Kerala High Court
Uthup Kurian vs State Of Kerala on 8 April, 2008
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
MONDAY, THE 10TH DAY OF JUNE 2013/20TH JYAISHTA 1935
LA.App..No. 970 of 2009 ( )
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AGAINST THE ORDER/JUDGMENT IN LAR 21/2006 of SUB COURT, PALA DATED
08-04-2008
APPELLANT(S)/CLAIMANT:
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UTHUP KURIAN,
VELLAYIPARAMBIL, KURAVILANGADU.
BY ADV. SRI.P.C.HARIDAS
RESPONDENT(S)/RESPONDENT:
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STATE OF KERALA, REPRESENTED BY
THE DISTRICT COLLECTOR, KOTTAYAM.
GOVERNMENT PLEADER:ADV.SRI.M A ABDUL SHUKOOR
THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON
10-06-2013 ALONG WITH L.A.A.NO.1347 OF 2009, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
THOMAS P.JOSEPH, J.
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L.A.A.Nos.970 and 1347 of 2009
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Dated this the 10th day of June, 2013
C O M M O N J U D G M E N T
These appeals arise from the common judgment of learned Sub Judge, Pala in L.A.R.Nos.21 of 2006 and 26 of 2006. I have not called for the entire records since the learned counsel for the appellant has given me a copy of Exts.A1 to A3 and C1.
2. 2.11 Ares abutting PWD road, described by the revenue authorities as dry land coming in category No.1 and 3.00Ares, described as wetland with no road access falling under category No.7 and belonging to the appellant were acquired by the respondent for formation of the M.V.I.P Canal. The notification under Sec.4(1) of the Land Acquisition Act (for short, "the Act") was issued on 03.08.2004. The Land Acquisition Officer (for short, "the LAO") fixed land value for the 2.11 Ares as `.20,838/- per Are while for the 3.00 Ares, it was fixed at `.5,321/- per Are. Not satisfied, the appellant made a request for reference. References were taken on file L.A.R.Nos.21 of 2006 and 26 of 2006, the former as regards land comprised in category No.1 and the latter, regarding land comprised in category No.7.
L.A.A.Nos.970 and 1347 of 2009 2
3. Before the reference Court the appellant relied on Exts.A1 to A4 and Exts.C1 and C1(a) and his oral evidence as AW1. The respondent relied on Ext.R1 series, reference file of I.A.No.106 of 2005. Reference Court enhanced land value for the land involved in category No.1 (L.A.R.No.21 of 2006) to `.33,000/- per Are while in L.A.R.No.26 of 2006, land value was enhanced to `.8,500/- per Are. Aggrieved, appellant has preferred these appeals.
4. The learned counsel for the appellant contends that the reference court has not placed proper reliance on Exts.A1 to A4. Ext.A1 was rejected for flimsy reasons. It is submitted that the properties are situated in the heart of Kuravilangadu town, commercially and otherwise important and the same was not taken into account. A further contention the learned counsel has advanced is that though 3.00 Ares in L.A.R.No.26 of 2006 is situated just behind the 2.11 Ares in L.A.R.No.21 of 2006 since both the items belonged to the same person, the property situated behind must be treated as having sufficient road access. The learned counsel has placed reliance on the decisions in Jospeh Cyriac Vs. State of Kerala (2004(3) KLT SN.66 (Page No.48)). The learned counsel has also invited my attention to the judgment in L.A.A.No.820 of 2007 of this Court to contend that in respect of L.A.A.Nos.970 and 1347 of 2009 3 property situated just opposite to the property involved in these appeals, the Division Bench of this Court has fixed land value at `.45,000/- per Are.
5. The learned Government Pleader has contended that Exts.A1 to A4 were considered and rejected by the reference Court for valid reason and that requires no reconsideration. It is also contended that the land involved is wetland which fact was taken into account by the LAO.
6. Ext.A1 is the copy of sale deed dated 01.07.2004 which concerns 5.81 Ares and building sold for `.12,00,000/-. Ext.A2 is a post notification sale deed and hence much reliance cannot be placed on it. Ext.A3 is a copy of sale deed dated 26.07.1999 concerning 4.25 Ares of reclaimed land sold for `.4,00,000/-. That property is situated on the side of Kozha-Njeezhoor PWD road. Ext.A4 is the copy of another sale deed dated 06.08.2003.
7. So far as Ext.A1 is concerned, my attention is drawn to Ext.C1, report submitted by the Advocate Commissioner to contend that the building referred to therein is not a residential building but only a site for manufacture for hollow bricks. It is not clear from Ext.C1 whether there is any residential building situated in Ext.A1 property. For, Ext.A1 refers to a building with electric connection L.A.A.Nos.970 and 1347 of 2009 4 and other structures. If a pakka residential building is situated in Ext.A1 as on the date of sale, it is not possible to say that the sale consideration of Rs.12,00,000/- is concerning the land alone. Hence the entire amount referred to in Ext.A1 cannot be attributed as the land value. So far as Ext.A3 is concerned, it has come out in evidence that the said property is situated on the side of the Kozha Seed Farm which according to the reference Court is having more potentiality.
8. I must notice that these properties are situated in Kuruvilangadu town and as the Advocate Commissioner reported, 50ms away from the central junction (on the side of Kurailangadu- Vaikom road). The area it cannot be disputed, is vast developing. Hence some reference has to be made to Ext.A1 as well, though not to the full extent. I find from the judgment under challenge that the reference Court has fixed land value payable for the property involved in L.A.R.No.21 of 2006 as `.33,000/- per Are while for the property involved in L.A.R.No.26 of 2006, it is fixed as `.8,500/- per Are. I am inclined to think the land value fixed by the reference Court is on the lower side, having regard to the location of the property and the commercial importance of the area. L.A.A.Nos.970 and 1347 of 2009 5
9. So far as property involved in L.A.R.No.26 of 2006 is concerned, though that property is situated behind the property in L.A.R.No.21 of 2006, it admittedly belongs to the same person. Therefore, though the property in L.A.R.No.26 of 2006 is not having road frontage as such, it is possible for the appellant to provide access to that property also through the property involved in L.A.R.No.21 of 2006. That possibility ought to have been taken into account by the reference Court and that is what the decision in Jospeh Cyriac Vs. State of Kerala (supra) also say.
10. But, I am unable to accept the argument of learned counsel for the appellant that the property involved in L.A.R.No.26 of 2006 must be viewed as similarly placed with the property in L.A.R.No.21 of 2006 for the reason that the said property belonged to the same person. It is not disputed that the property involved in L.A.R.No.26 of 2006 is not having road frontage while the property involved in L.A.R.No.21 of 2006 has road frontage though, as both the items belonged to same person, it is open to him to provide road access to the property involved in L.A.R.No.21 of 2006. Correlation of the property in L.A.R.No.26 of 2005 with the property in L.A.R.No.21 of 2006 must be to that extent.
L.A.A.Nos.970 and 1347 of 2009 6
11. The judgment dated 03.07.2009 in L.A.A.No.820 of 2007 which the learned counsel submits is concerning properties similarly placed with the property involved in L.A.R.No.21 of 2006 and situated on the opposite side of the road has fixed land value at `.45,000/- per Are.
12. The learned counsel for the appellant has a contention that the rate of enhancement considered in the said judgment has to be considered in this proceeding also, but I am unable to accept that contention. The question is not the rate of enhancement but, what exactly is the land value payable to the appellant. That, having regard to the various circumstances including the documents produced by the appellant and having regard to the judgment dated 03.07.2009 in L.A.A.No.820 of 2007 could be fixed as `.45,000/- per Are so far as property involved in L.A.R.No.21 of 2006 is concerned.
13. Having regard to the circumstances above stated including the facility for the appellant to provide road access for the property involved in L.A.R.No.26 of 2006, I am inclined to think that the land value could be fixed as `.20,000/- per Are.
14. Needless to say that the appellant will be entitled to get all statutory benefits admissible under Secs.23(2), 23(1A) and 28 of the Act on the enhanced compensation as well.
L.A.A.Nos.970 and 1347 of 2009 7 Resultantly these appeals are allowed in part as under:
I. L.A.A.No.970 of 2009:
Judgment and decree of learned Sub Judge, Pala in L.A.R.No.21 of 2006 are modified fixing land value at `.45,000/- (Rupees Forty Five Thousand Only) per Are.
II. L.A.A.No.1347 of 2009:
Judgment and decree of learned Sub Judge, Pala in L.A.R.No.21 of 2006 are modified fixing land value at `.20,000/- (Rupees Twenty Thousand Only) per Are. III. It is made clear that appellant will get all statutory benefits admissible under Secs.23(2), 23(1A) and 28 of the Act on the enhanced compensation to which the appellant became eligible by virtue of refixation made as per this judgment.
IV. Parties are directed to suffer their respective cost in these appeals.
Sd/-
THOMAS P.JOSEPH, JUDGE Sbna True Copy P.A to Judge