cents of the land acquired. No land value was
assessed nor any compensation granted for the said extent of land
as the same had been compensated based on the yield of crops
following the capitalisation (multiplier) method. The yield as derived
from the crops had been assessed based on the "Detailed valuation
statement" prepared by the concerned officers and the claims put
forth by the claimant were not accepted, terming the same to be
unsubstantiated. The Sub Court had accepted 12 as the multiplier
as contended by the claimant and re-computed the compensation
based on the capitalisation/multiplier method. As regards the
remaining 3.21 cents (0.0130 hectares) of land of the total 44.72
cents (0.1810 hectares), the method adopted was the comparable
land value method and arrived at Rs.5,000/- per cent as the land
value thus enhancing the compensation for the said extent of 3.21
cents to Rs.16,050/- and granted an enhanced compensation of
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Rs.10,377/-. The correctness of this course adopted and the
inherent incongruity of declining compensation for the larger extent
of 41.51 cents of the acquired land is highlighted by the counsel for
the claimant.
7. After hearing both sides and on consideration of the
records, it is noted that the primary issue centres around the
quantum of compensation granted and the disparity in the amounts
awarded for the same parcel of land based on two different modes
or methods of determination of the market value. I find merit in the
contention put forth by the claimant that in the peculiar
circumstances of the case at hand, mixing together the capitalisation
method and comparable land value method of assessment with
respect to the same parcel of land has subjected the claimant to
substantial prejudice and loss. Further, the compensation payable
for the substantial extent of land 44.72 cents was assessed based
on the capitalisation (multiplier) method solely relying on the
"Detailed valuation statement" prepared by the state officers.
Though there may be cases where more than one of these methods
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could be applied, the nature of acquired land which is stated to be
situated close to a market (angadi) with road frontage does not
appear to be the land where a fusion of the modes of market value
assessment could be adopted. As laid down by the Hon'ble
Supreme Court in Koyappathodi M. Ayisha Umma's case (supra)
though it is open to the LAO or the court either to assess the lands
with all its advantages as potential value and fix the market value
thereof or by the capitalisation method to determine market value,
both those methods cannot be used simultaneously unless the
reason or factors leading to simultaneous employment of these
methods while assessing the market value of the same parcel of
land is adequately noted, examined and explained. No such
examination or explanation is forth coming in the case of the land
acquired from the claimant, either from the LAO or from the Sub
Court. It is apparent that the Sub Court had mechanically followed
the method adopted by the LAO and had not proceeded to examine
the validity or employability of both these methods simultaneously in
the matter of the claimant's land. Moreover, the LAO and the Sub
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Court proceeded to accept in toto the "Detailed valuation statement"
prepared and produced by the respondent. Even if the claimant had
failed to provide substantial evidence regarding the yields from the
crops from the acquired land, before proceeding to employ the
capitalisation method it was incumbent on the Sub Court to apply its
mind to the question of whether the duty of the Government to
provide fair compensation to the owners of the acquired property
has been satisfactorily met in the facts and circumstances of the
case. In New Okhla Industrial Development Authority v.
Harnand Singh (deceased) through LRs. and others (2024 SCC
OnLine SC 1691), the Hon'ble Supreme Court has opined that for
the purpose of evaluating compensation for the acquired land,
Section 23(1) of the Act of 1894, acts as a lighthouse. It would
hence be relevant to reproduce Section 23(1):
"23. Matters to be considered in determining
compensation. -- (1) In determining the amount of
compensation to be awarded for land acquired
under this Act, the Court shall take into
consideration--
first, the market-value of the land at the date of the
publication of the notification under Section 4,
subsection (1);
secondly, the damage sustained by the person
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interested, by reason of the taking of any standing
crops or trees which may be on the land at the
time of the Collector's taking possession thereof;
thirdly, the damage (if any) sustained by the
person interested, at the time of the Collector's
taking possession of the land, by reason of
severing such land from his other land;
fourthly, the damage (if any) sustained by the
person interested, at the time of the Collector's
taking possession of the land, by reason of the
acquisition injuriously affecting his other property,
movable or immovable, in any other manner, or his
earnings;
fifthly, if, in consequence of the acquisition of the
land by the Collector, the person interested is
compelled to change his residence or place of
business, the reasonable expenses (if any)
incidental to such change; and sixthly, the damage
(if any) bona fide resulting from diminution of the
profits of the land between the time of the
publication of the declaration under Section 6 and
the time of the Collector's taking possession of the
land."
8. In Harnand Singh's case (supra), the Hon'ble Supreme
Court has held that though the Act of 1894 does not provide a strict
definition of the term 'market-value' used therein, it essentially refers
to the price that the asset would likely fetch in an open market
transaction. The term 'market value' would simply be the price which
a willing buyer would give to a willing seller. In other words, that is
the price which a willing vendor might be expected to obtain in the
market from a willing purchaser. While thus engaged in an exercise
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to ascertain the 'market value', as understood above, the courts
ought to take note of all aspects that would ensure that fair
compensation is given to the owners of the acquired property has
been satisfactorily met. Taking recourse to the capitalisation/
multiplier method as well as comparison of land value method for
assessment of the market value of a total extent of 44.72 cents
(0.1810 hectares) and fixing the compensation for 41.51 cents
thereof basing solely on the multiplier method and for the rather
miniscule extent of 3.21 cents based on comparison of land value
method is, in the context of the land acquired from the claimant,
improper and irregular. There is merit in the contention of the
claimant that the court below ought to have adopted the land value
method for the entire extent of land acquired from the claimant. The
Sub Court has held that the exemplar produced by the claimant as
Ext.A1 sale deed dated 29.03.2003 is not comparable and hence
cannot be relied on. In Shaji Kuriakose and another v. Indian Oil
Corporation Ltd. and others [(2001) 7 SCC 650], it has been held
by the Hon'ble Supreme Court that for utilizing a sale deed as the
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foundation for determining compensation, it is imperative that the
sale must satisfy certain criteria of comparability. The factors to be
adhered to in this respect have been enumerated as follows:
i. the sale must be a genuine transaction;
ii. the sale deed must have been executed at the time
proximate to the date of notification issued under Section 4 of the
1894 Act;
iii. the land covered by the sale must be in the vicinity of the
acquired land; and
iv. the nature of such land, including its size, must be similar
to the acquired land.
9. The Supreme Court has in Bharath Sanchar Nigam
Limited v. Nemichand Damodardas and another [2022 (14) SCC
60]; Chimanlal Hargovinddas v. Special Land Acquisition
Officer, Poona and another [(1988) 3 SCC 751] and Himmat
Singh and others v. State of Madhya Pradesh and another
[(2013) 16 SCC 392] elaborated on the positive and negative factors
that are to be duly taken note of while assessing the market value
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based on exemplars produced.
10. Appreciated on the basis of the above mandates, the
exemplar produced as Ext.A1 is seen as related to a purchase made
by the KSEB, which buttresses the genuineness of the transaction.
The sale was affected prior to the notification of the acquisition of
the claimant's land, and the property is situated in the same village
within 1 km of the acquired land. The reliance placed by the claimant
on the dictum laid down in Mohammad Raofuddin (supra) cannot
be termed as out of place. As regards the nature of the land,
apparently, the land acquired from the claimant is better situated as
it has a road frontage and is also closer to a market (angadi).
Indeed, the extent of the land acquired from the claimant is 40 cents
whereas the land covered by Ext.A1 is only 20 cents. The variance
in extent though cannot be said to be substantial, the same ought to
be weighed in while making an assessment based on Ext. A1. In
view of the above, there is no reason to entirely discard Ext. A1 sale
deed produced by the claimant as an exemplar. It is hence found
fair and reasonable to resort to the settled principle of guesstimation
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taking note of the facts and circumstances that emerge on the basis
of the available evidence and pleadings. [See Trishala Jain and
another v. State of Uttaranchal and another (2011) 6 SCC 47)].
11. It has been contended by the learned Senior Government
Pleader that if the contention of the claimant is accepted, the
compensation awarded would exceed the amount originally claimed
and the same cannot be permitted. It is trite that there may be
situations where the amount higher than claimed, could be awarded
to the claimant and there is no blanket prohibition in the said
respect. (See. Bhag Singh and others v. Union Territory of
Chandigarh [(1992) 4 SCC 692], Krishi Utpadan Mandi Samiti v.
Kanhaiya Lal and others [(2000) 7 SCC 756]; Ashok Kumar and
another v. State of Haryana [(2016) 4 SCC 544].
12. The course of action adopted by the FAO and the Sub
Court, whereby a fusion of both capitalisation/ multiplier method as
well as comparison of land value method for assessment of the
market value of a total extent of 44.72 cents (0.1810 hectares) and
fixing the compensation for 41.51 cents thereof basing solely on the
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multiplier method and for the rest 3.21 cents assessment based on
comparison of land value method is improper and irregular. The land
value method has to be followed for the entire extent of land
acquired from the claimant. Though the claimant has sought
Rs.15,000/- per cent as the land value, the same has not been
reliably substantiated. However, Ext.A1 sale deed evidencing a
purchase by the KSEB is found reliable and meets the mandates as
laid down in Shaji Kuriakose's case (supra). Accordingly, the
amount of Rs.9,155/- per cent which is the consideration per cent
paid in Ext.A1 is fit to be adopted as the land value for the entire
extent of 44.72 cents (0.1810 hectares) of land acquired from the
claimant. The perceivable advantages that the acquired property
possesses due to its road access and its being located closer to the
market have been factored in with the difference in extent between
the two properties.
13. In the light of the above analysis, the claimant shall be
entitled to land value at the rate of Rs.9,155/ - per cent for 44.72
cents (0.1810 hectares) of land acquired from him situated in
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Sy.No.25/10 of Padinjarethara Village. The land value awarded in
LAR No.158 of 2007 vide judgment dated 20.12.2012 of the
Subordinate Judge's Court, Sulthan Battery is thus revised to
Rs.9,155/- per cent commensurate to the extent of land acquired.
The claimant will be entitled to all statutory benefits admissible in
law. No costs.
The LAA is allowed.
Sd/-
SYAM KUMAR V.M.
JUDGE
csl
