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2023 DIGILAW 970 (KER)

Premchand S/o Vijayan v. State of Kerala

2023-11-30

JOHNSON JOHN, P.B.SURESH KUMAR

body2023
JUDGMENT : JOHNSON JOHN, J. 1. The above appeal and Cross Objections arise from the Land Acquisition Reference Case No. 10 of 2018 of the Second Additional District Judge Ernakulam. The said reference was made under Section 64(1) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (‘Act 2013’ for short) in respect of a property having an extent of 8.10 Ares in Re-survey No. 427/9-4 in Block No. 12 of Angamaly village acquired for the purpose of ‘Coast Guard Infrastructure Development’, pursuant to a notification issued under Section 4(1) of the Land Acquisition Act, 1894 (‘Act, 1894’ for short) dated 19.10.2013. The appellant claimed land value at the rate of Rs. 8,00,000/- per cent and the Land Acquisition Officer awarded land value at the rate of Rs. 3,60,911/- per Are. 2. The Reference Court/Authority awarded land value at the rate of Rs. 5,21,908/- per Are. The appeal is on the ground that the Reference Court/Authority ought to have accepted Exhibit A2 title deed of the acquired property, by which the appellant purchased the property for a consideration of Rs. 8,41,019 per Are. Further Exhibit A3 sale deed is the title deed of the property adjacent to the acquired property, which shows consideration at the rate of Rs. 8,40,336 per Are. It is also contended that the fair value of the acquired property at the time of issuance of Section 4(1) notification was Rs. 8,40,000 per Are and the same was subsequently enhanced to Rs. 12,60,000/- on 14.11.2014 by the Revenue Divisional Officer. 3. The appellant has also contended that the acquired property is situated very close to Cochin International Airport and 4 Kms. away from Angamaly town and Kalady junction and it has got great potential value and commercial importance and in that circumstances, he is entitled to get the land value at the rate of Rs. 11,18,272/- per Are based on Exhibits A2, A3 and A5 documents. 4. The appellant further contended that the property was acquired by invoking the urgency clause under Section 17 of Act, 1894 and in view of Section 40(5) of Act, 2013, the appellant is entitled to get an additional compensation of 75% of the total compensation determined under Section 27 of Act, 2013. 5. 4. The appellant further contended that the property was acquired by invoking the urgency clause under Section 17 of Act, 1894 and in view of Section 40(5) of Act, 2013, the appellant is entitled to get an additional compensation of 75% of the total compensation determined under Section 27 of Act, 2013. 5. The first respondent filed Cross Objection No. 143 of 2021 contending that the Reference Court/Authority has erroneously held that the nature of the acquired property and the nature of the properties covered by Exhibits R1 and R2 were the same ignoring the fact that the properties covered by the above sale deeds are reclaimed nilam; whereas, the acquired property is nilam (wet land). It is contended that the enhancement of the land value given by the Reference Court/Authority is exorbitant and is liable to be set aside. 6. Cross Objection No. 40 of 2023 is filed by the additional respondents 2 and 3 contending that the Reference Court/Authority granted enhancement of land value without properly considering the objections of the respondents and without appreciating the documents produced by the respondents and that the findings of the Reference Court/Authority was based on Exhibits R1 and R2 documents with respect to dry land, ignoring the fact that the acquired property is ‘nilam’ (wet land), as per the entries in the data bank and the thandaper account and therefore, the award of the Reference Court/Authority enhancing the land value is liable to be set aside. 7. Heard both sides and perused the records. 8. For infrastructure development of Indian Coast Guard Air Enclave, Kochi, the Government of India, Ministry of Defence, as per letter bearing No. AQ/0287/CGHQ/2740/D(CGR) dated 27.12.2010, accorded sanction for the acquisition of 18.6873 acres of private land situated in Angamaly Village, Aluva Taluk, Ernakulam District comprised in survey Nos. 400,427,448, 449 and 453 by invoking the urgency power under Section 17 of Act, 1894. For the purpose of fixing the land value, the Land Acquisition Officer classified the lands under 5 categories and the land was taken possession after payment of 80% of the land value. Subsequently, Act, 2013 came into force with effect from 01.01.2014 and therefore, the Land Acquisition Officer passed the award dated 10.11.2017 as per the provisions of Act, 2013. 9. Subsequently, Act, 2013 came into force with effect from 01.01.2014 and therefore, the Land Acquisition Officer passed the award dated 10.11.2017 as per the provisions of Act, 2013. 9. Exhibit A2 sale deed No. 1932/2011 dated 07.07.2011 shows that the appellant purchased 8.10 Ares of property comprised in Re-survey No. 427/9 in Block No. 12 of Angamaly village from one Safiya for a total sale consideration of Rs. 68,12,500/-. The learned counsel for the appellant cited the decisions of the Hon’ble Supreme Court in Dollar Company vs. Collector of Madras, 1975 (0) Supreme (SC) 191 and Bengaru Narasingha Rao Naidu vs. R.D.O. Vizianagaram, 1979 (0) Supreme (SC) 491 in support of the contention that the best evidence of the value of acquired property is the consideration shown in the sale deed by which the appellant purchased the property. It is also argued that the contention of the respondents that Exhibit A2 is a created document in anticipation of the acquisition, is not sustainable, in view of the fact that Exhibit A2 sale deed is executed on 07.07.2011 and Section 4(1) notification in connection with the acquisition of the property was issued only on 19.10.2013. 10. When a reference is made under Section 64 of Act, 2013, the authority is required to examine whether the Collector has followed the parameters set out under Sections 26 to 30 and the provisions under Chapter V of Act, 2013 for the determination of award by authority as provided in Section 69 of Act, 2013. The criteria to be followed in assessing and determining the market value of the land by the Collector is stipulated in Section 26 of Act, 2013 and the same is extracted below: “26. Determination of market value of land by Collector: (1) The Collector shall adopt the following criteria in assessing and determining the market value of the land, namely: (a) the market value, if any, specified in the Indian Stamp Act, 1899 (2 of 1899) for the registration of sale deeds or agreements to sell, as the case may be, in the area, where the land is situated. (b) the average sale price for similar type of land situated in the nearest village or nearest vicinity area. (b) the average sale price for similar type of land situated in the nearest village or nearest vicinity area. (c) consented amount of compensation as agreed upon under sub-section (2) of section 2 in case of acquisition of lands for private companies or for public private partnership projects, whichever is higher......” 11. It can be seen from Section 26 (1)(a) of Act, 2013 that the first criteria is the market value, if any specified in the Stamp Act, 1899. A perusal of Exhibit A2 sale deed will show that for the purpose of registration of the said sale deed, Rs. 5,45,000/- was paid as stamp duty by fixing the fair value of the property as Rs. 68,12,500/-. The learned counsel for the respondents argued that the appellant/claimant has not examined the prior owner of the property, who executed Exhibit A2 sale deed and the power of attorney holder of the appellant/claimant, when examined as AW-1, admitted in cross examination that it is not known to him whether the purchaser has paid the consideration mentioned in Exhibit A2 to the seller. AW1 further admitted in cross examination that it is not known to him whether there was any agreement for sale of the property before execution of Exhibit A2 sale deed. 12. In Haryana State Industrial and Infrastructure Development Corporation Ltd. vs. Deepak Aggarwal, 2022 (5) KHC 497 , it was held by the Honourable Supreme Court in Para 19 as follows: “A careful scanning of all the decisions cited by both sides would thus reveal that all those decisions hold that land acquisition proceedings under the L.A. Act begin with the publication of a notification under sub-section (1) of Section 4. A declaration Under Section 6 of the L.A. Act is one of the steps under the L.A. Act which ultimately culminates into the conclusion of the proceedings by making an Award and taking over possession of the acquired land. A declaration Under Section 6 cannot be made without holding an inquiry unless urgency clause Under Section 17 is applied. Publication of a notification under sub-section (1) of Section 4 of the L.A. Act is condition precedent for taking further steps. Hence, such a notification is the starting point of acquisition proceedings under the L.A. Act. The initiation of the proceedings is by the publication of the notification under sub-section (1) of Section 4 of the L.A. Act.” 13. Publication of a notification under sub-section (1) of Section 4 of the L.A. Act is condition precedent for taking further steps. Hence, such a notification is the starting point of acquisition proceedings under the L.A. Act. The initiation of the proceedings is by the publication of the notification under sub-section (1) of Section 4 of the L.A. Act.” 13. It is not in dispute that in this case the notification under Section 4(1) of Act, 1894 is dated 19.10.2013 and Exhibit A2 sale deed is dated 07.07.2011 and therefore, in the absence of any material before the court to indicate that the parties to Exhibit A2 sale deed were having knowledge about the proposed acquisition at the time of execution of Exhibit A2 sale deed, it cannot be held that Exhibit A2 was created for the purpose raising a claim in land acquisition for higher value of the land. The fact that AW-1, the power of attorney holder of the claimant, has not witnessed the payment of consideration and not aware as to whether any agreement was executed prior to Exhibit A2 by itself, cannot be accepted as circumstances to arrive at a conclusion that Exhibit A2 is not a genuine transaction. 14. Exhibit A5, copy of the fair value register issued by the Sub Registrar, Angamaly shows that the fair value fixed by the Government for the property comprised in re-survey No. 427/9 of Angamaly Village is Rs. 8,40,000/- per Are at the time of publication of Section 4(1) notification of the acquired property. On the basis of Exhibits R9, R10 and R11, the respondents are contending that Exhibit A5 fair value at the rate of Rs. 8,40,000/- per Are cannot be accepted for fixing the market value of the property acquired. 15. It is the case of the respondents that several complaints were received from various persons regarding the fixation of fair value of lands in Angamaly Municipality and that Exhibit R9 certificate issued by the Village Officer on 21.01.2020 would show that several adalaths were conducted for rectifying mistakes in the fair value of the properties in Angamaly Municipality. Exhibit R10 copy of the gazette notification shows that the fair value of the property comprised in re-survey No. 340/2013 of Angamaly Village originally fixed at Rs. 11,55,000 per Are was revised and fixed at Rs. 5,00,000/- per Are. Exhibit R10 copy of the gazette notification shows that the fair value of the property comprised in re-survey No. 340/2013 of Angamaly Village originally fixed at Rs. 11,55,000 per Are was revised and fixed at Rs. 5,00,000/- per Are. Exhibit R11 copy of the gazette notification would show that the fair value of the properties comprised in re-Survey Nos. 265/5, 265/6, 114/1 and 328/10 were also revised and re-fixed. But, it is pertinent to note that no evidence is adduced to show that the fair value of the acquired property comprised in re-Survey No. 427/9 of Angamaly Village shown in Exhibit A5 as Rs. 8,40,000/- per Are, was subsequently reduced or re-fixed. Even though RW-2, who was the Special Tahsildar (Land Acquisition) has deposed in cross examination that she has reported to the District Collector that the fair value fixed is on the higher side, she has no case that the District Collector has initiated any proceedings on the basis of her report for reducing the fair value as per Exhibit A5 gazette notification. Therefore, in view of Section 26(1)(a) of Act, 2013, we find that the fair value at the rate of Rs. 8,40,000/- per Are for the property comprised in re- Survey No. 427/9 of Angamaly Village as per Exhibit A5 notification can be accepted as the market value of the acquired property. 16. The next question to be considered is whether the appellant/claimant is entitled to get additional compensation by virtue of Section 40(5) of Act, 2013. The learned counsel for the appellant contended that the property was acquired by invoking the urgency clause under Section 17 of Act, 1894 and that the said provision is in pari materia with Section 40 of Act, 2013. 17. But, the learned counsel for the respondents argued that since special powers under Section 40 of Act, 2013 has not been invoked in this case, the appellant is not entitled for the benefit of sub-clause (5) of Section 40 of Act, 2013. 18. 17. But, the learned counsel for the respondents argued that since special powers under Section 40 of Act, 2013 has not been invoked in this case, the appellant is not entitled for the benefit of sub-clause (5) of Section 40 of Act, 2013. 18. The learned counsel for the appellant relied on the decision of the Hon’ble Supreme Court in Soorajmull Nagarmull vs. State of Bihar and Others, (2015) 10 SCC 270 and the decision of the High Court of Madras in A. Sankara Subbu vs. Secretary to Government [order dated 5.8.2015 in W.P. No. 27550 of 2014 and batch] and G.R. Apparaj vs. The Government of Tamil Nadu [order dated 22.3.2016 in W.P. No. 3485 of 2015 and batch] and argued that when the property was acquired by invoking the urgency clause under Section 17 of Act, 1894 and award was passed by virtue of Section 24(1)(a) of Act, 2013, the claimant is entitled for the benefit of Section 40(5) of Act, 2013. In Soorajmull Nagarmull’s case, the Hon’ble Supreme Court held thus: “At first perusal, there seems to be an unexplained inconsistency between Section 24(1)(a), which allows an acquisition to stand despite a failure to pass an award while only requiring the compensation to be determined under the 2013 Act, and Section 24(2), which deems the acquisition to have lapsed for a failure to pay compensation or take physical possession of the land where an award has been passed over five years prior to the commencement of the 2013 Act. It appears that the State is in a better position in situations where it has been remiss in taking any action, towards publication of an award than in situations where it has taken partial steps towards the completion of the acquisition proceedings. However, it is possible that the reason behind this differentiation is that Section 24(2) gives the State the option to initiate fresh proceedings, as opposed to placing an obligation upon it to do so. To give the State the discretion to set aside an acquisition for its own error in not passing an award would be in the face of the decision in Satendra Prasad Jain. Parliament has, therefore, sought to give the erstwhile landowner the benefit of enhanced compensation under the 2013 Act, while restraining the State from taking advantage of its own wrong. Parliament has, therefore, sought to give the erstwhile landowner the benefit of enhanced compensation under the 2013 Act, while restraining the State from taking advantage of its own wrong. Section 24(2), on the other hand, seeks to allow the land to be returned to the landowner party in situations where there is genuinely no need for it, thus benefiting both the dispossessed landowner and the State. There still remains an incongruity, but which presently we are not burdened to unravel. Which provision in the 2013 Act governs a situation where the State has not progressed beyond making a declaration under Section 6; where possession of the land has not assumed by the State; where neither part nor whole of the compensation has been paid or tendered! However, since in this Appeal we do not have to traverse this legal labyrinth, we shall refrain from indulging in a more detailed discussion of it.” 19. In Soorajmull Nagarmull’s case, the Hon’ble Supreme Court relied on the decision in Satendra Prasad Jain vs. State of U.P. (1993) 4 SCC 369 and held that the land that is statutorily vested in the Government cannot revert to the original owner by way of mere cancellation of notification and that the State is precluded from endeavouring to have the acquisition set aside for its own failure to carry out compliance with Section 11A, and that once possession has been taken by the State under Section 17 of Act, 1894, it is no longer open to the State to relinquish or return the land to the legal entity who had been dispossessed from it and in the said case, the court declared that the acquisition proceedings with regard to the subject lands have lapsed and directed the State to initiate fresh acquisition proceedings or take any other action available to it in accordance with law. 20. In Laxmi Devi vs. State of Bihar and Others, (2015) 10 SCC 241 , the Hon’ble Supreme Court held that in a case where the acquisition of land invoking the urgency provisions under Section 17 of Act, 1894 was initiated and possession taken by the State and thereafter failed to pass award within the stipulated statutory period, the only relief that can be granted to the land owner is setting aside the acquisition and directing initiation of fresh acquisition proceedings. 21. 21. In Soorajmull Nagarmull v. State of Bihar and others and other decisions cited by the learned counsel for the appellant, the ratio decidendi is circumscribed and restricted to the extent that the State is not empowered to withdraw from an acquisition, once the land is taken possession of under Section 17 of the Act, 1894 and that when the acquisition proceedings with regard to the subject land has lapsed for not passing an award within the stipulated statutory period, the acquisition proceedings can be set aside and the State can be directed to initiate fresh acquisition proceedings. But, in the case at hand, the appellant has not challenged the acquisition proceedings and therefore, we find that the decisions cited by the appellant do not support the contention of the appellant that he is entitled for the benefit of Section 40(5) of Act, 2013. 22. Sub-Section (5) of Section 40 of the 2013 Act provides that an additional compensation of seventy five percent of the total compensation as determined under Section 27 shall be paid by the Collector in respect of land and property for the acquisition of which proceedings have been initiated under sub-section (1) of this section. It is clear from the said sub-section itself that the additional compensation provided for therein, is payable only in respect of land and property for the acquisition of which proceedings have been initiated under sub-section (1). Proceedings have not been initiated under sub-section (1) of Section 40 for acquisition of the land involved in this case. 23. True, proceedings under Section 17 of the 1894 Act has been initiated for the acquisition of the land involved in this case. But, section 17 is not an identical provision, though the same dealt with the special powers of the appropriate Government in cases of urgency as in the case of Section 40. There is qualitative difference between the provisions contained in Section 17 of the 1894 Act and Section 40 of the 2013 Act. But, section 17 is not an identical provision, though the same dealt with the special powers of the appropriate Government in cases of urgency as in the case of Section 40. There is qualitative difference between the provisions contained in Section 17 of the 1894 Act and Section 40 of the 2013 Act. Section 17 of the 1894 Act is a provision that could be pressed into service in all cases of urgency, whereas Section 40 of the 2013 Act is a provision that could be pressed into service only for acquisition of minimum area required for the defence of India or national security or for any emergencies arising out of natural calamities or any other emergencies with the approval of the Parliament. 24. In the light of the proviso to sub-section (5) of Section 40, additional compensation provided for therein is not payable if the acquisition is for a project that affects the sovereignty and integrity of India, the security and strategic interest of the State or relations with foreign State. At any rate, in the absence of any case for the claimant that provision contained in sub-section (1) of Section 40 could have been invoked by the Central Government for the purpose for which the land of the claimant was acquired, he cannot be heard to contend that he is entitled to the additional compensation provided for under sub-section (5) of Section 40. 25. True, Section 24(1)(a) of the 2013 Act provides that where no award under Section 11 of the 1894 Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply in respect of proceedings initiated for acquisition of lands under the 1894 Act. Section 24 falls under Chapter IV of 2013 Act dealing with “notification and acquisition.” The expression “determination of compensation” provided for under Section 24(1)(a) can therefore be understood only in the context of determining the compensation as provided for under Section 27 of the 2013 Act which falls under Chapter IV. Section 40 is a measure of rehabilitation and resettlement contained in Chapter V of the Act dealing with “rehabilitation and resettlement award.” Even though the same deals with special powers of appropriate Government in case of urgency, it cannot be treated as one falling within the scope of the expression “determination of compensation” as contained in Section 24(1)(a) of the 2013 Act. Therefore, we find that the contention of the appellant that he is entitled for additional compensation under Section 40(5) of Act, 2013 is not sustainable. 26. In the result, L.A.A. No. 97 of 2021 is allowed in part fixing the land value for the acquired property at Rs. 8,40,000/- (Rupees Eight Lakhs Forty Thousand only) per Are. All other directions in the impugned judgment will stand confirmed. Cross Objection Nos. 143 of 2021 and 40 of 2023 are dismissed. Interlocutory applications, if any pending, are closed.