A. Abraham Thomas vs State Of Kerala on 29 June, 2013

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Kerala High Court

A. Abraham Thomas vs State Of Kerala on 29 June, 2013

32.12 Ares of land, situate in Sy.No.26/14 - B1-1 of Mullackal Village, Ambalappuzha Taluk, Alappuzha District was acquired for the construction of Inland Water Transport Terminals for National Waterways by the Inland Waterways Authority of India. The notification under section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as "the Act" for short) bearing the date 16.12.1997, was published in the Kerala Gazette Extra Ordinary dated 17.12.1997. The last among the publications was in the Mathrubhumi daily dated 24.1.1998. This was followed by a declaration made under section 6 of the Act in the Kerala Gazette Extra Ordinary dated 16.12.1998. The declaration made under section 6 of the Act was also published in the Desabhimani daily dated 2.1.1999 and in the Mathrubhumi daily dated 8.1.1999.

2. After the notification under section 4(1) of the Act was published, but before the declaration under section 6 of the Act was made and published, a group of persons, 44 in number, moved this court by filing O.P.No.4023 of 1998 wherein they challenged the L.A.A.Nos.69 & 289 of 2014 & O.P.(C)No.2928 of 2015 -:2:- notification issued under section 4(1) of the Act (Ext.P1 therein) and prayed for the following reliefs:

"i) to call for the entire records leading to the issue of Exhibit P1 and all subsequent action taken in pursuance of Exhibit P-1 and quash Exhibit P-1;

ii) to issue a writ in the nature of mandamus or any other appropriate writ or order or direction declaring that the issuance of Exhibit P-1 and further proceedings in pursuance of Exhibit P-1 for acquiring the petitioners land covered by Exhibit P-1 Notification and acquisition of other land as detailed in Exhibit P-5 and P-6 are highly illegal, arbitrary, malafide in nature, discriminatory in character, capricious, ab-initio void, unreasonable, unjust and unsustainable;

iii) to issue a writ in the nature of mandamus or any other appropriate writ or order or direction directing the respondents to act according to law and acquire the land for Inland Water Transport Terminal at Alappuzha in most convenient and suitable and available place at Pallathuruthy or any other place without insisting the area specified in Exhibit P-1;

iv) to pass any other order or orders, writ or writs, direction or directions which are deemed fit and proper in the facts and circumstances of the case.

AND

v) to award the cost to the petitioners."

3. In O.P.No.4023 of 1998, a Division Bench of this court passed an interim order on 6.4.1998 to the effect that the status quo as on that date shall be maintained. The said interim order was being periodically extended and by order passed on 28.5.1999 it was extended until further orders. It was later vacated on 14.8.2002. Thereafter an award enquiry was held on 22.11.2002. It was while the interim order passed by this court was in force that the declaration under section 6 of the Act was made and published on 16.12.1998 as L.A.A.Nos.69 & 289 of 2014 & O.P.(C)No.2928 of 2015 -:3:- aforesaid. Thereupon, 5 persons, owning portions of the lands covered by the declaration made under section 6 of the Act, moved this court by filing O.P.No.7790 of 2003 with a prayer that awards determining the compensation payable in respect of their lands be passed expeditiously and compensation paid. The said original petition, filed under Article 226 of the Constitution of India, was heard and allowed by this court by judgment delivered on 5.8.2003 and the respondents therein were directed to pass the final award determining the compensation and to disburse the compensation within a period of three months from the date of receipt of a copy of the judgment.

4. The State of Kerala thereupon moved the Apex Court by filing a special leave petition. In that special leave petition, the Apex Court passed an interim order on 3.12.2003 staying the operation of the judgment of this court in O.P.No.7790 of 2003. Later, the Apex Court granted leave to appeal to the State of Kerala and Civil Appeal No.2824 of 2005 arising therefrom was heard and dismissed by the Apex Court by judgment delivered on 21.4.2005 with the following observation:

"The High Court had directed that the award should be passed within a period of 3 months. By virtue of an order of stay obtained from this Court, the award has not yet been passed. We, accordingly extend the time for passing the award by another period of 3 months from today. If any amount has already been deposited by the State Government pursuant to order of this Court, the same together with any accumulated interest thereon is permitted to be withdrawn by the State Government for the L.A.A.Nos.69 & 289 of 2014 & O.P.(C)No.2928 of 2015 -:4:- purpose of re-depositing the same on account of the compensation to be paid to the landowners of the affected areas in Mullackal."

5. By the said order, the Apex Court while dismissing the appeal filed by the State of Kerala, extended the time for passing the award by a further period of three months from 21.4.2005. Thereupon, the Land Acquisition Officer passed an award on 4.6.2005 determining the compensation payable in respect of the acquired lands. By the said award, in respect of the parcel of land referred to above, the Land Acquisition Officer awarded land value at the rate of Rs.58,578/- per Are, treating the lands as lands falling in A category namely lands having road frontage. Dissatisfied with the land value awarded by the Land Acquisition Officer, the second claimant (George Thomas) submitted an application dated 30.11.2005 with a prayer that the dispute regarding compensation may be referred to the civil court having jurisdiction. The claimants also received the compensation awarded by the Land Acquisition Officer under protest. A reference was accordingly made to the Court of the Subordinate Judge of Alappuzha where it was taken on file and numbered as L.A.R.No.21 of 2007.

6. It is relevant in this context to note that though the award was passed on 4.6.2005 pursuant to the order passed by the Apex Court, it was in fact prepared on 22.11.2002, the date on which the award enquiry was held. The award would disclose that in addition to land value at the rate of Rs.58,578/- per Are, solatium at 30% thereof L.A.A.Nos.69 & 289 of 2014 & O.P.(C)No.2928 of 2015 -:5:- and interest at the rates stipulated in section 28 of the Act, the Land Acquisition Officer had also awarded payment under section 23(1A) of the Act. Such payment was however confined to 173 days during the period from 24.1.1998 to 5.4.1998 and 14.8.2002 to 22.11.2002. This was for the reason that during the period from 6.4.1998 to 14.8.2002, the interim order passed by this court in O.P.No.4023 of 1998, directing maintenance of the status quo as on 6.4.1998, was in force. The total amount awarded as compensation by the said award was Rs.24,38,532.25. However, when the award was passed on 4.6.2005, after the Apex Court disposed of Civil Appeal No.2824 of 2005 and within the time limit granted by the Apex Court, the Special Tahsildar, Land Acquisition (General), Alappuzha, made the following endorsement on the original of the award:

"Final award passed for Rs.26,86,689/- (Twenty six lakh eighty six thousand six hundred and eighty nine only) with up to date interest (2,48,157/-) for the period from 23.11.02 to 2.12.03 and 21.4.05 to 4.6.05."

7. Before the reference court, the land owners filed a claim statement dated 18.8.2008 wherein they claimed land value at the rate of Rs.1,50,000/- per cent. They contended that the land value fixed by the Land Acquisition Officer does not reflect the true market value of the land prevailing in the area at the time of acquisition. They also contended that the acquired property has great importance as a commercial and tourism site, that it is situate within 100 meters of the L.A.A.Nos.69 & 289 of 2014 & O.P.(C)No.2928 of 2015 -:6:- finishing point of the world famous Nehru Trophy Boat Race, that the back water tourism centre, boat jetty, house boat terminal, bus stand are situate within a distance of 200 meters from the acquired lands and the acquired lands have road frontage as well as access through the back waters. The requisitioning authority filed a written statement dated 2.11.2007 wherein it was contended that the Land Acquisition Officer has awarded just and fair compensation and that he has awarded compensation on the basis of the price that a willing purchaser would pay to a willing seller. It was further contended that the land value was fixed based on sale deed No.2594 of 1997 of SRO, Alappuzha, that the acquired lands were categorised as A, B and C and compensation was awarded on that basis and that the land owners are not entitled to claim enhanced compensation.

8. Before the reference court, the land owners examined the second claimant as PW1 and produced and marked Exts.B1 to B4. Though no oral evidence was adduced, a copy of the sale deed dated 23.1.1992 was produced and marked as Ext.D1. After considering the rival contentions, the reference court refixed the land value at Rs.1,20,000/- per Are, based on Ext.B1 award passed by this court in L.A.A.No.1425 of 2007 arising from L.A.R.No.4 of 2004 on the file of the very same reference court in respect of lands acquired pursuant to a notification dated 5.7.2000 for a different purpose. The reference court also held that the claimants will be entitled to all statutory L.A.A.Nos.69 & 289 of 2014 & O.P.(C)No.2928 of 2015 -:7:- benefits including payment under section 23(1A) of the Act from the date of publication of the notification under section 4(1) of the Act till the date of the award or the date of taking possession of the land, whichever is earlier. The land owners have, dissatisfied with the quantum of compensation awarded by the reference court, filed L.A.A.No.69 of 2014 wherein they have claimed land value at the rate of Rs.1,40,000/- per Are (an addition of Rs.20,000/- per Are) and the requisitioning authority has filed L.A.A.No.289 of 2014 challenging the enhanced compensation awarded by the reference court.

9. After the appeals were filed, the State of Kerala filed I.A. No.1256 of 2014 with a prayer that the award passed by the reference court may be reviewed and the decree and judgment amended, by denying payment under section 23(1A) of the Act during the period from 6.4.1998 to 14.8.2002, on the enhanced compensation. The State of Kerala also filed I.A.No.1257 of 2014 to condone the delay in filing the former application. The land owners resisted the applications. Overruling their objections, the reference court allowed I.A.No.1257 of 2014, condoned the delay in filing I.A.No.1256 of 2014 and allowed I.A.No.1256 of 2014. The reference court held that while computing the amount payable under section 23(1A) of the Act, the period from 6.4.1998 to 14.8.2002, during which the interim order passed by this court in O.P.No.4023 of 1998 was in force, shall be excluded. The land owners have, aggrieved thereby, filed O.P.(C)No.2928 of 2015 wherein L.A.A.Nos.69 & 289 of 2014 & O.P.(C)No.2928 of 2015 -:8:- a copy of the said order is produced and marked as Ext.P6. The principal contention raised in O.P.(C)No.2928 of 2015 filed under Article 227 of the Constitution of India is that in view of the decision of a Division Bench of this court in Anitha Jose v. State of Kerala (2011 (3) KLT 538) wherein it was held that the order of stay passed by a Division Bench of this court in O.P.No.4023 of 1998 has no application while computing the period of limitation for passing an award in terms of section 11A of the Act, the requisitioning authority or the State of Kerala cannot contend that the said period is liable to be excluded for the purpose of section 23(1A) of the Act.

10. We heard Sri.P.P.Ramachandran, learned counsel appearing for the appellants in L.A.A.No.69 of 2014, Sri.P.B.Krishnan, learned counsel appearing for the petitioners in O.P.(C)No.2928 of 2015 and Sri.V.Santharam, learned counsel appearing for the requisitioning authority/appellant in L.A.A.No.289 of 2014. We also heard Smt.K. Amminikutty, learned Senior Government Pleader appearing for the State of Kerala. Sri.V.Santharam, learned counsel appearing for the requisitioning authority contended, relying on the unreported decisions of this court in L.A.A.Nos.374 of 2004, 1076 of 2009, 1401 of 2009 and 1307 of 2010, that even in respect of lands falling in A category, this court has upheld the award of land value at the rate of Rs.1,00,000/- per Are, by the very same reference court and therefore, as the lands involved in the instant case were also acquired L.A.A.Nos.69 & 289 of 2014 & O.P.(C)No.2928 of 2015 -:9:- pursuant to the very same notification and for the very same purpose and are situate in close proximity to the lands involved in the said appeals, the reference court erred in fixing land value at the rate of Rs.1,20,000/- per Are. Learned counsel contended that the reference court ought to have, having regard to the fact that this court has uniformly fixed the land value at Rs.1,00,000/- per Are in respect of lands falling in A category, fixed the land value at Rs.1,00,000/- per Are. Learned counsel also contended, relying on the Explanation to sub-section (1A) of section 23 of the Act that for the purpose of payment of compensation under section 23(1A) of the Act, the period during which the interim order passed by this court in O.P.No.4023 of 1998 was in force, is liable to be excluded and therefore, no exception can be taken to Ext.P6 order produced in O.P.(C)No.2928 of 2015. Learned counsel contended that as the land owners have not produced any material to show that they are entitled to have the land value fixed above Rs.1,00,000/- per Are, the award passed by the reference court is liable to be modified and land value fixed at Rs.1,00,000/- per Are.

11. Per contra, Sri.P.P.Ramachandran, learned counsel appearing for the land owners/appellants in L.A.A.No.69 of 2014 contended that the Land Acquisition Officer had categorised the lands acquired under the very same notification under three categories namely category A (lands having road frontage), category B (lands having canal frontage with fishing facility through poramboke land) L.A.A.Nos.69 & 289 of 2014 & O.P.(C)No.2928 of 2015 -:10:- and category C (interior lands having no journey facility), that the lands in the instant case fall in category A and therefore, no exception can be taken to the land value awarded by the reference court. Learned counsel submitted that merely for the reason that the claimants in other cases had not filed appeals in this court claiming enhanced compensation, the requisitioning authority or the State of Kerala cannot contend that the appellants/land owners are not entitled to enhanced compensation. Learned counsel also invited our attention to the notes to the award and submitted that even going by the basic document namely sale deed No.2594 of 1997 of SRO, Alappuzha, the land value is Rs.79,395/- per Are and therefore, the basic document itself discloses that the land value awarded by the Land Acquisition Officer is meagre and inadequate. Learned counsel contended that as the lands have been categorised into three different categories for the purpose of fixation of land value by the Land Acquisition Officer, the requisitioning authority cannot contend that the land value awarded for lands in category C, namely interior lands having no journey facility should be applied to lands falling in category A also. Referring to Ext.B4 sale deed dated 22.2.2002, learned counsel contended that as per that sale deed, 5 cents of land situate in the very same village but lying 155 feet away from the main road, was sold for a sale consideration of Rs.3,82,500/- (corresponding to Rs.1,73,863/- per Are), that the lands in the instant case are lands having road frontage L.A.A.Nos.69 & 289 of 2014 & O.P.(C)No.2928 of 2015 -:11:- and therefore, the appellants are entitled to enhancement of land value as claimed in the instant appeal. Learned counsel contended that as the acquired lands are situate in a commercially important part of Alappuzha town, the land owners' claim for enhanced compensation merits acceptance.

12. We have considered the submissions made at the Bar by learned counsel appearing on either side. We have also gone through the pleadings and the materials on record. The notes to the award discloses that the Land Acquisition Officer had relied on sale deed No.2594 of 1997 of SRO, Alappuzha for the purpose of awarding compensation. The award discloses that after deducting the value of improvements, in respect of lands conveyed thereunder, the land value would be Rs.79,395/- per Are. It was notwithstanding this fact that the District Collector fixed the land value at Rs.58,578/- per Are, for lands fall in category A, namely lands having road frontage. It is not in dispute that even in respect of the lands in category C, the very same reference court has in Ext.B2 judgment in L.A.R.No.12 of 2007 fixed the land value at Rs.1,00,000/- per Are. Ext.B2 judgment was affirmed by a Division Bench of this court in L.A.A.No.1477 of 2009, an appeal filed by the requisitioning authority. C category lands are lands having no journey facility, meaning thereby, no access either through road or through the back waters. If in respect of lands which have no access and have no road frontage, the sum of Rs.1,00,000/- per Are L.A.A.Nos.69 & 289 of 2014 & O.P.(C)No.2928 of 2015 -:12:- can be fixed as the land value, we see no reason or justification to hold that the land value fixed by the reference court is exorbitant or excessive. Even in the award, the Land Acquisition Officer had treated the lands separately for the purpose of fixing the land value and has scaled down the land value proportionately. We are therefore of the considered opinion that the challenge to the land value fixed by the reference court at the instance of the requisitioning authority is without any merit. The appeal filed by the requisitioning authority will necessarily have to fail.

13. Then, the only other question is whether the claimants have made out a case warranting enhancement of the compensation. The main thrust of the submissions made by the learned counsel for the appellants is that Ext.B4 would show that the lands in the vicinity have been sold for a sale consideration of Rs.1,73,863/- per Are. It is relevant in this context to note that no attempt was made by the land owners to prove their case that the acquired lands are similarly situate as the lands described in Ext.B4 sale deed and have the same advantages. Though it was contended before us that the access to the lands involved in Ext.B4 is only through a pathway having a width of 16.5 links and a length of 155 feet (232 links) but the acquired lands are lands having road frontage and access from a public road, as stated earlier, no attempt was made to compare the two parcels of lands. For reasons best known to them, the land owners did not take L.A.A.Nos.69 & 289 of 2014 & O.P.(C)No.2928 of 2015 -:13:- steps to have an Advocate Commissioner appointed for the purpose of inspecting the lands covered by Ext.B4 and the acquired lands and to compare them. In short, apart from the fact that the access to the land covered by Ext.B4 is through a pathway having a width of 16.5 links and a length of 232 links, there is no material before us to show that the said parcel of land is inferior to the acquired land or that the acquired lands are situate in a more advantageous position. In the absence of any material before us to show that the lands covered by Ext.B4 and the acquired lands are similarly situate and have the same advantages, we are of the opinion that the appellants cannot claim that they have made out a case warranting enhancement of the land value awarded by the reference court. Necessarily therefore, the claim for enhancement of land value also will have to fail.

14. The short question that remains is whether Ext.P6 order impugned in O.P.(C)No.2928 of 2015 is liable to be set aside. It is relevant in this context to note that the land owners had earlier filed W.P.(C)Nos.12587 of 2007 and 12874 of 2007 in this court contending that the awards passed in the instant case have been passed beyond the time limit stipulated in section 11A of the Act. They contended that as the declaration under section 6 of the Act was made and published on 16.12.1998, the award passed on 4.6.2005 is barred by limitation. The requisitioning authority contended that as this court had passed an interim order directing status-quo to be maintained and L.A.A.Nos.69 & 289 of 2014 & O.P.(C)No.2928 of 2015 -:14:- the said order was in force during the period from 6.4.1998 to 14.8.2002, the said period is liable to be excluded while computing the period of limitation prescribed in section 11A of the Act. The learned single judge accepted the said contention and dismissed the writ petitions. On appeal, a Division Bench of this court held that the State cannot claim the benefit of the Explanation to section 11A of the Act on the ground that an order staying the acquisition of the acquired land had been passed in O.P.No.7790 of 2003. The Division Bench however declined to grant relief to the land owners on the short ground that they had moved this court only on 10.4.2007, many years after the declaration under section 6 of the Act was made and published and nearly two years after the award was passed. The Division Bench accordingly held that as the land owners did not act with diligence in moving this court, they are barred from seeking any relief from this court. The writ appeals were accordingly dismissed [vide Anitha Jose v. State of Kerala (supra)].

15. The Division Bench of this court has in Anitha Jose v. State of Kerala (supra) (though the requisitioning authority was not a party to it) held that the interim order passed by this court in O.P.No.7790 of 2003 will not attract the Explanation to section 11A of the Act. If that be so, on the same parity of reasoning the State or the requisitioning authority cannot contend that the period during which the interim order passed by this court in O.P.No.7790 of 2003 was in force is liable L.A.A.Nos.69 & 289 of 2014 & O.P.(C)No.2928 of 2015 -:15:- to be excluded for the purpose of payment of compensation under section 23(1A) of the Act. Though it was contended that the requisitioning authority was not a party to the decision of the Division Bench of this court in Anitha Jose v. State of Kerala (supra) and therefore the decision does not bind it, we find no merit or force in the said contention. The Division Bench has, after considering the statutory scheme underlying section 11A of the Act and the scope of the interim order passed by this court, held in Anitha Jose v. State of Kerala (supra) as follows:

"28. In the circumstances, in our opinion, any interim order passed in the abovementioned proceedings would only be confined to the properties belonging to the parties in the litigation but not to the third parties to the above proceedings like the appellants herein. However, we hastened to add that nothing restricts the jurisdiction of either this Court or the Supreme Court to stay the acquisition proceedings, not only on all the properties belonging to the parties before the Court but, in an appropriate case other properties also, such as the one covered by common notifications etc. However, it is not demonstrated before us that any such order was passed in the instant case. In the circumstances, in our opinion, the benefit of the Explanation under S.11-A, in so far as it pertains to the time consumed by the State in pursuing the abovementioned two appeals before the Supreme Court, is not available to the State of Kerala."

16. The Explanation to section 11A of the Act is pari materia with the Explanation to section 23(1A) of the Act. If for the purpose of computing the period of limitation to pass an award, the period during which interim order passed by this court in O.P.No.4023 of 1998 was in force cannot be reckoned, we see no reason or justification to hold L.A.A.Nos.69 & 289 of 2014 & O.P.(C)No.2928 of 2015 -:16:- that the said period can be taken into account for the purpose of denying payment of compensation under section 23(1A) of the Act. The effect of the interim order can only be one and the same, whether it be for the purpose of section 11A or for the purpose of section 23 (1A) of the Act. We accordingly hold that the reference court erred in amending the decree and judgment.

For the reasons stated above, we dismiss L.A.A.Nos.69 and 289 of 2014, allow O.P.(C)No.2928 of 2015 and set aside Ext.P6 order passed by the Court of the Subordinate Judge of Alappuzha on 16.3.2015 on I.A.Nos.1256 and 1257 of 2014 in L.A.R.No.21 of 2007. Consequently, the decree and judgment passed by the reference court on 29.6.2013 in L.A.R.No.21 of 2007 shall stand restored. The parties shall suffer their respective costs.

Sd/-

P.N.RAVINDRAN JUDGE Sd/-

DAMA SESHADRI NAIDU JUDGE vpv/kav

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