Kerala High Court
Thomas Joseph vs The State Of Kerala on 10 April, 2025
LA.APP.NO.363/2016 & conn. 1
2025:KER:32699
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
THURSDAY, THE 10TH DAY OF APRIL 2025 / 20TH CHAITHRA, 1947
LA.APP. NO. 363 OF 2016
ARISING OUT OF THE JUDGMENT AND DECREE DATED
31.10.2012 IN LAR NO.156/2003 OF SUBORDINATE JUDGE'S COURT,
CHERTHALA
APPELLANTS/CLAIMANT IN LAR NO.156/2003
1 THOMAS JOSEPH
AGED 72 YEARS
S/O.THOMAS PANIKKASSERIL HOUSE, CHENNAM,
PALLIPPURAM MURI, PALLIPPURAM VILLAGE,
CHERTHALA TALUK
(DIED AND LEGAL HEIRS IMPLEADED)
ADDL. APPELLANT NO.2
2 MARY ALIAS KUNJAMMA,
AGED 72 YEARS
W/O. LATE THOMAS JOSEPH, PANICKASSERIL HOUSE,
PALLIPPURAM VILLAGE,CHERTHALA TALUK.
ADDL.APPELLANT NO.3
3 DAISY,
AGED 48 YEARS
D/O. LATE THOMAS JOSEPH,PANICKASSERIL HOUSE,
PALLIPPURAM VILLAGE,CHERTHALA TALUK.
ADDL.APPELLANT NO.4
4 ANSAMMA P.J.
AGED 44 YEARS
D/O. LATE THOMAS JOSEPH,PANICKASSERIL HOUSE,
PALLIPPURAM VILLAGE,CHERTHALA TALUK.
ADDL.APPELLANT NO.5
5 BENSAMMA JOSEPH ALIAS SR.BENCY,
AGED 42 YEARS
D/O. LATE THOMAS JOSEPH,PANICKASSERIL HOUSE,
PALLIPPURAM VILLAGE,CHERTHALA TALUK.
LA.APP.NO.363/2016 & conn. 2
2025:KER:32699
ADDL.APPELLANT NO.6
6 JOMON JSEPH,
AGED 40 YEARS
S/O. LATE THOMAS JOSEPH, PANICKASSERIL HOUSE,
PALLIPPURAM VILLAGE,CHERTHALA TALUK.
ADDL.APPELLANT NO.7
7 SOJI JOSEPH,
AGED 35 YEARS
S/O. LATE THOMAS JOSEPH,PANICKASSERIL HOUSE,
PALLIPPURAM VILLAGE,CHERTHALA TALUK.
SOLE APPELLANT DIED AND LEGAL HEIRS IMPLEADED AS
ADDITIONAL APPELLANTS 2 TO 7 VIDE ORDER DATED
16.06.2017 IN I.A.NO.508/2017.
BY ADVS.
M.SANTHY
ABRHAM P.GEORGE
RESPONDENTS/RESPONDENTS IN LAR NO.156/2003:
1 STATE OF KERALA
REPRESENTED BY THE SPECIAL TAHSILDAR (LA),
INDUSTRIAL GROWTH CENTRE, CHERTHALA.
2 THE MANAGING DIRECTOR
KERALA STATE INDUSTRIAL DEVELOPMENT CORPORATION,
THIRUVANANTHAPURAM.
SMT.REKHA C.NAIR, SR.GOVERNMENT PLEADER, R1
SRI.JOBY CYRIAC, SC, R2
THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY
HEARD ON 10.04.2025, ALONG WITH LA.App.NO.46/2015 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
LA.APP.NO.363/2016 & conn. 3
2025:KER:32699
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
THURSDAY, THE 10TH DAY OF APRIL 2025 / 20TH CHAITHRA, 1947
LA.APP.NO. 46 OF 2015
ARISING OUT OF THE JUDGMENT AND DECREE DATED
31.10.2012 IN LAR NO.155/2003 OF SUBORDINATE JUDGE'S COURT,
CHERTHALA
APPELLANTS/A CLAIMANT IN LAR NO.155 OF 2003:
1 THOMAS JOSEPH
AGED 72 YEARS, S/O.THOMAS
PANIKKASSERIL HOUSE,
CHENNAM PALLIPPURAM MURI,
PALLIPPURAM VILLAGE, CHERTHALA TALUK.
(DIED AND ADDL. LEGAL HEIRS IMPLEADED.)
ADDL. APPELLANT NO.2
2 MARY ALIAS KUNJAMMA,
AGED 72 YEARS
W/O.LATE THOMAS JOSEPH, PANICKASSERIL HOUSE,
PALLIPPURAM VILLAGE, CHERTHALA TALUK.
ADDL.APPELLANT NO.3
3 DAISY,
AGED 48 YEARS
D/O.LATE THOMAS JOSEPH, PANICKASSERIL HOUSE,
PALLIPPURAM VILLAGE, CHERTHALA TALUK.
ADDL.APPELLANT NO.4
4 ANSAMMA P.J.,
AGED 44 YEARS
D/O.LATE THOMAS JOSEPH, PANICKASSERIL HOUSE,
PALLIPPURAM VILLAGE, CHERTHALA TALUK.
ADDL.APPELLANT NO.5
5 BENSAMMA JOSEPH ALIAS SR.BENCY,
AGED 42 YEARS
LA.APP.NO.363/2016 & conn. 4
2025:KER:32699
D/O.LATE THOMAS JOSEPH, PANICKASSERIL HOUSE,
PALLIPPURAM VILLAGE, CHERTHALA TALUK.
ADDL.APPELLANT NO.6
6 JOMON JOSEPH,
AGED 40 YEARS
S/O.LATE THOMAS JOSEPH, PANICKASSERIL HOUSE,
PALLIPPURAM VILLAGE, CHERTHALA TALUK.
ADDL.APPELLANT NO.7
7 SOJI JOSEPH,
AGED 35 YEARS
S/O.LATE THOMAS JOSEPH, PANICKASSERIL HOUSE,
PALLIPPURAM VILLAGE, CHERTHALA TALUK.
(SOLE APPELLANT DIED AND LEGAL HEIRS IMPLEADED AS
ADDITIONAL APPELLANTS 2 TO 7 VIDE ORDER DATED
16.06.2017 IN IA.498/2017)
BY ADVS.
M.SANTHY
M.RAJENDRAN NAIR
ABRAHAM P.GEORGE
RESPONDENTS/RESPONDENTS IN LAR NO.155/2003 & B CLAIMANT:
1 STATE OF KERALA
REPRESENTED BY THE SPECIAL TAHSILDAR (LA)
INDUSTRIAL GROWTH CENTRE, CHERTHALA, 688 524
2 THE MANAGING DIRECTOR
KERALA STATE INDUSTRIAL DEVELOPMENT CORPORATION
THIRUVANANTHAPURAM 695001.
3 DEVAKI
THOOVANATTU, PALLIPPURAM, PIN 688 541
BY ADV.
SMT.REKHA C.NAIR, SR. GOVERNMENT PLEADER, R1
SRI.JOBY CYRIAC, SC, R2
THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY
HEARD ON 10.04.2025, ALONG WITH LA.App..363/2016 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
LA.APP.NO.363/2016 & conn. 5
2025:KER:32699
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
THURSDAY, THE 10TH DAY OF APRIL 2025 / 20TH CHAITHRA, 1947
LA.APP. NO. 366 OF 2016
ARISING OUT OF THE JUDGMENT AND DECREE DATED
31.10.2012 IN LAR NO.154/2003 OF SUBORDINATE JUDGE'S COURT,
CHERTHALA
APPELLANTS/CLAIMANT IN LAR NO.154 OF 2003:
1 THOMAS JOSEPH,
AGED 72 YEARS
S/O.THOMAS PANIKKASSERIL HOUSE,
CHENNAM PALLIPPURAM MURI,
PALLIPPURAM VILLAGE, CHERTHALA TALUK.
(DIED AND LEGAL HEIRS IMPLEADED)
ADDL.APPELLANT NO.2:
2 MARY ALIAS KUNJAMMA,
AGED 72 YEARS
W/O. LATE THOMAS JOSEPH,PANICKASSERIL HOUSE,
PALLIPPURAM VILLAGE,CHERTHALA TALUK.
ADDL.APPELLANT NO.3 :
3 DAISY,
AGED 48 YEARS
D/O. LATE THOMAS JOSEPH,PANICKASSERIL HOUSE,
PALLIPPURAM VILLAGE,CHERTHALA TALUK.
ADDL.APPELLANT NO.4 :
4 ANSAMMA P.J.
AGED 44 YEARS
D/O. LATE THOMAS JOSEPH,PANICKASSERIL HOUSE,
PALLIPPURAM VILLAGE,CHERTHALA TALUK.
ADDL.APPELLANT NO.5:
5 BENSAMMA JOSEPH ALIAS SR.BENCY,
LA.APP.NO.363/2016 & conn. 6
2025:KER:32699
AGED 42 YEARS
D/O. LATE THOMAS JOSEPH,PANICKASSERIL HOUSE,
PALLIPPURAM VILLAGE,CHERTHALA TALUK.
ADDL.APPELLANT NO.6
6 JOMON JOSEPH,
AGED 40 YEARS
S/O. LATE THOMAS JOSEPH,PANICKASSERIL HOUSE,
PALLIPPURAM VILLAGE, CHERTHALA TALUK.
ADDL.APPELLANT NO.7
7 SOJI JOSEPH,
AGED 35 YEARS
S/O. LATE THOMAS JOSEPH,PANICKASSERIL HOUSE,
PALLIPPURAM VILLAGE, CHERTHALA TALUK.
SOLE APPELLANT DIED AND LEGAL HEIRS IMPLEADED AS
ADDL.APPELLANTS 2 TO 7 VIDE ORDER DATED 16/6/2017
IN I.A.507/2017.
BY ADVS.
SMT.M.SANTHY
SRI.M.RAJENDRAN NAIR
ABRAHAM P.GEORGE
RESPONDENTS/RESPONDENTS IN LAR NO.154/2003:
1 STATE OF KERALA
REPRESENTED BY THE SPECIAL TAHSILDAR (LA),
INDUSTRIAL GROWTH CENTRE,CHERTHALA.
2 THE MANAGING DIRECTOR,
KERALA STATE INDUSTRIAL DEVELOPMENT CORPORATION,
THIRUVANANTHAPURAM.
SMT.REKHA C.NAIR, SR.GOVERNMENT PLEADER, R1
SRI.JOBY CYRIAC, SC, R2
THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY
HEARD ON 10.04.2025, ALONG WITH LA.App..363/2016 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
LA.APP.NO.363/2016 & conn. 7
2025:KER:32699
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
THURSDAY, THE 10TH DAY OF APRIL 2025 / 20TH CHAITHRA, 1947
LA.APP. NO. 373 OF 2016
ARISING OUT OF THE JUDGMENT AND DECREE DATED
31.10.2012 IN LAR NO.158/2003 OF SUBORDINATE JUDGE'S COURT,
CHERTHALA
APPELLANT/A CLAIMANT IN LAR NO.158/2003:
THOMAS JOSEPH
1 AGED 72 YEARS, S/O THOMAS
PANIKKASSERIL HOUSE, CHENNAM, PALLIPPURAM
MURI,PALLIPPURAM VILLAGE,CHERTHALA TALUK
(DIED AND LEGAL HEIRS IMPLEADED)
ADDL.APPELLANT NO.2
2 MARY ALIAS KUNJAMMA,
AGED 72 YEARS
W/O.LATE THOMAS JOSEPH, PANICKASSERIL HOUSE,
PALLIPPURAM VILLAGE, CHERTHALA TALUK.
ADDL.APPELLANT NO.3
3 DAISY,
AGED 48 YEARS
D/O.LATE THOMAS JOSEPH,PANICKASSERIL HOUSE,
PALLIPPURAM VILLAGE,CHERTHALA TALUK.
ADDL.APPELLANT NO.4
4 ANSAMMA P.J.
AGED 44 YEARS
D/O. LATE THOMAS JOSEPH,PANICKASSERIL HOUSE,
PALLIPPURAM VILLAGE,CHERTHALA TALUK.
ADDL.APPELLANT NO.5
5 BENSAMMA JOSEPH ALIAS SR.BENCY
AGED 42 YEARS, D/O.LATE THOMAS JOSEPH
PANICKASSERIL HOUSE, PALLIPPURAM VILLAGE
CHERTHALA TALUK.
ADDL.APPELLANT NO.6
6 JOMON JOSEPH,
AGED 40 YEARS
LA.APP.NO.363/2016 & conn. 8
2025:KER:32699
S/O. LATE THOMAS JOSEPH,PANICKASSERIL HOUSE,
PALLIPPURAM VILLAGE, CHERTHALA TALUK.
ADDL.APPELLANT NO.7
7 SOJI JOSEPH
AGED 35 YEARS, S/O.LATE THOMAS JOSEPH
PANICKASSERIL HOUSE, PALLIPPURAM VILLAGE
CHERTHALA TALUK.
SOLE APPELLANT DIED AND LEGAL HEIRS IMPLEADED AS
ADDL.APPELLANTS 2 TO 7 VIDE ORDER DATED 16/6/2017
IN I.A.497/2017.
BY ADVS.
SMT.M.SANTHY
M.RAJENDRAN NAIR
ABRAHAM P.GEORGE
RESPONDENTS/RESPONDENTS IN LAR NO.158/2003 & B CLAIMANT:
1 STATE OF KERALA
REPRESENTED BY THE SPECIAL TAHSILDAR (LA),
INDUSTRIAL GROWTH CENTRE,CHERTHALA,688524
2 THE MANAGING DIRECTOR,
KERALA STATE INDUSTRIAL DEVELOPMENT CORPORATION,
THIRUVANANTHAPURAM 695001
3 KESAVAN NAIR
THATTAPARAMBIL, PALLIPPURAM, 688541
VIDE ORDER DATED 13.06.2019 IN I.A.NO.1/2019, IT
IS RECORDED THAT AS THE RIGHT OF THE APPLLANTS TO
SUE AGAINST THE DECEASED 3RD RESPONDENT OR HIS
LEGAL HEIRS DO NOT SURVIVE, THE LEGAL HEIRS OF
THE 3RD RESPONDENT NEED NOT BE IMPLEADED IN THE
APPEAL.
BY ADVS.
SMT.REKHA C.NAIR, R1, SR.GOVERNMENT PLEADER
SRI.JOBY CYRIAC, SC, KSIDC, R2
THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY
HEARD ON 10.04.2025, ALONG WITH LA.App..363/2016 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
LA.APP.NO.363/2016 & conn. 9
2025:KER:32699
JUDGMENT
Dated this the 10th day of April, 2025 [LA.App.Nos.46/2015, 363/2016, 366/2016 & 373/2016] These Land Acquisition Appeals are filed challenging the common judgment dated 31.10.2012 in LAR Nos.154 of 2003, 155 of 2003, 156 of 2003 and 158 of 2003 of the Subordinate Judge's Court, Cherthala. Since these appeals arise from a common judgment and the parties, purpose of acquisition and the date of notification are the same in all appeals, they are considered and disposed of together.
2. Appellant in these LAAs was the claimant in the LARs. The 1st and the 2nd respondents herein are the State and the Kerala State Industrial Development Corporation (KSIDC) the requisitioning authority respectively who were respondents 1 and 2 in the LARs. Parties are hereinafter referred to as per their status in the LARs.
3. Four separate parcels of land situated in Pallippuram village belonging to the claimant having different extents were acquired for the purpose of setting up an industrial growth centre for KSIDC. Section 4 (1) notification was published in the gazette on LA.APP.NO.363/2016 & conn. 10 2025:KER:32699 08.08.1997. Possession of the properties were taken on various dates.
4. (i) In LAA No.366 of 2016 (arising from LAR No.154 of 2003) an extent of 14.39 Ares (35.55 cents) of land, comprised in Sy.No.188/6-2 was acquired. Land was included in Category No.3. The possession was taken on 18.09.2000. The land value was fixed at Rs.7,876/- per Are. An amount of Rs.27,000/- was awarded towards the value of silica sand.
(ii) In LAA No.46 of 2015 (arising from LAR No.155 of 2003) an extent of 1.04 Ares (3.40 cents) of land, comprised in Sy.No.187/5-8 was acquired. Land was included in Category No.3. The possession was taken on 20.07.2000. The land value was fixed at Rs.7,876/- per Are.
(iii) In LAA No.363/2016 (arising from LAR No.156 of 2003) an extent of 15.55 Ares (38.4 cents) of land, comprised in Sy.No.187/5-7 was acquired. Land was included in Category No.3. The possession was taken on 18.09.2000. The land value was fixed at Rs.7,876/- per Are. An amount of Rs.40,500/- was awarded towards the value of silica sand.
(iv) In LAA No.373 of 2016 (arising from LAR No.158 of LA.APP.NO.363/2016 & conn. 11 2025:KER:32699 2003) an extent of 17.49 Ares + 0.9 Ares (18.39 Ares) (45.44 cents) of land, comprised in Sy.No.188/6-1 was acquired. Land was included in Category No.4. The possession was taken on 03.09.2000. The land value was fixed at Rs.988/- per Are.
5. The claimant had moved the reference court seeking enhancement of land value as well as enhanced compensation for silica sand in the respective properties. The reference court had allowed an enhanced compensation at the rate of Rs.17,297/- per Are. No enhancement was granted towards the silica sand on the acquired land. These appeals are filed challenging the judgment and decree in the LARs.
6. Heard both sides.
7. The learned counsel for the appellant/claimant contended that the impugned judgments are erroneous and unsustainable in law. The challenge put forth against the judgments are on two counts viz., (1) categorisation of land and (2) compensation for silica sand. As regards categorisation, the reference court had included the property in Category No.3. The correct categorization, according to the learned counsel, should have been as Category No.2. The compensation ought to have LA.APP.NO.363/2016 & conn. 12 2025:KER:32699 been fixed on the said basis. The reference court went wrong in finding that there is no panchayat gravel road for direct access from the property and the evidence tendered by the claimant in this regard to prove that the property had road access was not correctly appreciated by the court below. The reference court went wrong in finding that due compensation had been given by the acquisition officer for the deposit of silica on the surface sand level, available in the acquired property. The exact extent of surface deposit was not at all evaluated by the Land Acquisition Officer (LAO). Though an expert was examined to prove the quantity of silica sand for which the compensation ought to have been allowed, the reference court erred in rejecting the evidence tendered by the expert. The reference court had found that the assistance of the expert sought by the Advocate Commissioner was improper and that that the Commissioner ought to have sought prior permission from the court to get the assistance of such expert. This finding is not sustainable in law. The expert/s who had assisted the Commissioner was not a private person. They were the duly competent and authorised Government officials. The expert had been examined in court and his evidence should have been evaluated by the court. There was LA.APP.NO.363/2016 & conn. 13 2025:KER:32699 nothing to discredit the evidence tendered by the expert. The same ought to have been hence accepted by the court below. The legal position in the matter of grant of compensation to surface right was not properly appreciated by the reference court. The commercial importance of the silica sand and its value, which is substantial, was also not properly appreciated or taken into consideration by the reference court. The extent of surface rights and the compensation that was due to the claimant in the said respect was totally ignored by the court below. The reference court went wrong in ignoring the claim of enhancement of compensation for silica sand and well as the value of the land. The claimant had put forth evidence on the basis of the value of similarly situated properties and the fair value fixed by the Government in the locality. However, the valid evidence tendered in this respect was ignored and the documents produced and the oral evidence tendered by the appellant to support the said contention were brushed aside. The reference court failed to note that there had been no effective rebuttal of the evidence tendered by the claimant. The reference court ought to have found that the compensation given to the improvement in the property was insufficient and due amounts ought to have been awarded. Placing LA.APP.NO.363/2016 & conn. 14 2025:KER:32699 reliance on the dictum laid down by the Hon'ble Supreme Court in Thresiamma Jacob v. Geologist, Department of Mining and Geology [2013 (3) KLT 275 (SC)] it is contended by the learned counsel for the claimant that there is nothing in the law which declares that all mineral wealth and subsoil rights vest in the state. It had been specifically held by the Supreme Court that the ownership of subsoil/mineral wealth should normally follow the ownership of the land, unless the owner of the land is deprived of the same by some valid process. Thus according to the learned counsel, the claimant as the owner of the land has a right over the mineral wealth even in the subsoil. The learned counsel for the claimant also placed reliance on the dictum laid down by a Division Bench of this Court in Kerala State Industrial Development Corporation v District Collector [2011 (4) KLT 890].It had been laid down therein by this Court that in respect of rocks above the surface/ground level, owner is entitled to get compensation, though he is bound to pay royally to the Government. The learned counsel contended that the right of the owner over the silica sand that is existing on the surface as well as in the subsoil is well established and hence the owner, in addition to the land value is also entitled to compensation with respect to LA.APP.NO.363/2016 & conn. 15 2025:KER:32699 silica sand that exists in the subsoil to a reasonable depth. Placing reliance on the dictum laid down by this Court in Gokuldas v. Geologist and Others, [2009 (3) KHC 821], it is contended by the learned counsel for the claimant that quarrying below 20 feet, has been permitted by this Court. This Court had in the said case, directed the Geologists in the State to impose a condition restricting quarrying below 20 feet while issuing quarrying permits. It is thus contended that quarrying up to a limit of 20 feet is a permitted activity and hence the owner of a land is entitled to the value of the silica sand up to a depth of 20 feet within his land. Once the said land has been acquired, the value of the silica sand up to the depth of 20 feet is an entitlement of the owner. Relying on the dictum laid down in Kunjeliyamma Kuryan and another v. State of Kerala and another, [2017 (1) KHC 111 (DB)], the learned counsel for the claimant contended that when lands are acquired for the very same purpose and are situated in the very same village, claimants are entitled to have the land value re-fixed in tune with amounts awarded in similar appeals by giving 15% escalation per annum on a cumulative basis. It is submitted that this norm had been overlooked by the reference court while rendering the impugned LA.APP.NO.363/2016 & conn. 16 2025:KER:32699 judgments. The claimant was entitled to 15 % escalation and the same was not granted by the reference court. Reliance is also placed by the learned counsel on the judgment of the Hon'ble Supreme Court in Horrmal (deceased) through his LRs and others v. State of Haryana and others [2024 SCC OnLine SC 2990] to substantiate his contentions.
8. Per contra, the learned counsel appearing for the 2nd respondent submitted that the judgment rendered by the reference court in the LARs was valid and proper and did not require any interference. The appeals filed by the claimant do not disclose any valid cause or reason or a legally substantiated case. The rejection of the opinion of the expert by the reference court was valid and in accordance with law. Any opinion or report of an expert which is obtained privately and directly by a party is not a reliable piece of evidence which could be accepted by the court. Since a procedure established by law is in existence, which grants an opportunity to a party to obtain an opinion of a qualified expert under orders and supervision of the court, the party is not entitled to directly ask any expert to enquire into any question involved in the suit with respect to any scientific investigation and to report thereon to the court. LA.APP.NO.363/2016 & conn. 17
2025:KER:32699 There is no provision in the Code of Civil Procedure, 1908 which empowers a party to a suit to directly obtain an opinion from the expert and file a report with such opinion before the court. This reasoning equally applies to a report submitted by an Advocate Commissioner also, submits the learned counsel for the 2 nd respondent. The Advocate Commissioner had not obtained prior permission of the court before seeking assistance of the expert. Hence refusal of the reference court to place any reliance on the opinion of the expert as well as on the deposition of such an expert when examined as a witness in the court was proper and justified. Reliance is placed in this respect on the dictum laid down by the High Court of Hyderabad in Virothi Tirupathi Rao v. Kota Venu [2016 SCC OnLine Hyd 216]. With respect to the enhancement sought for the silica sand, it is contended by the learned counsel for the 2nd respondent that it is a settled principle of law that once compensation is awarded for the land, there cannot be additional or separate compensation for any benefits arising therefrom. This rationale, it is submitted, applies to the case of silica sand situated in the subsoil. Reliance is placed on the dictum laid down by the Supreme Court in Ambya Kalya Mhatre (D) through LRs and LA.APP.NO.363/2016 & conn. 18 2025:KER:32699 others v. State of Maharashtra [(2011) 9 SCC 325]. The said judgment concerned the trees standing on the acquired land. It was held therein that valuing the land and the trees separately is incorrect. The following dictum of the Hon'ble Supreme Court is relied on:
"It is settled law that the collector or the court who determines the compensation for the land as well as fruit-bearing trees cannot determine them separately. The compensation is to the value of the acquired land. The market value is determined on the basis of the yield. Then, necessarily applying a suitable multiplier, the compensation needs to be awarded. Under no circumstances the court should allow the compensation on the basis of the nature of the land as well as fruit bearing trees. In other words, the market value of the land is determined twice over once on the basis of the value of the land and again on the basis of the yield got from the fruit bearing trees. The definition of land includes the benefits which accrue from the land as defined in Section 3(a) of the Act. After compensation is determined on the basis of the value of the land as distinct from the income applying suitable multiplier, then the trees would be valued only as firewood and necessary compensation would be given."
9. The learned counsel sought to extend the above proposition to the case of silica sand situated in the subsoil, value whereof is sought by the claimant. He submits that the land value for the acquired land having already been taken into consideration and the claimant after having been compensated on the said count LA.APP.NO.363/2016 & conn. 19 2025:KER:32699 cannot thereafter seek compensation with respect to benefits which accrue from the land so acquired. The claim now put forth with respect to the value of the silica sand lying under the surface within the subsoil cannot be sought as the same has already been covered in the land value which had been duly awarded by the LAO as well as further enhanced by the reference court. The learned counsel for the 2nd respondent thus seeks a dismissal of the LAAs.
10. I have heard both sides in detail and have noted the contentions put forth. The principal contention in the appeal concerns the categorization of land and the value of the silica sand existing in the subsoil. I proceed to consider these two contentions separately as follows.
Claim for categorisation as Category No.2 instead of Category No.3:
11. It is the principal contention of the claimant that the reference court went wrong in including the acquired lands in Category No.3. The proper categorisation, according to the claimant ought to have been under Category No.2 and a commensurate compensation should have been fixed. It is noted that the acquired properties were mainly categorized into four classes. The first category of properties were having direct road frontage with the LA.APP.NO.363/2016 & conn. 20 2025:KER:32699 main road. The second category comprised of properties which have road access with Panchayat gravel road. The third category are properties which are dry land without any Panchayat road access and the fourth category are properties which are wet land. The LAO had categorized three parcels of property acquired from the claimant under Category No.3. and one property covered by LAR No.158 of 2003 under Category No.4. The claimant had contended that the first three properties are having direct road access with Panchayat gravel road and it ought to have been treated under Category No.2 and the compensation ought to have been awarded accordingly. To substantiate this contention, the claimant had relied on a report & sketch filed by an Advocate Commissioner in another litigation (O.S.No.89 of 99) initiated by him and on the deposition of the said Advocate Commissioner, who was explained as AW5 (erroneously stated as AW4 in the judgment). The reference court, after considering the said evidence and also relying on the photographs produced by the claimant as Ext.A6 series, concluded that the acquired properties had access to Chathamangalam-Kalathil road, but the said road was not a Panchayat road and the same had been paved by the claimant so LA.APP.NO.363/2016 & conn. 21 2025:KER:32699 as to enable him or his agents to transport silica from the property. Further the reference court also took note of the fact that if the properties had road access, the claimant would have produced documents from the village office or the panchayat to substantiate the same. Since no such records had been produced by the claimant it was concluded that the properties which are lying contiguously did not have direct road access with the Panchayat gravel road. Though based on the provisions of the Kerala Panchayat Raj Act and the Rules thereunder a contention had been put forth regarding vesting of village roads in the Panchayat and the definition of the term 'road' in the Rules which is termed as an all inclusive one, the said contentions are not substitutes for evidence by way of records from the concerned local body regarding the status of the said road, if any. I find merit in the contention put forth by the 2nd respondent that road frontage and road access are different; the claimant admits that there is no frontage and that there is only road access. Mere road access is not sufficient to bring the property of the appellant within Category No.2 it has been specifically found by the reference court that the road that is there in the acquired property is not a Panchayat road. Hence the LA.APP.NO.363/2016 & conn. 22 2025:KER:32699 categorization done by the LAO with respect to the relevant properties covered by three LARs was proper, valid and cannot be termed erroneous. As regards that fourth parcel of the acquired property which had been classified by the LAO as wetland, the reference court based on the records produced concluded that the same ought to have been categorised as dry land and the same was recategorised and included in Category No.3 entitling an enhanced compensation. The contention that the categorisation of lands contravenes Sections 23 and 24 of the Land Acquisition Act, 1894 does not hold good since the claimant has not substantiated that the categorisation effected has unfairly prejudiced him by artificially inflating or deflating the market value of the land based on the category, or that it had led to an unjust award of compensation. Similarly, it is not shown that categorization has disregarded the factors specified in Section 24, such as the actual market value so as to conclude that the categorisation as invalid. Hence the contention put forth on the basis of Sec. 23 and 24 of the Land Acquisition Act, 1894 does not hold good. In view of the above the challenge against the categorisation and its applicability to the acquired properties put forth by the claimant are unsustainable. I LA.APP.NO.363/2016 & conn. 23 2025:KER:32699 see no reason to interfere with the findings of the learned Sub Judge on the said count.
Claim for enhancement on the value of silica sand:
12. The next grievance put forth by the claimant concerns the value of silica sand. The reference court had taken note of the fact that there was deposit of silica sand in the acquired properties and that the Pallipuram Panchayat wherein the acquired property is situated was a notified area under the Mining and Geology Department. An amount of Rs.27,000/- and Rs.40,500/- respectively had been awarded by the LAO towards the value of silica sand situated on the properties acquired in LAR No.154/2003 and in LAR No. 156/2003 respectively. In the appeal memorandum the claimant had contended that the reference court went wrong in concluding that due compensation had been given by the LAO towards the value of silica sand available on the surface of the acquired property. It was contended that the exact extent for surface deposit was not at all evaluated by the LAO. The grievance of the claimant was that the reference court had rejected the evidence and report of AW3 who was an expert who had assisted the Advocate Commissioner in the evaluation of silica sand deposit. The LA.APP.NO.363/2016 & conn. 24 2025:KER:32699 commissioner had sought the assistance of an expert as he lacked expertise on the subject. The expert whose assistance was taken by the Advocate Commissioner was none other than the Geologist who a Government employee in the concerned department. The rejection of the evidence of the geologist by the reference court for the reason that the Advocate Commissioner did not obtain prior permission from the court to obtain such assistance of an expert is termed as illegal and it was contended that the reference court ought to have evaluated the geologists evidence and ought not have discredited the same. It was argued that the expert geologist examined was not an interested witness and there was no reason to disbelieve him, especially since he was a Government employee in the relevant department. It was argued that the evidence of the Advocate Commissioner as to the extent of surface right was totally ignored by the reference court, and the same was termed as erroneous. It is also contended that the legal position in the matter of grant of compensation to surface rights was not properly appreciated by the reference court and the commercial importance of silica sand and the fact that its value had been increasing day by day were overlooked.
LA.APP.NO.363/2016 & conn. 25
2025:KER:32699
13. In the course of hearing of these appeals, the contention with respect to silica sand in the acquired property was enhanced by the learned counsel for the claimant by raising an entitlement not only to the value of silica sand on the surface but also to the silica sand situated in the subsoil of the property acquired. Towards buttressing his contention, the learned counsel had relied on the dictum laid down by the Hon'ble Supreme Court in Thresiamma Jacob (supra), wherein it had been held that the ownership of subsoil/mineral wealth should normally follow the ownership of the land, unless the owner of the land is deprived of the same by some valid process. Reliance is also placed on the dictum laid down by this Court in Kerala State Industrial Development Corporation (supra) holding that in respect of rocks above the surface/ground level, owner is entitled to get compensation, though he is bound to pay royally to the Government.
14. It is noted that the reference court had turned down the report of the geologist in paragraph 39 of the judgment stating that he had not been appointed by the court. There had been no court order to appoint an expert to assist the Commissioner. Order 26, Rule 10 and 10 A of the Code of Civil Procedure does not envisage LA.APP.NO.363/2016 & conn. 26 2025:KER:32699 the Advocate Commissioner by himself taking the assistance of an expert. Opinions or reports by the expert obtained privately cannot be accepted. I find merit in the said conclusion arrived at by the reference court. As regards the contention put forth with respect to silica, as contended by the counsel for the 2 nd respondent, the quantity as well as the value are both relevant. Unless the quantity is ascertained, the value cannot be arrived at. There was nothing before the court to conclude that the quantity of silica situated within the land of the appellant had been arrived at in a reliable manner. The materials available do not reliably disclose the quantity. The reliance placed on Kerala State Industrial Development Corporation (supra) does not assist the case of the claimant. The said dictum was confined to rocks above the surface/ground level over which the owner was held to have an entitlement to compensation. The same cannot be imported to the facts of the case of the claimant, so as to seek compensation for silica sand situated in the subsoil. The definition of 'Subsoil' in geological terms is as "the layer of soil between the surface of the ground and the hard rock underneath it." [See Oxford Dictionary 7th Edition Page 1531]. 'Subsoil' thus refers to the stratum of soil immediately below LA.APP.NO.363/2016 & conn. 27 2025:KER:32699 the surface soil or topsoil. Indeed, ownership over subsoil minerals is vested in the land owner as had been held by the Supreme Court in Thresiamma Jacob (supra). The former position was reflected in Raphy John and others v. Land Revenue Commissioner, Thiruvananthapuram and others [2022 KHC OnLine 3494], wherein it was held that the State retains rights over mines and minerals beneath the surface, as clarified in various orders of Assignment and that the said Orders explicitly state that assignments do not affect the government's rights to subsoil minerals. However, in Jose P.D. and another v. State of Kerala and others [2018 KHC 3178], it has been held by this Court that the ownership of subsoil rights generally follows the ownership of the land. This was held following the dictum in Thresiamma Jacob (supra) which stated that subsoil rights vest with the owner of the land unless legally deprived of them. However, as rightly pointed out by the learned counsel for the 2 nd respondent the quantity of the silica sand assumes relevance while considering the question of compensation. No claim had been raised with respect to the value of silica sand in the sub soil by the claimant before the LAO or before the reference court. Even the appeal memorandum filed before this LA.APP.NO.363/2016 & conn. 28 2025:KER:32699 Court in these LAAs do not disclose any claim over the subsoil rights. An amount of Rs. 27,000/- and Rs.40,500/- respectively had already been awarded by the LAO towards the value of silica sand situated on the properties acquired in LAR No.154 of 2003 and in LAR No.156 of 2003 respectively. The reference court on an apprisal of the evidence adduced by the claimant had concluded that claimant is not entitled for further compensation for silica deposit in the acquired property. The reference court had reached the said conclusion after validly placing reliance on the dictum laid down by the Hon'ble Supreme Court in Thippanna v. Varalakshmi [2012 (1) KLT SN 131 (C.No.140) SC]. There is no reason to interfere with the said decision of the reference court which was in due compliance with the law as it stood then. Section 4(1) notification in all these acquisitions had been published in the gazette on 08.08.1997 and possession of the acquired land was taken in the year 2000. I do not see any feasibility in remanding the matter back at this point of time for the reassessment and re-fixation of value of silica sand purportedly situated in the subsoil of the acquired land. The prayer for remand sought by the learned counsel is thus declined.
LA.APP.NO.363/2016 & conn. 29
2025:KER:32699 Conclusion:
15. In view of the above discussion, I do not find any reason to interfere with the judgment and decree in LAR Nos.154 of 2003, 155 of 2003, 156 of 2003 and 158 of 2003 dated 31.10.2012 of the Subordinate Judge's Court, Cherthala.
The LAAs are dismissed. No cost.
SYAM KUMAR V.M. JUDGE csl