IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 16TH MARCH 2009 / 25TH PHALGUNA 1930 LA.App..No. 917 of 2005(D) ------------------------------------- LAR. NO. 59/2000 OF SUB COURT, MANJERI. .................... APPELLANT/ CLAIMANT IN L.A.R. NO. 59/2000: ------------------------------------------------------------------ NEDUMPALLY UMMER, S/O.MUHAMMED, NEDUMPALLY HOUSE, MUNDUPARAMBA P.O. BY ADVS. MR.P.GOPAKUMARAN NAIR, MR.C.S.DIAS, RESPONDENT/ RESPONDENT IN L.A.R. NO. 59/2000: --------------------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, MALAPPURAM DISTRICT. BY SR. GOVT. PLEADER MR. P.K. BABU. THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 16/03/2009, ALONG WITH L.A.A. NOS. 919/2005 & 927/2005 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------------------------------ L.A.A. APPEAL NOS: 917,919 & 927 OF 2005 ----------------------------------------------------------------------------------- Dated this the 16th March, 2009. JUDGMENT PIUS C. KURIAKOSE, J. These appeals by the claimants pertain to acquisition of land for the construction of Melmuri-Munduparamba reach in Malappuram village within the limits of Malappuram town. The relevant notification under Section 4(1) was published on 1.2.1994 and in the cases relating to LAA 917/05 and 919/05 the Land Acquisition Officer awarded land value at the rate of Rs.5,039/- per cent treating those properties as garden land. But in the case relating to LAA 927/2005 the Awarding Officer noticed that in the basic revenue records the property was described as double crop wet lands and therefore, awarded only a lesser land value of Rs.4,200/- per cent. The reference court in the impugned judgment would refix the value of the land involved in these three cases uniformly at Rs.6,500/- per cent. We have by our judgment in LAA 1287/2005 found that such refixation by the Reference Court is justified on the evidence which is available on record. 2. We have heard the submissions of Mr. P.Gopakumaran Nair LAA Nos: 917/2005 etc. 2 learned counsel for the appellants and those of Mr. P.K.Babu, learned senior Govt. Pleader for the respondent. 3. Mr. Gopakumaran Nair submitted that the Reference Court was not justified in excluding Exts.A1 and A2 from the consideration for determining the correct market value of the acquired lands. According to him Ext.A1 recorded a sale transaction in usual course of business and the same having been executed 13 years prior to the relevant Section 4(1) notification, the same should have been taken into account and considerable additions should have been granted taking into account the passage of 13 years time after Ext.A1 was executed. Learned counsel submitted that at any rate the court below was not justified in excluding Ext.A2 from the reckoning for the purpose of determining the land value. The learned counsel submitted that Ext.A1 is executed just prior to the relevant Section 4(1) notification and according to the court below it was probable that the contention of the Government that a higher value was shown in the document for staking a claim for higher value in the land acquisition proceeding is correct. The learned counsel submitted that not even a single question was asked in cross examination to A.W.3 Mohammed who is the executant of Ext.A2 in the above lines. The only suggestion to him was that Ext.A2 property was superior LAA Nos: 917/2005 etc. 3 because of the reason that it was enjoying road frontage and also because of the reason that it was situated nearer to the heart areas of the town. The learned counsel would justify the adoption of uniform rate by the reference court in all these three cases by submitting that it was in evidence and it was practically admitted by the awarding officer himself that despite the nomenclature of the property as wet land in the basic records the property at the time of acquisition was dry land planted with coconut trees which were as old as 12 years. 4. Resisting the submissions of Mr. Gopakumaran Nair Shri. P.K.Babu, senior Govt. Pleader would support the judgment of the reference court on the various reasons contained in the judgment. Ext. A1 having been executed 13 years prior to the relevant judgment could not have been relied on since that document cannot give any indication as to what was the market value as on the relevant date viz., the date of publication of Section 4(1) notification. Learned Govt. Pleader referred in this context the judgment of the Supreme Court in G.M.Oil & Natural Gas Corporation Ltd. v. Rameshbhai Jivanbhai Patel {2008 SAR (Civil) 894}. As regards Ext.A2 the learned Govt. Pleader submitted that the finding of the court below that Ext.A2 does not reflect the correct market value of the property at the relevant time but rather LAA Nos: 917/2005 etc. 4 records and inflated market value in anticipation of the L.A proceedings is correct based on a preponderance of probabilities. Learned Govt. Pleader would also submit that the court below should have maintained the ratio fixed by the awarding officer while awarding land value for the properties involved in the three cases. 5. We have anxiously considered the rival submissions. According to us the learned Subordinate Judge was justified in ignoring Ext.A1 for determining the market value of the property. Ext.A1 was after all, executed 13 years prior to the publication of Section 4(1) notification and when documents executed at a point of time nearer to the relevant Section 4(1) notification was available the court below was justified in excluding Ext.A1 from consideration. The above view of the learned Sub Judge is supported by a recent judgment of the Supreme Court in G.M.Oil & Natural Gas's case (supra). But we are unable to approve the decision of the learned Subordinate Judge in excluding Ext.A2 completely from consideration. The finding of the learned Subordinate Judge that it is probable that a higher value has been shown in Ext.A2 for staking a better claim in land acquisition proceedings does not have any foundation in the evidence which was adduced in the case. Ext.A2 was proved through none other than A.W.3 the vendor. It is not even suggested to him in cross LAA Nos: 917/2005 etc. 5 examination that a higher value has been shown in the document in anticipation of the present acquisition proceedings which are obviously not in respect of the property covered by Ext.A2. It is not suggested to him that he had any stake in the compensation to be determined by the L.A Officer for the present acquisition. Ext.A2 reveals the land value of Rs.10,000/- per cent. We are not inclined to accept the submission of Mr. Gopakumaran Nair that the same value should be awarded for the acquisition properties. Ext. A2 property was obviously superior to the acquired properties in as much as Ext.A2 property has a frontage of 3 mtr road. Of course it was a private road. We also notice from the evidence of A.W.3 that the vendee in Ext.A1 was a man belonging to Palakkad who has come down to Malappuram for bakery business. It is possible that the vendee under Ext.A2 was keen on purchasing Ext.A2 property so that he can set up his residence near to his shop. The probabilities are more that he paid a price which is slightly higher than the prevailing market rate so that he can set up his own residence. Taking these factors into account we are of the view that the correct market value of the acquired property at the relevant time was Rs.7,500/- per cent. We are not impressed by the submissions of Mr. Gopakumaran Nair that the appellant in L.A.A.927/2005 should have been awarded cent percentage LAA Nos: 917/2005 etc. 6 compensation for injurious affection for the entire extent of 1 ½ cents which, according to him has been rendered completely useless. We find that according to the award and according to the report of the Commissioner the extent of the reminder property was only ½ cent. What we notice is for ½ cent the learned Sub Judge has awarded compensation at cent percentage of the market value. We do not find any warrant for enhancing the same. The result is that the appeals stand allowed to the following extent:- a) The land value is refixed at Rs.7500/- per cent b) The appellants will be entitled for all statutory benefits admissible under Sections 23(1A), 23(2) and 28 for the enhanced compensation resulting from the above refixation. In the circumstances the parties will suffer their costs in the appeals. PIUS C. KURIAKOSE Judge K. SURENDRA MOHAN Judge jj K.K.DENESAN & V. RAMKUMAR, JJ. ---------------------------------------------------- M.F.A.NO: ----------------------------------------------------- JUDGMENT Dated: