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 28TH JUNE 2010 / 7TH ASHADHA 1932 LA.App..No. 774 of 2006() ------------------------- LAR.479/1997 of PRL.SUB COURT, KOZHIKODE .................... APPELLANT(S): RESPONDENT: ------------------------- STATE OF KEALA, REPRESENTED BY THE SPECIAL TAHASILDAR. (L.A.). BY GOVERNMENT PLEADER SMT. R.BINDU RESPONDENT(S): CLAIMANT: ------------------------ P.T. RAMANUJAN, SAROJ, MAVOOR ROAD, P.O.KUTHIRAVATTOM, KOZHIKODE-16. ADV. SRI.K.VINOD CHANDRAN SRI.R.K.MURALEEDHARAN THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 28/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ. ----------------------------------------------- LAA. No. 774 of 2006 ----------------------------------------------- Dated this the 28th day of June, 2010 J U D G M E N T Pius C.Kuriakose, J. The Government is in appeal. The case pertains to acquisition of land in Chevayoor Village for the purpose of construction of Kozhikode Bye Pass. The relevant Section 4 (1) notification was published on 9-12-1993. The property involved was wet land. The L.A. Officer awarded land value at the rate of Rs.3427/- per cent. Before the Reference Court, in the first instance, the evidence consisted of Exts.A1 and A2 (certified copy of the decree and judgment respectively in LAR. No. 68 of 1993), oral evidence of PW-1 and PW-2, PW-2 being one of the Advocate Commissioners, Exts.C-1 to C4 being the report, additional report and sketches by PW-2, the Commissioner. The court on evaluating the evidence came to the conclusion that the value which had been awarded under Ext.A2 judgment LAA. No. 774/06 -2- which was in respect of acquisition of land in Kottully Village for the construction of a Boat Jetty on Kalipoika, can be granted and hence would re-fix the land value at Rs.60,000/- per cent. Being aggrieved, the Government preferred an appeal to this Court as LAA. No. 341 of 2001. This Court set aside the judgment and decree of the Reference Court and remitted the LAR back to the Reference Court giving opportunity to both sides to adduce further evidence. After remand the claimant produced Ext.A3 certified copy of the judgment in LAR. No. 417 of 1997 which was in respect of acquisition for the same purpose but pursuant to a notification of one month earlier. Under Ext.A3 which was also in respect of wet land, the court had fixed land value of Rs.20,000/- per cent relying on the recommendation of a Commissioner appointed in that case which was to the effect that Rs.25,000/- is the proper value to be given for the properties in that case. Apart from Ext.A3 the claimants took out yet another commission and LAA. No. 774/06 -3- this time another Advocate who was appointed as Commissioner submitted Ext. X-1 report. Under X-1, the Commissioner reported that the property under acquisition is superior to the property covered by Ext.A3. The Commissioner also reported that the properties covered by Ext. A2 (Kalipoika property) and the property under acquisition are more or less similarly situated, being almost equal in distance from the basis property relied on by the L.A. Officer. This Commissioner also recommended that Rs.60,000/- be given. Significantly, after remand also absolutely no counter evidence, not even documentary evidence was produced by the Government. The learned Subordinate Judge on appreciating the entire evidence became inclined to rely on the recommendations of the two Advocate Commissioners in full. Accordingly, the value of the land was again re-fixed at Rs.60,000/- per cent. 2. In this appeal the Government have raised various grounds assailing the market value determination by the LAA. No. 774/06 -4- Land Acquisition Court as excessive. Smt. R.Bindu, learned Govt. Pleader addressed arguments before us based on the various grounds raised. She submitted that the property covered by Ext. A2 judgment (Kalipoika property) was superior to the property under acquisition. The Kalipoika properties were either dry lands or water logged dry lands whereas the properties under acquisition were purely wet lands and were agricultural properties. The property under acquisition did not enjoy any road frontage or even access to a proper road. According to her, the observation of the court below that the Commissioner had reported that the property under acquisition were enjoying road access is not correct. In this context she would read over to us the report of the Commissioner. According to her, the property covered by Ext.A2 was at any rate, superior to the properties under acquisition. She submitted that the one item of documentary evidence produced by the parties,apart from Ext.X-1 facilitated by them, was Ext.A3. Under Ext.A3, LAA. No. 774/06 -5- the rate fixed by the Court for wet lands was only Rs.20,000/- per cent. Therefore, according to the learned Govt. Pleader, there was no justification for the Court below to have fixed the market value of the land above Rs.20,000/- per cent. The enhancement presently granted is unconscionable, according to her. All the submissions of Smt.R.Bindu were very forcefully resisted by Sri.Muralaldharan. Sri.Muraleedharan highlighted that despite several opportunities given, the Government did not think in terms of adducing any counter evidence much less documentary evidence to the evidence adduced by the claimant. The weight of evidence is in favour of the claimant only. Mr. Muraleedharan submitted that in terms of distance to the basis property, both the properties under acquisition and the properties covered by Ext.X-1 were situated equally. He also pointed out that there was time lag of about two years between the 4(1) notification in Ext.A2 and the 4(1) notification in the present case. He LAA. No. 774/06 -6- highlighted that even for the water logged lands covered by Ext.A2, the L.A.Officer under that acquisition had awarded Rs.3036/- per cent. According to him, it is clear from these rates that there was not much difference in the value of the properties covered by that acquisition and the present acquisition. 3. We have very anxiously considered the rival submissions addressed at the Bar. We have made a re- appraisal of the evidence. We are unable to agree with the view of the learned Subordinate Judge that the properties covered by Ext.A2 and the properties under acquisition were similar in nature and had the same value. Our scanning of the evidence reveals that A2 property was superior to the properties covered by this acquisition. The property under acquisition was purely wet lands used only for agricultural purposes. The properties under acquisition did not enjoy road frontage or even access of proper roads whereas the properties covered by Ext.A2 were enjoying proper road LAA. No. 774/06 -7- access. The evidence at best only indicates that the property under acquisition had vehicular access. Having vehicular access, according to us, is not the same as enjoying the access to a proper road. So also, in our view, the value of dry garden lands and water logged garden lands will be more than the value of purely wet lands which are admittedly used only for agricultural purposes. Thus we are unable to approve the action of the learned Sub Judge in having awarded the same value as reflected in Ext.A1 for the properties under acquisition. Ext.A3 was a document which was specifically relied on by the claimant pursuant to the remand order passed by this Court, under whichhe was given opportunity to adduce more evidence to show that the original award of Rs.60,000/- passed by the Court was justified. Under Ext.A2 as already stated the rate awarded is only Rs.20,000/- per cent. Even the recommendation of the Advocate Commissioner on a comparison of the properties therein with the properties covered by the various LAA. No. 774/06 -8- documents relied on in that case was only Rs.20,000/- per cent. Under Ext. X-1 Smt.Lakshmy, fresh Commissioner appointed by the Court has certainly reported that the properties under acquisition were superior to the property covered by Ext.A3. But Smt.Lakshmy did not specifically report as to what extent the acquired properties were superior. Significantly A3 was produced by the claimants availing the opportunity given by this Court to adduce evidence for substantiating their claim for value. A reading of the impugned judgment will show that the learned Sub Judge has virtually accepted the recommendations of the Commissioners both PW-2 as well as Smt. Lakshmy, author of Ext.X-1. The Supreme Court has by judgment in Special Land Acquisition Officer v. S.O.Tumari, AIR 1995 SC 840 held that report submitted by commissioners and experts regarding the market value of the acquired land cannot be relied on unless the data or the material on the basis of which such report is based is produced before the Court and LAA. No. 774/06 -9- the authenticity of the same is made good and the method of value adopted therein is correct. In many a decision it has been held by the Supreme Court that the best method for determining the market value of the land under acquisition is the method of relying on the value reflected in bona fide transactions pertaining to comparable lands at proximate periods of time. In the instant case, no serious endeavour is seen made by the claimants to support their claim for determination of market value by values reflected in sale or other documents executed in respect of comparable properties on points of time approximate to the period of the relevant notification in this case. 4. At the same time we are in complete agreement with the learned Subordinate Judge that there is no comparison between the property covered by the basis document and the properties under acquisition. The properties under acquisition were certainly more valuable and qualitatively superior to the properties covered by the LAA. No. 774/06 -10- basis document. We notice that to the oral evidence adduced by the claimant and AW-2, not even formal counter oral evidence much less documentary evidence was adduced by the Government. The properties under acquisition were situated within the area of Kozhikode City Corporation, one of the ancient most Corporations in the State. The properties under acquisition had nearness to very many important institutions and establishments in the city Corporation. Determination of market value in land acquisition cases will certainly involve guess work. In order that the guess made by the court is a good one what is necessary is only that the same has some nexus to the evidence on record. On our appreciation of the entire evidence on record including Ext.A2, A3 (we treat A3 also to be a relevant piece of evidence) and the uncontroverted oral evidence of AWs-1 and 2, we are of the view that the market value of the lands under acquisition can be reasonably fixed at Rs.50,000/- per cent. LAA. No. 774/06 -11- 5. The learned Govt. Pleader would assail the decision of the learned Sub Judge to award a total amount of Rs.80,000/- to the claimant as compensation for injurious affection for an extent of 8 cents affected by the acquisition. This is done on the basis of the Commissioner's report to the effect that that portion of the property had become useless. Importantly the Government did not even think in terms of filing objections to the above recommendation of the commissioner. We therefore approve the award of total amount of Rs.80,000/- by the Court below as compensation for injurious affection to the claimant. 6. The result of the above discussion is that the appeal will stand allowed to the extent of re-fixing the market value of the land under acquisition at Rs.50,000/- per cent. In all other respects the impugned judgment is confirmed. Needless to mention that the claimant respondent will be entitled for all statutory benefits admissible under Section 23(1A), 23(2) and Section 28 of the Land Acquisition Act. LAA. No. 774/06 -12- We however, clarify that the sum of Rs.80,000/- which is awarded as compensation for injurious affection will not carry interest under Section 23(2) and 23(1A). Appeal is allowed as above. The parties are directed to suffer their costs. (PIUS C.KURIAKOSE, JUDGE) (C.K.ABDUL REHIM, JUDGE) ksv/- LAA. No. 774/06 -13-