State of Kerala v. K.K. Premkum ar, K.K. Rajalakshmi, K.K. Prakash, K.K. Latha, and the Secretary Ottappalam Municipality (L.A.A. No. 364 of 2009) arising from LAR.27/2001, Sub Court Ottappalam

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 7TH JUNE 2010 / 17TH JYAISTHA 1932 LA.App..No. 364 of 2009(A) ------------------------LAR.27/2001 of SUB COURT, OTTAPPALAM .................... APPELLANT/5TH RESPONDENT IN LAR: - -------------- STATE OF KERALA, REPRESENTED BY THE SPECIAL TAHSILDAR LA (G) NO.1, PALAKKAD. BY SR.GOVT. PLEADER SMT.LATHA T.THANKAPPAN RESPONDENT(S)/CLAIMANTS AND 1ST RESPONDENT: --------------- 1. K.K. PREMKUMAR, S/O. LATE SAROJINI , LATHA NIVAS, R.S. ROAD, OTTAPPALAM. 2. K.K. RAJALAKSHMI, D/O. LATE SAROJINI, LATHA NIVAS, R.S. ROAD, OTTAPALAM. 3. K.K. PRAKASH, S/O. LATE SAROJINI, LATHA NIVAS, R.S. ROAD, OTTAPPALAM. 4. K.K. LATHA, BY MUKTIAR AGENT, - K.K. PREMKUMAR, LATHA NIVAS, R.S.ROAD, OTTAPPALAM. 5. THE SECRETARY OTTAPPALAM, MUNICIPALITY, OTTAPPALAM. - ADV. SRI.K.K.CHANDRAN PILLAI FOR R5 SRI.A.S.SAJUSH PAUL FOR R5 SRI.V.RAMKUMAR NAMBIAR FOR R1TO4 THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 07/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.1108/2009 IN LAA364 /2009 DISMISSED. SD/- PIUS C. KURIAKOSE, JUDGE. SD/- C.K. ABDUL REHIM, JUDGE. 7.6.2010 _okb_ /True copy/ P.A. to Judge ## **PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ----------------------------------** ## **L.A.A. No.364 of 2009** ## **----------------------------------** Dated this the 7[th] day of June, 2010 **J U D G M E N T ----------------------** ## **Pius C.Kuriakose,J.** The Government is in appeal. The case pertains to acquisition of land in Ottapalam II village for the purpose of expanding the Muncipal Bus stand at Ottapalam. The acquisition was at the behest of Ottapalam Muncipality. Notification under Section 4(1) was published on 11.7.1995. The LA Officer treated the land as wet land and awarded land value at the rate of Rs.5,000/- per cent. Before the reference court, the claimants relied on Exts.A1 and A2 apart on Ext.C1 commission report submitted by the Advocate Commissioner, who inspected the property under acquisition as well as the properties covered by Exs.A1 and A2. The commissioner in his report recommended for the award of value at Rs.50,000/per cent. The court below accepted the recommendation of the Advocate Commissioner and re-fixed land value at Rs.50,019/- per cent. The Government in the appeal **L.A.A.364/09** **2** challenges the decision of the court below on various grounds. 2. We have heard the submissions of Smt.R.Bindu, learned Government Pleader, who addressed us on the basis of the various grounds raised. Smt. Bindu was ably supported in her submissions by Sri.K.K.Chandran Pillai, learned Standing Counsel for the requisitioning authority, the Ottapalam Muncipality. The submissions of Smt.Bindu and Sri.Chandran Pillai were resisted by Sri.V.Ramkumar Nambiar, learned counsel for the claimant/respondent. Both Smt.Bindu and Sri.Chandran Pillai submitted that Exts.A1 and A2 were post-notification documents which were liable to be discarded from consideration in view of the judgment of the Hon'ble Supreme Court in **G.M., Oil & Natural Gas Corporation Ltd. Vs. Rameshbhai Jivanbhai Patel & Another (2008 SAR (Civil) 894).** According to them, the latter one among the two documents reflected a land value of only Rs.25,000/- per cent. The earlier one Ext.A1 reflected a land value of Rs.15,000/- per cent. The acquired property as well as the properties covered by Exts.A1 and A2 were wet lands. Even the commissioner in Ext.C1 has only stated that **L.A.A.364/09** **3** the property under acquisition looks like reclaimed land. But the mahazar will clearly show that the properties under acquisition were actually Nilams. The recommendation of the Advocate Commissioner in so far as the same is not on the basis of value reflected in any sale deed ought not have been accepted by the court below. Learned counsel referred to the judgment of this court in **K.S.I.D.C. v. Vayalambron Krishnan (2008 (4) KLT 726)** authored by one among us, [PCK(J)]. 3. All the submissions of the Government Pleader and Mr.Chandran Pillai were opposed by the learned counsel for the claimant. The learned counsel submitted that the properties were important and were situated in the most important area of Ottapalam Muncipality town which is one of the ancient-most town in the State. The commercial potentialities of the properties under acquisition were recognised by the requisitioning authority and the State and this was why the property was identified for locating the town bus stand. The nearness of the properties to the existing bus stand is beyond dispute. It is not even suggested to PW1 in cross-examination that Exts.A1 and A2 documents have been **L.A.A.364/09** **4** brought into existence for the purpose of staking higher value in LA proceedings. There is no warrant for interference in view of the importance of the locality and the correct market value of the land in the area in question at the relevant time is more than what is now awarded. 4. We have anxiously considered the rival submissions made at the bar. We have made a reappraisal of the evidence, particularly oral evidence adduced in the case and also Exts.A1 and A2. Both Exts.A1 and A2 are postnotification documents. It has been laid down by the Supreme Court in **G.M., Oil & Natural Gas Corporation Ltd.** (cited supra) that post-notification documents should be relied on for the purpose of determining the market value of land only when it becomes indispensable. In the instant case the basis document is admittedly situated very near to the property under acquisition. The average value reflected in Exts.A2 and A2 is Rs.20,000/- per cent roughly. It is seen that both Ext.A1 and A2 have been executed immediately after the promulgation of Section 4(1) notification. At the same time since there was no specific suggestion put to the claimant in cross-examination that values shown therein are artificial **L.A.A.364/09** **5** values, we are inclined to proceed on the basis that those properties reflected the market value of the land at the time when the documents were executed. 5. The question is whether action of the learned Subordinate Judge in having re-fixed market value at Rs.50,019/- per cent based on the recommendation of the commissioner can be approved. The Supreme Court had occasion to consider on the question as to how far recommendations by Advocate Commissioners on the basis of local inspection conducted by them regarding market value of the property can be relied on in **Spl. Land Acquisition Officer v. S.O.Tumari (AIR 1995 SC 840)** and to the judgment of this court in **Satheesh Kumar v. Spl. Tahsildar (LA) [2000 (1) KLT 416].** 6. It is held that recommendations by advocate commissioners regarding the market value of the land will be accepted only if such recommendations are given on the basis of values reflected in sale documents and copies of such sale documents are made available before the Court. Under the above circumstances, the Reference Court could not have relied on the commissioners report alone to fix the market **L.A.A.364/09** **6** value of land at the rates presently granted. The safest method for determining market value is to adopt value reflected in bona fide transactions pertaining to identical property entered into at periods proximate to the period of the acquisition. The Rule as laid down by the Supreme Court in G.M.Oil & Natural Gas Corporation Ltd.(supra) is that post notification documents can be relied on only when it becomes indispensable. This is a case where the court below rightly found that the basis document was not a proper basis for fixing land value. That being the situation, Exts.A1 and A2 could have been placed some reliance. It is in evidence that the property under acquisition was comparable in nature to the properties covered by Exts.A1 and A2. At the same time, it is clear to our mind that the property under acquisition was situated in locationally more advantageous area of the town than the property covered by Exts.A1 and A2. We feel that based on Exts.A1 and A2 and the data furnished by the commissioner regarding the importance of the locality of the acquired property, the market value of the lands under acquisition can be reasonably fixed only at Rs.30,000/- per cent. It is accordingly fixed. **7** ## **L.A.A.364/09** 7. Hence this appeal is allowed. The market value of the land is refixed at Rs.30,000/-. The claimants will be entitled for all statutory benefits admissible under Section 23 (2) 23(1A) and 28 of the Act on the total enhanced compensation to which they become eligible by virtue of this judgment. The parties are directed to suffer their respective costs. ## **PIUS C.KURIAKOSE, JUDGE.** **C.K.ABDUL REHIM, JUDGE.** okb/dpk