Manaf s/o Chathaniparambil Abdul Vahab v. Government of Kerala and Chalakudy Municipality

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **THURSDAY, THE 7TH DAY OF JUNE 2012/17TH JYAISHTA 1934** ## **LA.App..No. 1119 of 2005 (D)** **---------------------------LAR.1/2002 of ADDL.SUB COURT, IRINJALAKUDA** ## **APPELLANT/CLAIMANT:** ## **-------------------** **MANAF,S/O.CHATHANIPARAMBIL ABDUL VAHAB, THOTAKKATTUKARA, P.O.ALUVA.** **BY ADVS.SRI.K.A.SHAMSUDEEN SRI.MOHAMMED ANZAR(NO VAKALATH)** ## **RESPONDENTS/RESPONDENTS:** **------------------------** **1. GOVT OF KERALA-REPRESENTED BY** - **DISTRICT COLLECTOR, THRISSUR.** **2. REQISITIONING OFFICER, CHALAKUDY, CHALAKKUDY MUNICIPALITY.(DELETED AND SUBSTITUTED)** *** THE SECOND RESPONDENT IS DELETED AND THE FOLLOWING RESPONDENT IS SUBSTITUTED** **“THE CHALAKUDY MUNCIPALITY REPRESENTED BY ITS SECRETARY, OFFICE OF THE CHALAKUDY MUNCIPALITY, MUNCIPAL OFFICE, CHALAKUDY”. (VIDE ORDER DT.9/11/09 IN LAA.** **BY ADV. SRI.ALOYSIUS THOMAS, SR.GOVERNMENT PLEADER BY ADV. SRI.M.P.ASHOK KUMAR** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 07-06-2012, ALONG WITH LAA.NO.859/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AS** ## **PIUS C. KURIAKOSE & A.V.RAMAKRISHNA PILLAI, JJ.** -------------------------------------------------------------LAA. Nos. 1119 of 2005 & 859 of 2009 ----------------------------------------------Dated this the 7[th] day of June, 2012 ## **J U D G M E N T** ## **Pius C.Kuriakose, J.** The claimants are the appellants. Their lands situated almost on Anamala Junction within the limits of the Municipality were notified originally on 25-7-1998 for the construction of cattle market at the instance of the municipality. Later the purpose of acquisition was changed as construction of bus stand cum shopping complex. The land acquisition officer on the basis of the basic record treated the property as 'nilam' and awarded land value at the rate of `13265/per Are. The reference court tried LAR. No. 2 of 2002 pertaining to LAA. No. 859 of 2009 and LAR. No. 1 of 2002 pertaining to LAA. No. 1119 of 2005 and another case jointly. The evidence before the reference court consisted of Exts. A1 to A6, R1 to R3, oral evidence of AWs. 1 to 8, RW-1, apart from Exts.X-1 and C1 to C4. The LAA.1119/05 & 859/09 -2- learned Subordinate Judge did not become inclined to place reliance on any of the documents produced by the claimants revealing higher market value than the rate awarded by the LAO. Finally, the learned Subordinate Judge would rely on the basis document itself. However, relying on the mahazar prepared by the LA. Officer which reveal the existence of yielding coconut trees aged 30 years at the time of acquisition the learned Subordinate Judge took the view that the opinion of the LA Officer that the property was 'nilom' was not correct. Treating the property to be reclaimed land the learned Subordinage Judge would apply rule of thumb and enhance the land value by 45%. In these appeals various grounds are raised and it is urged that the market value re-fixed by the reference court is grossly inadequate. 2. We have heard the submissions of Sri. K.J. Mohammed Anzar, learned counsel for the appellant and LAA.1119/05 & 859/09 -3- those of Sri. Aloysius Thomas, learned senior Govt. Pleader, apart from the learned Standing Counsel for Chalakudy Municipality. 3. Mr. Anzar would highlight before us Ext.A1 judgment. He pointed out that as per Ext.A1 value of lands in the same village acquired for the purpose of construction of Chalakudy Head Post Office pursuant to notification promulgated 14 years earlier (on 24-7-1984) has been finally awarded land value at the rate of `30,000/- per cent under the appellate judgment passed by this court in LAA. No. 462 of 2005 pertaining to Ext.A1. According to Mr. Anzar the acquired property was comparable in all respects to A1 property. Hence the rate fixed in A1 has to be given together with additions at the minimum rate of 10% per year as Chalakudy is a municipal area. However, the counsel submitted that it will suffice if the appellants are awarded land value at the rates as limited in the appeal LAA.1119/05 & 859/09 -4- memoranda. 4. All the submissions of Mr. Anzar very stiffly opposed by the senior Govt. Pleader Mr. Aloysius Thomas as well as by the learned standing counsel for Chalakudy Municipality. According to them there is no comparison between A1 property and the property under acquisition. A comparison is not brought out through commissioner's report. Even though commissions were taken out the appellant never wanted the commissioner to inspect A1 property, so that a comparison could be made with the property under acquisition. Adverse inference therefore should be drawn. Ext.A1 property is situated in a commercially most important area of Chalakudy Municipal Town while the area of acquired property is not so important. The quality difference between lands involved in A1 and the land under acquisition is also to be noticed. A1 was original dry land while the acquired land going by records was only wet land LAA.1119/05 & 859/09 -5- though the court has now found it to be reclaimed land. Mr. Aloysius Thomas further pointed out that the holdings involved in these two appeals are to be treated as large extent and hence the principles laid down by the Supreme - Court in L.A.O. & Sub Collector, Gadwal v. Sreelatha Bhoopal (AIR 1997 SC 2552), Gafar & Ors. v. Moradabad Development Authority & another (2007(7) SCC 614), and State of J & K v. Mohammad Mateen Wani (AIR 1998 SC 2470) should be applied and appropriate deduction should be made for largeness of the extent. 5. We have given our anxious consideration to the rival submissions addressed at the Bar. We have carefully read through the impugned award. We have made a quick reappraisal of the evidence. We have scrutinised Ext. A1 thoroughly. 6. It is true that a comparison between A1 property and property under acquisition has not been properly LAA.1119/05 & 859/09 -6- brought on record by the appellants through the advocate commissioner. But at the same time, it is evident that both these properties were situated within the limits of Chalakudy Municipality. A1 property was acquired for the construction of the Chalakudy Head Post Office which is situated in a commercially more important area of Chalakudy Municipal Town than Anamala Junction. At the same time Anamala Junction has its own importance especially when looked through tourism perspectives. The land in Anamala Junction has commercial potentialities also. But we find force in the submission of the senior Govt. Pleader that qualitatively the acquired property was inferior to the property covered by A1. We take that because of the inferior quality of the acquired property the value reflected in A1 will have to be deducted by 25%. We do so. We take it that on account of the locational advantages enjoyed by A1 property over the acquired property a further 20% will LAA.1119/05 & 859/09 -7- have to be deducted from the value. As already stated by us A1 is of 25-4-1984, 14 years earlier. Chalakudy is a very ancient municipality and giving additions for passage of time at the rate of 8% per year will be quite reasonable. Giving deductions and making additions in the manner indicated above the market value of the acquired land based on A1 will come to `37,842/- per cent. As the lands involved in both these cases are lying within municipal area we treat them to be larger extent and deduct 15% for the largeness of the area. This means that the market value to be awarded to the appellants will come to `32,165/- which we round off to `32,200/- per cent. 7. Both the appeals are allowed. Appellants will be entitled for statutory benefits admissible under Section 23 (1A), 23(2) and Section 28 of the Land Acquisition Act subject to the conditions which we have imposed while condoning the delay in the matter of representation of the LAA.1119/05 & 859/09 -8- appeals after curing defects and also the delay if any in the matter of filing of the appeal. The registry will issue copy of the decree to the appellants only after ensuring that the appellants have remitted the full court fee payable on the appeal memorandum. Appeals are allowed. However, parties are directed to suffer their respective costs. ## **(PIUS C.KURIAKOSE, JUDGE)** ## **(A.V.RAMAKRISHNA PILLAI, JUDGE)** ksv/-