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2017 DIGILAW 39 (KER)

ANIL KUMAR v. STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR

2017-01-06

A.M.BABU, P.N.RAVINDRAN

body2017
JUDGMENT : P.N.Ravindran, J. The appellants herein owned 47 Ares of land situate in R.S.No.512/2014 of Melthonnakkal Village, Thiruvananthapuram Taluk, Thiruvananthapuram District. A portion thereof having an area of 39.75 Ares, was acquired for the IVth phase development of Technopark, Thiruvananthapuram, pursuant to a notification dated 5.12.2006 issued under section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as "the Act" for short). Before the Land Acquisition Officer, the appellants claimed land value at the rate of Rs.10,00,000/- per Are. By award passed on 27.1.2010, the Land Acquisition Officer awarded land value at the rate of Rs.49,273/- per Are. Dissatisfied with the land value awarded by the Land Acquisition Officer, the appellants received the compensation awarded by him under protest and prayed for a reference of the dispute regarding land value to the civil court. A reference was accordingly made to the Court of the Subordinate Judge of Attingal where it was taken on file and numbered as L.A.R.No.41 of 2012. 2. Before the reference court, the appellants filed a statement claiming land value at the rate of Rs.2,00,000/- per cent. The respondents filed a written statement contending that just and fair compensation has been awarded. Before the reference court, the first appellant/first claimant examined himself as AW1. He also produced and marked Ext.A1 judgment in L.A.R.No.805 of 2008 on the file of the very same reference court and Ext.A2 judgment of this court in L.A.A.No.764 of 2011 arising from the said judgment. On the side of the respondents, though no oral evidence was adduced, a copy of the title deed relied on by the Land Acquisition Officer for fixing land value was marked as Ext.B1 and a copy of the group sketch as Ext.B2. 3. After considering the rival contentions, the reference court enhanced the land value by 100%. In other words, the land value was refixed at Rs.98,546/- per Are. In coming to the said conclusion, the reference court held that though the lands covered by Exts.A1 and A2 judgments are situate in another village, the enhanced land value awarded by this court in Ext.A2 judgment is liable to be taken into account for the purpose of awarding compensation. The reference court however declined to accept the contention of the appellants regarding categorisation of the land. The reference court however declined to accept the contention of the appellants regarding categorisation of the land. The appellants have, dissatisfied with the land value awarded by the reference court and the classification of the land, filed this appeal. 4. On application filed by the appellants as I.A.No.1176 of 2016 an Advocate Commissioner was appointed by this court. The Advocate Commissioner appointed by this court has filed a report dated 1.12.2016 together with a sketch. 5. We heard Sri. K.K. Vijayan, learned counsel appearing for the appellants, Smt.Latha T. Thankappan, learned Special Government Pleader appearing for the first respondent and Smt.K.V.Rashmi, learned standing counsel appearing for the second respondent. Learned counsel appearing for the appellants contended that the acquired lands form part of a larger extent of 47 Ares lying to the south of Mangalapuram-Pothencode road but the Land Acquisition Officer had treated the lands as falling in category 8 namely lands which do not lie by the side of a road or a pathway. Learned counsel contended that this was done for the reason that the southern portion of the land alone was acquired and the portion adjoining the road was not acquired. Learned counsel contended that such artificial classification of the land cannot be sustained having regard to the fact that the acquired portion and the lands left out of the acquisition were lying contiguously and have the same advantages. Learned counsel also submitted with reference to the report submitted by the Advocate Commissioner that the lands covered by Exts.A1 and A2 judgments are situate by the side of a smaller road about 800 meters away from the acquired lands, that the acquired lands are situate nearer to Mangalapuram junction on Mangalapuram-Pothencode road and therefore, it is liable to be included in category 1. Learned counsel contended that in as much as this court has awarded land value at the rate of Rs.1,98,585/- per Are in respect of lands which are lying farther away from the acquired lands and by the side of a less important road, the land value awarded by the reference court is liable to be revised and refixed on that basis. Per contra, learned Special Government Pleader appearing for the State of Kerala and the learned standing counsel appearing for the requisitioning authority submitted that the reference court has awarded just and fair compensation and no interference is called for. 6. Per contra, learned Special Government Pleader appearing for the State of Kerala and the learned standing counsel appearing for the requisitioning authority submitted that the reference court has awarded just and fair compensation and no interference is called for. 6. 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 including the report and plan submitted by the Advocate Commissioner. The notes to the award disclose that the Land Acquisition Officer had treated the lands as falling in category 8 on the ground that the acquired lands did not have road frontage. It has now come out in evidence that the acquired lands formed part of a larger area of 47 Ares lying to the south of Mangalapuram-Pothencode road. The northern portion of the said holding was left out of the acquisition and the southern portion having an area of 39.75 Ares alone was acquired. The acquired lands and the lands left out of the acquisition were part of the same holding and enjoyed the same advantages. The land is situate by the side of Mangalapuram-Pothencode road. The acquired lands had convenient road access for the reason that it was part of the common holding held by the appellants. As the acquired lands and the lands left out of the acquisition were lying contiguously as one single unit, merely for the fortuitous circumstance that only the southern portion of the land lying by the side of a major public road was acquired, is not a reason in our opinion to hold that the acquired lands did not have road frontage. We are therefore of the considered opinion that the acquired land which is situate by the side of Mangalapuram-Pothencode Old National Highway is liable to be treated as lands falling in category 1. It has also come out in evidence that the lands involved in Exts.A1 and A2 judgments were also acquired pursuant to the very same notification. It has also come out in evidence that the said parcel of land is situate by the side of a less important road about 800 meters to the interior from the lands involved in the instant appeal. It has also come out in evidence that the said parcel of land is situate by the side of a less important road about 800 meters to the interior from the lands involved in the instant appeal. The Advocate Commissioner has in her report stated that the lands involved in the instant appeal are situate 800 meters to the east of Mangalapuram junction on Mangalapuram-Pothencode road. Having regard to the location and lie of the acquired lands and the lands covered by Ext.A1 judgment which are situate further to the interior and by the side of a less important road, we are of the considered opinion that the land value awarded by this court in Ext.A2 judgment can be taken as the basis for awarding compensation. The reference court however declined to do so for the reason that the lands are situate in another village and also for the reason that the lands involved in the instant appeal did not have road frontage. In the view that we have taken the appellants are in our opinion entitled to succeed. We accordingly allow the appeal and in modification of the decree and judgment passed by the reference court, refix the land value at Rs.1,98,585/- per Are. The appellants will also be entitled to all statutory benefits on that basis as also costs in this court.