Mohammed Faisal P.S. v. Special Tahsildar, Land Acquisition, Guruvayoor Devaswom, Guruvayoor; Administrator, Guruvayoor Devaswom, Guruvayoor; District Collector, Thrissur

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 19TH JULY 2010 / 28TH ASHADHA 1932 LA.App..No. 619 of 2010(D) -------------------------LAR.41/2007 of II ADDL.SUB COURT,THRISSUR .................... APPELLANT(S): CLAIMANT ---------------------- MOHAMMED FAISAL P.S, POKKAKKILLATH HOUSE, MUTHUVATTOR DESOM, CHAVAKKAD, THRISSUR DISTRICT. BY ADV. SRI.JIJO PAUL RESPONDENT(S): RESPONDENTS -------------------------- 1. SPL.TAHSILDAR, L.A, GURUVAYOOR DEVASWOM, GURUVAYOOR. 2. ADMINISTRATOR, GURUVAYOOR DEVASWOM, GURUVAYOOR. 3. DISTRICT COLLECTOR, THRISSUR. ADV. V.KRISHNA MENON,SC,GURUVAYOOR DEWASSWAM( FOR NO MEMO)) BY GOVT.PLEADER SMT.LATHA T.THANKAPPAN THIS LAND ACQUISITION APPEAL HAVING COME UP FOR ADMISSION ON 19/07/2010, ALONG WITH LAA NO. 681 OF 2010 & LAA NO. 682 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. -----------------------L.A.A.Nos.619, 681 & 682 OF 2010 ------------------------** Dated this the 19[th] day of July, 2010 ## **JUDGMENT** Pius C.Kuriakose, J. The claimants are in appeal being aggrieved by the judgment of the Reference Court complaining that the enhancement granted by the Reference Court is grossly inadequate. The lands under acquisition are in Guruvayoor Village in close proximity to the famous Shree Krishna Temple at Guruvayoor. The relevant Section 4(1) notification was published on 22/6/2004. The acquisition was for the purpose of future development of Guruvayoor temple. It was on Ext.A1(R6) basis document that the Land Acquisition Officer relied on for fixing the market value of the lands under acquisition. The said document reflected land value of Rs.1,26,984/- per cent only. But, obviously on the view that the property under acquisition is more valuable than the property covered by Ext.A1, the Land Acquisition Officer fixed the market value at Rs. 1,33,333/- per cent. Before the Reference Court the evidence consisted of Exts.A1 to A9, oral evidence ofAW1, the claimants' Exhibits R1 to L.A.A.Nos.619/2010 & others 2 R6 as well as the commission reports Exts.X1 to X3 submitted by the Commissioner. Significantly, to the oral evidence adduced by the claimants, absolutely no counter oral evidence was adduced either by the Government or by the requisitioning authority. It was mainly on Ext.A5 that the claimants relied on for the purpose of claiming enhanced value. Ext.A5 was a document executed some five months prior to the date of promulgation of Section 4 (1) notification. Ext.A5 reflected land value of Rs.2,03,325/- per cent. Ext.A5 was a property situated at a distance of 350 metres from the temple in contrast to the properties under acquisition, which was situated at a distance of only 50 metres from the Temple Nada. The learned Subordinate Judge did not become inclined to rely on Ext.A5. According to him, Ext.A5 property was enjoying the frontage of a municipal road and the owner of Ext.A5 was having absolute right of access through that road while as far as the properties under acquisition are concerned, the access was provided through the Devaswom Road through which it was only restricted access which the claimants are having. So, according to the learned Subordinate Judge, Ext.A5 property had only lesser value than the properties under L.A.A.Nos.619/2010 & others 3 acquisition. Ultimately, what the learned Subordinate Judge did was to rely on Ext.A4, a post notification document revealing land value at the rate of Rs.3.8 Lakhs per cent, make deductions for the passage of time and refix the market value at Rs.1,85,350/per cent. 2. In these appeals, the claimants have raised various grounds contending that it is grossly inadequate market value that has been fixed by the learned Subordinate Judge. 3. Mr.Jijo Paul, learned counsel for the appellants, addressed us strenuously. According to him, property in Ext. A5 was inferior to the lands under acquisition in view of its distance from the Temple Nada. Though it is true that the right of way, which the appellants enjoyed over the properties under acquisition, was permissive, the Devaswom could never obstruct the right of way whereas Ext.A5 properties, being situated far away from the temple, would never fetch so much of value as the properties under acquisition. The learned counsel submitted that as regards the observations of the learned Subordinate Judge that the parties to Ext.A5 were not examined and the commissioner was not asked to report on comparative L.A.A.Nos.619/2010 & others 4 advantages of Ext.A5 properties and the properties under acquisition, Mr.Jijo Paul submitted that Ext.R5 is the notes to award wherein Ext.A5 is discussed under serial No.7. Since Ext.R5 is there, no further evidence is necessary. The reason stated in Ext.R5 for not relying on Ext.A5 is that the property was purchased by the purchaser for the construction of a lodge paying a fancy rate. The acquired properties also could have been put for any purpose including lodge construction had it not been for the acquisition. Anybody would have paid much more than the value actually paid under Ext.A5 as even the potentiality for lodge construction was more for the acquired property. 4. All the submissions of Sri.Jijo Paul were very stiffly resisted by Mr.V.Krishna Menon, learned standing counsel for the requisitioning authority. Mr.Krishna Menon strongly relied on the findings entered by the learned Subordinate Judge regarding the comparability of the properties under acquisition and the properties covered by Ext.A5. Mr.Menon referred to the judgments of the Supreme Court in Thakur Kuldeep Singh (D) Thr.L.R. & Ors. v. Union of India and Ors.(AIR 2010 Supreme Court 1272) and Attar Singh And Another v. Union of India And L.A.A.Nos.619/2010 & others 5 Another (2009) 9 Supreme Court Cases 289) and submitted that in the absence of cogent evidence regarding comparability, this Court may not be justified in awarding to the appellant the value shown in Ext.A5. The learned counsel submitted that it is the Devaswom which should have been aggrieved as the learned Subordinate Judge has relied on post notification document in gross violation of the judgment of the Supreme Court in G.M.Oil & Natural Gas Corporation Ltd. v. Rameshbhai Jivanbhai Patel & Anr.(2008 SAR (Civil) 894). 5. We have carefully gone through the impugned judgment. We find force in the submissions of Sri. Krishna Menon that the learned Subordinate Judge ought not have relied on a post notification document Ext.A4 to fix the market value of the properties under acquisition. According to us, as pre notification documents Exts.A1, A2 and A5 were available on record, it was absolutely unnecessary to the learned Subordinate Judge to have recourse to Ext.A4 a post notification document. The question now arising before us is whether the market value presently fixed by the learned Subordinate Judge is the correct market value of the property under acquisition. Comparable L.A.A.Nos.619/2010 & others 6 sales method is the best method for determining the market value of the lands under acquisition. We find that among the various documents, Ext.A5 is one document which could have been relied on to a considerable extent by the learned Subordinate Judge. True, the parties to Ext.A5 were not examined and the advocate commissioner did not make comparison of Ext.A5 property with the properties under acquisition. But, then Ext.A5 is a document which was considered and discussed by the Awarding Officer himself as Serial No.7 in Ext.R5 notes to award. It is seen from Ext.R5 that Ext.A5 pertains to 15.50 cents of dry lands. Incidentally the land under acquisition were dry lands situated in the same village viz. Guruvayoor village. It is further seen that the distance between the lands under acquisition and Ext.A5 lands is 300 metres, which means that in terms of nearness to the Guruvayoor Temple, the lands under acquisition were more advantageously situated. The Land Acquisition Officer has rejected Ext.A5 for the reason that the purchase under Ext.A5 was for construction of lodge and that the lands “seems to be purchased at a fancy rate”. It is almost clear to us that the L.A.A.Nos.619/2010 & others 7 above conclusion that the price shown in Ext.A5 is a fancy price is arrived at not on the basis of any meaningful enquiry conducted by the awarding officer after examining the parties to Ext.A5, instead the Land Acquisition Officer has assumed that since the property purchased is for the construction of lodge near to Guruvayoor Temple where lodges were very much in demand, the purchaser would have paid a fancy price. May be it is true that persons who are desirous of putting up lodges at places near to the Guruvayoor temple, may become inclined to pay a very high price for the properties. We notice that acquired properties were situated nearer to the Temple and hence had it been sold by the appellants on their own, perhaps they could have fetched value higher than even the value shown in Ext.A5 as the potentiality of being used for lodge construction purpose was apparently more. At the same time, we notice that unlike Ext.A5 property, which enjoys the frontage of a Municipal Road, it was only right of way allowed by the Deveaswom which the appellants are having over the properties under acquisition. Hence, we are not inclined to award so much of value as reflected in Ext.A5 though it is executed some five months prior to L.A.A.Nos.619/2010 & others 8 Section 4 (1) notification. According to us, based on Ext.A5, the rate of Rs.1,98,000/- per cent can be reasonably fixed for lands under acquisition. To arrive at such a finding, we keep in mind all the relevant judicial precedents including the precedents cited before us by Sri.Krinshna Menon, which permit a little bit of guess work also, provided the same has some nexus to the evidence on record in the matter of fixing the market value of the land under acquisition. 6. We allow these appeals refixing the market value of the lands under acquisition at Rs.1,98,000/- per cent corresponding to Rs.4,89,258/- per Are. The appellants will be entitled for all statutory benefits admissible under Section 23(2), 23(1A) and Section 28 of the Act on the total enhanced compensation to which they become eligible by virtue of this judgment. In the circumstances the parties are directed to suffer their respective costs. 7. The Section, while drafting the decree, will have due regard to the conditions imposed by this Court while passing orders in C.M.Applns.958/2010, 1057/2010 & 1052/2010 i.e. during the period of delay condoned by this Court, statutory L.A.A.Nos.619/2010 & others 9 interest under Section 28 will not be allowed. The Registry will issue decree copy only after ensuring that the balance court fee is paid. **PIUS C.KURIAKOSE,JUDGE** **C.K.ABDUL REHIM , JUDGE** dpk