L.A.A. Nos.1452, 1453 & 1455 of 2008

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE FRIDAY, THE 31ST OCTOBER 2008 / 9TH KARTHIKA 1930 LA.App..No. 1452 of 2008() -------------------------LAR.232/2005 of PRL. SUB COURT, THALASSERY .................... APPELLANT: 2ND RESPONDENT ---------------------------- THE GENERAL MANAGER, K.S.I.D.C., KESTON ROAD, P.O. KOWDIAR, THIRUVANANTHAPURAM. BY ADV. SRI.D.KRISHNANKUTTY PILLAI SRI.SHEEJO CHACKO ## RESPONDENTS: CLAIMANT AND IST RESPONDENT ------------------------------------------ 1.VAYALAMBRON, KRISHNAN, CHERUTTUKULAM VEEDU.P.O, MOORIYAD, KUTHUPARAMBU. 2. GOVT. OF KERALA, REP. BY DISTRICT COLLECTOR, KANNUR. R1 BY ADV.SRI.C.P.PEETHAMBARAN R2 BY GOVT. PLEADER SMT.LATHA T.THANKAPPAN THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 31/10/2008 ALONG WITH LAA NOS.1453 AND 1455 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.NO.3301 OF 2008 IN LAA NO.1452 OF 2008 DISMISSED. 31.10.2008 SD/- PIUS C.KURIAKOSE, JUDGE. ## **PIUS C. KURIAKOSE,J.** **- - - - - - - - - - - - - - - - - - - - - - - - -** L.A.A.Nos.1452, 1453 & 1455 of 2008 **- - - - - - - - - - - - - - - - - - - - - - - - -** Dated: 31[st] October, 2008 ## **JUDGMENT** All these appeals are filed by the requisitioning authority who were respondent No.2 before the reference court. The appeals pertain to acquisition of land in Kuthuparamba village situated within the limits of Kuthuparamba Municipal Town. The relevant notification under Section 4(1) was dated 30.1.2001. The acquisition was for the purpose of widening Kuthuparamba-Valiyavelicham road leading to the appellants' Industrial Growth Centre at Valiyavelicham. The Land Acquisition Officer had awarded land value at the rate of Rs.3899/per cent on the basis of Ext.B1 basis document. The claimants had claimed a higher land value. They had claimed compensation on various other counts including injurious affection of their remainder properties. 2. The evidence before the reference court consisted of the oral testimony of A.W.1, claimant in one of the six cases covered by the common judgment impugned in these appeals. Apart from that, there was Ext.X1 Commissioner's report prepared by Advocate Mr.C.R.Rajendran who had conducted a local inspection pursuant to an application submitted by the claimants. On the side of the L.A.A..Nos.1452, 1453 & 1455/08 - 2 - appellant and the Government, the solitary item of evidence was Ext.B1, certified copy of the basis document. In Ext.X1, the Advocate Commissioner apart from reporting that the acquired properties had nearness to important institutions and establishments within the Municipal Town had suggested that the acquired properties will fetch market value of Rs.40,000/- to Rs.50,000/-. The learned Subordinate Judge did not accept the Advocate Commissioner's recommendations regarding the market value of the land. It appears that the learned Judge was impressed by the oral evidence of A.W.1 and the Commissioner's report regarding the locational advantages which the acquired properties were enjoying including the obvious circumstance that all the acquired properties were already having road frontage. It seems to me on a reading of the judgment that though the learned Judge did not award any compensation towards the claims raised by the claimants on account of alleged injurious affection etc., those claims were also kept in mind by the learned Subordinate Judge who ultimately concluded that the market value of the property as on the relevant date is Rs.10,000/- per cent. 3. I have heard the submissions of Adv.Mr.D.Krishnankutty Pillai and Adv.Mr.Sheejo Chacko, learned counsel for the appellants, L.A.A..Nos.1452, 1453 & 1455/08 - 3 - Adv.Mr.C.P.Peethambaran, learned counsel for the 1[st] respondent and Smt.Latha T.Thankappan, Senior Government Pleader on behalf of the State. 4. It was argued by the learned counsel for the appellants that the learned Subordinate Judge's conclusion that Rs.10,000/- is the market value of the acquired properties as on the relevant date does not have any foundation on legal evidence. It was submitted that no sale documents reflecting value of comparable properties in the locality had been produced by the appellants at all. The learned counsel conceded that to a certain extent determination of market value of the acquired properties can involve guess work. Counsel submitted that in order that the guess made by the land acquisition court is a good guess, it is necessary that the same should be relatable to some evidence available on record. The learned counsel would place reliance on the judgment of the Supreme Court in **Special Land Acquisition Officer v. S.O.Tumari** (AIR 1995 S.C. 840) and also on the judgment of this court in **Satheeshkumar v. Spl. Tahsildar (LA)** (2000(1) KLT 416) and argue that the reference court was not at all justified in relying on Advocate Commissioner's report. When the attention of the learned counsel was drawn to the L.A.A..Nos.1452, 1453 & 1455/08 - 4 - complete absence of any counter evidence on the side of the appellants or the Government except Ext.B1, they would refer to the judgment of the Supreme Court in **Gafar v. Moradabad Development Authority** [ (2007) 7 S.C.C. 614 ] and submit that counter evidence was absolutely unnecessary in this case. 5. Smt.Latha Thankappan, learned Senior Government Pleader would support the submissions of the learned counsel for the appellants to a considerable extent. She submitted that Ext.B1 was certified copy of the basis document considered and discussed by the awarding officer in his ward and that the same was legal evidence in view of Section 51A of the Land Acquisition Act. 6. Mr.C.P.Peethambaran, learned counsel for the 1[st] respondent submitted that it was not correct to say that the findings of the learned Subordinate Judge are not based on evidence. While conceding that the claimants had not produced any sale document revealing land value of Rs.10,000/- at the relevant time, Mr.Peethambaran submitted that the Land Acquisition Officer without any reason had made a cut of 40% on the value which was actually paid under Ext.B1 basis document. According to him, Ext.B1 document was executed some three years prior to the date of the L.A.A..Nos.1452, 1453 & 1455/08 - 5 - Section 4(1) notification and therefore land value could have been increased by at least 45% on the value seen paid under Ext.B1. Mr.Peethambaran further submitted that the learned Subordinate Judge also took into account the notorious reality that people show a lesser value in sale documents for the purpose of saving on stamp duty. He submitted that though the learned Subordinate Judge did not award any compensation towards injurious affection and like claims of the claimants, it was keeping in mind such claims also that the court below fixed the land value at Rs.10,000/- per cent. 7. I have considered the rival submissions. I have gone through the evidence. I have scanned the award and notes to award prepared by the Land Acquisition Officer. I am unable to accept the argument of the learned counsel for the appellants advanced on the basis of the judgment of the Supreme Court in **Special Land Acquisition Officer v. S.O.Tumari** (supra) and the judgment of this court in **Satheeshkumar v. Spl. Tahsildar** (LA) (supra) that the Advocate Commissioner's report should have been rejected in toto by the reference court on the reason that the data or the material on the basis of which the report was prepared was not placed before the court. A careful reading of the decisions will show that what has been ## L.A.A..Nos.1452, 1453 & 1455/08 - 6 - laid down by the Supreme Court and this court is that whenever the court proceeds to rely on a report submitted by an Advocate Commissioner regarding market value of the acquired property, the court should not do so merely on the basis of the report but should insist that the materials on the basis of which the report is given is also placed by the Commissioner or by the party before the court. It is true that in the instant case the Advocate Commissioner had not submitted any material in support of his recommendation that the acquired property will fetch market value of Rs.40,000/- to Rs.50,000/-. But I find from the judgment that the recommendation of the Advocate Commissioner regarding the market value of the property was not accepted by the reference court at all. The Commissioner's report has been relied on, only to hold that the properties were enjoying locational importance and advantages. The reliance placed by the learned Judge on the Commissioner's report to that extent cannot be found fault with. I find that though the appellants had filed objections to the Commissioner's report, those objections were not substantiated by them by cross examining the Commissioner. The report was submitted on the basis of an inspection conducted with notice to both parties and hence was part ## L.A.A..Nos.1452, 1453 & 1455/08 - 7 - of the records in the case. It could have been admitted in evidence even without examining the Commissioner. If the appellants had objections regarding the report, it was their obligation to have substantiated those objections by examining the Commissioner as a witness. 8. As already indicated the judgment of the Supreme Court in **Gafar v. Moradabad Development Authority** (supra) was relied on by the appellants to argue that rebuttal evidence from the side of the appellants or the Government was not necessary in this case. Relevant paragraph is paragraph 12 of the judgment and the same is quoted below: “As held by this Court in various decisions, the burden is on the claimants to establish that the amounts awarded to them by the Land Acquisition Officer are inadequate and that they are entitled to more. That burden had to be discharged by the claimants and only if the initial burden in that behalf was discharged, the burden shifted to the State to justify the award. The Reference Court, in our view, could not give any adequate or tenable reasons for adopting the value it did. No evidence was clearly or properly discussed to justify a finding that the claimants had made out a case for enhancement of ## L.A.A..Nos.1452, 1453 & 1455/08 - 8 - compensation. As observed by the High Court, it appears that on the materials available, even the amount awarded by the awarding officer was on the high side since he adopted the sale instance of a small extent of land and applied it to the larger extents that had been acquired under these notifications even without any deduction.” The above decision also cannot be of much assistance in this case. This is not a case where it can be said that the first respondentclaimants have not discharged the initial burden or proving their claims for enhancement. A.W.1 had been examined. As observed by the learned Subordinate Judge A.W.1 did confess that the claimants had not produced any documents which will reveal as to what was the market value of the property in the locality at the relevant time. At the same time, I find that A.W.1 has given evidence regarding the importance of the locality and the potentiality of the properties which were acquired. A.W.1's testimony stood corroborated to a considerable extent by the Commissioner's report. Thus, it has to be found that the claimants-respondents had discharged their initial burden of substantiating their claim for enhancement to a considerable extent. It was therefore necessary that appellants adduced rebuttal evidence. L.A.A..Nos.1452, 1453 & 1455/08 - 9 - 9. Determination of market value in land acquisition cases will to a certain extent involve guess work. But in order that the guess made by the court is a good one, it is necessary that the same is relatable to some evidence actually available on record in the case. 10. The best form of evidence to arrive at a finding regarding the market value of the acquired property at the relevant time are documents of sales relating to comparable properties. Arriving at the market value relying solely on oral evidence and Commissioner's report which does not contain details regarding comparable sale documents or value disclosed by such documents will not be safe. 11. The solitary item of available documentary evidence relating to sale of comparable properties in the locality is Ext.B1, the basis document itself. The learned Subordinate Judge has apparently rejected Ext.B1 also on the interesting reason that it is executed between private parties and appears to have arrived at his present finding regarding market value relying on A.W.1's oral evidence and the Commissioner's report regarding the importance of the locality and the locational advantages which the property is enjoying. It seems to me that while discarding Ext.B1 for the reason that the same is executed by private parties, the learned Subordinate had in L.A.A..Nos.1452, 1453 & 1455/08 - 10 - his mind the judgment of the Division Bench of this court in **State of Kerala v. Mariamma Abraham** (AIR 1969 Kerala 265) wherein P.T. Raman Nayar,J. was commenting on the notorious habit of the people to under value their documents for the purpose of saving on stamp duty. But in my opinion, Ext.B1 basis document was not liable to be rejected in this case on that reason, since nobody had a case either in the award enquiry or before the reference court that the consideration set out in Ext.B1 is lesser than the consideration which was paid and received by the parties under that document. It will be further noticed in this context that the Supreme Court in **Krishi Utpadan Mandi Samiti, Sahaswan v. Bipin Kumar** [ (2004) 2 SCC 283] has held that the basic valuation register maintained by the registering authority for collection of stamp duty cannot be relied on while determining the market value. The Supreme Court in this decision reiterated that comparable sales method is the best acceptable method for determination of the market value and has ruled that Sections 92 and 115 of the Evidence Act precludes a party from leading evidence contrary to the terms of a written document and that parties who undervalue their document for payment of stamp duty are precluded from claiming that their own document ## L.A.A..Nos.1452, 1453 & 1455/08 - 11 - does not reflect the correct market value. I feel that the market value of the acquired property is to be decided afresh on a re-evaluation of the evidence - Ext.B1, A.W.1's testimony and the Commissioner's report Ext.X1 to the extent it pertains to the locational importance and advantages of the acquired property and also the award and note to award which were also available before the court. 12. Ext.B1 is the basis document. The learned Government Pleader's argument that Ext.B1 having been allowed to be marked without any objection, is legal evidence has merit in view of Section 51A of the Land Acquisition Act. I also notice that there was no dispute from the side of the claimants that the value seen paid as per Ext.B1 was actually paid and received. Ext.B1 reveals a land value of Rs.6700/- per cent. On going through the file, it is seen that the District Collector while approving the draft valuation statement submitted by the Land Acquisition Officer made a cut of 40% of the land value reflected in Ext.B1 on the reason that Ext.B1 property is situated away from the acquired property. This cut made by the District Collector was naturally endorsed by the Awarding Officer. According to me, the cut of 40% made on the land value actually recited in Ext.B1 was not justified. The notes to award will show that L.A.A..Nos.1452, 1453 & 1455/08 - 12 - the awarding officer found that Ext.B1 was the only suitable document for arriving at the market value of the acquired properties. According to the Awarding Officer, he scrutinised a large number of documents executed within a radius of 5 K.M. from the property under acquisition during a period of three years prior to Section 4(1) notification. Having scrutinised the basis document along with various other documents and having found that the basis document is the only suitable one, it was not a good reason to make a cut on the value revealed in Ext.B1 on the reason that Ext.B1 properties are situated not close to the acquired properties. No evidence was adduced by the appellants or the Government for justifying the above cut of 40%. The Land Acquisition Manual which does not bind the court or the land owners, is binding on the Land Acquisition Officers and the award enquiry was conducted on the basis of the guidelines contained in the Land Acquisition Manual and in the award enquiry Ext.B1 was found to be the most suitable document. I reiterate that the above cut of 40% was not at all justified in this case. Accordingly, I cancel the cut and conclude that the Land Acquisition Officer should have proceeded on the basis that the market value of a comparable property on the date of Ext.B1 was Rs.6700/- per cent. L.A.A..Nos.1452, 1453 & 1455/08 - 13 - 13. Ext.B1 is executed 34 months prior to the notification under Section 4(1) in this case. The claimants' version that during the relevant period the land value was on the increase is not controverted. Judicial notice can also be taken note of the fact that the during the period from 25.3.1998 till the period of the notification under Section 4(1) land prices in the locality and all over Kerala generally were on the increase. The Supreme Court has held that in a given case increase can be given considering passage of time at the rate of up to 15% per year. I feel that on the facts of this case, addition can be given on the values actually paid under Ext.B1 at the rate of 12% per year which means that an increase of 34% will have to be given to the value reflected in Ext.B1. Thus, it can be found on the basis of Ext.B1 itself that the correct market value of Ext.B1 property at the relevant time would be slightly less than Rs.9000/which I round off to Rs.9000/- per cent. For arriving at such a conclusion I certainly take into account the oral evidence regarding the importance of the locality, the locational advantages including road frontage which the properties were already enjoying and the obvious reality that the properties were situated within the limits of a Municipal Town as noticed by the court below also. L.A.A..Nos.1452, 1453 & 1455/08 - 14 - 14. The result of the above discussion is that the appeals will stand allowed in part. The market value of the acquired properties is refixed on the basis of the basis document and the other items of substantive legal evidence available in the case at Rs.9000/- per cent. The judgments and decrees under appeals stand interfered with to that extent. It is made clear that claimants-respondents will be entitled for all statutory benefits on the enhanced compensation due to them on the basis of the market value refixed under this judgment admissible under Sections 23(2), 23(1A) and 28 of the Land Acquisition Act. The parties are directed to suffer their costs through out. srd ## **PIUS C.KURIAKOSE, JUDGE**