Alexander Chacko v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 23RD FEBRUARY 2010 / 4TH PHALGUNA 1931 LA.App..No. 572 of 2009(C) ------------------------------LAR.1/2004 of SUB COURT,THODUPUZHA .................... APPELLANT(S)/CLAIMANT: ----------------------------- ALEXANDER CHACKO, THAZHATHUPARAMBIL, THODUPUZHA. BY ADV. SRI.S.ANANTHAKRISHNAN SRI.N.K.SUBRAMANIAN RESPONDENT(S)/RESPONDENT: ------------------------------------ STATE OF KERALA, REP. BY DISTRICT COLLECTOR, IDUKKI. SR. GOVERNMENT PLEADER SRI.BASANT BALAJI THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 23/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ L. A. A. No.572 of 2009 -----------------------------------------------Dated this the 23[rd] day of February, 2010 ## **JUDGMENT** _Pius C. Kuriakose, J_ Under challenge in this appeal preferred by the claimant is the judgment of the Land Acquisition Reference Court at Thodupuzha. The property under acquisition was situated within the area of Thodupuzha village and Municipality. The acquisition was for the purpose of widening of Thodupuzha-Ramamangalam public road. The relevant section 4(1) notification was published on 18/08/1999. The Land Acquisition Officer awarded land value at the rate of Rs.69,160/- per Are which corresponds to Rs.28,000/- per cent. Before L. A. A. No.572 of 2009 -2- the Reference Court, the claimant relied mostly on Exts.A1 to A4 sale documents and Ext.X1 Commissioner's Report and Ext.X2 sketch submitted by the Commissioner apart from his own oral evidence as AW1. Exts.A2 to A4 were post notification documents and were rightly rejected by the court below for that reason. Ext.A1 document was a document in favour of a Church and was executed some twelve years prior to the date of section 4(1) notification. Ext.A1 pertains to a small extent of 1.805 cents. The same reflected a land value of Rs.2,63,158/- per cent. The learned Subordinate Judge was not inclined to rely on Ext.A1 on the reason that it is a fancy price which was paid by the Church for purchasing Ext.A1 property. Even though, L. A. A. No.572 of 2009 -3- Mr.S.Ananthakrishnan, the learned counsel for the appellant argued strongly that Ext.A1 should be relied on, we are of the view that the reasons stated by the learned Subordinate Judge for not placing reliance on Ext.A1 are good. The only item of evidence which now remains is Ext.X1 Commission Report as well as Ext.X2 sketch. Ext.X2 sketch particularly, will reveal that the property under acquisition in this appeal and the property of the brothers of the appellant covered by the two other cases decided by the impugned common judgment were enjoying road frontage on three sides. These properties were situated at a distance of 150 metres from the new private bus stand at Thodupuzha. No objections are seen filed by the Government to the Commissioner's Report. -4- L. A. A. No.572 of 2009 Going by the Commissioner's Report, the locality where the property is situated has utmost commercial importance. The Pulimoottil Plaza, a four storied commercial complex which houses several textile shops, shoe marts, super markets medical stores, Margin Free Markets, the Thodupuzha branch of the South Indian Bank, Thodupuzha branch of the Idukki District Cooperative Bank (the ladies branch) is situated at a distance of just 50 metres from the property under acquisition. It is reported that Pulimoottil Plaza shopping complex is the largest Commercial Complex in Thodupuzha Municipal Town. The report is also to the effect that the property under acquisition had nearness to several other shopping complexes including the Choorappuzha L. A. A. No.572 of 2009 -5- Towers, a three storied shopping complex which houses the Head Post Office at Thodupuzha. The Commissioner has reported that the area of the property under acquisition is in terms of commercial importance, the best in Thodupuzha Municipal town. Sri.Ananthakrishnan, the learned counsel for the appellant would argue mainly on the basis of Ext.A1 as well as Ext.C1 Commission Report and Ext.C2 sketch that the appeal be allowed re-fixing the market value of the land under acquisition at Rs.1,62,750/- per cent. 2. All the submissions of Mr.Ananthakrishnan were very stiffly resisted by the Senior Government Pleader, Sri.Basant Balaji. Sri.Basant drew our attention to judgment of this Court in _State of Kerala v. Jose Simon [2009(1) KLT 760]_ as L. A. A. No.572 of 2009 -6- well as to various other judgments whereby the value of land within the area of Thodupuzha Municipal Town acquired at more or less the same time has been re-fixed. The learned Senior Government submitted that the maximum value awarded by this Court for acquisition of land in Thodupuzha Municipal Town is Rs.82,750/- per cent, a rate granted in the present case which is now approved by the dismissal of the appeal preferred by the Government. According to him, there is no warrant for any further enhancement and any further enhancement may open up a flood gate of review petitions in other appeals already decided. 3. We have very anxiously considered the rival submissions addressed at the Bar. We have L. A. A. No.572 of 2009 -7- made a quick survey of the evidence available on record. We are in agreement with the learned Subordinate Judge for not having placed reliance on Ext.A1. Ext.A1 does not reveal the market value of the property covered by that document at that time. We are also convinced that the Church paid much more than the market value at that time. But at the same time, we feel that the learned Subordinate Judge who ultimately decided the issue on the basis of guess work after rejecting all the documents produced by the appellant did not keep in mind the situation that the property in question was enjoying frontage of road on all the three sides. We feel that this is the only case among the various cases decided by us in respect of property in Thodupuzha town L. A. A. No.572 of 2009 -8- where the acquired property enjoys road frontage on three sides. Commissioner's Report, as already stated, has not been objected by the Government. We are of the view that some reliance can be placed on the Commissioner's Report and giving additions for the extra facility of having road frontage on three sides, the market value of the land under acquisition in this case and the two connected cases can be re-fixed at Rs.1 lakh per cent. The appeal is allowed to the above extent. 4. We make it clear that this judgment will not be a precedent for any other case pertaining to acquisition of land in Thodupuzha town pursuant to the present notification and notifications at more or less the same time. It is needless to mention that the appellant will be -9- L. A. A. No.572 of 2009 entitled for all statutory benefits admissible under sections 23(2), 23(1A) and under section 28 of the Land Acquisition Act. Parties are however, directed to suffer their respective costs. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-