Joseph v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI WEDNESDAY, THE 22ND DAY OF FEBRUARY 2012/3RD PHALGUNA 1933 LA.App..No. 855 of 2009 (C) --------------------------------LAR.11/2007 of PRL.SUB COURT,KOTTAYAM -------------- APPELLANT(S)/CLAIMANT: ----------------------------- JOSEPH, S/O.CHACKO, PANAMPARAMBIL, KURMBANADOMKARA, MADAPPALLY VILLAGE, CHANGANACHERRY. BY ADV. SRI.V.PHILIP MATHEW RESPONDENT(S)/RESPONDENTS: ------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE - DISTRICT COLLECTOR, KOTTAYAM. 2. THE SPECIAL TAHASILDAR (LA) GENERAL, KOTTAYAM. 3. MADAPALLY GRAMA PANCHAYAT, - REPRESENTED BY ITS SECRETARY, MADAPALLY. R3 BY SRI.LAL GEORGE R1 AND R2 SRI.C.R.SYAMKUMAR, SR. GOVT. PLEADER THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 22-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ. -----------------------------------------------L. A. A No.855 of 2009 -----------------------------------------------Dated this the 22[nd] day of February, 2012 ## **JUDGMENT** ## _Pius C. Kuriakose, J_ The claimant is the appellant. His property in Madappally village was acquired at the instance of Madappally Panchayat for the construction of a shop building and bus terminal very near to Thengana junction on Changanacherry - Vazhoor road. Acquisition was pursuant to Section 4(1) notification published on 28/03/2000. The land was reclaimed land. The Land Acquisition Officer awarded land value at the rate of ` 14,085/- per Are. Before the Reference Court, it was on Exts.A1 and A2 that the appellant/claimant relied on. Both were documents executed two to two and a half years prior to Section 4(1) notification. Exts.A1 and A2 were properly proved by examining the vendees viz. AW2 and AW3. These two documents reflected L. A. A No.855 of 2009 -2- an average land value of ` 1 lakh per cent. The learned Subordinate Judge did not become inclined to place reliance on Exts.A1 and A2 for the reason that though those two documents are executed more than two years prior to the date of promulgation of Section 4(1) notification, their execution was subsequent to the resolution adopted by the Panchayat to acquire these properties. It was suggested in cross examination to AWs.2 and 3 that it was in anticipation of the land acquisition proceedings that they showed much higher value for these properties in the documents. It appears on a reading of the impugned judgment that the learned Subordinate Judge has virtually accepted the above suggestion to be correct. Finally it was taking into account the rate disclosed in the basis document Ext.R3 and giving additions taking into account the importance of the locality that the learned Subordinate Judge fixed the market value of the land at ` 22,692.50/-, thus giving to the appellant about 60% increase over the rate awarded by the Land Acquisition Officer. L. A. A No.855 of 2009 -3- 2. The main ground raised in this appeal is that the court below went wrong in not placing reliance on Exts.A1 and A2. It is urged that Exts.A1 and A2 having been proved properly should have been relied on in preference to Ext.R3 which was not properly proved at all. Sri.V.Philip Mathews, the learned counsel for the appellant addressed us on the basis of the grounds raised in the appeal memo. According to Sri.Philip Mathews, it is too much to presume that AWs.2 and 3 purchased the property covered by Exts.A1 and A2 in anticipation of prospective land acquisition proceedings. They did not stand to gain anything purchasing the property which was liable to be acquired. Substantial amounts have been paid by way of stamp duty and registration fees for Exts.A1 and A2. They are documents recording normal transactions. It is about two to two and a half years after the execution of Exts.A1 and A2 that the relevant notification was promulgated. Apart from blunt suggestions, there is no material on the basis of which it could be held by the court below that it is after coming to know about the land L. A. A No.855 of 2009 -4- acquisition proceedings that Exts.A1 and A2 documents were got executed showing an unusually high value. 3. Sri.Lal George, the learned counsel for the Requisitioning Authority submitted that Exts.A1 and A2 cannot be relied on at all. The fact that the proposal to have bus terminal and shopping complex at the area of the properties covered by Exts.A1 and A2 was pending with the Panchayat for examining and the same was well known to the local people. Some of the locals in fact approached this Court under Article 226 seeking to quash the land acquisition proceedings. It is therefore only to be presumed that the parties to Exts.A1 and A2 very well knew about the impending land acquisition proceedings and that they showed a higher value in Exts.A1 and A2. Sri.Lal George was supported in his submissions by Sri.C.R.Syamkumar, the learned Senior Government Pleader. 4. We have given our anxious consideration to the submissions addressed at the Bar. We cannot accept the L. A. A No.855 of 2009 -5- argument of Sri.Philip Mathews that Ext.R3 document could not have been relied on as it was not properly proved by anybody. It is trite to the decisions of the Supreme Court including the one in P.Ram Reddy & Ors. v. Land Acquisition Officer, Hyderabad Urban Development Authority (1995(2) SCC 305) that in enquiry before the Reference Court documents relied on by the Government discussed by the Land Acquisition Officer in his award can be relied on without formal proof. The reliance placed by the learned Subordinate Judge on Ext.R3 cannot be said to be illegal. At the same time, the question is whether the learned Subordinate Judge has correctly fixed the market value of the property under acquisition by placing reliance on Ext.R3. In other words, the question is whether Ext.R3 reflects the correct market value of the property under acquisition. As already stated Exts.A1 and A2 are the two documents relied on by the claimant. Ext.A1 in our opinion can be discarded L. A. A No.855 of 2009 -6- for a reason different from the reason stated by the learned Subordinate Judge. Ext.A1 does not pertain to barren land. It pertains to a small building also. No separate value is shown in Ext.A1 for the land and the building. We, therefore, eschew Ext.A1 from consideration. But Ext.A2 document pertains to land only. But then Ext.A2 is a tiny bit and placing reliance on tiny bits of land for determining the market value of the land under acquisition will not be safe. At the same time, we find that in cross examination of AW2 by the Requisitioning Authority not even suggested that Ext.A2 is an artificial document. What is suggested is only that the purchaser was aware of the impending land acquisition. According to us, the high value reflected in Ext.A2 can be taken as a guide to understand what could have been the market value of the land under acquisition. In this context, we accept the submission of Sri.Lal George that Ext.A2 property was included in a category superior to the L. A. A No.855 of 2009 -7- land under acquisition in the present case. Keeping all relevant inputs in mind, we are of the view that placing reliance on Ext.R3, the oral evidence adduced by the parties and also Ext.A2 to a certain extent that market value of the land under acquisition can be safely re-fixed at ` 35,000/per Are. We allow this appeal and re-fix the market value of the land under acquisition at ` 35,000/- per Are. The enhanced compensation due to the appellant will be calculated on the above basis. It is needless to mention that the appellant will be entitled for all statutory benefits admissible under Sections 23(2), 23(1A) and under Section 28 of the Land Acquisition Act. However, while decree is drafted and provision is made for interest under Section 28, the Section will have due regard to the conditions imposed by this Court while condoning the delay caused in the matter of filing the appeal. 5. The appeal is allowed, however, without any order as L. A. A No.855 of 2009 -8- to costs. Decree copy will be issued to the appellant only after ensuring that the full court fee payable on the appeal memorandum is remitted. Sd/PIUS C. KURIAKOSE JUDGE Sd/A. V. RAMAKRISHNA PILLAI JUDGE kns/- //TRUE COPY// P.A. TO JUDGE