LA.A.No.55 of 2011 (The Government of Kerala v. H. Anantha Kamath and Gajanan Industries)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 17TH JUNE 2011 / 27TH JYAISHTA 1933 LA.App..No. 55 of 2011() -----------------------LAR.8/2007 of SUB COURT, HOSDRUG .................... APPELLANT(S): RESPONDENTS IN LAR -------------------------------- 1. THE EXECUTIVE ENGINEER, KSTP, PWD, OPPOSITE MILITARY HOSPITAL, KANNUR. 2. THE DISTRICT COLLECTOR, KASARAGOD. GOVERNMENT PLEADER SMT.LATHA T.THANKAPPAN RESPONDENT(S): CLAIMANT IN LAR ------------------------------ H.ANANTHA KAMATH, S/O.H.VITTAL KAMATH, GAJANAN INDUSTRIES, NEAR SAIR MANDIR, HOSDURG VILLAGE, P.O. KANHANGAD. ADV. SRI.JAWAHAR JOSE FOR R1 THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 17/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. -----------------------L.A.A.No. 55 OF 2011 ------------------------** Dated this the 17[th] day of June, 2011 ## **JUDGMENT** Pius C.Kuriakose, J. Under challenge in this appeal preferred by the Government is the judgment of the Land Acquisition Reference Court, Hosdurg enhancing the market value of the land under acquisition from Rs.24,000/- per cent to Rs.3,30,033/- per cent. 2. The property was in Hosdurg village. The acquisition was pursuant to Section 4(1) notification published on 3/3/2005. The purpose of acquisition was for formation of Kasaragod - Kanhangad State Highway. The Land Acquisition Officer awarded land value at the rate of Rs.24,000/- per cent relying on Ext.R1 basis document. The basis document reflected land value at Rs.24,442/- per cent. 3. Before the Reference Court the evidence on the side of the claimant consisted of Ext.A1 sale deed dated 28/3/2007, LAA.No.55/2011 2 Ext.R1 basis document, Ext.X1 commission report and Ext.X2 sketch and the oral evidence of the respondent/claimant as AW1. Ext.A1 was executed more than two years after the relevant Section 4 (1) notification. Ext.A1 was executed in favour of the LIC of India by one Dr. Abdul Khadar. Ext.A1 reflected land value of Rs.4,12,541/- per cent. Ext. X1 report is to the effect that the distance between Ext.A1 property and the property under acquisition was just nearly 15 meters. The commissioner compared Ext.A1 property, the acquired property with the property covered by Ext.R1. The commissioner reported on the basis of such comparison that Ext.A1 property and the acquired property were commercial properties while the basis document was in respect of garden land without any commercial development. Ext.X2 sketch submitted by the advocate commissioner will show that the acquired property was part of a commercial plot in which there exists a commercial building. The learned Subordinate Judge without specifically referring to the judgment of the Supreme Court in Karan Singh and Others v. Union of India (1997) 8 Supreme Court Cases 186) , would take a view that in the absence of pre notification documents LAA.No.55/2011 3 relating to the comparable properties, there was justification for placing reliance on Ext.A1 though a post notification document. The learned Subordinate Judge also noticed that there was no counter evidence on the side of the Government and no objection was raised from the side of the Government regarding the reliance to be placed on Ext.A1. In that view of the matter, the learned Subordinate Judge would notice the passage of time of more than two years and make deductions towards passage of time and refix the market value of the land at Rs.3,30,033/- per cent. 4. In this appeal preferred by the Government various grounds are raised challenging the judgment of the Reference Court. Smt.Latha T.Thankappan learned senior Government Pleader addressed us extensively on the basis of those grounds. The Government Pleader submitted that Ext.A1 should not have been relied on. According to her, the basis document was identified by the Land Acquisition Officer as the most relevant document on a scrutiny of various documents executed in the village within the period of three years prior to the promulgation of Section 4 (1) notification. The advocate commissioner's LAA.No.55/2011 4 recommendations should not have been accepted. The recommendations of the commissioner are made on the basis of Ext.A1 which is a post notification document. Post notification document can be relied on only in the total absence of pre notification document. That is not the situation here, so submitted the learned senior Government Pleader. She drew our attention to the judgment of this court in L.A.A. No. 1298/2010 and submitted that in that case for the properties, for which the same value had been given by the Land Acquisition Officer, this court refixed the value at Rs.39,500/-. 5. Sri.Jawhar Jose learned counsel for the claimant/respondent would place strong reliance on the judgment of the Supreme Court in Karan Singh and Others v. Union of India(cited supra) . According to him, it is trite that in the absence of pre notification documents relating to the comparable properties, the post notification documents can be taken into account. The learned counsel drew our attention also to Exts.X1 & X2 submitted by the advocate commissioner. Mr.Jawhar argued on the basis of Exts.X1 and X2 that Ext.A1 property as well as the property under acquisition were perfectly LAA.No.55/2011 comparable. 5 6. We have anxiously considered the rival submissions addressed at the Bar. It is true that Ext.A1 is a post notification document. It is also true that Ext.R1 is a pre notification document. But, it has been clearly found by the learned Subordinate Judge, on evaluating whatever evidence was available before the Court, that there is no comparison between the properties under acquisition and the property covered by the basis document. The commissioner has clearly reported that the property covered by the basis document was a garden land without any building thereon. The report of the commissioner is to the effect that the property under acquisition was part of a commercial plot belonging to the claimant in which there exist a commercial building. It is the front portion of the above commercial plot which is taken in the acquisition. We feel that there was some justification on the part of the learned Subordinate Judge to have placed some reliance on Ext.A1. The question which arises for consideration now is whether the learned Subordinate Judge was justified in awarding the value reflected in Ext.A1 making deduction only for the passage of LAA.No.55/2011 6 time. The above question, in our view, is to be answered in favour of the Government. Though Ext.A1 is marked as evidence and the Government did not adduce any counter evidence, the circumstance under which Ext.A1 came to be executed have not been brought on record by examining either vendee or vendor of Ext.A1. We are not , therefore, inclined to sustain the award of the learned Subordinate Judge. According to us, placing reliance on Ext.A1 and the other evidence available on record including Ext.X1 and X2, the correct market value to be fixed for the property under acquisition is Rs.1,75,000/- per cent. 7. Allowing the appeal, we refix the market value of the land under acquisition at Rs.1,75,000/- per cent. Coming to the argument of the Government Pleader based on the judgment in L.A.A. No.1298/2010, we are sure that in that case Exts.X1 and X2 were not there and perhaps documentary counter evidence was adduced by the Government to the evidence adduced by the claimant in that case. The claimant will be entitled for statutory benefits admissible under Section 23(2), 23(1A) and Section 28 of the Act LAA.No.55/2011 7 on the total refixed compensation. In the circumstances, of the case, the claimant/respondent will be entitled for cost through out. **PIUS C.KURIAKOSE,JUDGE** **N.K.BALAKRISHNAN, JUDGE** dpk0