LA.App. Nos. 694 of 2012 & 750 of 2012, High Court of Kerala at Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** ## **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY,THE 19TH DAY OF DECEMBER 2018 / 22ND AGRAHAYANA, 1940** ## **LA.App..No. 694 of 2012** **AGAINST THE JUDGMENT AND DECREE DATED 16-06-2012 IN LAR 1/2011 of PRL.SUB COURT,KOTTAYAM** ## **APPELLANT/1ST RESPONDENT IN LAR:** **STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, KOTTAYAM.** **BY SRI. A.K.SUKUMARAN,SR.GP** ## **RESPONDENTS/CLAIMANT AND 2ND RESPONDENT IN LAR:** **1 BABU VARGHESE S/O.VARKEY VARKEY, VALLIKKATTU THEKKEKKARA, PATHAMUTTAM KARA, PANACHIKADU VILLAGE, REPRESENTED BY POWER OF ATTORNEY HOLDER K.M.ITTY, KALUKADAVIL HOUSE, MANARKADU P.O., KOTTAYAM, PIN - 686 019. 2 VAKATHANAM GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, PIN - 686 538.** **BY ADVS.** **SRI.DOMSON J.VATTAKUZHY FOR R1 SRI.BECHU KURIAN THOMAS FOR R2 SRI.MATHEW JOHN (K) FOR R1** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 13.12.2018 ALONG WITH LA.App..750/2012, THE COURT ON 19.12.2018, DELIVERED THE FOLLOWING:** L.A.A.Nos.694/2012 & 750/2012 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** ## **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY,THE 19TH DAY OF DECEMBER 2018 / 22ND AGRAHAYANA, 1940 LA.App..No. 750 of 2012** **AGAINST THE JUDGMENT AND DECREE IN LAR 1/2011 DATED 16-06-2012 of PRL.SUB COURT,KOTTAYAM** ## **APPELLANT/CLAIMANT:** **BABU VARGHESE S/O. VARKEY VARKEY, VALLIKKATTU THEKKEKKARA, PUTHAMUTTAM KARA, PANACHIKADU VILLAGE, REPRESENTED BY POWER OF ATTORNEY HOLDER K.M.ITTY, KALUKADAVIL HOUSE, MANARKADU POST, KOTTAYAM.** **BY ADV. SRI.MATHEW JOHN (K)** BY ADV.SRI.DOMSON J. VATTAKUZHY ## **RESPONDENTS/RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, KOTTAYAM-686 001. 2 VAKATHANAM GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, PIN-686 538.** SRI.A.K.SUKUMARAN, SR.G.P FOR R1 **SRI.BECHU KURIAN THOMAS FOR R2** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 13.12.2018 ALONG WITH L.A.A.NO.694 OF 2012, THE COURT ON 19.12.2018 DELIVERED THE FOLLOWING:** L.A.A.Nos.694/2012 & 750/2012 3 ## **V.CHITAMBARESH &** ## **R.NARAYANA PISHARADI, JJ.** ************************** L.A.A.Nos.694 of 2012 & 750 of 2012 ---------------------------------------------Dated this the 19[th] day of December, 2018 ## **JUDGMENT** ## **R.Narayana Pisharadi, J** These appeals arise out of the judgment dated 16.06.2012 passed by the Sub Court, Kottayam in L.A.R.No.1 of 2011. 2. An extent of 18.70 Ares of land in Vakathanam Village was acquired for the purpose of construction of a taxi stand for the Vakathanam Panchayat (hereinafter referred to as 'the Panchayat'). Notification under Section 4(1) of the Land Acquisition Act was published on 22.08.2008. The Land Acquisition Officer granted compensation for the land by fixing the value of the land at Rs.65,000/- per Are. The Land Acquisition Officer also granted an amount of Rs.71,342/- as compensation for value of improvements and also Rs.4,02,592/- as compensation for the buildings in the acquired property. L.A.A.Nos.694/2012 & 4 750/2012 3. Dissatisfied with the compensation granted by the Land Acquisition Officer, the claimant, the owner of the land, initiated reference proceedings. During the enquiry in the reference case, AW1 and AW2 were examined and Exts.A1 to A8 documents were marked on the side of the claimant. No evidence was adduced by the State or the Panchayat. 4. The reference court refixed the value of the land at Rs.4,37,246/- per Are and enhanced the compensation for land acquired at that rate. Aggrieved by the award passed by the reference court, the State has filed L.A.A.No.694 of 2012. Dissatisfied with the award passed by the reference court, the claimant has filed L.A.A.No.750 of 2012. 5. We have heard the learned Government Pleader and also the learned counsel for the claimant, the appellant in L.A.A.No.750 of 2012 and the learned Senior Counsel who appeared for the Panchayat. We have also perused the records. 6. The Land Acquisition Officer adopted the value of the land shown in sale deed No.944/2007 of SRO, Thengana, which is dated 07.03.2007, for fixing the value of the land acquired. As per this document, 10 Ares of land in Vakathanam Village was sold for a consideration of Rs.50,000/- per Are. This land is situated at L.A.A.Nos.694/2012 & 5 750/2012 a distance of 70 metres from the acquired land and it is situated near a junction. Considering the fact that the land acquired has got more commercial importance than the land covered by sale deed No.944/2007, the Land Acquisition Officer fixed the value of the land at Rs.65,000/- per Are. 7. The claimant had produced Exts.A2 to A4, A7 and A8 documents before the reference court in support of his plea for enhancement of compensation. Exts.A2 to A4 are copies of the documents by which the claimant purchased the property which was acquired. Exts.A7 and A8 documents relate to post notification sale transactions and they cannot be relied upon for fixation of the value of the land acquired. 8. Ext.A2 document shows that the claimant had purchased 2.43 Ares out of the acquired land on 07.12.2006 for a consideration of Rs.10,00,000/-. It is to be noted that this portion of the property included shop rooms which have been valued at Rs.1,00,000/- in Ext.A2 document. Ext.A3 document shows that, on the same day, that is, on 07.12.2006, the claimant had purchased another portion of the acquired property, having an extent of 6.92 Ares, for a consideration of Rs.20,00,000/-. As per Ext.A4 document, the claimant had purchased the remaining portion of the acquired property, having an extent of 9.35 Ares, for L.A.A.Nos.694/2012 & 6 750/2012 a consideration of Rs.39,00,000/-. 9. The reference court has adopted the value of the land shown in Ext.A2 document for determination of the value of the land acquired. The reference court fixed the value of the land acquired at a rate 20% above the value of the land shown in Ext.A2 document, considering the time gap between the date on which the transaction under Ext.A2 took place and the date of publication of the notification under Section 4(1) of the Land Acquisition Act. 10. No doubt, when the claimant had purchased the land shortly before the acquisition, the consideration paid by him to the vendor then is best evidence of the market value of the land. The consideration paid by the owner of the property a few months before the acquisition presents bona fide evidence of the value of the land subject to certain exceptions such as relationship of the parties, market conditions and terms of the sale and date of the sale (See **Pehlad Ram v. Haryana Urban Development Authority : AIR 2014 SC 793** ). 11. Learned Senior Government Pleader Sri.A.K.Sukumaran as well as the learned Senior Counsel Sri.Bechu Kurian Thomas, who appeared for the Panchayat, vehemently contended that sale of property in favour of the claimant was not a genuine L.A.A.Nos.694/2012 & 7 750/2012 transaction. They have contended that sale of property in favour of the claimant took place when the Panchayat had already taken a decision and passed a resolution to acquire the property. It is contended that Ext.A2 document does not reflect the real market value of the land and that the reference court should not have adopted the value shown in that document for fixation of the value of the land acquired. 12. Sri.Mathew John, learned counsel for the claimant would submit that no material was produced by the State or the Panchayat before the reference court in support of the allegation that the property was purchased by the claimant after the Panchayat took a decision to acquire the property. He has also pointed out that not even a suggestion to that effect was made to the witnesses examined by the claimant. 13. It is true that the State or the Panchayat did not adduce any evidence to prove that sale of the property in favour of the claimant is not a genuine transaction. But, we take note of the fact that the claimant purchased two portions of the one and the same property on the same day as per two documents. He purchased the remaining portion of the property later as per another document. The property belonged to Mathew Kurian and his sister. The State has produced Annexure I document along L.A.A.Nos.694/2012 & 8 750/2012 with L.A.A.No.694/2012 which shows that the Panchayat Committee had taken a decision on 25.10.2006 to take steps for acquiring the very same property for construction of a taxi stand. Annexure II document produced by the State shows that on 18.11.2006 Mathew Kurian had made a representation to the Deputy Director of Panchayats stating that the property is absolutely necessary for his needs and that steps may not be taken for acquiring the property. It is immediately thereafter, on 07.12.2006, he sold two portions of the very same property to the claimant. 14. We have not admitted in evidence the two documents produced by the State in appeal. We have referred to those documents only for the purpose of pointing out that the allegations raised by the State and the Panchayat are not without any basis. When circumstances which indicate the probability of attempts made to cause huge loss to the public exchequer are brought to our notice, we cannot turn a blind eye and cling on to technicalities. In this context, it may be noted that the reference court has found that the sale of property in favour of the claimant was made when there was no proposal for acquisition of it by the Panchayat. The State and the Panchayat have prayed for granting opportunity to prove that the aforesaid finding by the reference L.A.A.Nos.694/2012 & 9 750/2012 court is wrong. It is seen from the records that copy of the proof affidavit filed in lieu of examination-in-chief by the witnesses of the claimant had been given only to the Government Pleader who represented the State and not to the counsel for the Panchayat. There is specific endorsement on the proof affidavits regarding receipt of copy of the same by the Government Pleader but not by the counsel for the Panchayat. In such circumstances, it is evident that the Panchayat had no sufficient opportunity to cross-examine the witnesses of the claimant. Considering the circumstances mentioned above, we are inclined to accept the prayer for remand of the case. 15. The right which the acquiring body has is not just a right to lead evidence before the reference court. The acquiring body also has a right to support the award which has been made by the Land Acquisition Officer. This can be done by cross examining witnesses led by the claimants (See **NTPC Ltd v. State of Bihar :** **(2004) 12 SCC 96** ). As the Panchayat has to be given an opportunity of leading evidence, this can only be done before the reference court. Therefore, the judgment of the reference court is to be set aside and the matter has to be sent back to the reference court (See **Regional Medical Research Centre v. Gokaran : (2004) 13 SCC 125** ). L.A.A.Nos.694/2012 & 10 750/2012 16. In the result, the appeals are allowed and the impugned judgment in L.A.R.No.1/2011 is set aside. The case is remanded to the reference court for fresh consideration. The court below shall give the Panchayat an opportunity to file written statement to the claim petition, if already not filed. The statements of the witnesses already recorded and documents already filed will remain as evidence before the reference court. If the claimants want to lead further evidence they shall be permitted to do so. The Panchayat shall be allowed to cross examine the witnesses already examined, if they are available and also to lead evidence, if any. The parties shall appear before the reference court on 14.01.2019. The reference court shall dispose of the case within a period of two months from that date. The registry shall send back the lower court records forthwith. The court fee paid by the appellant in L.A.A.No.750 of 2012 shall be refunded to him. No costs in the appeals. (sd/-) ## **V.CHITAMBARESH, JUDGE** (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr True Copy PS to Judge