IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 27TH MAY 2010 / 6TH JYAISHTA 1932 LA.App..No. 534 of 2009() ------------------------- LAR.7/2006 of PRL.SUB COURT,KOTTAYAM .................... APPELLANT(S): CLAIMANTS ---------------------- 1. JOSE MATHEW, KUDAKASSERIL, KANJIKUZHI, MUTTAMBALAM VILLAGE, KOTTAYAM. 2. JOHN JOSEPH, KUDAKASSERIL, KANJIKUZHY, MUTTAMBALAM VILLAGE, KOTTAYAM. BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S)/RESPONDENTS: --------------- 1. STATE OF KERALA, REP. BY DISTRICT COLLECTOR, KOTTAYAM. 2. THE SPECIAL TAHSILDAR(LA.), GENERAL KOTTAYAM. 3. THE SECRETARY, AYARKUNNAM GRAMA PANCHAYATH. ADV. SRI.JOMY GEORGE FOR R3 SRI.SEBASTIAN THOMAS FOR R3 SENIOR GOVT.PLEADER SMT. LATHA T. THANKAPPAN THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 27/05/2010, ALONG WITH LAA NO.627 OF 2009 AND LAA NO. 628 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------------------------------ L.A.A. Nos.534, 627 and 628 of 2009 ------------------------------------------------- Dated this the 27th day of May, 2010 J U D G M E N T ---------------------- Pius C.Kuriakose,J. The claimants in LAA.Nos.627/2009 and 628/2009 are in appeal assailing what they describe as the gross inadequacy in the market value for the property under acquisition determined by the court below. LAA.534/2009 is also preferred by claimants who are aggrieved by the rejection of the land acquisition reference on the ground of limitation. We shall first deal with LAA.No.534/2009 which pertains to LAR.No.7/2006. The Government raised a contention in that case that the reference is not maintainable being one made beyond the time limit provided under Section 18(2). The court below noticed that the notice under Section 12(2) regarding the award passed was received by the claimant on 25.3.1999. The Land Acquisition Officer did not in the first instance make any reference on the reason that claimant had not filed any application for reference as required under Section 18(2). But the claimant approached L.A.A.534,627 & 628/09 2 this court invoking the writ jurisdiction by filing WP(C). No.12153/2006. The writ petition was disposed of by this court by passing Ext.R2 judgment. Ext.R2 judgment was in fact passed by one of us (PCK(J)). The direction of this court under Ext.R2 was only that Ext.P1 application submitted by the claimant evidently long after the expiry of the period of limitation prescribed under Section 18(2) should be decided after affording a hearing opportunity to the applicant/claimant within a time frame. This court made it clear that no opinion is expressed regarding the merits of the contention that a proper reference application under Section 18(3) was filed by the claimant on time. It appears that the Land Acquisition Officer misunderstood Ext.R2 direction to be a direction commanding him to make a reference under Section 18(3). It was accordingly that he made the reference. In the reference letter which he addressed to the court he had clearly stated that no application for reference was filed by the claimant within the prescribed time limit and that he was making reference only in deference to Ext.R2 directions. Before the court below, the evidence adduced in LAR.7/2006 was the oral evidence of AW1, who stated that he had filed a L.A.A.534,627 & 628/09 3 reference application on 16.4.1999. As against the above evidence there was counter evidence of RW1 which was to the effect that only reference application which was received was Ext.R1 dt.1.7.2006 submitted long after the expiry of the limitation period. Apart from producing Exts.R1 and R2 the Land Acquisition Officer also produced Ext.R3 Reference Register in which the relevant details such as names of the parties, case number, date of service of award notice, whether award is received under protest, whether reference application is received as to what is the decision taken on the reference application, etc. are recorded. Ext.R3 did not significantly reveal any entry regarding any reference application other than Ext.R1 submitted by the claimant. The learned Subordinate Judge, on evaluating the evidence, came to the conclusion that the claimant was unsuccessful in substantiating his contention that he had submitted reference application on 1.7.2006 as he claimed. 2. Argument of Sri.B. Krishna Mani, learned counsel for the appellants was that Ext.R3 is not kept in the usual course of business and that Ext.R3 contains so many infirmities since several columns are kept blank. We are not L.A.A.534,627 & 628/09 4 impressed by the above argument. We find that Ext.R3 contains entries relating to as many as 483 land acquisition cases during the period from 23.11.1989 till 8.6.2005. We find that though one or two columns are kept blank, columns in which relevant details are expected to be written, are filled up. What is more significant is that there is no entry at all in Ext.R3 regarding the reference application dt.1.7.2006 which the appellants/claimants to have submitted. An argument which was advanced by Mr.Krishna Mani was that the reference court has no jurisdiction to decide the question whether the reference has been made on time and whether the reference is maintainable and whether the reference is barred by limitation. According to him, the jurisdiction to decide whether an application for reference is barred by limitation is that of the Land Acquisition Officer only. We cannot agree. It is trite by now that the reference court has the jurisdiction to decide whether the reference sent to the court by the Land Acquisition Officer is valid. 3. Having scanned the decision of the reference court pertaining to LAR.7/2006 we do not find any infirmity with the conclusion of the learned Subordinate Judge that the above L.A.A.534,627 & 628/09 5 reference was not valid. On the basis of the reference application, it was time barred. LAA.534/2009 shall inevitably fail. 4. We shall now deal with the other two appeals wherein the question of the correct compensation payable for the property under acquisition arises. Properties were in Ayarkkunnam village and the acquisition was pursuant to notification published on 8.11.2002. The Land Acquisition Officer relying on the basic document awarded a land value of Rs.55,555/- per Are. This rate was fixed by making a deduction of 25% per cent from the value reflected in the basis document. Before the reference court the documents produced by the appellants in support of their claim for enhanced land value were Ext.A1 which was a pre-notification document pertaining to just 33 Sq.Mtrs. of land and the building. Separate value for the land has been shown in the document and the land value reflected in Ext.A1 will be more than Rs.1 lakh per cent. Ext.A2 is a post-notification document dt.27.1.2006 reflecting a land value of around Rs.70,000/- per cent. Ext.A3 was a pre-notification document in respect of 2 cents of land with an old building. But no L.A.A.534,627 & 628/09 6 separate value is shown for the building as per Ext.A3. Apart from Exts.A1 to A3, Ext.C1 commissioner's report submitted by an Advocate Commissioner appointed at the instance of the claimant as well as sketch prepared by him were relied on. The Advocate Commissioner answering point No.1 referred to him (What was the market value of the property that prevailed in the locality at the time of Section 4(1) notification?) answered that the market value of property at the time of Section 4(1) notification was Rs.30,000/- per cent. He has also stated that at the time when he inspected the property (4 years after the date of 4(1) notification) the market value was Rs.40,000/- per cent. Significantly no objection had been filed either by the claimant or by the Government to Ext.C1 report. The learned Subordinate Judge did not place any reliance on Exts.A1 to A3. It would appear that he did rely on Ext.C1 commission report. But purporting to place reliance on the basis document itself the learned Subordinate Judge found that the deduction of 25% made by the Land Acquisition Officer on the value reflected in the basic document was not justified. Therefore what he did was to do away with the above deduction and then add 5% to the L.A.A.534,627 & 628/09 7 value reflected in the basis document and conclude that the correct market value of the property at the relevant time is Rs.77,777/- per Are. Importantly by doing so the learned Subordinate Judge awarded to the claimants more than what had been recommended by the Advocate Commissioner in Ext.A1. 5. In appeal Nos.627 and 628 of 2009 various grounds have been raised by the appellants assailing the findings of the reference court relating to the market value of the property. It is urged that Exts.A1, A2 and A3 should have been relied on and the market value should have been fixed at Rs.5 lakhs per cent as claimed by the appellant in their claim statement. It is urged that the distance between the property under acquisition and property covered by Exts.A1 to A3 is not much. It is urged that the acquisition was for the establishment of a Taxi stand in a very important area of Ayarkkunnam town and hence at least the value which is claimed in the appeals, i.e. Rs.1 lakh per cent should have been awarded. 6. Sri. Krishna Mani, learned counsel for the appellant addressed very extensive submissions before us on L.A.A.534,627 & 628/09 8 the basis of all those grounds. Mr. Krishna Mani referred to Exts.A1 to A3 and he would analyse before us Ext.C1. According to him, there was no justification at all for the court below to have discarded Exts.A1 to A3. He relied on the judgment of this court in Narayana Iyer Vs. State of Kerala (1990 (1) KLT 432) and submitted that the law is settled that in appropriate cases even post-notification documents can be relied on for determining the market value and the only enquiry of the court should be to find out whether on account of the acquisition there has been escalation of land value in the locality. According to Mr.Krishna Mani, it is without any basis that the learned Subordinate Judge ultimately fixed market value and he submitted that if this court finds that there is dearth of evidence for determining the correct market value the cases be remanded to the reference court giving opportunity to the claimants to adduce further evidence. 7. All the submissions of Mr.Krishna Mani were resisted by Adv.Jomy George, learned counsel appearing for requisitioning authority and also by Smt.Latha T.Thankappan, Senior Government Pleader. According to them, Ext.C1 L.A.A.534,627 & 628/09 9 commission report was not objected to by the claimants. Under Ext.C1 what was reported was that the market value at the relevant time is Rs.30,000/- per cent and the court below under the impugned judgment had awarded more than that value. Hence there cannot be any legitimate grievance for the appellants regarding the market value. They opposed the request for remand saying that this is a case where the court below afforded sufficient opportunities to both sides. They have submitted that the court below was perfectly justified in not relying on Exts.A1 to A3. Ext.A2 being a post-notification document could not have been relied on. Other two documents are in respect of tiny bits of land. In Ext.A3 particularly no separate value has been shown for the land and building. 8. We have very anxiously considered the rival submissions addressed at bar. Ext.A1 pertains to just 33 Sq.Mtrs. of land. Though there is evidence to hold that A1 property and the property under acquisition were situated not far away from each other, we are of the view that in view of this smallness of extent involved in A1, A1 cannot be taken as a safe basis for determining market value of the land. A2, as L.A.A.534,627 & 628/09 10 already stated, is a post-notification document. The question as to whether the post-notification documents can be relied on in situation where pre-notification documents are available was also considered by the Hon'ble Supreme Court in G.M., Oil & Natural Gas Corporation Ltd. Vs. Rameshbhai Jivanbhai Patel & Another (2008 SAR (Civil) 894). Their Lordships of the Supreme Court held that courts must be very slow in placing reliance on post-notification documents and rely on them only when it has become absolutely necessary and pre-notification documents are not available. In the instant case it is the case of the appellant that Exts.A1 and A3 are relevant pre-notification documents and the basis document also, we notice, is a pre-notification document. Therefore we are of the view that the court below was justified in discarding Ext.A2 notification document from consideration. Ext.A3 is again a document relating to small bit of land extending to just 2 cents. According to us, in view of the smallness of the land extent involved, A2 could not have relied on by the learned Subordinate Judge as a safe basis for determining market value of the land. We therefore appreciate the action of the learned Subordinate Judge in not L.A.A.534,627 & 628/09 11 placing reliance in Ext.A3. Ext.C1 commission report was submitted on the basis of an inspection conducted at the instance of the claimant with notice to both sides. The commissioner was asked to answer a specific point as to what was the market value of the property at the relevant time. The commissioner inspected Exts.A1 to A3 properties and has compared those properties with the properties under acquisition. After doing all that he gives a specific answer to the question caused to him and says that the correct market value of the property at the relevant time is Rs.30,000/- per cent. Of course, the above conclusion by the commissioner may be his opinion which may not be binding on the court. But what is significant is that the claimant did not file any objection to Ext.C1. Since we are justifying the action of the learned Subordinate Judge in having excluded Exts.A1 to A3 from consideration, the learned Subordinate Judge was left with only the basis document. Learned Subordinate Judge rightly did away with the cut-of 25% made by the Land Acquisition Officer from the value reflected in the basis document. Applying the rule of thumb the learned Subordinate Judge made an addition of 5%. With a result of L.A.A.534,627 & 628/09 12 that the market value of Rs.77,777/- ultimately fixed by the court is more than the value of Rs.30,000/- per cent found by the commissioner in Ext.C1. 9. Determination of compensation in land acquisition cases will involve guess work. In the present case also we do not think that it is the precise market value of the land under acquisition that has been arrived at at the relevant time by the learned Subordinate Judge. He arrived at the rate of Rs.77,777/- awarded by him on the basis of guess work which he did with reference to the totality of the evidence including Ext.C1 which was available before him. We have made a re- appraisal of the entire evidence and we feel that on the basis of the evidence on record and on a better guess based on that evidence the market value of the land under acquisition can be re-fixed at Rs.85,000/- per Are. For doing so, we notice that the requisitioning authority as well as the Government found that the property under acquisition was ideally situated for locating the town taxi stand. It is not disputed by anybody before us that the property under acquisition is not situated in one of the most important areas of the Panchayat. Hence in modification of the award passed by the reference court in L.A.A.534,627 & 628/09 13 LAR.199/2005 and 197/2005 we re-fix the value of the land under acquisition in those cases at Rs.85,000/- per Are. It is needless to mention that the appellants/claimants in those two cases will be entitled for statutory benefits admissible under Section 23(1A), 23(2) and 28 of the Land Acquisition Act on the total enhanced compensation to which they become eligible. 10. Result of the above discussion is as follows:- LAA.No.534/2009 is dismissed. LAA.Nos.627/2009 and 628/2009 are allowed to the extent indicated above. Parties are directed to suffer their respective costs. PIUS C.KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb