IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 1ST OCTOBER 2009 / 9TH ASWINA 1931 LA.App..No. 1202 of 2005() -------------------------- LAR.11/1990 of II ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT/RESPONDENT: -------------- KERALA STATE HOUSING BOARD, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM. BY ADV. SRI.P.C.IYPE, SC, KSHB SRI.A.JAYASANKAR, SC KSHB, TVM RESPONDENT(S)/CLAIMANT & RESPONDENT: --------------- 1. SREE VIDHYADIRAJA VIDYA SAMAJAN, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY SPL. THAHASILDAR, L.A. FOR HOUSING BOARD, THIRUVANANTHAPURAM. ADV. SRI.R.S.KALKURA FOR R1 SMT.M.HEMALATHA SR. GOVT. PLEADER SRI.BASANT BALAJI FOR R2 THIS LAND ACQUISITION APPEAL HAVING COME UP FOR ADMISSION ON 01/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------------------------ LAA. No. 1202 of 2005 ------------------------------------------- Dated this the 1st day of October, 2009 J U D G M E N T Pius C. Kuriakose, J. The Kerala State Housing Board, the requisitioning authority, being aggrieved by the re-determination of compensation for the properties under acquisition has preferred this appeal. The acquisition proceedings started pursuant to a notification published under Section 3(1) of the Kerala Land Acquisition Act on 18-12-1973. A total extent of 69.06 Ares of land in survey Nos. 3596/9, 3597/1, 2 & 3 of Madathivilakom Village within the area of the Thiruvananthapuram City Corporation belonging to the first respondent claimant along with other properties was notified for acquisition. The case of the appellant is that the claimant and the other owners of the other lands which were also notified for acquisition agreed for compensation at the rate of Rs.415/- per cent and the District Collector settled LAA. No. 1202/05 - 2 - the land price on the basis of negotiations conducted by negotiation committee on 21-10-976. Accordingly a sum of Rs.70,820/- was fixed as the total compensation which was deposited by the appellant Housing Board as directed by the District Collector and ultimately paid to the claimants. The claimants requested the land acquisition officer to refer the question of determination of the correct compensation for the acquired properties to the court. The land acquisition officer refused to make the reference on the reason that the market value was fixed by negotiation. The claimants filed a petition before the State Government when the land acquisition officer refused to refer their claim for enhancement to the court. The State Government considering that petition issued order directing the land acquisition officer to make a reference and accordingly the case was referred to the 2nd Addl. Subordinate Judges Court, Thiruvananthapuram. The claimants would claim land value LAA. No. 1202/05 - 3 - at the rate of Rs.32,000/- per cent and the State would resist the claim contending that the value awarded is fair and reasonable, that the award was made after due consideration of the market value of similarly situated properties in the locality and that the market value has fixed on the basis of negotiation. The reference court would hold that in the absence of any pleadings to the contrary by the State and any evidence to show that the original award is the result of negotiation, the reference is maintainable and would re-fix the market value of the land under acquisition at Rs.21,000/- per Are relying mainly on Ext.A2 judgment dated 10-4-1996 in LAR. No. 248 of 1987 relating to another acquisition. The State preferred appeal as LAA. No. 60 of 1999 before this Court. This Court set aside the judgment of the reference court and the LAR case was remanded for fresh consideration. This Court impleaded the appellant Housing Board as a party to the reference and it is after LAA. No. 1202/05 - 4 - remand that the Housing Board filed statement justifying the award. The evidence before remand consisted of the oral evidence of AW1, a relative of the claimant and Exts.A1, A2 and X1. There was absolutely no counter evidence adduced on the side of the respondents in the LAR. After remand AW1 was recalled and examined further. AW2, AW3, RW1 and XW1 were also examined. Document Ext.X2 was also marked. Before the matter was taken up for hearing claimant filed IA. No. 2429 of 2004 for getting three more documents marked. Despite objection, these documents were also marked by the learned Subordinate Judge as Exts.A3, A4 and A5 invoking Section 51A of the Land Acquisition Act. The learned Subordinate judge on evaluating the evidence would place reliance on the revised judgment passed by the reference court in LAR. No. 248 of 1987 (the judgment passed pursuant to the order of remand passed by this court on setting aside Ext.A2) LAA. No. 1202/05 - 5 - fixed the market value of the land covered by that case at Rs.74,200/-. The learned Judge deducted at the rate of 10% every year from the value of Rs.75,000/- fixed to conclude that the value of that property in 1973 is Rs.35,000/-. The learned Judge also accepted the contention of the Housing Board that the acquired property unlike the property covered by Ext.A2 is a sloppy one and made a deduction of 40% on that count. This was how the learned Judge arrived at the figure of Rs.21,000/- per Are as the value of the acquired property as on the date of Section 3(1) notification. In this appeal the re-fixation of market value and the rational and legality of the methods adopted by the learned Subordinate Judge is impugned very seriously. 2. We have heard the submissions of Sri.KRB Kaimal, learned counsel for the appellant who was supported in his submissions by Mr.Basant Balaji, learned senior Govt. LAA. No. 1202/05 - 6 - Pleader. We have also heard the submissions of Sri.R.S. Kalkura, learned counsel for the first respondent claimant. 3. Mr.KRB Kaimal, senior counsel would address us extensively on the various grounds raised in the memorandum of appeal. The learned counsel submitted that the present land acquisition reference and two other land acquisition references, LAR. No. 149/86 and LAR. No. 66/93 were all in respect of acquisition for the purpose of the appellant. In the present case also, the claimant had agreed in negotiation to receive a sum of Rs.415/- per cent. All the land owners except Sri.William Brook of Salvation Army who owned 6 Ares and 7 sq. metres of land alone had agreed to receive land value at the rate of Rs.415/- per cent. The documents pertaining to the negotiation were all produced in LAR. No. 66 of 1993 and after perusing those documents that reference was closed by the reference court holding that the original award is on the basis of LAA. No. 1202/05 - 7 - negotiation. Unfortunately, since there was no order of joint trial of the three LARs the documents pertaining to negotiation could not be brought to the notice of the reference court in this case. The learned senior counsel however, fairly conceded that since the present reference is on the basis of a Government Order which has not been challenged by the Housing Board it may be too late for the Housing Board to contend in this appeal that the reference under Section 18 was unwarranted. The learned senior counsel argued that the market value fixed under the impugned judgment is excessive. According to him, it is in a most unscientific and irrational manner that the learned Subordinate Judge has arrived at the market value. There is no comparison between the property covered by Ext.A2 judgment and the property under acquisition. Hence the reliance placed by the learned Subordinate Judge on Ext.A2 is not at all justified. The method of making deductions LAA. No. 1202/05 - 8 - from post notification documents for the purpose of arriving at the value of the previous acquisitions has been deprecated by the Supreme Court and in this regard the learned senior counsel relied on the judgment of the Supreme Court in G.M.Oil & Natural Gas Corpn. Ltd. v. V.R. Jivanbhai Patel & another, (2008 SAR (Civil) 894). 4. Sri.R.S.Kalkura would support the impugned judgment on the various reasons stated therein. 5. We have anxiously considered the rival submissions addressed at the Bar. We have scanned the impugned judgment. No evidence was produced before the reference court either by the Government or by the requisitioning authority to support the requisitioning authority's contention that the original award passed by the land acquisition officer fixing market value of the land at Rs.415/- per cent was the result of any negotiated settlement. Even in this appeal no document evidencing any such negotiated settlement is LAA. No. 1202/05 - 9 - produced. Moreover, it is conceded that the reference under Section 18 itself was made by the L.A. Officer to the court on the basis of a Government Order which has not been challenged by the requisitioning authority so far. Under the above circumstances, we are of the view that it is too late for the State Housing Board, the appellant requisitioning authority to contend that the reference under Section 18 itself was not maintainable. 6. Having gone through the impugned judgment we are of the view that the only document on the basis of which some reliance could have been placed by the learned Subordinate Judge was the revised judgment in Ext.A2 case pursuant to the order of remand passed by this court in the appeal preferred against Ext.A2. The Supreme Court in the judgment in G.M.Oil & Natural Gas Corporation's case has indicated that when it becomes indispensable post notification documents including judgments can be relied on LAA. No. 1202/05 - 10 - and the value of properties at the time of relevant Section 4 (1) notification can be arrived at by making deductions. But the Court has held that deduction is to be made cumulatively and not at flat rates. The property in question was situated within the area of Thiruvanamthapuram Corporation which even in 1973 was the capital of the State. The appropriate percentage of deduction to be made is 15% per year. When deductions are made at the rate of 15% per year cumulatively the market value of the land under acquisition will come to Rs.15,000/- per Are (accepting the view of the learned Subordinate Judge that the value of the property under acquisition is only 60% of the value of the property covered by Ext. A2). But we notice that unlike the land covered by Ext.A2 the property under acquisition in the present case is an extensive area and for that reason we follow the judgments of the Supreme Court in Haryana State Electricity Board and another v. Maha Singh and another LAA. No. 1202/05 - 11 - (AIR 1997 SC 2553), Niranjan Umesh Chandra Joshi v. Mrudula Jyothi Rao and others (AIR 2007 SC 614) and Gajjan Singh and another v. State of Punjab (AIR 1998 SC 2417) and make a cut of Rs.2500/- per Are. Thus the correct market value of the property under acquisition based on the revised judgment under Ext.A2 will come to Rs.12,500/- per Are. The result of the above discussion is that the appeal stands allowed. In modification of the award passed by the reference court the value of the land under acquisition is re-fixed at Rs.12,500/- per Are. It is made clear that on the total enhanced compensation to which the first respondent becomes eligible by virtue of this judgment they will be entitled for statutory benefits admissible under Section 23 (2) (solatium at 30%) and Section 28 of the Land Acquisition Act (interest at the rate of 9% during the first year and thereafter at the rate of 15% per annum). It is LAA. No. 1202/05 - 12 - clarified that the first respondent will not be entitled for the benefit under Section 23(1A). Appeal is allowed as above , but in the circumstances the parties are directed to suffer their costs. PIUS C.KURIAKOSE, JUDGE K.SURENDRA MOHAN, JUDGE ksv/-