IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 13TH AUGUST 2010 / 22ND SRAVANA 1932 LA.App..No. 306 of 2007(B) & CROSS OBJECTION NO.13/10 ---------------------------------- LAR.405/2000 of PRL.SUB COURT, KOZHIKODE .................... APPELLANT(S): RESPONDENTS ----------------------------------- 1. SPECIAL DEPUTY COLLECTOR (LA), K.S.E.B., KOZHIKODE. 2. THE EXECUTIVE ENGINEER, K.S.E.B., T.C.DIVISION, BALUSSERY, KOZHIKODE. BY ADV. SRI.C.K.KARUNAKARAN, SC FOR KSEB RESPONDENT(S): CLAIMANT ------------------------------- SATHISH CHANDRA DAS, KOYILOTH HOUSE, NANMIDA (PO) BALUSSERY, KOZHIKODE DISTRICT. ADV. SRI.A.K.SRINIVASAN FOR R.1 SRI.N.S.MOHAMMED USMAN FOR R.1 SRI.A.S.BENOY FOR R1 THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 13/08/2010, ALONG WITH C.O. NO.13 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ L. A. A. No.306 of 2007 & C. O. No.13 of 2010 ------------------------------------------------ Dated this the 13th day of August, 2010 JUDGMENT Pius C. Kuriakose, J The Requisitioning Authority is the appellant in L.A.A.306/07 and the claimant has filed Cross Objection No.13/10. The property was in Balussery village and the purpose of acquisition was the construction of a 33 KV Sub Station for the Requisitioning Authority. The relevant Section 4(1) notification was published on 22/04/99. The properties were dry lands. The Land Acquisition Officer relying on the basis document awarded land value at the rate of Rs.4,800/- per cent. Before the Reference Court, the claimant L. A. A. No.306 of 2007 & C. O. No.13 of 2010 -2- produced various documents including Exts.A6, A7 and A10. Ext.A7 was a sale deed dated 30/09/99 reflecting land value of Rs.18,498/- per cent. Ext.A6 was a document dated 14/05/97 in respect of just two cents of land reflecting a land value of Rs.15,000/- per cent. Ext.A10 was the award of the Sub Court in LAR.5/01 in respect of wetlands pursuant to Section 4(1) notification published much earlier. Under Ext.A10 the land value is re- fixed at Rs.22,750/-. Apart from these documents, strong reliance was placed on Ext.X1 commission report. Under Ext.X1, the Commissioner after visiting the properties under acquisition, the property covered by the basis document and the properties covered by Exts.A6 and A7 would L. A. A. No.306 of 2007 & C. O. No.13 of 2010 -3- recommend that the value of the properties in these areas is Rs.38,000/- per cent. On the side of the Requisitioning Authority there was practically only the oral evidence of PW1. The learned Subordinate Judge under the impugned judgment did not place reliance on any particular document. An argument which was seriously urged before the learned Subordinate Judge was that the people of the locality did not show the correct market value in the documents executed by them for the purpose of evading stamp duty. The argument was not accepted. The learned Subordinate Judge did not accept the Commissioner's Report also in full. Ultimately what the learned Judge did was to notice the land value reflected in Exts.A6, A7 and L. A. A. No.306 of 2007 & C. O. No.13 of 2010 -4- also the recommendations of the Commissioner and come to the conclusion that the correct market value of the property at the relevant time is Rs.18,500/- per cent. 2. In the appeal preferred by the Requisitioning Authority, the above judgment of the Subordinate Judge is assailed on various grounds. In the Memorandum of Cross Objections filed by the claimant he contends that the rate fixed by the learned Subordinate Judge is inadequate. It was very persuasive submissions addressed before us by Sri.C.K.Karunakaran, the learned Standing Counsel for the KSEB and also by Sri.A.K.Srinivasan, the learned counsel for the respondent. Sri.C.K.Karunakaran submitted that L. A. A. No.306 of 2007 & C. O. No.13 of 2010 -5- the court below was not justified in applying the rule of thumb and granting this high enhancement which comes to about 400% over what was awarded by the Land Acquisition Officer. Per contra Sri.Srinivasan submitted that the properties under acquisition was superior to the properties covered by Exts.A6 and A7. Referring to Ext.A10, he submitted that for wetlands acquired much earlier the court below granted Rs.22,750/- per cent. According to him, there is every justification for re-fixing the market value at least at Rs.22,000/- per cent. He also submitted that since possession was taken over abruptly the claimant was unable to prove that the value of structures and other improvements which existed L. A. A. No.306 of 2007 & C. O. No.13 of 2010 -6- on the property is much more than what was actually awarded to him. 3. We have anxiously considered the submissions addressed at the Bar. We have made a quick re-appraisal of the evidence which is available on record. We are unable to approve the action of the learned Subordinate Judge in applying the rule of thumb alone and granting this high enhancement. At the same time, we feel that there is evidence on record which will justify fixation of the market value of the land under acquisition at the rate ultimately fixed by the learned Subordinate Judge. Ext.A7 a post notification document does not deserve to be considered in view of the principles laid down by L. A. A. No.306 of 2007 & C. O. No.13 of 2010 -7- the Supreme Court in G.M., Oil & Natural Gas Cor. Ltd. v. R. Jivanbhai Patel & Anr. (2008 SAR (Civil) 894). Ext.A6 document is a pre-notification document executed about two years prior to Section 4(1) notification. One minus factor we notice about Ext.A6 is that it is a small bit of two cents. At the same time, we find merit in the submission of Sri.Srinivasan that the property under acquisition was superior to properties covered by Ext.A6. The properties under acquisition were enjoying the frontage of an important thoroughfare unlike Kattampally road by the side of which only Ext.A6 property was situated. Of course, the Commissioner's recommendation was there. But it is trite that L. A. A. No.306 of 2007 & C. O. No.13 of 2010 -8- while Advocate Commissioner's make recommendations regarding market value of the properties unless those recommendations are founded upon documents and those documents are also placed on record, the recommendations should not be accepted. Hence, the Commissioner's report cannot be relied on for re- fixing the market value. Ext.A10, of course, pertains to wetlands. But it is not clear from Ext.A10 whether Ext.A10 has become final and the Commissioner did not compare the property covered by Ext.A10 and the properties under acquisition. Hence, we are not inclined to rely on Ext.A10. We are inclined to rely on Ext.A6 to some extent. In our view, the properties under L. A. A. No.306 of 2007 & C. O. No.13 of 2010 -9- acquisition were more superior than the property covered by Ext.A6, despite the smallness of the extent of property covered by Ext.A6. We are of the view that the correct market value of the property at the relevant time was Rs.18,500/- per cent itself as fixed by the learned Subordinate Judge. 4. We now notice the judgment of the Supreme Court in Atma Singh (dead) through Lrs and others v. State of Haryana & ors. (2008(2) SCC 568). Following the principles laid down by that judgment, we are of the view that a cut has to be made on the above rate approved by us while fixing the compensation for the properties under acquisition. According to us, a cut of L. A. A. No.306 of 2007 & C. O. No.13 of 2010 -10- Rs.900/- per cent can be made towards the largeness of the extent involved in the acquisition. Making such a cut, we re-fix the market value of the land under acquisition at Rs.17,600/- per cent. The appeal will stand allowed to the above extent. 5. Sri.A.K.Srinivasan, at this juncture would seek leave of the court to withdraw the Cross Objection. We are inclined to grant leave. C.O.13/10 is dismissed as withdrawn. Refund ½ of the court fee remitted on the memorandum of Cross Objection to Sri.A.K.Srinivasan. We have already passed an order in I.A. No.768/10 to refund the excess court fee paid. So, ½ refundable to Sri.Sreenivasan is ½ of the amount which remains as balance after paying back the L. A. A. No.306 of 2007 & C. O. No.13 of 2010 -11- amounts covered by our order in I.A. No.768/10. The appeal will stand allowed and the Cross Objections will stand dismissed. Parties are directed to suffer their respective costs. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-