IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 11TH NOVEMBER 2009 / 20TH KARTHIKA 1931 LA.App..No. 681 of 2005() ------------------------- LAR.165/1999 of III ADDL.SUB COURT, ERNAKULAM .................... APPELLANT(S): 1ST CLAIMANT: --------------------------- DR. K. BHARATHAN, JAY VIJAY, KARAKULATH HOUSE, THAMARAKULANGARA ROAD, TRIPUNITHURA. BY ADV. SRI.B.SAJEEV KUMAR SRI.M.K.THANKAPPAN RESPONDENT(S): --------------- 1. STATE OF KERALA. 2. INDIAN OIL CORPORATION, IRIMPANAM P.O. ADV. SRI.RENI ANTO KANDAMKULATHY FOR R2 GOVERNMENT PLEADER SMT.LATHA T.THANKAPPAN FOR R1 M/S MENON & PAI FOR R2 SRI.A.M.SHAFFIQUE, SENIOR ADVOCATE THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 11/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------------------------ LAA. No. 681 of 2005 ------------------------------------------- Dated this the 11th day of November, 2009 J U D G M E N T Pius C. Kuriakose, J. The claimant is the appellant. His land extending to a total of 99.39 Ares was acquired for the purposes of the Indian Oil Corporation. The properties were in Thiruvankulam Village and were included by the L.A. Officer in category – I, viz. dry lands having direct frontage of Irumpanam – Kalamassery Road. The L.A. Officer awarded land value at the rate of Rs.33,480/- per Are relying on Ext.A4 basis document. Ext. A4 revealed a land value of Rs.29,102/- per Are. The L.A.O. added 15% of the value revealed in Ext.A4 for the passage of time till the date of promulgation of the Section 4(1) notification. Before the reference court the contention which was prominently raised by the appellant was that A4 was not a proper basis for fixing value of the lands under acquisition. The contention LAA. No. 681/05 - 2 - was that A4 was in respect of wet land. Apart from relying on the recitals in A4 the claimant took out a commission. The commissioner compared the acquired property as well as the property covered by Ext.A4. It was reported by the commissioner that unlike the acquired property, A4 property continues to be wet land. The Court however, did not become inclined to award any amount in excess of Rs.43,522/- (30% of more than what was awarded by the L.A. Officer). The court below relied on A3 and A11 judgments of the same court. The court below noticed that A3 and A11 had become final. According to the court below, Exts.A3 and A11 having become final, the claimant appellant is not entitled to aspire for any value more than the value fixed under A3 and A11. Being aggrieved the present appeal is filed by the claimant. 2. We have heard the submissions of Sri.Sajeev Kumar, learned counsel for the appellant and those of Smt. Thushara James, learned counsel for the requisitioning LAA. No. 681/05 - 3 - authority and Smt. Latha T.Thankappan, learned senior Govt. Pleader for the Government. Sri.Sajeev Kumar drew our attention to Ext.A4 and also to the commissioner's report. He submitted that Ext.A4 was a document pertaining to wet land and hence would not be a proper basis for fixing the market value of the property of the appellant which was admittedly dry land falling within category – I. He submitted that Ext.A3 and A11 were not binding on the appellant who was not a party to the same, though A3 and A11 may be binding on the requisitioning authority and the Government. According to him, the land acquisition officer's award was just an offer which was not accepted by the appellant. That was why at his instance the reference under section 18 was made to the court below. Before the court below the appellant adduced evidence which consisted of the Advocate Commissioner's report. That report was clearly to the effect that A4 property was a wet land. Smt.Thushara as well as the learned senior Govt. LAA. No. 681/05 - 4 - Pleader would support the impugned judgment on the various reasons stated therein. Smt. Thushara, in particular submitted that if Exts. A3 and A11 judgments are given a go by and enhancement above what was granted under those judgments is granted to the appellant the same can open a flood gate of review petitions. 3. We have very anxiously considered the submissions addressed at the Bar. We cannot agree with the reasoning of the learned Subordinate Judge that A3 and A11 are binding on the appellant. They are not judgments in rem. They are judgments in personam only. Appellant's case had to be decided by the reference court on the basis of the evidence which came on record in that case. To the commissioner's report, neither the Government nor the requisitioning authority filed any objections. It is clear from the recitals in A4 also that A4 was in respect of wet land. That being so, we are in agreement with the learned counsel for the appellant that A4 could not have been a proper basis LAA. No. 681/05 - 5 - for fixing the value of dry land falling under category – I as was the appellant's property. We feel that if value of wet lands corresponding to the dry lands having direct frontage of Irumpanam – Kalamassery Road at the relevant time was Rs.33480/- per Are, the value of the property under acquisition which is dry land should be at least Rs.58,480/- per Are on the basis that for reclaiming the wet land to the standards required for putting up A-class constructions at least Rs.25,000/- per Are will be required as on the date of Section 4(1) notification. In that way the value of the acquired property will not be less than Rs.58,480/- which we round off to Rs.58,500/- as against the appellant's claim which was for Rs.60,000/- only. We notice that in this case large extent of property was under acquisition. In view of the largeness of the extent we follow the judgment of the Supreme Court in L.A.O. & Sub Collector, Gadwal v. Sreelatha Bhoopal (AIR 1997 SC 2552), Gafar & others v. Moradabad Development Authority & anr. (2007(7) SCC LAA. No. 681/05 - 6 - 614) and State of J & K v. Mohammad Mateen Wani (AIR 1998 SC 2470) and deduct 10%. When 10% is deducted the market value of the property under acquisition will have to be re-fixed at Rs.52,650/- per Are. The appeal is allowed re-fixing market value of the land under acquisition at Rs.52650/- per Are. It is made clear that this judgment has been rendered on the basis of the evidence which is available in this case and will not be quoted as a precedent for any other case. The parties are directed to suffer their costs. PIUS C.KURIAKOSE, JUDGE K.SURENDRAMOHAN,JUDGE ksv/-