IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 25TH JUNE 2009 / 4TH ASHADHA 1931 LA.App..No. 976 of 2002(D) -------------------------- LAR.11/2000 of PRL.SUB COURT,THRISSUR .................... APPELLANT(S): 2ND RESPONDENT IN LAR.11/2000 ------------------------------------------- THE SECRETARY, THRISSUR CORPORATION, THRISSUR. BY ADV. SRI.K.B.MOHANDAS,SC,THRISSUR CORPORATIO RESPONDENT(S): CLAIMANTS & 1ST RESPONDENT IN LAR 11/2000 -------------------------------------------------------- 1. SYED HUSSAIN SHAH, S/O. SYEDAMMU, 13/572, KOORKANCHERY, THRISSUR. 2. SYED MUHAMMED SHAH, S/O. SYEDAMMU, 13/572, KOORKANCHERY, THRISSUR. 3. SYED YOOSAF SHAH, S/O. SYEDAMMU, 13/572, KOORKANCHERY, THRISSUR. 4. THE SPECIAL TAHSILDAR (LA), THRISSUR CORPORATION, THRISSUR. ADV. SRI.SHAJI P.CHALY FOR R1TO3 SR.GOVT. PLEADER SRI.BASANT BALAJI FOR R4 THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 26/06/2009, ALONG WITH LAA NO. 1751 OF 2002 ETC. THE COURT ON 25/06/2009 DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & P.Q.BARKATH ALI, JJ. ---------------------------------------------------------- LAA. Nos. 976 & 1751 of 2002, 524, 527 & 573 of 2006 --------------------------------------------------------------- Dated this the 25th day of June, 2009 J U D G M E N T Pius C.Kuriakose, J. LAA. Nos. 976 of 2002, 524 of 2006 and 527 of 2006 are preferred by the requisitioning authority, the Corporation of Thrissur, while LAA. Nos. 1751 of 2002 and 573 of 2006 are preferred by the claimants. All these cases pertain to acquisition of land within the erstwhile Trichur Municipality, presently the Corporation of Thrissur for the purpose of widening of Pattalom Road and construction of a Shopping Centre. The relevant section 4(1) notification was published on 13-5-1996. The land acquisition officer awarded land value at the rate of Rs.1,45,400/- per Are corresponding to Rs.58,842.5 per cent. The reference court would re-fix the land value on the basis of the evidence LAA. N0s. 976/02 etc. -2- which came on record at Rs.97,600/- per cent. In the appeals preferred by them, the claimants pray that relying on sale deed No.1898/95 which was marked as Ext.A1 in LAR. No. 50/04 corresponding to LAA. Nos. 573/06 and 524/06 the market value of the lands under acquisition be uniformly fixed between Rs.4,02,152.63 and Rs.4 lakhs per cent. The requisitioning authority on the contrary in their appeals contend that the enhancement presently granted by the reference court is excessive and seeks that award of the land acquisition officer be approved or at least the enhancement granted by the reference court be reduced considerably. 2. We have heard the submissions of Sri. S.V. Balakrishna Iyer, learned senior counsel for the appellants in LAA. No.573 of 2006, Sri.S.P.Chaly, Advocate for the appellants in LAA. No. 1751 of 2002 and those of Sri.K.B.Mohandas, standing counsel for the Corporation of Thrissur and also those of Sri.Basant Balaji, senior Govt. LAA. N0s. 976/02 etc. -3- Pleader. 3. We have made a reappraisal of the evidence which was available before the reference court. Pursuant to our directions it was submitted before us by the learned Govt. Pleader on the basis of the instructions received by him from the Government that as per the Fair Value Order issued by the Government in the context of stamp duty to be collected on documents submitted for registration at Trichur that the ratio between the value of land on the Swaraj Round, the Municipal Office Road and the Pattalom Road is Rs.50 lakhs : Rs.30 lakhs : Rs.15 lakhs. Though information was sought for regarding the value under the Fair Value Order for lands on Post Office Road, the same was not furnished. 4. Sri.S.V.Balakrishna Iyer as well as Mr.Chaly would argue that the court below was not justified in rejecting Ext.A1 sale document altogether. According to them, A1 was in respect of property on the Post Office Road situated LAA. N0s. 976/02 etc. -4- at a distance of just 120 metres from the property under acquisition. They submitted that A1 document had been proved to the very hilt by examining AW2 whose credibility was not shaken in cross-examination. A1 reveals land value of more than Rs.4 lakhs per cent. The learned Subordinate Judge rejected Ext.A1 on the reason that the property covered by A1 was not barren land but took in a building also and that the building was not separately valued in the document. It was submitted that yet another reason for rejecting Ext.A1 was that going by the schedule description of A1 the property took in some “Kuzhikoors”. It was submitted by the learned counsel that it was an old Post Office building which existed on the A1 property and that within a few days of the agreement which preceded Ext.A1, the building was easily removed. The building did not have even a nominal value. The expression “Kuzhikoors” crept into the schedule description only due to the usage of a routine expression by the document writer and the same did LAA. N0s. 976/02 etc. -5- not have much significance. The learned counsel submitted that it is relying on Ext.R2 award of the court that the learned Subordinate Judge granted enhancement under the impugned judgments. In R2, the document relied on was document No.501/94 which was in respect of land situated at Veliyannoor, which was far inferior to land on Pattalom Road and Post Office Road which are by all standards land with utmost commercial potentiality. Mr.Balakrishna Iyer submitted that even going by the information supplied by the learned Govt. Pleader based on the Fair Value Order it can be easily assumed that the ratio between the value of properties on Pattalom Road and those on the Post Office Road should be 15 : 20. Even adopting that ratio the learned counsel argued that there is justification for granting at least Rs.3,15,750/- per cent as land value. Mr. Balakrishna Iyer would fortify his submissions on the authority of the judgment of the Supreme Court in Hasanali Walimchand v. State of Maharashtra, (1998) 2 SCC 388 and LAA. N0s. 976/02 etc. -6- also on the judgment of the Supreme Court in Shaji Kuriakose & another v. Indian Oil Corporation Ltd. (2001(3) ILR Kerala 605. Counsel submitted that the relevant factors to be taken into account while proceeding to determine market value on the basis of value revealed in a comparable sale document are the following: (1) The sale must be a genuine transaction. (2) The sale deed must have been executed at a time proximate to the date of issuance of section 4(1) notification. (3) The land covered by the sale must be in the vicinity of the acquired land. (4) The land covered by the sale must be similar to the acquired land. (5) The size of plot of the land covered by the sale should be comparable to the land acquired. According to the learned senior counsel, this is a case where all these five factors are satisfied and there is no reason why Ext.A1 should not be adopted completely for determining market value. 5. All the submissions of the learned senior counsel and LAA. N0s. 976/02 etc. -7- Mr.Chaly were very forcefully resisted by Sri.K.B.Mohandas, learned standing counsel for the Corporation. Submissions of Mr.Mohandas were supported by Mr.Basant Balaji, learned senior Govt. Pleader. Mr.Basant Balaji submitted that it may not be very safe to rely on the ratio fixed as per the Fair Value Order to arrive at the ratio between the values of the properties at various points in Thrissur Corporation in 1996. In 1996, Pattalom Road did not have even 1/5th importance of areas like Post Office Road, Municipal Office Road and Swaraj Round. Learned senior Govt. Pleader also submitted that the Fair Value Order has been suspended by the Government in view of the anomalies noticed therein. According to the learned counsel, Ext.R2 judgment relied on by the learned Sub Judge has attained finality and the maximum which could have been granted to the claimants has already been granted by the reference court. 6. We have very anxiously considered the rival LAA. N0s. 976/02 etc. -8- submissions addressed at the Bar. Determination of market value in land acquisition cases will involve a little bit of guess work and evaluation of imponderables. The safest method to determine market value of properties acquired, even according to the judgment of the Supreme Court in Shaji Kuriakose v. Indian Oil Corporation relied on by the learned counsel for the claimant is comparable sales methods. It would appear that at least four of the five factors mentioned by the Supreme Court in that judgment are applicable to the property covered by Ext.A1. But the first factor mentioned by the Supreme Court is that the sale must be proved to be a genuine transaction. Ext.A1 document was sought to be proved through AW-2 who is party to A1. AW2 was cross-examined not only by the counsel for the Corporation but also by the Govt. Pleader for the State and the L.A. Authority. It is not suggested to AW2 that the transaction is not a genuine one or that an inflated value was shown in the document so that the claimant can LAA. N0s. 976/02 etc. -9- stake claim for a higher value in the land acquisition case. However, we are not inclined to place complete reliance on the oral evidence given by AW2 since it appears to us that he who is a friend of one of the claimants has given an exaggerated version regarding relative importance and value of the property under acquisition and the property covered by Ext.A1. According to us it may not be safe to place complete reliance on Ext.A1 for determining market value of the acquired properties. This does not mean that we are rejecting Ext.A1 from consideration altogether. 7. Ext.R2 is the document which was relied on by the learned Sub Judge. The basis document Ext.R1 was not relied on by the learned Subordinate Judge and according to us, on good reasons. The learned Subordinate Judge relied on Ext.R2. In R2, as already stated, enhancement was granted on the basis of document No.1501/94. It is not disputed before us that the said document pertains to property in Veliyannoor which situated 430 metres south- LAA. N0s. 976/02 etc. -10- west of the acquired property. We do not find any difficulty to accept the argument of the learned counsel for the claimants that in terms of market value and commercial potentiality the acquired property on Pattalom Road is far superior to the property in Veliyannoor at the relevant time. So relying on Ext.R2 for determining market value of the acquired property will also not be safe. 8. We notice our judgment dated 1-6-2009 in LAA. Nos. 960 and 1043 of 2000. Those cases were in respect of acquisition at the instance of the Thrissur Municipal Corporation itself. The purpose of the acquisition in that case was for construction of bell mouth and shopping centre at the point where the Municipal Office Road meets the Swaraj Round. The relevant notification under section 3(1) of the Kerala Act, corresponding to section 4(1) of the Central Act, in those cases was published on 15-7-1989. The land acquisition officer in those cases awarded land value at the rate of Rs.18,297/- per cent. The reference LAA. N0s. 976/02 etc. -11- court under the judgments impugned in those cases, which were revised judgments passed pursuant to an order of remand passed by this Court, would re-fix land value of the properties under acquisition in those cases at Rs.1,50,000/- per cent. 9. Dismissing the claimants' appeal, we under that judgment would approve the fixation of market value of those properties at Rs.1,50,000/- per cent. The judgment of the Honourable Supreme Court in G.M.Oil Oil & Natural Gas Corpn. Ltd. v. R.Jivanbhai Patel & another, 2008 SAR (Civil) 894 will now be noticed. It is laid down by the Supreme Court therein that when courts proceed to rely on pre-notification documents and determine market value by giving addition to the value revealed by those documents for passage of time, the appropriate percentage of additions to be made in urban areas shall not be more than 10% to 15%. We have no doubt at all in our minds that the lands under acquisition were situated in a purely urban area. As LAA. N0s. 976/02 etc. -12- for the lands covered by our judgment in LAA Nos. 960 and 1043 of 2000, i.e., situated on the northern end point of Municipal Office Road, the same by all standards were in urban area. Adopting the principles laid down by the Supreme Court in that judgment, addition at the rate of 12.5% per Are will have to be given to the property covered by that judgment and in that way the market value of the property covered by that judgment (Municipal Office Road property) as on the date of the 4(1) notification in this case will come to Rs.2,71,500/-. Going by the Fair Value Order, the value of the properties of Pattalom Road should be at least 50% of the value of properties on M.O. Road. Calculating that way, the value of the acquired properties can come only to Rs.1,35,750/-. 10. Though we have found elsewhere in the judgment that AW-2, who is a friend of one of the claimants in the case has exaggerated while deposing about the relative importance and value of properties on Post Office Road and LAA. N0s. 976/02 etc. -13- Pattalom Road we notice once again that it was not even suggested to AW-2 that it is a bogus transaction which is recorded in Ext.A1. The learned Subordinate Judge also does not hold that the transaction recorded in Ext.A1 is not a genuine one. On the contrary, the Subordinate Judge rejects Ext.A1 for the reason that a building existed on the property and that the building was not separately valued and on the further reason that going by the schedule description of the document “Kuzhikoors” also existed. As for the “Kuzhikoors” we are inclined to accept the submission of Mr.Balakrishna Iyer. As for the buildings also since it is not disputed that the building which existed was the old dilapidated building of the old Post Office which existed on the property, the value of the building if at all to be taken into account was only a small portion of the total consideration set out in the document. We rely on Ext.A1 for holding that the market value of the property on the Post Office Road at the relevant time should have been above LAA. N0s. 976/02 etc. -14- Rs.3,50,000/-. As already stated, the learned Govt. Pleader was unable to supply us information regarding the land value fixed under the Fair Value Order for properties on the Post Office Road. But we feel that the ratio between the value of properties on Pattalom Road at the relevant time should have been between 55 to 60% of the value of properties on the Post Office Road. Relying on our own judgment in LAA. Nos. 960 and 1043 of 2000 and our findings rendered herein above regarding the market value of the properties on Post Office Road and Pattalom Road we are of the view that the correct market value of the acquired properties at the relevant time can be fairly and reasonably fixed at Rs.1,97,600/- per cent. 10. Accordingly we set aside the judgments and decrees under appeals and fix the value of the properties under acquisition at Rs.1,97,600/- per cent. It is needless to mention that the claimants will be entitled to all statutory benefits admissible to them under Sections 23(1A), 23(2) LAA. N0s. 976/02 etc. -15- and 28 of the L.A. Act including interest on solatium. The appeals filed by the claimants are allowed. The appeals filed by the requisitioning authority are dismissed. But in the circumstances both sides are directed to suffer their costs. (PIUS C.KURIAKOSE, JUDGE) (P.Q. BARKATH ALI, JUDGE) ksv/- LAA. N0s. 976/02 etc. -16- PIUS C.KURIAKOSE & P.Q.BARKATH ALI, JJ. LAA. Nos. 976 & 1751 of 2002, 524, 527 & 573 of 2006 J U D G M E N T 25th June, 2009