K. Abraham Lal 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 FRIDAY, THE 12TH MARCH 2010 / 21ST PHALGUNA 1931 LA.App..No. 246 of 2005() ------------------------LAR.315/1996 of SUB COURT, MUVATTUPUZHA .................... APPELLANT(S): CLAIMANT: ----------------------- K. ABRAHAM LAL, S/O. KURIAKOSE, PADINJAREKUDIYIL, POTHANAICAD P.O., ERNAKULAM DISTRICT. BY ADV. SRI.T.K.KOSHY RESPONDENT(S)/RESPONDENT: --------------- THE STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, ERNAKULAM. SRI.RAJAN JOSEPH, ADDL.A.G. FOR R1 GOVT. PLEADER SMT.LATHA T.THANKAPPAN THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 12/03/2010, ALONG WITH LAA NO. 248 OF 2005 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ L. A. A. Nos.246 and 248 of 2005 -----------------------------------------------Dated this the 12[th] day of March, 2010 ## **JUDGMENT** _Pius C. Kuriakose, J_ The claimants are the appellants. Their properties in Pothanicad village were acquired for the purposes of Muvattupuzha Valley Irrigation Project. The relevant section 4(1) notification was published on 17/05/95. The Land Acquisition Officer awarded a uniform value of Rs.12,000/per Are for both the properties. The Reference Court considered the references jointly and at trial the evidence on the side of the appellants/ claimants consisted of Exts.A1 to A7, Exts.X1 and X2 and on the side of the Government the same L. A. A. Nos.246 and 248 of 2005 -2- consisted of Exts.R1 to R4. Apart from that, seven witnesses AWs.1 to 7 were examined on the side of the claimants. There was absolutely no counter oral evidence on the side of the Government. The reports submitted by the two Commissioners appointed in these cases were marked as Exts.C1, C1(a) and Exts.C2, C2(a) respectively. Ext.A1 was a pre-notification document pertaining to eleven cents of land reflecting a land value of Rs.10,500/- per cent. The learned Subordinate Judge rejected Ext.A1 endorsing the view of the Land Acquisition Officer that Ext.A1 is an artificial document brought into existence for staking a higher value in land acquisition proceedings. Having gone through the impugned judgment and having considered Ext.A1, we are also of the view L. A. A. Nos.246 and 248 of 2005 -3- that it is not safe to rely on Ext.A1. Ext.A2 another pre-notification document was rejected by the learned Subordinate Judge on the reason that the same pertains to property in a different village. We also feel that on the circumstances attending on this case, the learned Subordinate Judge was justified in not relying on Ext.A2. Ext.A3 was a document of the year 1984 pertaining to an extent of 25 cents of land in the same village. The vendee under the document is the Union of India and the purchase is for the purpose of construction of a Telephone Exchange. This document reflects a land value of Rs.4,500/per cent. The learned Subordinate Judge did not place any reliance on Ext.A3 document on the reason that there existed a building on Ext.A3 L. A. A. Nos.246 and 248 of 2005 -4- property and no separate value is shown in the document for the building. Ext.A4 is a document executed six years prior to relevant section 4(1) notification. The property is very near to Pothanicad junction. The land value reflected therein is Rs.15,500/- per cent. This document was also not relied on by the learned Subordinate Judge on the reason that on the property covered by these document also there existed a building and no separate value is shown in the document for the building. Ext.A5 was a certificate dated 07/07/95 issued by the Kothamangalam Tahsildar which is to the effect that the market value of the land as on that date is Rs.25,000/-. Ext.A5 is issued in connection with purchase of property by a local society. Ext.A6 is copy of the Kerala L. A. A. Nos.246 and 248 of 2005 -5- Government Gazette produced by the claimants to show that the land value in the area has been going up during the period from 1986-95. Ext.A7 is a document of the year 1982 which reveals a land value of Rs.4572/- per cent. The Commissioner who was appointed in LAR No.313/96 which corresponds to LAA.248/05 reported that the property was situated just 180 metres away from Pothanicad junction. It was also reported that the property has nearness to almost all important institutions and establishments in Pothanicad and that the property had direct frontage of the main thoroughfare in the place and was enjoying both commercial and residential potentialities. The Commissioner's Report in LAR.315/96 corresponding to LAA.246/05 is to the L. A. A. Nos.246 and 248 of 2005 -6- effect that the said property is situated at a distance of 125 metres from the Pothanicad junction. That report is also to the effect that the property was enjoying commercial and residential potentiality and was situated even nearer to the important institutions and establishments in Pothanicad. The Commissioner, however, did not recommend any particular rate of land value of the properties. 2. As already indicated, the learned Subordinate Judge did not place reliance on Exts.A1, A3, A4 and has assigned specific reasons for the same. The learned Subordinate Judge did not become inclined to place specific reliance on other documents also since in the opinion of the learned Judge none of the properties were L. A. A. Nos.246 and 248 of 2005 -7- comparable to the property under acquisition and the Advocate Commissioner was not asked to make specific comparison of the properties. But the learned Judge noticed that the Government had not produced the basis document or adduced any counter evidence to whatever evidence that was adduced by the claimants. Therefore, what the learned Subordinate Judge ultimately did was to resort to guess work and re-fix the value of the property involved in L.A.R.315/96 pertaining to L.A.A.246/05 at Rs.15,000/- per Are. The value of the property involved in LAR.313/96 pertaining to L.A.A.248/05 was however fixed at Rs.14,000/per Are. This difference according to the learned Subordinate Judge is justified because the property in LAR.313/96 is more distant from L. A. A. Nos.246 and 248 of 2005 -8- ## Pothanicad junction. 3. In these appeals, the appellants have raised various grounds contending that the market value re-fixed by the court below is grossly inadequate and Sri.K.Abraham Lal who appeared for the appellants in L.A.A.248/05 and who appeared as party in person in L.A.A.246/05 addressed us extensively on the basis of all those grounds. Our attention was drawn by the learned counsel on the basis of various grounds raised in the memorandum of appeal. According to him, there is every justification on the evidence for awarding land value at the rate of Rs.20,000/- per cent for the properties involved in these cases. 4. All the submissions of Mr.Lal were very forcefully resisted by Smt.Latha T. Thankappan, L. A. A. Nos.246 and 248 of 2005 -9- the learned senior Government Pleader. According to her, the findings of the learned Subordinate Judge was quite proper and there is no warrant for interference. She submitted that what has been awarded is a reasonable compensation. 5. We have very anxiously considered the submissions addressed at the Bar. We have made a reappraisal of the evidence. We feel that the market value re-fixed by the court below is not adequate. 6. It is true that in Ext.A3 document executed in the year 1984 in favour of the Union of India, no separate value is shown for the building which existed on the property. But on a careful scanning of the document it becomes clear to our mind that the building which existed on the L. A. A. Nos.246 and 248 of 2005 -10- property is not a very significant one and even if value of building is also reflected in this document, it will be only nominal. In that view of the matter, we are of the view that the land under Ext.A3 had fixed at least to Rs.4250/- per cent way back in 1984 for a land which is very comparable to the property under acquisition. The same is the position as regards Ext.A4 which is a document of 1989. On this property also there existed a building. But, it is clear on a careful reading of the document that the building was quite insignificant and not much value has been kept in mind by the parties while arriving at the total consideration payable by the purchaser. We feel that the market value of land arrived at by the parties to Ext.A4 was at least Rs.13,000/-. L. A. A. Nos.246 and 248 of 2005 -11- The properties are situated in Pothanicad which can be certainly considered as a semi urban area. 7. 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)_ , we feel that additions at the rate of 10% should be granted for the value reflected in these documents for arriving at the correct market value of the properties covered by these documents as on the date of section 4(1) notification. Giving additions in that manner, the correct market value of the land covered by Ext.A3 as on the date of notification will come to Rs.8925/- per cent. Calculating in the same way the value of the property covered by Ext.A4 will come to Rs.24800/- per cent. We also take into account L. A. A. Nos.246 and 248 of 2005 -12- the circumstance that the land value has been going up in the area as everywhere else as evident from Ext.A5 certificate issued by the Tahsildar also. Ext.A7 document is a document of the year 1982 and it reveals a land value of Rs.4572/- per cent. When additions are given to the value reflected in this document applying the same principle the value as on the date of section 4(1) notification will come to Rs.10,550/-. The average of the above three figures will come to Rs.13413/- which we round off to Rs.13500/-. We rely on the reports of Exts.C1 and C2 submitted by the Advocate Commissioner. We notice that no objections were filed by the Government to these reports. We notice that fairly convincing evidence was adduced by the claimants. Not even formal L. A. A. Nos.246 and 248 of 2005 -13- counter evidence was adduced by the Government. Taking all these aspects of the matter into consideration, we are of the view that the correct market value of the property under acquisition can be safely re-fixed at Rs.15,000/per cent. It is accordingly re-fixed. We are unable to justify the action of the learned Subordinate Judge in having fixed two different rates for the properties in these cases. After all, according to the Land Acquisition Officer, the value of both the lands was the same. We therefore, are inclined to award a uniform rate of Rs.15,000/- per cent for both these properties. 8. The result is that both these appeals are allowed re-fixing the value of the land at Rs.15,000/- per cent. The appellants in these L. A. A. Nos.246 and 248 of 2005 -14- appeals are entitled for all statutory benefits admissible under sections 23(2), 23(1A) and under section 28 of the Land Acquisition Act on the total enhanced compensation to which they become eligible by virtue of this judgment. The appeal is allowed as above. Parties are directed to suffer their respective costs. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-