Jameela v. Special Tahsildar, Land Acquisition, Kasaragod and The Managing Director, Bekal Resorts Development Corporation, Kasaragod

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 25TH JUNE 2010 / 4TH ASHADHA 1932 LA.App..No. 815 of 2009(C) -----------------------------AGAINST THE ORDER DATED 11/04/2008 IN LAR.82/01 of SUB COURT, KASARAGOD .................... APPELLANT(S)/CLAIMANT: ----------------------------- JAMEELA, W/O. HAMSA, NAUSHAD MANZIL NEAR KALANAD BUS STAND KALAND.P.O., KASARAGOD. BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SRI.P.M.NEELAKANDAN RESPONDENT(S)/REFERRING OFFICER & RESPONDENT NO.2 IN LAR: ---------------------------------------------------------------------------- 1. THE SPECIAL TAHSILDAR, LAND ACQUISITION, KASARAGOD. 2. THE MANAGING DIRECTOR, BEKAL RESORTS DEVELOPMENT CORPORATION,KASARAGOD. ADV. SRI.K.JAJU BABU FOR R2 SRI.T.S.SHYAM PRASANTH FOR R2 SR. GOVERNMENT PLEADER SMT.LATHA T. THANKAPPANFOR R1 SRI.S.V.BALAKRISHNA IYER (SR.) THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 25/06/2010, ALONG WITH LAA NO.816 OF 2009 & LAA NO.817 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. -----------------------------------------------L. A. A. Nos.815, 816 & 817 of 2009 -----------------------------------------------Dated this the 25[th] day of June, 2010 ## **JUDGMENT** ## _Pius C. Kuriakose, J_ These three appeals are preferred by the claimants. The lands under acquisition were in Kalanad village and the acquisition was pursuant to Section 4(1) notification published on 30/10/99 at the instance of the Managing Director, Bakel Resorts Development Corporation. The Land Acquisition Officer relying on the basis document fixed the land value at Rs.11,000/- per cent. The reference Court in the first instance would re-fix the land value at Rs.9,000/- per cent. Appeal was preferred by the state to which cross objections L. A. A. Nos.815, 816 & 817 of 2009 -2- were preferred by the claimant. This Court considering the appeals and cross objections vide judgment in LAA.584/06 and connected cases set aside the award of the Reference Court and remanded the cases back to the Reference Court giving opportunity to both sides to adduce evidence regarding the correct market value of the property. Pursuant to the remand additional documents were produced and witnesses were recalled and examined. The evidence on record before the court after completion of the enquiry pursuant to the remand order consisted of Exts.R1, R2, A1 to A37, C1 to C4 oral evidence of AW1 and AW2, RW1 and RW2. Reliance was mostly placed by the claimant on Exts.A20, A21, L. A. A. Nos.815, 816 & 817 of 2009 -3- A29 and A30 which were court judgments in respect of acquisition of land in the same village, but pursuant to notifications five years and seven years earlier to the present notification. The Advocate Commissioner in Ext.A2 had made a comparison of the properties covered by Exts.A20, A21, A29 and A30 with the properties under acquisition and submitted a report to the effect that there is perfect comparison between the properties thereby indicating that there is justification for awarding value at the rate of Rs.13,000/- which was the value awarded under Exts.A20, A21, A29 and A30. The Commissioners who were asked to value the properties on the basis of the improvements available on the L. A. A. Nos.815, 816 & 817 of 2009 -4- properties would report that the property has to be paid value at the rate of Rs.8,000/-, 9,000/and a maximum of Rs.9,500/- per cent. The learned Subordinate Judge did not become inclined to place any reliance on Exts.A20, A21, A29 or A30. This was because it was noticed that those judgments were in respect of acquisition many years subsequent to the present acquisition. Though Ext.A18 was also relied on, the court below did not accept the claim since Ext.A18 was found to be a property situated in the very town. The court below did not accept recommendations of the Advocate Commissioner based on the improvements on the property in full but ultimately what the court below did was to fix the L. A. A. Nos.815, 816 & 817 of 2009 -5- market value at Rs.9,000/- per cent taking an average of Rs.6,000/- and Rs.13,000/- which are respectively the minimum value and maximum value reflected by the various documents produced. 2. In these appeals, the appellants have raised various grounds contending that the market value re-fixed by the court below is grossly inadequate. Sri.S.V.Balakrishna Iyer, the learned counsel for the appellants addressed arguments before us based on the various grounds. Sri.Balakrishna Iyer referred to Exts.A20, A21, A29 and A30 and the various commission reports. According to Sri.Balakrishna Iyer, the learned Subordinate Judge was actually mislead by the L. A. A. Nos.815, 816 & 817 of 2009 -6- terms of the remand order passed by this Court which directed the Subordinate Judge to re-fix the market value based on the evidence that comes on record. The learned Subordinate Judge misunderstood the remand order as one directing him to confine the enquiry to the question as to whether Rs.10,000/- is the appropriate value to be awarded. Sri.Balakrishna Iyer requested that the appeals be allowed in full and the market value be re-fixed at Rs.15,000/- per cent. 3. All the submissions of Sri.Balakrishna Iyer were very stiffly resisted by Sri.K.Jaju Babu, the Standing Counsel for the Requisitioning Authority who was supported in all his submissions by Smt.Latha T. Thankappan, the learned Senior L. A. A. Nos.815, 816 & 817 of 2009 -7- ## Government Pleader. 4. We have considered the rival submissions addressed at the Bar. We have made a reappraisal of the evidence. We have gone through the judgment of the learned Subordinate Judge. We do not find any warrant for interfering with the impugned award at the instance of the claimant. Before this Court also reliance was placed more by Sri.Balakrishna Iyer on Exts.A20, A21, A29 and A30 and the recommendations in Ext.C2 report which was actually based on Exts.A20, A21, A29 and A30. Exts.A20, A21, A29 and A30 were certainly court judgments in respect of acquisition of land in the same village. But those cases relate to acquisitions pursuant to notification five years L. A. A. Nos.815, 816 & 817 of 2009 -8- and seven years subsequent. Having regard to the principles laid down by the Supreme Court in _G.M., Oil & Natural Gas Cor. Ltd. v. R. Jivanbhai Patel & Anr. (2008 SAR (Civil) 894)_ , the court is to be extremely slow and circumspect while relying on post notification documents. Post notification document can be resorted to only when prenotification documents are not available at all. In the instant case including the basis document several pre-notification documents are available. We therefore, justify the action of the learned Subordinate Judge in having not placed reliance on Exts.A20, A21, A29 and A30. 5. When the Reference Court ventures to rely on Commissioner's Report for recommendations of L. A. A. Nos.815, 816 & 817 of 2009 -9- the Advocate Commissioner based on local inspection unless those recommendations are based on market value reflected in a genuine transaction of property and certified copies of those transactions are made available to the court the recommendations of the Commissioner should not be accepted. [see judgment of the Supreme Court in _Gafar v. Moradabad Development Authority (2007(7) SCC 614)_ ]. 6. Having reappraised the evidence by ourselves, we are of the view that the learned Subordinate Judge was extremely liberal towards the claimants in the matter of determining the market value. According to us, it is more or less the correct market value of the property which L. A. A. Nos.815, 816 & 817 of 2009 -10- has been arrived at by the learned Subordinate Judge. The claimants/appellants cannot have any legitimate grievance regarding the market value presently re-fixed. 7. We dismiss these appeals without any order as to costs. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/- L. A. A. Nos.815, 816 & 817 of 2009 -11-