LAR Nos. 639, 640 & 642 of 2008

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS .C KURIAKOSE & THE HONOURABLE MR. JUSTICE .C K ABDUL. REHIM TUESDAY, THE 1ST JUNE 2010 / 11TH JYAISTHA 1932 **==> picture [136 x 11] intentionally omitted <==** ------------------------LAR.31/2006 of SUB COURT, TIRUR .................... APPELLANT(S): 2ND RESPONDENT ---------------------------- THE EXECUTIVE OFFICER SREE KADAMPUZHA DEVASWOM, KADAMPUZHA MALAPPURAM DISTRICT. BY ADV. SRI T P KELU. . . NAMBIAR, SENIOR ADVOCATE SRI P G RAJAGOPALAN. . . SRI M GOPIKRISHNAN. . NAMBIAR RESPONDENT(S): CLAIMANT AND THE 1ST RESPONDENT ---------------------------------------------- 1. . K ABDU, /S O MAMMAD. HAJI KAZHUNGAL HOUSE, CHERUSSALA, KALLUVETTUPARA THIRURANGADI, MALAPPURAM DISTRICT. 2. THE SPECIAL TAHSILDAR, LA(G), TIRUR MALAPPURAM DISTRICT. GOVT. PLEADER SMT. LATHA .T THANKAPPAN FOR 2R ADV. SRI VINOD. RAVINDRANATH FOR 1R SRI SAJU S A. . . FOR 1R THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 01/06/2010, ALONG WITH LAA NO. 640 OF 2008 LAA NO. 642 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ.** ----------------------------------------------LAA. Nos. 639, 640 & 642 of 2008 ----------------------------------------------Dated this the 1[st] day of June, 2010 ## **J U D G M E N T** ## **Pius C.Kuriakose, J.** The requisitioning authority Sree Kadampuzha Devaswom is in appeal being aggrieved by what they describe as the excessive enhancement awarded by the reference court in respect of the lands acquired in these cases at their behest. The properties were situated in Melmuri Village and the acquisition was pursuant to section 4(1) notification published on 14-5-2005. The land acquisition officer awarded land value at the rate of Rs.25000/- per cent. In fact the land acquisition officer in the draft award prepared by him had recommended for more than Rs.25000/- in view of the locational and other advantages enjoyed by the properties under acquisition in comparison to the basis property (since marked as A5/R1 in the case). But the District Collector while granting approval LAA Nos. 639 of 2008 etc. -2- to the award however, would approve the value of Rs.25000/- only, i.e., the value reflected in Ext.A5 and ultimately award was passed for value at the rate of Rs.25000/- per cent. Three LAR cases under section 18 were registered by the reference court on application submitted by the claimants/respondents. Of these cases, LAR Nos. 31 and 33 of 2006 involve large extents in the sense that extents involved therein were more than one acre. Before the reference court the evidence adduced by the claimants consisted of Exts.A1 to A6 and witnesses AWs. 1 to 3. On the side of the respondents in the LARs the evidence consisted of Ext. R1 which was the same as Ext.A5 basis document and the oral evidence of the land acquisition officer as RW1. The plan and report submitted by an advocate commissioner on the basis of a local inspection of the properties under acquisition and the nearby properties were marked as Exts.C-1 and C-2. LAA Nos. 639 of 2008 etc. -3- 2. Exts.A1 to A6 were all documents of title under which various claimants purchased the properties under acquisition. Among these documents, it was Ext.A6 which reflected the highest value, i.e., Rs.25,000/-. A1 to A5 were discarded by the L.A. Officer and the court also on the reason that the value shown in those documents is far below the market value. Ext. A6 was dated 20-11-2004, a prenotification document. But Ext.A6 was discarded by the land acquisition officer for the reason that Ext.A6 takes in buildings and such other improvements unlike the lands under acquisition and Ext. A6. Ext.A6 was discarded by the court below taking into account the reasons which weighed with the LA Officer and obviously the reason that A6 took in the management rights over, an aided school which was functioning on A6 property. The reference court as indicated, adopted Ext.A5 itself as the basis, but relying on the oral evidence adduced in the case and also Ext.C-1 LAA Nos. 639 of 2008 etc. -4- report, would find that in comparison to a substantial portion of the property under acquisition the property covered by Ext.A5 which was only 15 cents of land situated on the north-eastern corner of the property under acquisition had only lesser importance and commercial potentiality. The court below noticed that there was a time gap of about 7 months between the section 4(1) notification and the date of Ext.A5. Keeping both these aspects in mind what the learned Sub Judge did was to award 25% enhancement over the value reflected in Ext.A5 and re-fix the market value of the land at Rs.31,250/-. 3. In these appeals, the appellant requisitioning authority has raised various grounds assailing the judgment of the reference court. It is urged inter alia that Ext.A5 was not the proper basis for determining the correct market value of the property at the relevant time as Exts.A1 to A4 which were subsequent documents in respect of properties LAA Nos. 639 of 2008 etc. -5- which are found by the court below to be more valuable and important than the property covered by Ext.A5 reflected only lesser value. It is urged that even if the reference court as well as the L.A. Officer were justified in treating Ext.A5 as the basis, then also there was no justification for granting enhancement by 25% for passage of time which was only seven months. It is also urged that there there is no evidence in this case showing that during the period between the 4(1) notification and the date of Ext.A5 the land prices in the locality had increased. It is urged even more seriously that the L.A. Officer as well as the court was in error in awarding the same price for the large extents under acquisition in LAR Nos. 31 and 33 of 2006 as was awarded to the claimant in LAA. No. 30 of 2006 in which case the extent was only small. 4. Sri.T.P. Kelu Nambiar, learned Senior Counsel for the appellant and Sri.T.Krishnan Unni, learned Senior LAA Nos. 639 of 2008 etc. -6- Counsel for the claimants/respondents addressed us. While Sri.Kelu Nambiar addressed submissions on the basis of the various grounds raised in the appeal memos Sri.Krishnan Unni would justify the impugned judgment on the basis of the reasons stated in the judgment. Mr. Unni in fact drew our attention to the evidence on record especially the notes to award prepared by the land acquisition officer, the commissioner's report C-2 and also the oral evidence of RW1. Mr. Unni submitted that it was not even suggested to RW1 that Ext.A5 document was brought into existence showing an artificially inflated price with the object of staking higher compensation in the prospective land acquisition proceedings. He submitted that no challenge at all is made either by the requisitioning authority or by the Government in their cross-examination of RW1 to the recommendation made by the land acquisition officer originally that the correct market value of the land under LAA Nos. 639 of 2008 etc. -7- acquisition is atleast 25% more than the value shown in Ext.A5. The learned senior counsel submitted that it is in evidence that the bare land value reflected in Ext.A6 which is also a pre-notification document is Rs.37,000/-. Mr. Unni submitted that having regard the proximity of the lands under acquisition to the famous Kadampuzha Temple as well as the various institutions and establishments made mention of in Ext. C-1 report, even the rate presently fixed under the impugned judgment is inadequate. 5. Sri.Kelu Nambiar meeting the submissions of Mr. Unni in reply submitted that though to a limited extent there is scope for doing guess work while determining the market value of the lands under acquisition in order that a guess is a good one it should have some foundation in value of land as reflected in comparable sales. The learned senior counsel submitted that if it comes to that, this court can endorse the view of the L.A.O. as well as the court that LAA Nos. 639 of 2008 etc. -8- Ext.A5, the basis document is the correct basis, then also, there is no justification for granting enhancement by 25% and in this connection the learned senior counsel referred to the judgment of the Supreme Court in G.M. Oil and Natural Gas Corporation Ltd. v. R.Jivanbhai Patel & another, 2008 SAR (Civil) 894. According to the learned counsel, the area in question at best can be described as a semi urban area. The decision of the LAO as well as the Court to award the same rate for cases involving large extents and small extents came up for severe criticism at the hands of the learned senior counsel. Drawing our attention to various decisions of the Supreme Court learned senior counsel submitted that there has to be a cut when the lands under acquisition are larger in extent. Mr.Kelu Nambiar was supported all his submissions by Smt.Latha T.Thankappan, learned senior Govt. Pleader. 6. We have very anxiously considered the rival LAA Nos. 639 of 2008 etc. -9- submissions addressed at the Bar. We have gone through the impugned judgment. We have made a quick reappraisal of the entire evidence on record. 7. Sri.T.Krishnan Unni, senior counsel is certainly right when he submits that determination of market value in land acquisition cases atleast to a certain extent will involve guess work. But as rightly submitted by Mr.T.P.Kelu Nambiar, in order that the guess made by the Land Acquisition Court becomes a good guess, the same ought to have some foundation in legal evidence which is available in the case. The best evidence for determining the market value of the lands under acquisition is undoubtedly sale documents pertaining to the very land under acquisition if the same is available or lands situated near to the land under acquisition transacted at points of time near to the period of the acquisition. Ext.A5 significantly pertains to the very land under acquisition. May be there is some force in LAA Nos. 639 of 2008 etc. -10- the submission of Mr.Kelu Nambiar that in comparison to the other portions which were also acquired, the property covered by Ext.A5 has only lesser importance. But we are not able to accept the argument that A5 is not a safe basis when we keep in mind the principles underlying provisions like Section 28A of the Land Acquisition Act. We are of the view that Ext.A5 was, among the documents available in the case, the best suited for determining the market value. Ext.A6 in our opinion was rightly discarded by the L.A. Officer as well as by the Court. Apart from the reasons stated by the L.A. Officer and the Court,we find that the property conveyed under Ext.A5 includes the right to manage a running aided school which is not seen properly valued. A6 therefore could not have been a proper basis. 8. Having found that Ext.A5 was the proper basis for determining the market value then the question to be considered is whether the court below was justified in LAA Nos. 639 of 2008 etc. -11- enhancing the value shown in Ext.A5 by 25%. Ofcourse, there was passage of time between the date of Ext.A1 and the date of Section 4(1) notification, but the time that passed was only seven months. If the judgment of the Supreme Court in G.M.Oil and Natural Gas Corporation Ltd. case (supra) was to be followed the maximum addition which could be allowed in view of the apparent position that the land in question was situated in semi urban area is 10%. But as rightly submitted by Mr.Krishnan Unni, the court decided to give additions over the value shown in Ext.A5 for other reasons also. The Court took into account the importance of the locality, commercial potentialities of the locality, its proximity to the property under acquisition to institutions and establishments including the famous Kadampuzha Temple and this was why enhancement of 25% was granted. Having reappraised the evidence and having kept in mind all relevant inputs which should go in LAA Nos. 639 of 2008 etc. **==> picture [21 x 9] intentionally omitted <==** while determining the correct market value, we feel that the enhancement granted by the court below was slightly on the higher side. The proper percentage of enhancement to be granted in our view was only 20%. Hence we re-fix the market value of the lands under acquisition in modification of the impugned judgment at Rs.30,000/- per cent. 9. Now we shall decide the next point on which more thrust was given by Mr. Nambiar in his submission whether a different standard should be adopted in LAR Nos. 31 of 2006 corresponding to LAA. No. 639 of 2008 and 33 of 2006 corresponding to LAA No. 642 of 2008. Even though Mr. T.Krishnan Unni justified the impugned judgment referring to the principles under Section 28A and the submissions of the learned senior counsel in this regard were attractive, having regard to a catena of decisions of the Supreme Court in Special Deputy Collector and another v. Kurra LAA Nos. 639 of 2008 etc. -13- Sambasiva Rao & others (AIR 1997 SC 2625), Land Acquisition Officer and Sub Collector v. Smt. Sreelatha Bhoopal and another (AIR 1997 SC 2552), State of J & K v. Mohammad Mateen Wani & others (AIR 1998 SC 2470) and a relatively recent judgment of the Supreme Court in Atma Singh (dead) through Lrs and other v. State of Haryana and another (2008) 2 SCC 568 we are obliged to accept Mr.Kelu Nambiar's submissions and hold that the claimants in LAR. Nos. 31 and 33 of 2006 cannot be awarded the rate of Rs.30,000/- per cent. Even though the extent involved in those cases are fairly large and the Supreme Court in many cases have made a cut of 20 to 30% we feel that in the facts and circumstances which attend on these cases a cut above 10% will not be justified. Hence we modify the decrees in those cases and re-fix the value to be paid to the claimants in those two cases at Rs.27,000/- per cent. The appeals are allowed as above. Needless to LAA Nos. 639 of 2008 etc. **==> picture [21 x 9] intentionally omitted <==** mention that the claimants respondents will be entitled for all statutory benefits admissible on the total enhanced compensation to which they become eligible by virtue of this judgment. The parties are directed to suffer their costs in these appeals. **(PIUS C.KURIAKOSE, JUDGE)** **(C.K.ABDUL REHIM, JUDGE)** ksv/-