Yesodharan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **MONDAY, THE 28TH DAY OF MAY 2012/7TH JYAISHTA 1934** **LA.App..No. 617 of 2011 ( )** **--------------------------LAR.NO.28/2008 of SUB COURT,KOTTARAKKARA ---------------------** **APPELLANT/CLAIMANT ------------------------------------** **YESODHARAN,S/O.AYYAKUTTY,EATTYVILA PUTHEN VEEDU, PIRAVAVTHOOR VILLAGE,PATHANAPURAM TALUK, PIRAVANTHOOR P.O., KOLLAM-689 696.** **BY ADV. SRI.G.BHAGAVAT SINGH** **RESPONDENT(S):** **----------------------------** **STATE OF KERALA, REP.BY THE DISTRICT COLLECTOR, KOLLAM-691 013.** **BY SR GOVERNMENT PLEADER SRI.ALOSIYUS THOMAS** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 28-05-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ.** --------------------------------------------L.A.A. No.617 of 2011. --------------------------------------------Dated this the 28[th ] day of May, 2012. ## **JUDGMENT** ## **Pius C. Kuriakose, J** . The claimant is in appeal. His land in Piravanthoor village was acquired by the Government pursuant to Section 4(1) Notification published on 24/06/2005 for up-gradation of State Highway Punalur – Ponkunnam. His land with substantial three storied building situated thereon was acquired. For the land, the land acquisition officer awarded to him Rs.33,950/- per Are relying on the basis document. For the building, on the basis of valuation made by the PWD, he was awarded value of Rs.10,45,285/-. 2. Before the reference court, the appellant relied on the evidence consisted of Exts.A1 to A9 and Ext.R1. Apart from Exts.C1 to C4 Commissioner's report and the oral evidence of AW1 and 2, significantly no counter oral evidence was adduced by the ## _**L.A.A No.617 of 2011.**_ -:2:- Government. Ext.A6, a post notification document, was the only document which reflected a higher value than the basis document. Therefore, what the Subordinate Judge was to rely on the rate of land value offered by the Government to persons who had become willing to allow the Government to purchase the property by negotiation and to accept the DLPC package. Accordingly, the land value was refixed at Rs.69,160/- per Are. 3. As regards,the building value the Commissioner recommended that the total value of the building is Rs.21,03,440/-. The Expert, who assisted the Commissioner in valuing the building was examined as AW2. Ext.A6 reflected land value of Rs.76,000/per cent. The learned Subordinate Judge did not place reliance on Ext.A6, as it was a post notification document. The learned Subordinate Judge did not become inclined to place reliance on Commissioner's report or the evidence of AW2 as the same were not found convincing. Finally, by doing guess work, the learned Subordinate Judge has enhanced the building value by Rs.1,34,697/-, _**L.A.A No.617 of 2011.**_ -:3:- 4. In this appeal, it is urged that the market value of the land should have been fixed on the basis of Ext.A6. It is also urged that the full value recommended by the Advocate Commissioner in Exts.C1 to C4 and spoken to AW2 should have been awarded for the building. 5. We have heard the submissions of Mr. Bhagavat Singh, learned counsel for the appellant and also those of Mr. Aloysius Thomas, learned Senior Government Pleader. Mr. Bhagavat Singh submitted that it is trite that in the absence of relevant prenotification documents, the court can rely on post notification documents. Also he drew our attention to the judgment of this Court reported in _**Special Tahsildar (L.A) v. V. Muraleekrishnan (2009 (4) KLT 320)**_ . The learned counsel submitted that as no other relevant documents are available, this Court will be justified in relying on Ext.A6 and making proper deductions for passage of time at 10% per year. 6. All the submissions of Mr. Bhagavat Singh were strenuously _**L.A.A No.617 of 2011.**_ -:4:- opposed by Mr. Aloysius Thomas. According to Mr. Aloysius Thomas, Ext.A6 could not be relied on at all in this case where, prenotification documents including basis document which were placed on record as Exts.A1 and A2. Title documents were placed on record by the appellant himself. Going by Exts.A1 and A2 the value of the property in the year 1998 is only Rs.3,500/- per cent. Even if, additions are given at the rate of 10% as suggested by the learned counsel, then also the value will not come to more than Rs.16,000/per cent. He submitted that it is the Government who should be aggrieved, as the Court has awarded DLPC rate of land value to the appellant without making any deductions for the statutory benefits which are also taken into account, while rates are fixed for DLPC package, submitted by the Senior Government Pleader. 7. Mr. Bagavat Singh submitted that the reasons stated by the learned Subordinate Judge for discarding the recommendations of the Commissioner are not correct. It is a correct report given by the Chartered Engineer, who is an approved valuer for Governmental _**L.A.A No.617 of 2011.**_ -:5:- organizations. It is submitted that in this case the same should be accepted. 8. Mr. Aloysium Thomas submitted that the reasoning of the learned Subordinate Judge for not placing reliance on the Commissioner's recommendation is also equally sound. The Commissioner has adopted rates higher than the PWD rates, which was not warranted. 9. We have given our anxious consideration to the rival submissions addressed at the Bar. The first question that we are called upon to decide is what is the correct market value to be awarded for the land under acquisition. Ext.A6 is the only document on which the appellant places reliance. The same is a post notification document. We are not persuaded on the judgment of this Court in _**Special Tahsildar (L.A) v. V. Muraleekrishnan (cited supra)**_ to accept the argument of Mr. Bhagavat Singh that Ext.A6 should be relied on. What has been laid down in this decision is only that in the absence of any other relevant pre-notification document _**L.A.A No.617 of 2011.**_ -:6:- document pertaining to acquisition of comparable land, the post notification document can be looked into. This is a case where basis document is a pre-notification document. The appellant himself produced Ext.A1. Obviously, this is also a pre-notification document. When pre-notification documents are available, the appellant cannot rely on Ext.A6, which is a post notification document. We find that the learned Subordinate Judge was extremely considerate towards the appellant in having awarded to the appellant the land value offered by the Government to persons who were ready to accept the DLPC package. In fact, there was force in the submission of the learned Senior Government Pleader that granting full land value offered under the DLPC package was not justifiable. However, as this appeal is filed by the claimant, we are not inclined to reduce the land value refixed by the reference court under the impugned judgment. 10. We shall now deal with the question of correct compensation payable for the building in question. Here again the only evidence is the Commissioner's report and the oral evidence of _**L.A.A No.617 of 2011.**_ -:7:- AW2, the Commissioner. Even though Mr. Bhagavat Singh was very persuasive in his arguments, we do not find any infirmity that the learned Subordinate Judge discarded the Commissioner's recommendations and the evidence of AW2. At the same time, we find that the enhancement granted by the reference court towards value of the building, is inadequate. 11. In this connection, we notice that the PWD valued the building by adopting the schedule of rates published by the PWD. It is a matter of common knowledge that even PWD tenders out its work at 30% to 35% above its published rates. If 35% increase is given to the value awarded by the land acquisition officer, the appellant will be eligible for further compensation of Rs.3,65,849/-. This means that over and above the enhancement in the building value awarded by the reference court, the appellant will be awarded Rs.2,31,152.75. We feel that the appellant can be awarded an additional compensation of Rs.2,50,000/- over and above what was awarded by the reference court towards building value, taking into ## _**L.A.A No.617 of 2011.**_ -:8:- account the fact that the building was of good quality. Accordingly, the said amount is awarded. 12. The appeal is allowed and the appellant will be entitled for all statutory benefits on the enhanced compensation to which he becomes eligible by virtue of this judgment. The appellant is also awarded proportionate costs in this appeal. **s** d/- **PIUS C. KURIAKOSE JUDGE s** d/- **A. V. RAMAKRISHNA PILLAI JUDGE** //TRUE COPY// P.A TO JUDGE krj