IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 9TH OCTOBER 2009 / 17TH ASWINA 1931 LA.App..No. 1919 of 2008(D) --------------------------- LAR.84/2005 of PRL.SUB COURT,THRISSUR .................... APPELLANT(S): CLAIMANTS ----------------------- 1. P.K. MADHAVAN @ MOHANAN, MALABAR HOUSE, U.K. SANKUNNI ROAD, KOZHIKODE. 2. P.K. RADHIKA, GOKULAM, PANAMPILLY NAGAR, COCHIN BY ADV. SRI.K.P.SREEKUMAR RESPONDENT(S): RESPONDENTS -------------------------- 1. THE SPECIAL TAHSILDAR, L.A GENERAL, THRISSUR. 2. THE ADMINISTRATOR, GURUVAYOOR DEVASWOM, GURUVAYOOR. 3. THE DISTRICT COLLECTOR, TRICHUR. ADV. SRI.A.SURESAN FOR R2 SRI.R.SREEHARI FOR R2 BY GOVT.PLEADER SRI.BASANT BALAJI THIS LAND ACQUISITION APPEAL HAVING COME UP FOR ADMISSION ON 09/10/2009, ALONG WITH L.A.A.998/2008 & CONN.CASE THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ L.A.A.Nos.1919,1920 & 998/2008 ------------------------ Dated this the 9th day of September, 2009 JUDGMENT Pius C.Kuriakose, J. These appeals are preferred by the claimants, being not satisfied by the redetermination of compensation for their properties, which were acquired for the purposes of 2nd respondent Guruvayoor Devaswom. The relevant Section 4(1) notification was published on 28/8/1995. The properties were situated in Guruvayoor village in close proximity to the premises of the Guruvayoor temple. The Land Acquisition Officer awarded land value at the rate of Rs.57,199.19 per cent corresponding to Rs.1,41,282/- per Are. The appellants in L.A.A. No.1919/2008 was awarded further amount of Rs.4,87,553/- towards value of structures, which existed on the acquired properties. Similarly towards value of structures existed on the property acquired in L.A.A. No.1920/2008, the appellants in that case was also awarded value of Rs.4,87,533/-. The appellant in L.A.A. No.998/2008 was awarded land value at the same rate. Towards value of improvements, he was awarded a further amount of Rs. LAA.Nos.998/2008 & others 2 6,000/- L.A.A. No.1919/2008 arises from the judgment and decree in L.A.R. No.84/2005, while L.A.A. Nos. 1920/2008 and L.A.A. 998/2008 respectively arise from the judgments and decrees in L.A.R. Nos. 86/2005 and 85/2005 respectively. The Reference Court tried all these three reference cases along with L.A.R. No.87/2005. The evidence at trial consisted of documents Exts.A1 to A17 and the oral testimonies of AW1 to AW4 on the side of the claimants. On the side of the respondents (State and the requisitioning authority) the same consisted of documents Exts.R1 to R22 and the oral testimonies of RWs 1 and 2. Apart from that, Exts. C1 to C3 commission reports and sketch and estimates prepared by the Advocate Commissioner, who conducted inspection of the properties under acquisition and some of the properties covered by the documents relied on by the claimants and the basis documents relied on by the Government also came on record. The learned Sub Judge did not become inclined to place reliance on any of the documents produced by the claimants. Not much reliance was placed on the commission reports either. Ultimately, 10% increase was given over the value reflected in the basis document Ext.R6. Thus the LAA.Nos.998/2008 & others 3 market value of the lands under acquisition were refixed at Rs.1,55,410/- per Are. However, despite the commission reports submitted by the Advocate Commissioner, who was assisted by an expert engineer in the Government Service, finding that the value of structures is much more than what was awarded by the Land Acquisition Officer, the Reference Court did not place any reliance on the commission reports. The Reference Court noticed that inspection by the Commissioner was in 2006 more than 10 years after the period of acquisition. That court also noticed that the claimants in an original petition filed by them before the High Court had stated that the age of the building is more than 100 years and that the advocate Commissioner had recommended for addition value of the building, taking the age of the building to be 60 years only. On the basis of these anomalies, the court below took the view that the Advocate commissioner's reports were not dependable and accordingly, did not award any enhancement towards value of structures in any of these cases. 3. The claimants have raised various grounds challenging the correctness of the value determined by the Reference Court LAA.Nos.998/2008 & others 4 and voicing the grievance that the market value of the land as well as the buildings should have not been enhanced. In L.A.A. No.1919/2008 and 1920/2008, land value is claimed at Rs.5,00,000/- per cent. In both those cases total value of the buildings is claimed at Rs.15,00,000/- each. In L.A.A. No. 998/2008, land value is claimed at Rs.1.5 Lakh per cent. 4. We have heard the submissions of Sri.T.P.Aravindakshan, learned counsel for the appellants in L.A.A. Nos. 1919/2008 & 1920/2008 and Sri. C.Chandrasekharan, learned counsel for the appellant in L.A.A. No.998/2008. We have heard the learned Standing Counsel for the Guruvayoor Devaswom and Sri.Basant Balaji learned Senior Government Pleader for the Government and the Land Acquisition Officer. While Sri.Aravindakshan and Sri. Chandrasekharan would assail the award of the Reference Court on the basis of the various grounds raised in the memoranda of appeals, the learned Government Pleader and the learned Standing Counsel for Guruvayoor Devaswom would support the decision of the Reference court on the various reasons stated therein. According to the learned senior Government Pleader and the learned Standing Counsel, the LAA.Nos.998/2008 & others 5 learned Sub Judge was extremely liberal in the matter of determining the compensation and there was no warrant at all for any enhancement over what is granted. 5. We have very anxiously considered the rival submissions addressed at the Bar. It is true that document Exts.A3, A4, A5, A8, A9, A10 produced by the claimants in support of their claim for enhanced market value for lands under acquisition do reflect much higher value than what is awarded by the Land Acquisition Officer and the Reference Court to the appellants towards the value of lands. But all these documents are post notification documents. The Supreme Court has in its recent judgment in G.M.Oil & Natural Gas Cor. Ltd. v. R.Jivanbhai Patel & Anr. (2008 SAR (Civil) 894), laid down in unambiguous terms that the practice of relying on post notification documents and making deductions on the value revealed therein for the purpose of arriving value of the property at the period of the relevant notification is a very unsafe method. It has been held by the Supreme Court that post notification document could be relied on only in exceptional circumstances when it becomes indispensable. According to us, in the present case where pr-e LAA.Nos.998/2008 & others 6 notification documents such as Exts. A11 and A12 and Ext.R6 (the basis document) are available before the court, it is absolutely unnecessary to rely on post notification documents for determining the value of the land under acquisition at the relevant time. Ext.A12 is a document of partition and we are of th view that the market value noted therein for the purpose of stamp duty cannot be a dependable guide regrading the market value of the comparable properties at the relevant time. The commission reports will certainly justify the conclusion that the properties under Acquisition, situated as they were in close proximity to the Guruvayoor Temple, were superior to the basis land. We also find on the basis of the evidence on record including the recitals in the basis document, that in terms of road access also, the properties under acquisition was superior. Section 4(1) notification was published on 28/02/95. The date of basis document is on 21/07/93. The time gap between the date of section 4(1) notification and date of basis document is 19 months. Under the impugned judgment, the Reference Court did not place any reliance on Ext.A11, a pre-notification document on the reason that the extent involved therein was small. According LAA.Nos.998/2008 & others 7 to us, the court below ought not have discarded Ext.A11 completely especially since nobody had a case that Ext.A11 did not record a genuine transaction. Ext.A11 had some probative value though the full value reflected therein could not have been granted in view of the smallness of the property involved. Ext.A12 as already stated is a partition document and it is not of much assistance in the matter of re-fixing the land value of the lands under acquisition. According to us, the percentage of addition made by the court below on to the value reflected in Ext.R6 (which is only 10%) is grossly inadequate to determine the value of even Ext.R6 property as on the date of section 4(1) notification. The property was situated in Guruvayoor township and according to us, the proper additions to be made was at least 22.5% since in Guruvayoor township, the percentage of increase per year could have been taken as 15% even relying on the judgment of the Supreme Court in G.M., Oil & Natural Gas Cor. Ltd. v. R. Jivanbhai Patel & Anr. (2008 SAR (Civil) 894). 6. The determination of market value of land in land acquisition cases will to a certain extent involve guess work and the evaluation of imponderables. We feel that the learned LAA.Nos.998/2008 & others 8 Subordinate Judge was somewhat miserly in the matter of re- fixing the land value. As already indicated, the property was much more superior to the property covered by the basis document. The proper method for re-fixing the value of the land under acquisition according to us, is to take an average of the value reflected in Ext.A11 and the value of the property covered by the basis document at the time of Section 4(1) notification (plus additions for passage of time). When the market value of the land is re-determined in that manner the same will stand re- fixed at Rs.86,000/- per cent corresponding to Rs.2,12,506/- per Are. 7. The learned Subordinate Judge has given excellent reasons for discarding the Commissioner's Report which were available in the reference cases corresponding to L.A.A.1920/08 and 1919/08. We are also not prepared to place reliance on the Commissioner's Report for the purpose of re-fixing the value of the buildings which existed on the lands under acquisition in those appeals. At the same time, we are of the view that the court below was in error in discarding the claims of the appellants in L.A.A Nos. 1919/08 and 1920/08 for enhancement of value of LAA.Nos.998/2008 & others 9 the buildings which existed on the acquired property. Obviously, the buildings were valued by the Land Acquisition Authority adopting the PWD schedule of rates. It is a matter of common knowledge that construction of buildings in accordance with the schedule of rates published by the PWD is not a pragmatic proposition. The PWD itself tenders out its civil construction works at 32 to 40% above its own published rates. Keeping that in mind, we are inclined to award additional compensation to the appellants in those cases towards value of the buildings which existed on the properties under acquisition in those cases. Though the Commissioner's Reports are not being relied on for the purpose of fixing compensation for the building, we notice the data furnished by the Commissioner to find that the buildings were solid constructions and the quality of wood used for the building were very good. We are therefore, inclined to award additional compensation towards value of the buildings which existed on the property covered by those two appeals at Rs.1,46,260/- each. In the property under acquisition in L.A.A.998/08, no building existed. In that case also, we feel that the appellant therein can be awarded a further amount of LAA.Nos.998/2008 & others 10 Rs.6,000/- as additional value of improvements. 8. The result of the above discussions is; All the appeals are allowed. Market value of the lands under acquisition is re-fixed at Rs.86,000/- per cent, corresponding to Rs.2,12,506/- per Are. The appellant in L.A.A. No.1920 of 2008 is awarded additional compensation towards value of the structures which existed on the acquired property at Rs.1,46,260/-. The appellant in L.A.A. No.1919 of 2008 is also awarded additional compensation towards value of the structures which existed on the acquired land at Rs.1,46,260/-. The appellant in L.A.A. No.998 of 2008 is awarded an additional compensation of Rs.6,000/- towards value of the improvements which existed on the acquired property in that case. Appeals are allowed to the above extent, but in the circumstances, all parties will suffer their respective costs. It is needless to mention that on the total enhanced compensation to which the appellants become entitled to by virtue of this judgment, they will be entitled for all statutory LAA.Nos.998/2008 & others 11 benefits admissible under the various provisions such as Sections 23(2), 23(1A) and 28 of the Land Acquisition Act. PIUS C.KURIAKOSE,JUDGE K.SURENDRA MOHAN, JUDGE dpk/ksv