IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 17TH MARCH 2009 / 26TH PHALGUNA 1930 LA.App..No. 1001 of 2007() -------------------------- LAR.12/2005 of SUB COURT, MUVATTUPUZHA .................... APPELLANT(S)/CLAIMANT: -------------- SAJEEV JOHN, S/O. JOHN, RESIDING AT EDINJUKUZHIYIL, KOOTHATTUKULAM, ERNAKULAM. BY ADV. SRI.C.UNNIKRISHNAN (KOLLAM) SRI.JAMES ABRAHAM (VILAYAKATTU) RESPONDENT/RESPONDENT: --------------- STATE OF KERALA, REPRESENTED BY THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA. GOVERNMENT PLEADER SRI.P.K.BABU SRI.BASANT BALAJI THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 17/03/2009, ALONG WITH L.A.A.1034/2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ L.A.A.Nos.1001 & 1034/2007 ------------------------ Dated this the 17th day of March, 2009 JUDGMENT Pius C.Kuriakose, J. The claimants, who are nephew and uncle respectively, are the appellants in these appeals. The appellants impugn the common judgment of the land acquisition reference court viz. the Subordinate Judge's Court, Muvattupuzha. The acquisition was for the construction of a canal for Muvattupuzha Valley Irrigation Project and the acquired properties are in Koothattukulam village within the limits of Koothattukulam town. The relevant Section 4 (1) notification was published on 28/1/1999. The land acquisition officer awarded land value at the rate of Rs.21,606/- per Are corresponding to Rs.8744/- per cent. The reference court tried both the cases jointly and the evidence adduced by the parties consisted of Ext.A1- copy of judgment of the same court in L.A.R. No.178/01 and the oral testimonies of AW1- claimant in LAR No.154/2005 (corresponding to L.A.A.No.1034/2007) and AW2, the advocate commissioner, who submitted Ext.X1 report and Exts.X1(a) location sketch and L.A.A..Nos.1001 & 1034/2007 2 Ext.X1(b) Rough sketch on the basis of an inspection in which she compared Ext.A1 property with the acquired property. On the side of the Government, no counter oral evidence was adduced and the evidence consisted only of Exts. R1 and R2 copies of Mahazar prepared while the properties were taken over. The advocate commissioner in Ext.X1 reported that the acquired property was superior to Ext.A1 property in as much as the acquired property was having direct frontage of the Main Central Road while Ext.A1 property had frontage of only a Bye Road starting from M.C.Road. No objections were filed by the Government to Ext.X1. Nevertheless, the learned Subordinate Judge did not become inclined to place reliance on Ext.A1. In these appeals the judgment of the reference court is impugned on various grounds. 2. We have heard the submissions of Sri.James Abraham, learned counsel for the petitioner and those of Sri.P.K.Babu and Sri.Basant Balaji, learned senior Government Pleaders for the respondent. 3. Sri.James Abraham, would assail the impugned judgment on the various grounds raised in the memorandum of L.A.A..Nos.1001 & 1034/2007 3 appeals, while the learned Government Pleaders would support the impugned judgment on the reasons stated therein. We have considered the submissions and we have gone through the entire evidence, which is available before us. Ext.A1 is the judgment of the same court regarding the acquisition of properties in the same village. Ext.A1 was pursuant to a notification which was published some 17 months after the publication of the corresponding notification in this case. The learned Subordinate Judge did not become inclined to place any reliance on Ext.A1 on the reason that the properties in Ext.A1 and the acquired properties are not “similar or similarly situated” and on the reason that notification under Section 4(1) corresponding to Ext.A1 is a subsequent one. It is not an absolute Rule that post notification documents shall not be considered while determining the correct market value of the properties under acquisition. The Rule is that if pre-notification documents are available, probative value will be attached to such documents and only in the complete absence of any pre- notification documents, post notification documents can be considered, provided it is ensured that the higher value reflected L.A.A..Nos.1001 & 1034/2007 4 in the post notification documents is not the result of developments which are attributable to the acquisition in question. It is also necessary when post notification documents are relied it should be ensured that there has not been any extra spurt in the land value in the area during the period between the date of Section 4(1) notification relating to the acquisition in question and the date of the post notification document. As already indicated, the evidence in these cases is one sided. As against Ext.A1, AW1 and AW2, there is not even formal counter oral evidence adduced by the Government. Even without objections, AW-2 advocate commissioner was cross examined by the Government and we do not find any suggestion in the cross examination of AW-2 that the higher value revealed in Ext.A1 is due to the development in the locality as a result of the acquisition in question or that during the period between Ext.A1 and Section 4(1) notification in these cases there has been sudden spurt in the value of the land. True, the learned Subordinate Judge is correct in observing that the acquired properties and the A1 properties are not similar or similarly situated. In fact, the evidence is that the acquired property, L.A.A..Nos.1001 & 1034/2007 5 which is situated in the same village as the properties covered by Ext.A1, is superior to the properties covered by Ext.A1 in as much as it was having the direct frontage of the M.C.Road, while Ext.A1 property was having frontage of only Bye road starting from the Main Central Road. According to us, the learned Subordinate Judge could have placed reliance on Ext.A1 for the purpose of making a correct guess as to what could have been the correct market value of the acquired property as on the date of relevant Section 4(1) notification. In land acquisition cases, determination of market value, to a certain extent, may have to be on the basis of guess work. The only thing necessary while courts proceed to determine the market value based on guess work is that the guess should have some nexus to the evidence which is available on record. According to us, making a good guess regarding the correct market value of the acquired property at the relevant time relying on the relevant materials like Exts.A1, X1 and the testimonies of AW1 and AW2, it can be safely concluded that the correct market value of the acquired property at the relevant time was Rs.16,000/- per cent. This means that both the appellants will be entitled to the enhanced L.A.A..Nos.1001 & 1034/2007 6 land value over what is already granted to them under the impugned judgment at the rate of Rs.3759/- per cent. It is needless to mention that the appellants will be entitled to all the statutory benefits admissible under Sections 23(2), 23(1A) and Section 28 of the Land acquisition Act on the redetermined market value. The appeals will stand allowed to the above extent, but in the circumstances, the parties are directed to suffer their costs. PIUS.C.KURIAKOSE,JUDGE K.SURENDRA MOHAN, JUDGE dpk