T. Nirmala v. Special Tahsildar (LA), Thrissur Municipality; The Executive Engineer, Kerala Water Authority; 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 FRIDAY, THE 16TH JULY 2010 / 25TH ASHADHA 1932 LA.App..No. 52 of 2010() -----------------------LAR.61/2006 of II ADDL.SUB COURT,THRISSUR .................... APPELLANT(S)/ CLAIMANT ---------------------- T.NIRMALA, THIRUVALLAMKOTT ILLAM, CHERUTHURUTHY VILLAGE, THRISSUR DISTRICT. BY ADV. SRI.DEVAN RAMACHANDRAN SRI.K.M.ANEESH RESPONDENT(S)/RESPONDENTS: --------------- 1. SPECIAL TAHSILDAR(LA), THRISSUR MUNICIPALITY, THRISSUR. 2. THE EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, P.H.DIVISION, THRISSUR. 3. DISTRICT COLLECTOR, THRISSUR. ADV. SMT.AMBIKA DEVI, SC, KWA FOR R-2 GOVERNMENT PLEADER LATHA T.THANAKAPPAN THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 16/07/2010, ALONG WITH L.A.A. NO.53/2010 & CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ.** ## **-----------------------L.A.A.Nos. 52,53, 54 & 831 OF 2010 ------------------------** Dated this the 16[th] day of July, 2010 ## **JUDGMENT** Pius C.Kuriakose, J. These appeals arise from a common judgment and we have already dismissed L.A.A. Nos.115,136,137,138/2010 preferred by the requisitioning authority holding that neither the requisitioning authority nor the Government can have any legitimate grievance about refixation of market value made by the learned Subordinate Judge. 2. The properties under acquisition were in Cheruthuruthy village. The purpose of acquisition was construction of a water tank for requisitioning authority, the Kerala Water Authority. Relevant Section 4(1) notification was published on 25/5/2003. Lands were garden lands and the Land Acquisition Officer awarded value at the rate of Rs.6172/- per Are based on Ext.A1 basis document. Before the Reference Court, the claimants produced Exts.A1 to A3. Ext.A1 was a copy of the basis document itself. Exts.A2 and A3 were documents dated LAA.No.52/2010 & others 2 7/11/2005 (about two years and five months) subsequent to the date of Section 4(1) notification. These documents were in respect of properties in the same village and the purchaser under these documents was the BSNL. These documents reflected market value of Rs.30,000/- per cent. The advocate commissioner, on comparison of the properties under acquisition and the properties covered by Exts.A1 to A3, clearly reported that the properties under acquisition were superior to the properties covered by Ext.A1. As regards Exts.A2 and A3, it was reported that in terms of nearness to the main road Thrissur - Shornur Road, the properties covered by Exts.A2 and A3 were only 100 metres away from the main road as against the properties under acquisition which were 400 metres away from the main road. Exts.X2 and X2(a) were sketch and report submitted by the advocate commissioner. On the side of the Government and the requisitioning authority, the documentary evidence consisted of Exts.R1 to. R3(a). Ext.R3(a) was the notes to award. The oral evidence in the case consisted of testimonies of AW1, the claimant, AW2, the witness and AW3 & AW4 commissioners. AW2 was an officer of the BSNL, who was 3 LAA.No.52/2010 & others cited by the claimants to prove that the transaction covered by Exts.A2 and A3 were genuine transactions and that it was on the basis of valuation certificate Ext.T6 issued by the District Collector that the price of Rs.30,000/- was fixed . Exts.T1 to T6 were documents produced by the witness AW2. The learned Subordinate Judge, on appreciating the evidence, came to the conclusion that the property covered by Ext.A1 was not comparable to the properties under acquisition and that the property under acquisition was much more superior to the property covered by Ext.A1. Coming to Exts.A2 and A3, the Court concluded that those documents were superior. According to the learned Sub Judge, the value reflected in those documents cannot be granted at all since they were post notification documents. However, the Court took the view that the value reflected in Exts.A2 and A3 can be taken as a guide and after that the learned Subordinate Judge did was to apply th rule of thumb and fix the market value of the property at Rs.12,500/per Are. 2. In these appeals, the claimants have raised various grounds assailing what is described as the gross inadequacy in LAA.No.52/2010 & others 4 the compensation redetermined by the Reference Court. Mr.Devan Ramachandran, learned counsel for the appellants addressed us very strenuously on the basis of the grounds raised in the appeal memoranda. The learned counsel submitted that the fact situation which obtained in this case is that Ext.A1 property was not at all comparable to the properties under acquisition as Ext.A1 was property without road frontage. The other documents discussed by the awarding officer in his notes to award reflecting value lesser than what was awarded by the Land Acquisition Officer were admittedly not comparable and therefore the only documents which stood some comparison to the properties under acquisition was Exts.A2 and A3. Under such a situation, notwithstanding the latest pronouncement of the Supreme Court in G.M.Oil & Natural Gas Corporation Ltd. v. Rameshbhai Jivanbhai Patel & Anr.(2008 SAR (Civil) 894) , there is justification for relying on Exts.A2 and A3. The learned counsel pointed out that even the Court below has found that Exts.A2 and A3 can be taken as a guide. According to the learned counsel, even if it is assumed that Exts.A2 and A3 properties were superior to the properties under acquisition and LAA.No.52/2010 & others 5 deductions are to be made for the passage of time from the date of section 4 (1) notification to the dates of Exts.A2 and A3, then also there is every justification for awarding at least RS.15,000/per cent on the basis of Exts.A2 and A3. The learned counsel requested that so much of value be awarded allowing these appeals. 3. All the submissions of Sri.Devan Ramachandran were very stiffly resisted by Smt.S.Ambika Devi, who was supported in all her submissions by Smt.Latha T.Thankappan, learned senior Government Pleader. 4. The Government Pleader would draw our attention to the judgment of the Supreme Court in Atma Singh(dead) through LRs and others v. State of Haryana and another (2008) 2 SCC 568) and submit that holdings in L.A.A.No.54/2010 and 53/2010 are fairly large holdings involving more than 50 cents of lands and hence this Court may deduct at least 10% from the value ultimately confirmed by this Court as market value for properties under acquisition for the largeness of the extents involved. 5. Smt.S.Ambika Devi, learned counsel for the requisitioning Authority submitted that the value reflected in LAA.No.52/2010 & others 6 Exts.A2 and A3 is not the correct market value of the property at the relevant time. Exts.A2 and A3 transactions were entered into between the parties thereto including the BSNL under peculiar circumstances. True, the District Collector issued Ext.T6 certificate which is to the effect that Rs. 30,000/- per cent is the value of the property covered by Exts.A2 and A3. Bu,t such a certificate was issued by the District Collector in the light of an offer made by the owners of the property which the BSNL was inclined to accept. She referred to the Commission report Exts.X2 and submitted that even going by that report there is no comparison between Exts.A2 and A3 properties and the property under acquisition. She submitted that the properties under acquisition had only the frontage of a 3 feet vide pathway. In this context, she referred to observations to that effect contained in the impugned judgment. According to her, being post notification document, Exts.A2 and A3 cannot be accepted at all. Post notification documents, the learned counsel submitted, can be accepted only in situations where no pre notification documents available at all. That is not the situation here. Apart from basis documents, at least four other documents which were LAA.No.52/2010 & others 7 discussed by the awarding officer in his notes to award were available. The properties under acquisition were situated on a hill top and there were no takers for these properties. The market value, which is presently fixed by the learned Subordinate Judge, is much more than the correct market value of the property at the relevant time and hence there is no warrant for further enhancement, so submitted Smt.Ambika Devi. 6. We have anxiously considered the rival submissions addressed at the Bar. We have made thorough reappraisal of the entire evidence before us. The ratio emerging from the judgment of the Supreme Court in G.M.Oil & Natural Gas Corporation Ltd. v. Rameshbhai Jivanbhai Patel & Anr.( cited supra) is that reliance on the documents which are executed subsequent to the relevant date viz. date of Section 4 (1) notification can be had only when the same becomes indispensable. Ext.A1 basis document has been clearly found by the learned Subordinate Judge, does not pertain to a comparable property at all. This was why the learned Subordinate Judge thought it fit to enhance the value of the property under acquisition by more than cents percent of the LAA.No.52/2010 & others 8 value reflected in Ext.A1 which unlike the property under acquisition did not enjoy road frontage. The notes to award shows that the awarding officer had discussed four documents executed during the relevant time in respect of the properties in the same village. The awarding officer himself has rejected those documents, reflecting only lesser value than what is reflected in Ext.A1, saying that the properties covered by those documents are inferior to the properties under acquisition. In other words, it is the Government's own case that the properties covered by those documents are not comparable to the property under acquisition. A submission was made by the learned counsel for the appellants that barring documents discussed by the awarding officer, no other documents were executed during the relevant period within the area of the concerned Sub Registry. The above submission is not seriously disputed by Smt.Ambika Devi either. The situation being so, we feel that there may be some justification for placing some reliance on Exts.A2 and A3, which significantly have been adopted by the learned Subordinate Judge himself as a guiding factor. But,we are not inclined to rely completely on Exts.A2 and A3 for determining the market value LAA.No.52/2010 & others 9 of the properties under acquisition. For one thing they are post notification documents executed two years and five months after the relevant section 4 (1) notification. Just on account of passage of time, 30% deduction will have to be made on the value reflected therein. These two documents are documents executed in favour of an institution which could have, if it comes to that got the properties acquired by the Government in exercise of powers of eminent domain if the parties were unwilling to part with the properties. It is a matter of common knowledge that when an institution which is competent to have, the provisions of Chapter VII of the Land Acquisition Act applied takes into account the components such as 30% solatium and additional amount under Section 23 (1A) calculated at the rate of 12 % while fixing the value payable to their vendors who are prepared to sell to them directly. We feel that on that account at least 40% has to be deducted. 7. Now, we come to the question as to what extent the properties covered by Exts.A2 and A3 were comparable to the properties under acquisition. On appreciating the evidence on record, there is no difficulty for us to hold that the properties LAA.No.52/2010 & others 10 covered by Exts.A2 and A3 were superior to the properties under acquisition in terms of nearness to the main road in the locality viz. Thrissur - Shornur road being only 100 metres away from that road unlike the properties under acquisition which is said to be 300 k.m. 8. Taking all these aspects ,which are relevant inputs in the matter of determining the correct market value of the properties under acquisition, into account we feel that the market value of the properties under acquisition at the relevant time can be fixed at Rs.21,000/- per Are corresponding to Rs.8,500/- per cent. Accordingly, we fix the market value of land under acquisition at Rs.21,000/- per Are corresponding to Rs.8,500/- per cent. In view of the largeness of the extents involved in L.A.A. Nos 54/2010 and 53/2010, we are inclined to award only value at the rate of Rs.8050/- per cent corresponding to 19891/- per Are (rounded off Rs.19,900/-) to the appellants in those cases. The result of the above discussion is that the appeals are allowed to the extent indicated above. 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 LAA.No.52/2010 & others 11 compensation to which they become eligible by virtue of this judgment. The parties are directed to suffer their respective costs. The Registry will issue decree copy to the appellants only upon ensuring that the entire balance court fee is remitted. **PIUS C.KURIAKOSE,JUDGE** **C.K.ABDUL REHIM , JUDGE** dpk **PIUS C.KURIAKOSE,JUDGE** **C.K.ABDUL REHIM , JUDGE** dpk