Market Value of Land; Santhakumar Vs. State [Kerala High Court, 04-04-2016]

Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 – Section 26 Clauses (a) to (c) – Statutory requirements under – Determination of market value of land by Collector – Held, it is incumbent upon the District Collector to fix the market value at whichever is found higher in the enquiry.


IN THE HIGH COURT OF KERALA AT ERNAKULAM

K.HARILAL, J.

W.P.(C) No.31988, 34427 & 34948 of 2015

Dated this the 4th day of April, 2016

PETITIONER(S)

SANTHAKUMAR

BY ADVS.SRI.THOMAS ABRAHAM SMT.MERCIAMMA MATHEW SRI.ASWIN.P.JOHN

RESPONDENT(S)

1. STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM-695001.

2. SECRETARY, DEPARTMENT OF LAW, GOVERNEMENT OF KERALA, THIRUVANANTHAPURAM-695001.

3. SECRETARY DEPARTMENT OF REVENUE GOVERNMENT OF KERALA, SECRETARIAT,THIRUVANANTHPURAM-695001.

4. SECRETARY, PUBLIC WORKS DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM-695001.

5. THE LAND REVENUE COMMISSIONER , PUBLIC OFFICE BUILDINGS, MUSEUM JUNCTION, THIRUVANANTHAPURAM-695001.

6. DISTRICT COLLECTOR, COLLECTORATE,KUDAPPANAKUNNU, THIRUVANANTHAPURAM-695001.

7. DEPUTY COLLECTOR (LAND ACQUISITION) AND THE LAND ACQUISITION OFFICER, COLLECTORATE, KUDAPPANAKUNNU, THIRUVANANTHAPURAM-695001.

BY GOVERNMENT PLEADER SRI.BABY THOMAS

Common Judgment

Since the pleadings are identical, the matters in issue involved in all these writ petitions and the reliefs sought for are one and the same, even though parties are different, all the writ petitions are heard together and disposed of accordingly by this common judgment.

2. The petitioners are the land owners whose properties were acquired under the provisions of the

# Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013

(for short ‘the Act’). The said acquisition was effected for the widening of Karamana-Kaliyikkavila road.

3. According to the 1 st petitioner in W.P.(C) No.34948 of 2015, an extent of 2.03 Ares (5.0141 cents) of land comprised in Re-Sy.No.561/16 (L.A. Sub Division No.25) of Block No.26 of Nemom Village in Thiruvananthapuram Taluk in Thiruvananthapuram District, had been acquired from him and the said property falls within Reach No.2 of Stretch 1, i.e., from Pappanamcode to Karakkamandapam.

4. According to the petitioner in W.P.(C) No.34427 of 2015, an extent of 3.12 Ares (7.7064 cents) of land comprised in Re-Sy.No.794/14 of Nemom Village of Block No.26 in Thiruvananthapuram Taluk in Thiruvananthapuram District, had been acquired from her and the said property falls within Reach No.3 of Stretch 2, i.e., from Karakkamandapam to Pravachambalam.

5. According to the petitioner in W.P.(C) No.31988 of 2015, the property acquired from him is having an extent of 1.44 Ares of land in Re-Sy.No.561/2 Block No.26 of Nemam Village in Thiruvananthapuram Taluk in Thiruvananthapuram District.

6. In W.P(C) Nos.31988/15 and 34948/15, the District Collector, passed Ext.P3 Award fixing the market value at Rs.5,52,534/- per Are and in W.P(C) No. 34427/15, the District Collector passed Ext.P3(b) Award fixing the market value at Rs.5,46,199/- per Are (Rs.2,21,131/- per cent).

7. The common contention raised by all the petitioners in all these writ petitions is that the market value, as mentioned above, had been fixed in violation of the statutory requirements under Section 26 of the Act. The crux and content of the pleadings in all the writ petitions is that it is obligatory on the part of the District Collector to conduct an enquiry, exhausting the statutory requirements under Clauses (a), (b) and (c) of Section 26 of the Act, in the determination of market value of land and fix whichever is found higher in the above enquiry. But, in the instant cases, the District Collector has not exhausted all the statutory requirements under Clauses (a) to (c) of Section 26 of the Act to find out higher criteria; but, conducted an enquiry under Clauses (a) and (b) only. No enquiry had been conducted, as required under Clause (c) of Section 26 of the Act.

8. Further, it is contended that the rate per cent fixed as compensation, as per the valid exercise undertaken by the authorities like the State Level Empowered Committee (SLEC) and the District Level Purchase Committee (DLPC) in the case of properties of the same Reach of the same Stretch, is Rs.11,45,365/- per cent, whereas the rate per cent fixed in the case of the petitioners in W.P(C) Nos.31988/15 & 34948/15 is Rs.2,23,697.97/-. In the case of the petitioner in W.P(C) No. 34427/15, it is Rs.2,21,131/- per cent, whereas, the rate per cent fixed as compensation as per the valid exercise undertaken by the authorities like SLEC and DLPC, in the case of properties of the same Reach of the same Stretch is Rs.11,30,469/- and the same is evidenced by Ext.P2 in all the cases. It is with these averments, the petitioners have filed these writ petitions, with a prayer to call for the records leading to Exts.P3 & P3(b) and quash the same by issuing a writ of certiorari and to issue a writ of mandamus or direction commanding the respondents to fix the compensation to the petitioners strictly in accordance with the statutory mandate under Section 26(1) of the Act, in accordance with the higher rate stipulated in Ext.P2 for the landed properties acquired for Karamana-Kaliyikkavila road widening project in Reach No.2 of Stretch 1 and Reach No.3 of Stretch 2.

9. The State filed a counter affidavit denying the allegations of illegality levelled against the procedure adopted by the District Collector, in the course of determination of market value and contended that the market value has been fixed strictly in accordance with Section 24(1)(a) and Section 26 of the Act. It is also contended that the District Level Purchase Committee negotiated with the land owners like the petitioners and most of the land owners, including the petitioners have not accepted the land value offered by the Committee. So, the petitioners’ claim that, they are entitled to get the land value at Rs.11,45,365/- per cent does not merit consideration. More over, they failed to enter into an agreement with the Government, as stipulated in Rule 12(5) of the Kerala Land Acquisition Rules, 1990. The petitioners have neither expressed their consent in writing; nor agreed upon the land value offered by the DLPC. In the absence of such an agreement, the petitioners’ claim to get the land value, at the rate offered by the DLPC and approved by the SLEC, cannot be considered.

10. Heard the learned counsel for the petitioners and the learned Government Pleader.

11. The learned counsel for the petitioners advanced arguments challenging the method adopted in the determination of market value by the District Collector. The sum and substance of the arguments is that the determination of the market value was made in violation of the statutory mandate under Section 26 of the Act. The District Collector had omitted to conduct an enquiry under Clause (c) of Section 26 of the Act and the market value has been fixed by exhausting the requirements under Clauses (a) and (b) only. The learned counsel drew my attention to Clause (c) of Section 26 of the Act and submitted that it is obligatory on the part of the District Collector to explore all criteria under Clauses (a) to (c) and to fix the market value at whichever is higher.

12. Per contra, the sum and substance of the arguments advanced by the learned Government Pleader is that the petitioners have already rejected the offer made by the DLPC. In that circumstance, they are not entitled to claim the market value fixed by the DLPC. The petitioners have neither expressed their consent, in writing; nor agreed upon the land value offered by the DLPC. In the absence of such an agreement, the petitioners’ claim, to get the land value offered by the DLPC and approved by the SLEC, cannot be considered.

13. In view of the rival submissions made at the Bar, the question to be considered is, whether the District Collector is justified in determining the market value of the lands by taking the criteria under Clauses (a) and (b) only in Ext.P3 Award.

14. The question, in controversy, centres around the statutory requirements under Section 26 of the Act. What is the method to be adopted and the criteria to be taken into consideration, in the course of determination of market value, as per the new Act. So, it is apposite and profitable to extract the relevant portion of Section 26 of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013, which reads as follows:

# 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: or

(b) the average sale price for similar type of land situated in the nearest village or nearest vicinity area; or

(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:

Provided that the date for determination of market value shall be the date on which the notification has been issued under Section 11.”

15. On an analysis of Clauses (a) to (c) of Section 26 of the Act, it could be seen that the legislative mandate is unambiguous and it is obligatory on the part of the District Collector to make an enquiry, adopting different methods envisaged under Clauses (a) to (c) of Section 26 of the Act, to fix the market value at the rate whichever is found higher in the enquiry. On a close analysis of Clauses (a) to (c) of Sec.26 of the Act, it could be seen that, even though an option is given by inserting ‘or’ between each clause, by incorporating the expression “whichever is higher” at the end, an enquiry by adopting all methods and application of criteria which is found higher in such enquiry, are made mandatory. The market value of each criterion under Clauses (a) to (c) of Section 26 of the Act shall be explored and higher value must be taken as market value of the acquired property.

16. Going by Ext.P3 Award passed by the District Collector, it is seen that the District Collector has conducted an enquiry under Clauses (a) and (b) of Section 26 of the Act and omitted to conduct an enquiry under Clause (c) of Section 26 of the Act. At the same time, by Ext.P2, it is brought out in evidence that for the similar properties in the same Reach, the DLPC fixed the market value at a much higher level to the tune of Rs.11,36,469/- and Rs.11,45,365/- respectively. Going by the counter affidavit, the respondents have no case that those properties are not similarly situated or not within the same Reach. If that be so, the District Collector ought to have considered the market value fixed by the DLPC for the properties referred to in Ext.P2 and whichever was found higher should have been taken as the market value of the petitioners’ lands also.

17. In the above analysis, I find that the determination of market value in Ext.P3 Award is vitiated by procedural irregularities and illegalities and the Award and all the orders issued, on the basis of the said Award, are liable to be set aside and I do so. The matters will stand remitted back to the District Collector and he shall redetermine the market value of all the properties involved in these three writ petitions, strictly in compliance with the statutory requirements under Clauses (a) to (c) of Section 26 of the Act. It is made clear that it is incumbent upon the District Collector to fix the market value at whichever is found higher in the enquiry, as contemplated under Section 26 of the Act. The redetermination shall be made within a period of three months from the date of receipt of a copy of this judgment, after affording an opportunity of being heard to the petitioners.

These writ petitions are disposed of accordingly.

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