Vincent John v. State of Kerala and Corporation of Kochi

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 30TH JUNE 2011 / 9TH ASHADHA 1933 LA.App..No. 1207 of 2009() -------------------------LAR.416/2006 of III ADDL.SUB COURT, ERNAKULAM .................... APPELLANT(S): CLAIMANT IN LAR NO. 416/2006 ------------------------------------------ VINCENT JOHN, AGED 60, S/O. LATE SRI.P.L. JOSEPH, PAZHANGATTU PARAMBIL, JANATHA, VYTTILA, KOCHI - 19. BY ADV. SRI.T.K.RADHAKRISHNAN RESPONDENT(S): RESPONDENTS IN LAR NO.416/2006 -------------------------- 1. THE STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, ERNAKULAM. 2. CORPORATION OF KOCHI, REPRESENTED BY ITS SECRETARY, KOCHI - 19. GOVERNMENT PLEADER SMT.T.T.JOSEPHINA FOR R THIS LAND ACQUISITION APPEAL HAVING COME UP FOR ADMISSION ON 30/06/2011, ALONG WITH L.A.A. NO.1234/2009 AND CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. -----------------------L.A.A.Nos.1207, 1234,1235,1306 OF 2009 & L.A.A. NO.437 of 2010** **------------------------** Dated this the 30th day of June, 2011 ## **JUDGMENT** Pius C.Kuriakose, J. L.A.A. Nos.1207/2009, 1234/2009,1235/2009 & 1306/2009 are appeals preferred by the claimants and L.A.A. No.437/2010 is preferred by the Government. 2. Under challenge is a common judgment passed by the local land acquisition reference court in a few land acquisition references. The acquisition was of land abutting Sahodaran Ayyappan Road and the purpose of the acquisition was upgradation of Sahodaran Ayyappan Road. The lands involved in these appeals were situated almost by the Janatha Junction area to the west of Vyttila Junction. The LAO awarded land value at the rate of Rs.6,17,750/- per Are. Before the Reference Court, the parties adduced evidence and the same consisted of Exts.A1 to A18, R1 to R20 oral evidence of AWs1 to 6 and C1 to C4(A). The learned Subordinate Judge was not impressed by any of the LAA.Nos.1207/2009 & others 2 documents relied on by the claimants for the purpose of getting enhancement in land value. What the learned Subordinate Judge did ultimately was to apply the rule of thumb and refix the land value uniformly at 75% above the rate awarded by the LAO. In those cases where the buildings existed on the land under acquisition, the court has granted 30% of the rates awarded by the LAO as enhanced building value. 3. In these appeals the claimants challenge what they described as gross inadequacy in the land value and the building value fixed by the Reference Court. The Government in its appeal challenges what the Government described as the excessiveness of the value fixed by the Reference Court. 4. Sri.T.K.Radhakrishnan, learned counsel for the appellants, Smt.T.T.Josephina learned Government Pleader addressed submissions before us based on the grounds raised in the memoranda of appeal respectively filed by the claimants and the Government. 5. Ext.A6 Government Order was relied on very much before us by Mr.Radhakrishnan. The learned counsel submitted that under that order, which is dated 30/3/2007, the market LAA.Nos.1207/2009 & others 3 value has been fixed as on the date of Section 4(1) notification itself. According to him, negotiations for fixing the market value under Ext.A6 started more or less at the period of the Section 4 (1) notification. The court below discarded Ext.A6 straight away taking the view that the same is a post notification document. This should not have been done. Mr.Radhakrishnan went on to argue that apart from the amounts mentioned in Ext.P6, the beneficiaries of that order viz. Varapuzha Arch Diocese and the Cochin Deveswom Board were given all statutory benefits also. 6. All the submissions of Mr.Radhakrishnan were opposed by the learned Government Pleader. 7. We have carefully gone through Ext.A6. We do not find anything in Ext.A6 to support the argument of Mr.Radhakrishnan that value as seen paid under Ext.A6 was fixed by the Government as on the date of Section 4 (1) notification in the present case. The earliest reference is to Cochin Corporation Council's Resolution dated 23/9/2006. It is very unlikely that council's resolution has anything to do with the market value fixation. What appears to us on a reading of Ext.A6 is that the value fixed under Ext.A6 has been fixed at some point of time LAA.Nos.1207/2009 & others 4 very near to 30.3.2007 itself. We cannot accept the submission of the learned counsel for the claimants that apart from the rates mentioned in Ext.A6, beneficiaries of that order were given statutory benefits admissible under the provisions of the L.A. Act. According to us, Ext.A6 is the result of negotiations between the beneficiaries of that order and the Government and perhaps to those negotiations the Cochin Corporation, who are the requisitioning authority were also parties. In Ext.A6, there is clarity only regarding the land value paid to the Cochin Devaswom Board. It is clear from Ext.A6 that for one cent of land acquired from the possession of the Cochin Devaswom Board,probably from out of the campus of Valangambalam Devi Temple, Rs.15 Lakhs has been paid. This amount, we are sure, has been fixed taking into account the necessity of the owners to be given statutory benefits under L.A.Act if the proceedings were under the L.A.Act. This means that market value of the above one cent of the land was taken to be Rs.10,50,000/-. As already indicated, this fixation is more or less on 30/3/2007. It should not be forgotten that the properties involved in these appeals were situated near to the Janatha Junction at a distance LAA.Nos.1207/2009 & others 5 of more than three K.Ms. to the east and in terms of relative importance Valanjambalam temple property is much more important and valuable than the Janatha Junction property. The above observation notwithstanding, we feel that the value of the land at Valanjambalam junction will have some bearing on the value of the land on the Janatha Junction also. Valanjambalam temple property is, by all standard, an urban area and by applying the principles laid down by the Supreme Court in G.M.Oil & Natural Gas Corporation Ltd. v. R.Jivan Bhai Pater & another (2008 SAR (Civil )894 , the appreciation in the land value in that area is at the rate of 15% per year. If 45% is deducted, the land value will come to Rs.5,77,500/-. Some deduction may have to be made on account of the smallness of the property and the extreme urgency of the purchase. It appears to us that on the above basis it may be possible for the Reference Court to arrive at the land value of the acquired property on the basis of the ratio fixed by the LAO in the rates awarded by him for Valanjambalam property and the properties near to Janatha Junction. 8. Mr.Radhakrishnan submitted that if an opportunity is LAA.Nos.1207/2009 & others 6 given, the appellants/claimants may be able to produce other document, being pre notification documents, reflecting higher value. The learned counsel requested for an order of remand. The learned Government Pleader also submitted that the Government will be able to adduce evidence regarding the circumstances under which exorbitant rates were awarded to the beneficiaries of Ext.A6. 9. We feel that in the interest of both sides the matter can be remitted to the Reference Court for a fresh decision. At the same time, we are inclined to impose conditions protecting the public interest while remitting the LAR cases. 10. Accordingly, the result of these appeals is as follows; i). All the appeals will stand allowed. The judgment and decree under appeal are set aside. ii). L.A.R. Nos. 416/2006,420/2006, 415/2006 & 417/2006 are remanded to the learned IIIrd Additional Subordinate Judges Court, Ernakulam . That Court is directed to permit both sides to adduce whatever further evidence they want to and to pass revised judgment on the basis of the entirety of the evidence which comes on record. However if, under the revised awards, LAA.Nos.1207/2009 & others 7 the claimants become entitled for more value than what is awarded under the impugned judgments, the enhanced amount will not carry interest under Section 28 during the period from 16/2/2009 till this date. iii). The Registry will refund to the claimants /appellants only 75% of the court fee remitted on their respective appeal memoranda. iv). The parties will enter appearance before the Reference Court on 15/7/2011. The Reference Court will expedite the matters and pass revised orders at the earliest. ## **PIUS C.KURIAKOSE,JUDGE** **N.K.BALAKRISHNAN, JUDGE** dpk