IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 12TH NOVEMBER 2009 / 21ST KARTHIKA 1931 LA.App..No. 584 of 2007() ------------------------- LAR.139/2003 of SUB COURT, PALA .................... APPELLANT(S): CLAIMANT ---------------------- ANAZ, S/O.KOCHUTHAMPI, MURIKOLIL, NADAKKAL KARA, ERATTUPETTA VILLAGE. BY ADV. SRI.ZAKHIER HUZZAIN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, KOTTAYAM. 2. ERATTUPETTA GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY. ADV. SRI.V.K.MOHAMMED YOUSUF FOR R2 THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 12/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jma LA.App..No. 584 of 2007() JUDGMENT SINCE THE DELAY CONDONATION APPLICATION IS DISMISSED FOR DEFAULT, THE APPEAL IS ALSO DISMISSED FOR DEFAULT. SD/- M.N. KRISHNAN, JUDGE //TRUE COPY// P.S. TO JUDGE PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ---------------------------------- L.A.A. Nos.584, 682, 867, 1085, 1440 & 1590 of 2007 ---------------------------------- Dated this the 30th day of March, 2010 J U D G M E N T ---------------------- Pius C.Kuriakose,J. The claimants as well as the requisitioning authority are aggrieved by the award of the Land Acquisition Reference Court, Pala. The acquisition was for the establishment of private bus stand cum shopping complex for the requisitioning authority, namely, the Erattupetta Panchayat. The property was in Erattupetta village. Relevant Section 4(1) notification was published on 19.1.2000. The claimants were members of one and the same family being mother and sons. It is evident that the entire property was being enjoyed by the family as one single holding. The Land Acquisition Officer relying on the basis document which was marked as Ext.R5 would award a uniform rate of Rs.18,500/- per Are to all the claimants. The reference court tried the three LARs jointly and refixed the land value in LAR.No.138/2003, 139/2003 and 140/2003 at Rs.24,700/- per Are. However, for the property involved in L.A.A.584, 682, 867,1085, 1440 & 1590 of 2007 2 LAR.140/03 (that portion of the property which was enjoying immediate frontage of Ettumanoor-Poonjar State Highway) the reference court fixed a higher value of Rs.37,050/-. LAA.No.682/07, 584/07 and 867/07 are preferred by the claimants. LAA Nos.1440/07 and 1590/07 are preferred by the requisitioning authority while LAA.1085/07 is preferred at the instance of the requisitioning authority by the Government. In the appeals preferred by the claimants they urge that the market value refixed by the reference court is grossly inadequate. Among other grounds they also contend that the reference court was not justified in awarding different rates for the properties involved in LAR.140/2003 and other two LARs. In the appeals preferred by the Panchayat and the Government it is urged that the market value refixed by the reference court is excessive. Particularly it is urged that the reference court should have awarded the same rate for the properties in all the three cases. 2. We have heard the submissions of Sri. James Kurian, learned counsel for the appellants/claimants, Sri. V.K. Mohamed Yusuf, learned standing counsel for the Erattupetta Panchayat and also Sri. Basant Balaji, learned L.A.A.584, 682, 867,1085, 1440 & 1590 of 2007 3 Senior Government Pleader. Mr. James Kurian drew our attention to the various items of evidence available in the case and particularly to documents Exts.A9, A10, A6, A7 and A8 and also to Exts.A3 to A5. He submitted that the observation of the court below that the Commissioner has reported that the property under acquisition has no nearness to the institutions in the locality is wrong. In this regard he read over to us certain portions of Ext.C1 commission report. According to him, on a proper appreciation of the entire evidence there is justification for refixing the market value of the properties uniformly at the rate of at least Rs.50,000/- per cent. 3. The submissions of Mr. James Kurian were resisted very stiffly by Mr. Mohamed Yusuf, who was supported in all his submissions by Mr. Basant Balaji. According to Mr. Yusuf, Exts.A9 and A10 are documents brought into existence by the claimants themselves showing an artificially inflated value in anticipation of the LA proceedings. Exts.A9 and A10, he highlighted, were executed just two months prior to the relevant notification. According to him, the court below was justified in rejecting Exts.A9 and A10. As regards all the other documents L.A.A.584, 682, 867,1085, 1440 & 1590 of 2007 4 produced by the claimants, learned counsel submitted that all those documents pertained to properties situated in the commercial area of Erattupetta Town. According to him, eventhough the property under acquisition is situated within the area of Erattupetta Panchayat, the locality proper is Kaduvamoozhi, which is far away from the commercial areas of the town. Mr. Yusuf submitted that the ideal document which could have been relied on is the basis document Ext.R5 itself. He would criticise the Subordinate Judges for having granted additions on the value reflected in that document. According to him, at any rate, the court below could not have fixed a higher rate for the properties involved in LAR.140/03 than the value given in the other two cases. 4. We have very anxiously considered the rival submissions. We have made a re-appraisal of the evidence. According to us, though the submission of Mr.Yusuf, that Exts.A9 and A10 are documents executed showing inflated value in anticipation of the LA proceedings does not find support from the evidence adduced in the case, was justified in not placing any reliance on those two documents. It is a matter of common knowledge that when small extents are purchased by people with the objective of providing access to L.A.A.584, 682, 867,1085, 1440 & 1590 of 2007 5 their larger properties, people will be prepared to pay price higher than the actual market price. Exts.A3 to A8 were rejected by the learned Subordinate Judge on the reason that those properties are situated nearer to the central junction than the property under acquisition. We are of the view that the rejection of Exts.A6, A7 and A8 by the learned Subordinate Judge can be approved for another reason. All these documents are post-notification documents. We follow the principles laid down by the Supreme Court in G.M. Oil & Natural Gas Corporation Ltd. Vs. Rameshbhai Jivanbhai Patel and another (2008 SAR (Civil) 894) and exclude those documents from consideration on the reason that they are post-notification documents. 5. But, we do not find anything in the evidence to suggest that it is higher than the market value that is paid by the Co-operative Society which is the vendee under Ext.A3. At the same time we feel that since it is evident that the purchase covered by Ext.A3 was to enable the vendee Co- operative Society to put up extension for its existing office building, the Society was prepared to pay a price higher than market value. We therefore exclude Ext.A3 also from consideration and justify the action of the learned L.A.A.584, 682, 867,1085, 1440 & 1590 of 2007 6 Subordinate Judge in having not relied on Ext.A3. At the same time we feel that the learned Subordinate Judge was not justified in completely rejecting Exts.A4 and A5. It is true that the properties covered by Exts.A4 and A5 were superior to the property under acquisition in the sense that they were situated nearer to the central junction in Erattupetta. But according to us, the property under acquisition were far superior to the property covered by Ext.R5 the basis document, which is relied on by the reference court as well as by the LA Officer. Ext.R5 property was purchased by the Panchayat for the purpose of establishing a settlement colony for people below poverty line. It is evident that the said property did not have proper road frontage. Exts.A1 and A2 will give support to the case of the claimants that it was after the document was executed that the access was provided to the above property. But it should not be forgotten that the property under acquisition was enjoying direct frontage of the State Highway from Erattupetta central junction to Pala Muncipal Town. The distance between the central junction and the properties under acquisition is 1 Km only as evidenced from Ext.C1 commission report. We do not know how the learned L.A.A.584, 682, 867,1085, 1440 & 1590 of 2007 7 Subordinate Judge could make an observation that Ext.C1 is to the effect that property under acquisition does not have nearness to any of the public institutions. A careful reading of the report would show that Commissioner had certainly reported that property under acquisition had nearness to at least a few public institutions like the Aruvithara College, Hospital, petrol pump, post office, electricity office etc. 6. We feel that on a better assessment of the evidence, keeping in mind the relevant guidelines to be followed while determining market value in LA cases based on Ext.A4 and A5 and without completely ignoring Ext.R5, the value of the property can be reasonably fixed as on date of Section 4(1) notification at Rs.25,000/- per cent and it is accordingly fixed. The learned counsel for the claimants submitted that the court below was not justified in awarding two different rates for the property involved in the three LAR cases. After all, even according to the Land Acquisition Officer, the value of properties involved in the three cases are one and the same. As already stated by us the property was being enjoyed by the family as a single holding. Whatever advantages were being enjoyed by property in LAR.140/2003 could be made available to properties in other L.A.A.584, 682, 867,1085, 1440 & 1590 of 2007 8 two LARs. Hence we fix uniform rate of Rs.25,000/- per cent for properties in all these cases. The result of the above discussions is as follows:- LAA.No.1440/2007, 1590/2007 and 1085/2007 are dismissed. LAA.Nos.867/2007, 584/2007 and 682/2007 are allowed refixing the market value of land at Rs.25,000/- per cent, which comes to Rs.61,775/- per Are. It is needless to mention that on the total enhanced compensation on which the claimants/appellants become eligible, they will be entitled for all statutory benefits admissible under Section 23 (1A), 23(2) and 28 of the Land Acquisition Act. Parties are directed to suffer their respective costs in all the appeals. PIUS C.KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb