IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 16TH JUNE 2010 / 26TH JYAISTHA 1932 LA.App..No. 263 of 2009() & C.O. NO.37/2010 ------------------------- LAR.384/2006 of II ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT(S)/RESPONDENTS: -------------- 1. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOTR, THIRUVANANTHAPURAM. 2. THE SECRETARY, TRIDA, THIRUVANANTHAPURAM . GOVERNMENT PLEADER SMT.LATHA T.THANKAPPAN GOVERNMENT PLEADER SMT.R.BINDU RESPONDENT(S)/CLAIMANT: --------------- S.PADMANABHAN, T.C. 16/464, PRAMEELA, EDAPPAZHINJI, THIRUVANANTHAPURAM. ADV. SRI.R.MANOJ FOR R1 THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 16/06/2010, ALONG WITH C.O.37/2010 & LAA NO. 2008 OF 2008 & C.O.12/2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ L.A.A.Nos.2008/2008 & 263/2009 & C.O. Nos.12 & 37/2010 ------------------------ Dated this the 16th day of June, 2010 JUDGMENT Pius C.Kuriakose, J. The Government is in appeal. These cases pertain to acquisition of land in Vanchiyoor Village for the purpose of widening of the road from LMS to Attakulangara. Cross objections have been filed by the claimants. The acquisitions were pursuant to section 4(1) notification published on 7.8.2004. For the properties covered by LAA.No.2008/2008 the Land Acquisition Officer awarded land value at the rate of Rs.4,52,833/- per Are. For the properties covered by LAA.No.263/2009 the Land Acquisition Officer awarded land value at the rate of Rs.4,11,665/- per Are. The Reference Court tried two LAR cases jointly and evidence on the side of the claimants consisted mainly of Exts.A2 and A4. Ext.A2 document was a post notification document dated 9.2.2007 reflecting a land value of Rs.27,90,554/- per cent. Ext.A4 was a pre notification document but the extent involved therein was just one cent upon which LAA.Nos.2008/08 & 263/09 2 there existed a building. There is no dispute that the bare land value paid under Ext.A4 is Rs.13,00,250/- per cent. The reference court noticed that the properties were situated in one of the most important areas of the Thiruvananthapuram city. It was noticed that the Land Acquisition Officer had chosen a document reflecting the least value as the basis document after rejecting several pre-notification documents reflecting much higher value on the reason that the values reflected in those documents are fancy values. Ultimately without placing specific reliance on any of the documents what the learned Judge did was to find that the correct market value of the properties under acquisition should be atleast six times the value which was awarded by the Land Acquisition Officer. On that reasoning the learned Judge awarded refixed value for properties involved in both cases at Rs.27,16,998/- per Are. 2. For the building which existed on property covered by LAA.No.2008/2008 the claimant relied on report of a Commissioner appointed by a Civil Court who was assisted by an expert also. The court also accepted the recommendation of the expert and the Commissioner in full and awarded additional value LAA.Nos.2008/08 & 263/09 3 of Rs.63,308/- towards the value of the building in that case. In the case covered by LAA.No.263/2009 also the court accepted the Advocate Commissioner's recommendation in full and awarded enhanced building value at Rs.1,79,788/- per Are . 3. Submissions were addressed before us by Smt.Sumati Dandapani, learned senior counsel appearing for the respondent Cross Objector in LAA.No.2008/2008, Sri.Harindran learned counsel for the claimant/respondent in LAA.No.263/2009 on behalf of the Government Smt.R.Bindhu and Smt.Latha T.Thankappan, Government Pleader and Senior Government Pleader respectively addressed arguments in support of LAA.No.2008/2008 and 263/2009. 4. The question that arises for consideration is whether the Reference Court was justified in enhancing the land value as well as the value of the buildings, which existed on the property, to the extent done under the impugned judgment. Of course, the Reference Court or for that matter, the claimants/ respondents are not at all bound by the award of the Land Acquisition Officer. The award of the Land Acquisition Officer was just an offer. The same having not been accepted by the claimant. The reference LAA.Nos.2008/08 & 263/09 4 under Section 18 was facilitated. It was for the Reference Court to determine the market value of the property afresh on the basis of the evidence which comes on record assuming the parties as occupying the position of plaintiff and defendant in regular civil suits. The question, therefore, is whether on the basis of the evidence which came on record, there was a justification for granting the enhancement presently granted. 5. It was on Exts.A2 and A4 that the claimants relied most in support of their claim for enhancement. Before us also the learned senior counsel for the claimant in L.A.A. NO.2008/2008 and the learned counsel for the claimant in L.A.A. No. 263/2009 places reliance mostly on Exts.A2 and A4. Ext.A2 is a document pertaining to a plot having an extent of 9 cents. Ext.A2 reveals a centage value of Rs.27,90,544/-. But then Ext.A2 is executed two and half years subsequent to the date of relevant Section 4 (1) notification. Having regard to 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), reliance cannot be placed on Ext.A2 in the present case where other pre notification documents including the basis document LAA.Nos.2008/08 & 263/09 5 Ext.A4 and a number of documents considered and rejected by the LAO in his award are available. We, therefore, eschew Ext.A2 from consideration for determining the market value of the property under acquisition. Ext.A4 is a document executed on 8/8/1996 exactly 8 years prior to the relevant Section 4(1) notification. Ext.A4 however pertains to be a small bit of land extending to just one cent. It takes in a building also. The land value reflected in that document comes to Rs.13,25,000/- per cent. It is clear on a reading of the recitals in Ext.A2 that the property covered by Ext.A2 was being put to commercial uses. It is trite that for determining the market value of land in land acquisition cases, it is not safe to rely on the value revealed by the documents pertaining to very small extents of property. We are, therefore, of the view that it will not be safe to rely on Ext.A4 alone and hold that the correct market value of the property revealed under Ext.A4 as on the date of Ext.A4 is Rs.13,25,000/- as argued by the learned counsel for the claimant in L.A.A. No.2008/2008. Nevertheless we are of the view that Ext.A4 is not a document liable to be ignored completely. Barring Exts.A2 and A4, there was before the LAA.Nos.2008/08 & 263/09 6 learned Subordinate Judge Ext.R5 the notes to award as well as the oral evidence of AWs 1 to 7. Even though the commissioners' reports Exts.A5, A6, A8, A9 and A10 were also available before the Court, those reports except A5 unfortunately are not of any assistance to determine the importance and locational advantageous of the locality in which the properties were situated. On that aspect of the matter, what we have is only a oral evidence of AWs 1 to 7. At paragraph 5 of Ext.A5 it is of course reported that properties under acquisition had nearness to statute junction and Palayalam junction two very important junctions of Thiruvananthapuram city and had commercial potentialities. According to us, the importance and commercial potentialities of these properties which were already enjoying frontage of road can be accepted as proved in these cases where we notice that there was not even formal counter oral evidence adduced on the side of the Government or the requisitioning authority TRIDA. We also find that, as rightly argued by the learned counsel for the respondent in L.A.A. No.2008/2008, it is not even suggested in the cross examination of AW1 that it is not correct value of the property covered by Ext.A4 that is mentioned LAA.Nos.2008/08 & 263/09 7 therein. But, a reading of Ext.R5 notes to award will reveal that none of the documents discussed and the awarding officer in Ext.R5 reveals a value which is comparable to the value revealed in Ext. A4 i.e. at the rate of Rs.13,25,000/- per cent. Hence, we feel that the purchaser under Ext.A4 became inclined to purchase the property covered by Ext.A4, which as already stated took in a building, in view of the special advantageous enjoyed by that property for commercial use. 6. Determination of market value in land acquisition cases can involve guess work. But in order that a guess made is a good one, it is necessary that the guess should have some nexus to the evidence which is available before the Court. It is apparent that it is applying guess work that the learned Subordinate Judge fixed the market value for the lands under the impugned judgment. According to us, the guess made by the learned Subordinate Judge is not a good one since the same is not referable to Ext.A4 or for that matter any item of evidence which was available on record. What the learned Subordinate Judge did is to find that “six times more of the values fixed by the Land Acquisition Officer” is to be granted. We are unable to LAA.Nos.2008/08 & 263/09 8 approve the above approach which is arbitrary. We feel that based on Ext.A4 and the uncontroverted oral evidence adduced by the claimants and the data furnished by the Advocate Commissioner in Ext.A5, the learned Subordinate Judge could have granted considerable enhancement on land value to the claimants above what is awarded by the Land Acquisition Officer. 7. Before this Court, the Cross Objector in L.A.A. No.2008/2008 has sought the admittance of two documents as additional items of evidence to be considered by us. The first document is the report submitted by the advocate commissioner in L.A.A. No.102/2007 of the same sub Court. This document is relied on to argue that there is no comparison between the properties covered by the acquisition and the properties covered by the basis document. Even without the commission report, we are convinced that there is no comparison between the basis document relied on by the Awarding Officer and the property under acquisition. As already discussed by us, the claimants are entitled for much higher value than what is reflected in the basis document. The next document which is sought to be admitted by the cross objector in L.A.A. No.2008/2008, is a copy LAA.Nos.2008/08 & 263/09 9 of a judgment of this court in L.A.A. No.1330/2005. That judgment pertains to acquisition of land in the same village pursuant to section 4(1) notification published on 14/5/1997 for the purpose of widening of M.G.Road situated at Vanchiyoor Village. This Court allowed the appeal preferred by the claimants and refixed the market value of the lands involved in that case at Rs.9 Lakhs per cent. The argument of the learned senior counsel for the respondents in L.A.A. No.2008/2008 and that of the learned counsel for the respondent in L.A.A. 263/2009 before us was that the value shown in that judgment should be adopted as the value in 1997 and additions at the rate of 15% per year could be made and enhancement should be granted to the properties under acquisition by allowing the memorandum of cross objections. Even though the learned counsel were very persuasive, we are unable to accept the above argument. Even in 1997 the properties under acquisition in the cases covered by the above judgment were awarded value of Rs.5,47,289/- per Are. Thus that judgment itself will show that in terms of value there is no comparison between the property covered by that judgment and the properties under acquisition of these cases. LAA.Nos.2008/08 & 263/09 10 8. We have made a reappraisal of the entire evidence which was available before the Court below. We feel that the market value fixed by the learned Subordinate Judge is slightly on the higher side. According to us, on a better assessment based on the totality of the evidence on record including Ext.A4, the market value of lands involved in L.A.A. No.2008/2008 can be fixed at Rs.24,00,000/- which comes to Rs.9,71,266/- per cent. We are unable to approve the action of the learned Subordinate Judge in having awarded the same rate of land value as awarded in L.A.A. NO.2008/2008 to the claimant in L.A.A. No.263/2009. According to us, the ratio maintained by the Land Acquisition Officer between the values awarded for the properties in these two cases should have been maintained by the Court also. On that basis, we refix the market value of the land involved in L.A.A. No.263/2009 at Rs.21,60,000/- per Are corresponding to Rs.8,74,140/- per cent. 9. We shall now deal with the award of enhanced compensation by the Reference Court towards building value in these two cases. The learned Subordinate Judge has referred to the judgment of the Supreme Court in Union of India v. LAA.Nos.2008/08 & 263/09 11 Savjiram And Another (2004 (9) SC 312) wherein the Supreme Court has taken the view that when old buildings are acquired, there will be no justification for deducting depreciation after calculating the cost of construction at the rates prevalent at the time of acquisition. We in a recent judgment in L.A.A. No.222/2008 reported in State of Kerala v. Sushama Kumari (2010 (2) KLT 972) had occasion to consider whether the principles laid down in that decision will be applicable to land acquisition proceedings in Kerala where the officers are governed by the Kerala Land Acquisition Manual and not by Madhya Pradesh Land Acquisition Manual which was applicable to the case decided by the Supreme Court. We have approved the practice followed in Kerala of deducting depreciation for the age of the building from the present value determined. We notice that though the judgment of the Supreme Court is referred to, the learned Subordinate Judge has not actually followed the same. What was done by the learned Subordinate Judge was to accept the recommendations of the Advocate Commissioners in full and award enhanced compensation towards building value on the basis of such recommendations. Here again we are unable to LAA.Nos.2008/08 & 263/09 12 approve the action of the learned Subordinate Judge in having accepted the recommendations of the advocate commissioners in full. On re appreciation of the relevant commission reports, we feel that the claimant in L.A.A. No.2008/2008 is entitled for enhanced compensation towards the value of the building only to the extent of of Rs.40,000/-. Hence in modification of the award of the Reference Court in L.A.R. NO.183/2006, we refix the enhanced compensation towards the value of building to be awarded to the claimant in that case at Rs.40000/-. It is accordingly refixed. For the same reason we refix the enhanced compensation payable to the claimant in L.A.A. No.263/2009 corresponding to L.A.R. No.384/2006 at Rs.1,10,000/- and award that amount only to the claimant in that case. 10. It appears to us that the court below has committed mistakes while awarding the statutory interest under Section 28 in both these cases. Interest under Section 28 at the rate of 9% during the first year and 15 % thereafter will become admissible only from the date of possession. It is clarified accordingly. It is also noticed that in L.A.R. No.384/2006 corresponding to L.A.A. No.263/2009, mistake has crept in while LAA.Nos.2008/08 & 263/09 13 awarding the additional amount under Section 23(1A). Additional amount under Section 23 (1A) will become admissible only during the period from the date of Section 4 (1) notification till the date of award, which in that case is 9/3/2006. It is clarified accordingly. The learned counsel for the cross objectors would at this juncture seek leave of the court to withdraw from the cross objections. Leave is granted and the Cross Objections are dismissed as withdrawn. As the cross objections are dismissed as withdrawn, without holding any enquiry, we are of the view that cross objectors are eligible for refund of one half of the court fee paid on the cross objection memoranda. Hence refund 50% of the total court fee remitted on the respective cross objection memoranda to the cross objectors or their counsel. PIUS C.KURIAKOSE,JUDGE C.K.ABDUL REHIM , JUDGE pmn/dpk