IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 21ST JUNE 2010 / 31ST JYAISTHA 1932 LA.App..No. 1224 of 2008() -------------------------- LAR.81/2006 of III ADDL.SUB COURT, ERNAKULAM .................... APPELLANT(S): CLAIMANT ---------------------- SUKUMARAN, S/O.KAMALAKSHY AMMA, KUNDOOR (POTHIYIL), THIRUVANKULAM.P.O, PIN - 682 305. BY ADV. SRI.P.S. SUNIL RESPONDENT(S): RESPONDENTS -------------------------- 1. THE SPECIAL TAHSILDAR (LA), RAILWAYS, ERNAKULAM. 2. THE DEPUTY CHIEF ENGINEER, RAILWAYS, ERNAKULAM. ADV. SRI.M.C.CHERIAN,SR.SC.,RAILWAYS GOVT PLEADER SMT.LATHA T.THANKAPPAN FOR R2-3 GOVT.PLEADER SMT.R.BINDU. THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 21/06/2010, ALONG WITH L.A.A. NO.1225/2008 AND CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ L.A.A.Nos.1224,1225,1226,1227,1228 & 1382 OF 2008 ------------------------ Dated this the 21st day of June, 2010 JUDGMENT Pius C.Kuriakose, J. All these appeals are preferred by the claimants whose properties in Thiruvankulam and Kureekkad villages were acquired at the instance of the railways for double lining of Ernakulam - Mulanthuruthy railway line. The acquisitions were on the basis of Section 4(1) notification published on 18/12/2003. The Land Acquisition Officer categorised the lands under acquisition into as many as six categories. He awarded different values for properties in Thiruvankulam as well as Kureekkad villages treating the properties in Kureekkad village to be inferior than the properties in Thiruvankulam village. Included in category 1 were properties which were dry lands with Panchayat tarred road frontage. For such properties, in Thiruvankulam village, he awarded value at the rate of Rs.35,050/- per Are. For corresponding properties in Kureekkad village, he awarded Rs.23704/- per Are. Included in category 2 were dry land with pathway frontage. For such L.A.A..Nos.1224/2008 & others 2 properties in Thiruvankulam village, the Land Acquisition Officer awarded value at the rate of Rs.29,793/- per Are (by deducting 15% from the value of the corresponding land in category 1). Similarly, for such properties in Kureekkad village, the Land Acquisition Officer would award only Rs.18,963/- per Are. Included in category 3 were dry lands lying by the side of railway line. For such properties, in Thiruvankulam village, the LAO awarded value at the rate of Rs.23,834/- per Are. Included in 4th category were wet lands lying by the side of railway line. For such properties, the LAO fixed land value at the rate of Rs.5,854/- per Are only. Included in category 5 were properties lying as pond. For such properties in Thiruvankulam village, the Land Acquisition Officer would award value at the rate of Rs.3512/- per Are only. 2. The Reference Court tried all the six reference cases jointly. At trial, the evidence consisted of Exts.A1 to A7, Exts.R1 to R26, oral evidence of AWs 1 and 2 and Commission report Ext.C1 and sketch (Exts.C1(a) series). Significantly, the respondents did not adduce any counter oral evidence at all. The learned Subordinate Judge did not become inclined to place L.A.A..Nos.1224/2008 & others 3 reliance on any of the sale documents produced by the claimants in support of their claim for enhancement of land value. In fact, the claimants had placed reliance mostly on Exts.A6 and A7 documents pertaining to lands in Thiruvankulam village transacted prior to Section 4(1) notification. The Court below did not place any reliance on Ext.A6 for the reason that there was no evidence and much less commission report on the basis of which it could be found that the property covered by Ext.A6 was comparable to the properties under acquisition. It was noticed that in respect of Ext.A7, there was a commission report. But, the Court below found that the distance between the properties under acquisition in Thiruvankulam village and the properties under Ext.A7 was about 2.8 K.ms. Another reason found was that unlike the properties under acquisition, properties covered by Ext.A7 was situated very near to the Kureekkad railway gate and was enjoying the frontage of Kureekkad - Kottayathupara road, which was a road having bus service unlike the road by the side of which most of the properties are situated. However, the Court below found that there was not much justification for adopting different values for the properties in Thiruvankulam and L.A.A..Nos.1224/2008 & others 4 Kureekkad villages. According to the Court below, the two villages are nearby villages and there cannot be much difference between the value of properties in Thiruvankulam as well as Kureekkad villages. Therefore, the Court below decided to award the same value for the properties in both the villages. 3. After rejecting the documents produced by the claimants, the Court below relied on the basis document itself. Relying on that document what the court below did was to give addition of 40% and refix the value of land in category 1 at Rs.54,523/- per Are. The Court below also thought that the ratio fixed by the awarding officer between the values of properties in category 1 and the properties in lower categories, especially categories 4, 5 and 6, were not correct. The Court below would refix the ratio and would consequently refix the value of the properties in category 2 in both the villages at Rs.49071/- per Are. Similarly, values of properties in category 4 was refixed at Rs.13,658/- per Are. Values of property in categories 5 and 6 were refixed accordingly. The Court below thought that the properties, which had been included by the Land Acquisition Officer in category Nos. 4,5 and 6, have to be upgraded. The Court below L.A.A..Nos.1224/2008 & others 5 upgraded the properties in category 4 as category 3 and those included in category 5 as properties in category 4. 4. In these appeals, the claimants have raised various grounds assailing the decision of the Reference Court. It is urged that the market value refixed by the Court below is inadequate. It is also urged that the Court below was in error in not placing reliance on Exts.A6 and A7. 5. We have heard the submissions of Smt.P.A.Anitha, learned counsel for the appellants and also those of Sri. M.C.Cherian, learned standing counsel for the Railways. While Smt.Anitha would assail the impugned award on the basis of the grounds in the memoranda of appeals, Mr.Cherian would support the same on the basis of the reasons contained therein. Answering a query put by us, Mr.Cherian submitted that the Railway is not challenging the decision of the Court below in awarding the same rate for properties in Thiruvankulam and Kureekkad villages and also the decision of the Court below to upgrade the categories of land in certain cases. Mr.Cherian was supported in all his submissions by Smt.Latha T.Thankappan, learned senior Government Pleader. L.A.A..Nos.1224/2008 & others 6 6. We have very anxiously considered the rival submissions addressed at the Bar. We have made a through reappraisal of the evidence. While we can approve the decision of the learned Subordinate Judge in not placing complete reliance on Exts.A6 and A7, we are of the view that the Court below was not justified in discarding Exts.A6 and A7 completely. After all, at least as regards Ext.A7 there was a commission report before the Learned Subordinate Judge. The properties covered by Ext.A6 and A7 were both situated in Kureekkad village, the village in which some of the properties involved in these appeals are situated. The decision of the Court below in awarding the same rate of value for the properties in Kureekkad and Thiruvankulam villages is not challenged by the requisitioning authority. We, therefore, proceed on the basis that subject to locational advantages enjoyed by a particular plot, there is not much difference in the value of properties in Thiruvankulam and Kureekkad villages. According to us, the market value of land in category 1 can be refixed on the basis of evidence more reasonably at Rs.77,500/- per Are. It is accordingly refixed. The adoption of 90% of the value of properties in category 1 as the value of properties in L.A.A..Nos.1224/2008 & others 7 category 2 by the Land Acquisition Officer is not under challenge by the Railways or the Government. We also feel that the ratio fixed by the Court eblow between the value of properties in categories 1 and 2 is not unreasonable. Hence, we refix the value of properties includable in category No.2, irrespective of village, at Rs.69,750/- per Are. According to us, the correct value payable for property, which actually falls within category 3 , will be 80% of the value of properties in category 1. On that basis, we refix the value of properties in category 3 at Rs.62,000/- per Are. According to us, the value of properties included in category 4 will be 25% of properties in category 1. In that way, we refix the value of properties in category 4 at Rs.19,375/- per Are. But, according to us, the value of properties lying as pond by the side of the tarred Panchayat Road will be at 35% of the value of properties in category 1. In that way, we refix the value of such lands at Rs.27,125/- per Are. Similarly, according to us, the value of properties lying as ponds by the side of the Railway line will be only Rs.19,375/-. Refixation of values as done by us above will necessarily result in interference with the award of the Reference Court. L.A.A..Nos.1224/2008 & others 8 7. The result of the appeals accordingly will be as follows; i). L.A.A. No.1224/2008 will stand allowed. The market value of 2.40 Ares of land included by the Land Acquisition Officer in category 1 will stand refixed at Rs.77,500/- per Are. The market value of 5.95 Ares of land included by the Land Acquisition Officer in category 5 and categorised by the Reference Court in Group 4 will stand refixed at Rs.27,125/- per Are. ii). The market value of 3.66 Ares of land involved in L.A.A. No.1225/2008 will stand refixed at Rs.77,500/- per Are. iii).The value of 1.66 Ares of land involved in L.A.A. 1226/2008 will stand refixed at Rs.77,500/- per Are. iv). The value of 1.85 Ares of land involved in L.A.A. 1227/2008 will stand refixed at Rs.69,750/- per Are. v). Value of 9.40 Ares of land involved in L.A.A. No.1228/2008 will stand refixed at L.A.A..Nos.1224/2008 & others 9 Rs.19,375/- per Are. vi). The value of 2.27 Ares of land involved in L.A.A. No.1382/2008 will stand refixed at Rs.77,500/- per Are. All the appeals are allowed as above. The appellants/claimants will be entitled for all statutory benefits admissible under Section 23 (2), 23 (1A) and Section 28 of the Act on the total enhanced compensation to which they become eligible by virtue of this judgment. Parties, however, are directed to suffer their respective costs throughout. PIUS C.KURIAKOSE,JUDGE C.K.ABDUL REHIM , JUDGE dpk