L.A.A. No. 998 of 2010 (D)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 9TH MARCH 2011 / 18TH PHALGUNA 1932 LA.App..No. 998 of 2010(D) ------------------------------LAR.16/2000 of ADDL.SUB COURT,ERNAKULAM .................... APPELLANT(S): CLAIMANTS ------------------------------- 1. E.K.PRABHAKARAN, S/O. KUTTAN, ETTUNGALPADY HOUSE, KALADY.P.O., ALUVA TALUK. 2. VALSALA, W/O. LATE E.K.PRABHAKARAN, ETTUNGALPADY HOUSE, KALADY.P.O., ALUVA TALUK. 3. LALA S/O. LATE E.K.PRABHAKARAN, - -DO-DO- 4. MANOJ, S/O. LATE E.K.PRABHAKARAN, - -DO-DO- 5. MANJU D/O. LATE E.K.PRABHAKARAN, - -DO-DO- BY ADV. SRI.C.P.WILSON SMT.ROSE MICHAEL RESPONDENT(S)/RESPONDENTS: ------------------------------------- 1. STATE OF KERALA REP. BY DISTRICT COLLECTOR, ERNAKULAM - 682011. LA.App..No. 998 of 2010(D) -2- 2. SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, REP. BY THE REGISTRAR, KALADY - 683583. - ADV. SMT.DHANYA P.ASHOKAN FOR R2 - SRI.P.K.VIJAYAMOHANAN,SC,SANKARACHA.UTY FOR R2 SRI.GILBERT GEORGE CORREYA,SC,SANKAR.UT FOR R2 SRI.P.S.NISHIL,SC,SREE SANKARACHARYA UT FOR R2 GOVERNMENT PLEADER SMT.T.TJOSEPHINA THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 09/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & N. K. BALAKRISHNAN, JJ. -----------------------------------------------L. A. A. No.998 of 2010 -----------------------------------------------Dated this the 9[th] day of March, 2011 ## **JUDGMENT** ## _Pius C. Kuriakose, J_ The claimants are in appeal. Their properties were included in category-1 (dry lands with road frontage) and category-3 (reclaimed lands) were acquired by the Government for the purpose of second respondent Sree Sankaracharya University of Sanskrit, Kalady. The acquisition was pursuant to Section 4(1) notification published on 22/04/1994. For the properties included in category-1, the appellants were awarded land value at the rate of Rs.25,370/- per Are. For the properties included in category-3, they were awarded value at the rate of Rs.16,491/- per Are. The Reference Court in the first instance re-fixed the land value by granting enhancement of 100% over what was awarded by the Land Acquisition Officer. The Requisitioning Authority preferred appeals. This Court set aside the award and remanded the matter L. A. A. No.998 of 2010 -2- to Reference Court. After the remand the Reference Court refixed the land value granting enhancement by 44% only. Against the re-fixed judgment, the claimants came up in appeal. That appeal was allowed by way of remand permitting both sides to adduce further evidence. Pursuant to that remand the appellants produced documents including Ext.A5. Ext.A5 is a document reflecting land value of Rs.17,284/- per Are. Ext.A5 is executed some nine years prior to the relevant Section 4(1) notification. The appellants claimed that Ext.A5 be relied on and additions at the rate of 10% per year be granted over value reflected in Ext.A5 and values of wetlands be re-fixed that way. The further request was that based on that value, additions be given in view of the fact that the lands involved in this case is dry land and reclaimed land. The above request of the claimants did not find favour with the learned Subordinate Judge. The learned Subordinate Judge discarded Ext.A5 mainly on the reason that Ext.A5 was executed nine years prior to Section 4(1) notification. L. A. A. No.998 of 2010 -3- The learned Subordinate Judge seems to have been of the opinion that in land acquisition cases, the Reference Court is bound to consider only documents executed within a period of three years prior to the relevant Section 4(1) notification. 2. In this appeal various grounds are raised and the ground prominently raised is that Ext.A5 should not have been discarded. Smt.Rose Michael, the learned counsel for the appellants addressed arguments based on all the grounds. Sri.Alan Papali would oppose all the submissions of Smt.Rose Michael. Smt.Rose Michael relied strongly on the judgment of this Court in _Spl. Dy._ _Collector v. Abdul Gafoor (2008(1) KLT 115)_ . 3. We have very anxiously considered the rival submissions addressed at the Bar. We are in agreement with the learned counsel for the appellants that the court below was not justified in discarding Ext.A5 for the reason that Ext.A5 document was executed nine years prior to the relevant notification under Section 4(1). A Division Bench of this Court in _Spl. Dy. Collector_ L. A. A. No.998 of 2010 -4- _v. Abdul Gafoor (cited supra)_ held that there is no illegality or impropriety in relying on the document executed earlier than three years prior to the relevant notification under Section 4(1) provided the document records a genuine transaction. As noticed by the learned Division Bench in _Spl. Dy. Collector v. Abdul Gafoor (cited supra)_ , the Land Acquisition Officers for the purpose of passing awards take into account only documents executed only three years prior to Section 4(1) notification. This is on the basis of instructions contained in the Land Acquisition Manuel. Land Acquisition Manuel is not binding on the Reference Court or this Court. At best the same may be binding on the Land Acquisition Officers. As far as the Land Acquisition Reference Court and this Court in appeal are concerned, the market value of the land under acquisition can be re-fixed on the basis of all relevant materials. Document executed even more than three years earlier than Section 4(1) notification will be relevant material provided the document records a genuine transaction L. A. A. No.998 of 2010 -5- and relates to comparable lands situated within a reasonable distance from the acquired property. In the present case Ext.A5 was in the same village and there is nothing to indicate that it is not a genuine transaction which is recoded in Ext.A5. The Government did not have and cannot have a case that Ext.A5 document was brought into existence showing a higher value for the purpose of staking a higher claim in a prospective LAR case. We conclude that Ext.A5 is a genuine document and can be relied on for determining the market value of the land in the present case. 4. A copy of Ext.A5 was placed before us by Smt.Rose Michael. We are convinced that Ext.A5 pertains to wet land. Though Smt.Rose Michael argued that the wetlands covered by Ext.A5 did not have road frontage or access, we are not inclined to accept the above argument. It is seen from the schedule of Ext.A5 that Ext.A5 property was lying contiguously with the other properties of the vendor. We are sure that Ext.A5 property was L. A. A. No.998 of 2010 -6- having road access. We compare Ext.A5 property with the wetlands under acquisition in the present acquisition project. For such wetlands the L.A.O awarded land value at Rs.8,809/- per Are. In order that the market value of the properties under acquisition based on Ext.A5 is re-fixed, it is necessary to fix the market value of the property covered by Ext.A5 as on the date of Section 4(1) notification which is nine years later. We cannot accept the argument of Smt.Rose Michael that the property being in Kalady, the additions at the rate of 10% should be made every year. True Kalady, cannot be branded as a rural area. But then the property covered by Ext.A5 was purely paddy fields and we are not inclined to add at the rate of more than 7.5% per year applying 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)_ . Making additions that way, the market value of the property covered by Ext.A5 will come to Rs.28,950/- as on the date of Ext.A5. Going by the award passed by the Land L. A. A. No.998 of 2010 -7- Acquisition Officer, we find that the value given to properties in category-1 was more than i.e. almost double the value of properties given in category-4 wetlands. Keeping that ratio in mind, we feel that there may be justification for re-fixing the value of property under acquisition in category-1 at Rs.50,300/-. We notice that since in the present appeal the claim is for uniformly re-fixing the market value of properties included in category 1 and 3 at Rs.32,840/- per Are, we allow the appeal and re-fix the value of lands included by the Land Acquisition Officer in Category-1 at Rs.32,840/- per Are. Even though uniform rate has been claimed by the appellant for properties in category 1 and 3, we are not inclined to award a uniform rate. There is difference between the value of properties included in category 1 and 3. Keeping that in mind we fix the value of properties included in category-3 at Rs.21,600/- per Are. The appeal is allowed to the above extent. The appellants will be entitled for all statutory benefits admissible under Sections 23(2), 23(1A) and L. A. A. No.998 of 2010 -8- under Section 28 of the Land Acquisition Act. Parties are directed to suffer their respective costs. PIUS C. KURIAKOSE JUDGE N. K. BALAKRISHNAN JUDGE kns/-