P.P. KOYA v. State of Kerala & The Manager (Projects) IBP Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** ## **THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE** **& THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 15TH JULY 2009 / 24TH ASHADHA 1931** **LA.App..No.14 of 2004 (C)** **------------------------------LAR.143/1999 of III ADDL.SUB COURT, ERNAKULAM** **....................** ## **APPELLANT(S): CLAIMANT** **-------------------------------** **P.P.KOYA, PARTNER, KOYENCO BAZAR, WEST HILL, KOZHIKODE.** **BY ADV. SRI.C.P.MOHAMMED NIAS** ## **RESPONDENT(S): RESPONDENTS** **---------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO REVENUE, SECRETARIAT, THIRUVANANTHAPURAM** **2. THE MANAGER (PROJECTS) I BP CO. LTD., 10 MAYOR, V.R.RAMANATHAN ROAD, CHETPAT, CHENNAI-600031** **ADV. SRI.P.SANTHALINGAM, SENIOR ADVOCATE FOR R2 SRI.S.SHARAN FOR R2 GOVT. PLEADER SMT.P.N.SUMANGALA** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 15/07/2009 ALONG WITH LAA.21/04 & CON. CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## PIUS C. KURIAKOSE & P. Q. BARKATH ALI, JJ. ------------------------------------------------ L. A. A. Nos.14, 21, 22 & 29 of 2004 -----------------------------------------------Dated this the 15[th] day of July, 2009 ## **JUDGMENT** ## _**Pius C. Kuriakose, J**_ All these appeals preferred by the claimants pertain to acquisition of land in Irumpanam village for the purpose of construction of storage tanks and distribution of POL products of IBP, the second respondent/requisitioning authority. The relevant Section 4(1) notification was published on 10/02/1998. The Land Acquisition Officer categorised the lands under acquisition into several categories, but these appeals are concerned with categories 6 and 8 only. For properties included in category 6, the Land Acquisition Officer awarded land value at the rate of Rs.25,900/- per Are and for lands included in category L. A. A. Nos.14, 21, 22 & 29 of 2004 -2- 8, he awarded land value at the rate of Rs.12,300/per Are. At the instance of the claimants, references under Section 18 were initiated and before the reference court the evidence on the side of the claimant consisted of Exts.A1 to A6, oral evidence of AW1 and AW2 and Commissioner's Report Ext.C1. The only counter evidence on the side of the Government and the Requisitioning Authority was Ext.B1 notes to award and Ext.B2 mahazar. There was not even formal oral evidence on the side of the Government or the Requisitioning Authority. Exts.A2 and A3 were copies of proceedings initiated by the District Registrar, Ernakulam under Section 45(b) of the Kerala Stamp Act in respect of the title documents under which some of the appellants obtained title to the property under acquisition. Under Exts.A2 and A3, -3- L. A. A. Nos.14, 21, 22 & 29 of 2004 the District Registrar determined the correct market value of the land covered by title documents at Rs.16,000/- per Are. The learned Subordinate Judge, however, did not become inclined to place any reliance on Exts.A2 and A3. According to the learned Judge, the claimant did not contest Exts.A2 and A3 proceedings and therefore, it was quite probable that Exts.A2 and A3 proceedings were collusive proceedings and the claimant did not contest them with the objective of staking claim for higher land value in the land acquisition proceedings. We will state immediately that we are not impressed by the reasoning of the learned Subordinate Judge regarding Exts.A2 and A3. Exts.A2 and A3 will reveal that the proceedings were initiated by the District Registrar on the basis of a report which was submitted by the Sub L. A. A. Nos.14, 21, 22 & 29 of 2004 -4- Registrar either on the day the documents were executed or on the next following day. In fact, they were suo motu proceedings initiated by the District Registrar. Such proceedings are initiated by District Registrars on the basis of reports submitted by Sub Registrars almost as a matter of routine when the Sub Registrar feels that it is not the correct market value of the property which is disclosed in the document for the purpose of computing the stamp duty payable. Exts.A2 and A3 were proceedings enjoyed presumption under Section 114 of the Evidence Act regarding their regularity and correctness they being official proceedings. The Government did not and could not have disputed the regularity of Exts.A2 and A3. No wonder, the Government did not adduce any counter evidence to Exts.A2 and A3. The claimants did -5- L. A. A. Nos.14, 21, 22 & 29 of 2004 not contest Exts.A2 and A3, perhaps they thought that no useful purpose will be served by contesting those proceedings. At any rate, we are not able to agree with the learned Subordinate Judge who discards Exts.A2 and A3 as collusive proceedings. Another reason mentioned by the learned Subordinate Judge for discarding Exts.A2 and A3 is that those proceedings are in the year 2000. Therefore, the value determined in the year 2000 cannot be taken as the value in the year 1996, when the document was executed. This reasoning of the learned Subordinate Judge we should say with respect, is quite unsound. In proceedings under Section 45(b) of Stamp Act, the value of the property decided is the correct market value of the property as on the date of the document. So Exts.A2 and A3 though issued in 2000 actually -6- L. A. A. Nos.14, 21, 22 & 29 of 2004 determined the value of the properties in 1996. We, therefore, accept Exts.A2 and A3 and find that the correct market value of the property as on the date of documents in the year 1996 is Rs.16,000/-. Acquisition is in the year 1998 and the time lag between the two, i.e. the date of document and date of Section 4(1) notification, is two years. We are unable to accept the argument of Sri.C.P.Mohammed Nias, the learned counsel for the appellant that the properties under acquisition is situated in urban area and hence, land value at the rate of 15% per year at least should be added for the passage of time. May be, Thiruvamkulam village was becoming industrialised at the relevant time. But at the same time, we are of the view that the properties under acquisition were wetlands. As on the date of relevant notification the L. A. A. Nos.14, 21, 22 & 29 of 2004 -7- area was rural. Following the principles laid down by the Supreme Court in G.M., Oil & Natural Gas Cor. Ltd. v. R. Jivanbhai Patel & Anr. (2008 SAR (Civil) 894), the correct percentage to be added for passage of time to the value revealed by pre-notification document is 7.5%. Adding that way, the value of the properties in category 6 will come to only Rs.18,400/- or so, which is more or less the same as the value now fixed under the impugned judgment. Thus, interestingly even as per Exts.A2 and A3 the value of the property will come to be only the value fixed by the learned Sub Judge by applying the rule of thumb. 2. Ext.C1 report was filed by a Commissioner appointed by the Reference Court. The inspection was with notice to the parties. No objection has been filed to Ext.C1 and at any rate, no endeavour was made to -8- L. A. A. Nos.14, 21, 22 & 29 of 2004 get the Commissioner's Report set aside or to adduce evidence against the recommendations of the Commissioner. The Commissioner recommended land value of Rs.35,000/-. We feel that the Commissioner's recommendation was on the high side. Moreover, it is trite that when Advocate Commissioners make recommendations regarding market value of the lands unless this recommendations are supported by the value reflected in sale documents and unless those sale documents are before court, the court will be entitled to rely on such recommendation. As already indicated it is by doing guess work or by applying the rule of thumb that the learned Subordinate Judge fixed the market value of the properties categorised in 6 at 40% of the rate awarded by the Land Acquisition Officer and 50% of the rate awarded by the Land L. A. A. Nos.14, 21, 22 & 29 of 2004 -9- Acquisition Officer for properties in category 8. On a better guess, we feel that the correct market value of the acquired properties at the relevant time has to be fixed uniformly for properties in categories 6 and 8 at 55% above the rate fixed by the Land Acquisition Officer under his award. Accordingly, allowing these appeals we re-fix the land value of the properties in category 6 at Rs.40,145/- per Are. Similarly, we re-fix the value of the properties in category 8 at Rs.19,065/- per Are. The appeals will stand allowed to the above extent. 3. It is needless to mention that the appellant will be entitled for all statutory benefits admissible under Section 23(2), 23(1A) and under Section 28 of the Land Acquisition Act on the total enhanced compensation to which he becomes eligible by virtue L. A. A. Nos.14, 21, 22 & 29 of 2004 -10- of the re-fixation of land value done under this judgment. 4. Appeals allowed to the above extent, but in the circumstances, parties are directed to suffer their costs in these appeals. PIUS C. KURIAKOSE JUDGE P. Q. BARKATH ALI JUDGE kns/-