L.A.A. 341 of 2011 (Land Acquisition Appeal)

## **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** **FRIDAY, THE 2ND DAY OF MARCH 2012/12TH PHALGUNA 1933** **LA.App..No. 341 of 2011 ( ) --------------------------LAR.110/2009 of III ADDL.SUB COURT, ERNAKULAM** **APPELLANT(S)/CLAIMANTS 1 & 3:** ## **----------------------------** **1. SMT.GRACY GEORGE, OLIYIL ,MURIYAMANGALAM MAMALA,REP.BY P/A HOLDER PRAKASH,OLIYIL(H) MURIYAMANGALAM,MAMALA PO.** **2. SIJU JOSEPH,CHAKKALAKKAL(H), THIRUVANIYOOR, REP.BY P/A HOLDER ,OLIYIL(H) MURIYAMANGALAM,MAMALA PO.** **BY ADVS.SRI.ABRAHAM VAKKANAL (SR.) SRI.PAUL ABRAHAM VAKKANAL SRI.DIJO SEBASTIAN SMT.VINEETHA SUSAN THOMAS** **RESPONDENTS/RESPONDENT(S): ---------------------------** **1. STATE OF KERALA,REP.BY SPECIAL TAHASILDAR(LA),GENERRAL ERNAKULAM.** **2. SECRETARY, TRIPUNITHURA MUNICIPALITY, TRIPUNITHURA PO,PIN 682 301,(SINCE THE THIRUVANKULAM PANCHAYAT HAS LATER BEEN MERGED WITH THE TRIPUNITHURA MUNICIPALITY).** ## **BY GOVT PLEADER SRI.C.R.SYAM KUMAR** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 02-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RK** ## **PIUS C.KURIAKOSE &** ## **A.V.RAMAKRISHNA PILLAI, JJ. =====================** L.A.A. NO. 341 OF 2011 **=====================** Dated this the 2[nd] day of March 2012 ## JUDGMENT ## **Pius C.Kuriakose,J.** The claimants are the appellants. Their properties in Thiruvamkulam Village, situated about 80 metres to the western side of Thiruvankulam Junction and exactly on the opposite side of a cinema house were acquired for the purpose of establishing a vegetable market by Thiruvamkulam Panchayat presently part of Thripunithura Munickipality. The acquisition was on the basis of Section 4(1)notification published on 24/7/2007. The Land Acquisition Officer fixed the land value at Rs.87,496/per cent. Before the Reference Court, the appellants placed reliance on Exts.A1 to A10. The learned Subordinate Judge placed reliance only on Ext.A2. What was done by the learned Subordinate Judge was to grant additions on the value reflected in Ext.A2 for passage of time and to refix the land value at LAA 341/2011 2 Rs.1,11,994/- per cent. 2. In this appeal it is urged by the appellants that the value refixed by the Reference court is grossly inadequate. According to the appellants, the court below should have relied on Ext.A3 document which reflected a land value of Rs.2,99,669/- per cent about one year prior to the promulgation of Section 4(1) notification. Even though the Requisitioning Authority was served with notice, they have not chosen to enter appearance before this court for resisting this appeal . 3. We have heard the submissions of Mr. Paul Abraham Vakkanal, learned counsel for the appellants and Mr.C.R.Syam Kumar, learned Senior Government Pleader. The lower court records made available and we have made a reappraisal of the entire evidence which was available before the Reference Court. The argument of Mr. Paul Abraham Abraham Vakkanal was that considering the commercial importance of the locality, where the acquired property was situated, the rate presently fixed by the learned Subordinate Judge is grossly inadequate. According to him, the commissioner has reported that in terms of LAA 341/2011 3 commercial and other importance, the property under acquisition is much more important than the property covered by Ext.A3. Hence, Mr. Paul Abraham Abraham Vakkanal requested that additions may be given to the value reflected in Ext.A3 not only for the passage of one year's time but also for the importance of the locality. 4. Mr. C.R.Syam Kumar, Senior Government Pleader, per contra, submitted that the property covered by Ext.A3 was situated at 3 kilo metres away from the property under acquisition. Ext.A3 property is purchased by builders who have obviously paid a fancy price anticipating the profits they could make by putting up the buildings on the same. Ext.A3 is not a transaction in the normal course of compensation. Placing reliance on Ext.A3 will not be safe. The safest method, according to Mr.C.R.Syam Kumar is to place reliance on document No.2993/2003 dated 26/7/2003 which is the title document in respect of a portion of the property under acquisition under which Rs.80,000/- was paid and to give additions for passage of time. He submitted that when reasonable additions are given, there LAA 341/2011 4 may be justification for refixing the value at Rs.1,20,000/- or a little more. 5. We have given our anxious consideration to the rival submissions made at the Bar. As already indicated, we have made a reappraisal of the evidence. Sale deed No.2993/2003 dated 26/8/2003 pertains to a portion of the very acquired property. The above sale deed, though not formally marked at the evidence in this case, was part of the lower court records. In fact that document was marked in Annexure A1 judgment. That document has considerable probative value for resolving the issue in the case as the same pertains to the very acquired property. 6. We have already noticed that the property under acquisition is situated just 80 metres to the west of Thiruvamkulam Junction where there is lots of commercial activities. Several buildings have come up and the commissioner in his report Ext.C1 has given a graphic account of the developments which have taken place in and around the petition schedule property under acquisition. We are of the LAA 341/2011 5 view that considering the fact that the area of the acquired property is one fast turning urban, the principles laid down by the Supreme Court in **G.M.Oil & Natural Gas Corporation Ltd.** ## **v. Rameshbhai Jivanbhai Patel & Another[2008 SAR(Civil)** **894]** can be taken into account and based on that document itself, additions for four years can be granted at the rate of 12.5% per year which means that going by that document itself the value of the property will be Rs.1,20,000/-. But question is whether Rs.1,20,000/- is the correct market value of the land under acquisition at the relevant time. We feel that though Ext.A10 can be straight away discarded for the reason that the same is a post notification document and also for the reason that there is some artificiality about the terms, Ext.A3 can be looked into to have an idea as to what was the market value of the lands in various areas of Thiruvamkulam village during the relevant time. The Advocate commissioner in Ext.C1 has reported that the property under acquisition was much more important in terms of commercial activity than the property covered by Ext.A3. In Ext.A3 the value reflected is LAA 341/2011 6 Rs.2,99,966/-. But we have reason to believe that Ext.A3 is purchased by a group of Builders. We find force in the submission of Sri.C.R.Syam Kumar that Ext.A3 property is purchased by builders who have obviously paid a fancy price anticipating the profits they could make by putting up buildings on the same. Ext.A3 property though a transaction in the usual course does not reflect the normal market value. However, it gives an indication as to what is the market value of the land in the area of Ext.A3 property, which by all standards did not have so much of commercial importance as the property under acquisition. We rely on Ext.A3 also to a certain extent and find that the market value of the property under acquisition at the relevant time would have been at least Rs.1,90,000/-. 7. We find that the property under acquisition was a fairly large extent. Hence, we follow the principles laid down by the Supreme Court in **L.A.O. & Sub Collector, Gadwal v. Sreelatha Bhoopal [A.I.R.1997 SC 2552], Gafar & Others v. Moradabad Development Authority & Another[(2007) (7) SCC 614]** and **State of J. & K. v. Mohammad Mateen Wani** LAA 341/2011 7 **[A.I.R.1998 S.C.2470]** and deduct 10% from the above rate for the largeness of the extent. Thus the market value of the land under acquisition will stand refixed at Rs.1,71,000/- per cent. 8. The appellants will be eligible for all statutory benefits under Sections 23(1A), 23(2) and 28 of the Land Acquisition Act. Decree copy will be issued to the appellant only after ensuring that the full court fee is paid. ## **Sd/-** **PIUS C.KURIAKOSE, JUDGE** **Sd/-** **A.V.RAMAKRISHNA PILLAI, JUDGE True copy** ## **P.S.To Judge** **ks.**