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 23RD MARCH 2009 / 2ND CHAITHRA 1931 LA.App..No. 39 of 2004(D) ------------------------------------ LAR.69/1998 of PRINCIPAL SUB COURT,PARAVUR .................... APPELLANT(S): CLAIMANTS ----------------------- 1. ISMAIL,S/O ABDUL KHADER,MANADATH, ALUVA TOWN,ALUVA VILLAGE,ALUVA TALUK. 2. IBRAHIM,S/O ABDUL KHADER,MANADATH, ALUVA TOWN,ALUVA VILLAGE,ALUVA TALUK. 3. ABDUL RAZAK,S/O ABDUL KHADER,MANADATH, ALUVA TOWN, ALUVA VILLAGE,ALUVA TALUK. 4. BABU,S/O ABDUL KHADER, MANADATH, ALUVA TOWN,ALUVA VILLAGE,ALUVA TALUK. 5. JAMEELA,D/O ABDUL KHADER,MANADATH, ALUVA TOWN,ALUVA VILLAGE,ALUVA TALUK. 6. SHEREENA,D/O ABDUL KHADER,MANADATH, ALUVA TOWN,ALUVA VILLAGE,ALUVA TALUK. 7. SHEGGI,S/O ABDUL KHADER,MANADATH,ALUVA TOWN,ALUVA VILLAGE,ALUVA TALUK. 8. DILEEP, S/O ABDUL KHADER,MANADATH, ALUVA TOWN, ALUVA VILLAGE,ALUVA TALUK. BY ADV. SMT.SREELEKHA PUTHALATH RESPONDENT(S): RESPONDENTS -------------------------- 1. STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. KERALA WATER AUTHORITY REPRESENTED BY ITS MANAGING DIRECTOR,JALABHAVAN, THIRUVANANTHAPURAM. SR GOVERNMENT PLEADER MR.P.K.BABU FOR R1 BY ADV. MR.M.DINESH SC, KWA THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 23/03/2009, ALONG WITH LAA. 72 OF 2004 AND CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE & C.K.ABDUL REHIM, JJ. - - - - - - - - - - - - - - - - - - - - - L.A.A.NOs.39, 47, 71, 72, 73, 74, 75, 80, 344, 407, 625 OF 2004 & 1, 779, 904, 946, 960, 1175 of 2005 & 34, 276 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of March, 2009 JUDGMENT Pius.C.Kuriakose, J. L.A.A.Nos. 625, 407, 344, 276 of 2004 & 1 of 2005 & 34 of 2006 are filed by the State and the other appeals are filed by claimants. Under challenge in these appeals are judgments of the Land Acquisition Reference Court, North Paravur refixing the compensation payable to land owners. The purpose of the acquisition was establishment of a water treatment plan at Aluva. The relevant Section 4(1) notification in these cases was published on 19/07/1981. The land acquisition officer categorised the lands under acquisition into two. Included in category No.1 were lands with road frontage and included in category 2 were lands without road frontage. The land acquisition officer awarded at the rate of Rs. 7410/- per Are for land included in category No.1 and at the rate of Rs. 6180/-per Are for lands included in category No.2. The contention of the claimants before the reference court was that the categorisation was unscientific and that LAA.No.39/04 & connected cases 2 they should be awarded land value at a uniform rate of Rs. 20,000/- per cent corresponding to Rs. 49,400/- per Are. The reference court in the first instance fixed land value at the rate of Rs. 37,050/- per Are for properties in category No.1 and at Rs. 30,900/- per Are for properties in category No.2. In appeals preferred by the Kerala Water Authority, the requisitioning authority, reference cases were remanded on the technical reason that the requisitioning authority was not impleaded . Though special leave petition was filed before the Supreme Court, the Supreme Court confirmed the order of remand. After remand, the reference court as under the impugned judgment refixed the land value of properties in category 1 at Rs. 16672/- per Are and for properties in category 2 at Rs. 13905/-. 2. In the appeals preferred by the government, the enhancement granted by the reference court over the rates granted by the awarding officer is challenged, while in the appeal preferred by the claimants, it is urged that the enhancement granted by the court is inadequate and that the evidence on record will justify refixation of the market value of the properties in category No. 1 and 2 at a uniform rate of 49,400/-. LAA.No.39/04 & connected cases 3 3. We have heard the submissions of Sri.K.Gopalakrishna Kurup and Sri.B.Jayasankar, learned counsel for the appellants and those of Sri.Basant Balaji and Sri.P.K.Babu, learned senior Government Pleaders for the State. We have also heard the submissions of Sri.M.Dinesh, learned standing counsel for the Kerala Water Authority. Sri.Gopalakrishna Kurup, Sri. Jayasankar, the learned Government Pleaders and the learned standing counsel for the water authority would address extensive submissions before us in support of the grounds raised in the respective appeals. 4. The question which arises for consideration in these appeals is whether the correct market value of the acquired property at the relevant time has been determined by the reference court under the impugned judgment and if not, what is the correct market value of the acquired properties and what if any is the enhanced compensation due to the various claimants over and above what has been awarded to them by the land acquisition officer. Given here under is a chart containing all relevant particulars relating to these appeals which are being considered by us. LAA.No.39/04 & connected cases 4 5. We shall make a survey of the evidence. Ext.A1 judgment pertains to acquisition for Thottakattukara Town Planning Scheme and the property under acquisition is situated near to Holy Ghost Convent High School and has frontage of Municipal Road. The property is situated 2 Kms. away from the lands under acquisition. Importantly, the notification under Section 3(1) of the State Act corresponding to Section 4(1) of the Central Act was published on 14/09/1976. The land acquisition officer awarded land value at the rate of Rs. 1,100/- per Are for category 1 property in this case which was refixed under Ext.A1 by the reference court to Rs. 8184/- per Are. Similarly, for properties in category 2 in this case the land acquisition officer had awarded land value at the rate of Rs. 1730/- per Are which was refixed by the court at Rs. 11,700/- per Are. 6. Ext.A2 dated 14/03/1989 is another document which was relied on by the claimants. Ext.A2 is the certified copy of the judgment in L.A.R.No. 47/1980. Ext.A2 is in respect of property situated one km. away. This acquisition was for the purpose of Periyar Valley Irrigation Project. This property is situated on the left hand side immediately after the Marthanda Varma Bridge near to Priyadarsani Hall. The LAA.No.39/04 & connected cases 5 relevant Section 3(1) notification relating to Ext.A2 was on 14/02/1978. In this case, the land acquisition officer awarded land value at the rate of Rs. 2300/- per Are. The reference court refixed land value at the rate of Rs. 10,000/- per Are after finding that the evidence will justify determination of a higher land value, would limit the award to Rs. 10,000/- per Are since the claim was for Rs. 10,000/- per Are only. 7. Ext.A3 is certified copy of the post notification sale deed dated 20-04-1982. The centage value revealed by this document is Rs. 13,340/- corresponding to value of Rs. 32,963/- per Are. The land was freezed by GCDA at the time of sale and perhaps the counsel for the claimants are justified in submitting that the value revealed in the document is a value lesser than the prevailing market rate. However, we are excluding this document from consideration since Ext.A3 is a post notification document. Ext.A4 dated 30-06-1989 is certified copy of judgment in L.A.R.Nos. 401 and 402. Ext.A4 is judgment in the appeals arising from Ext.A1. Under Ext.A4 the value given by the reference court in Ext.A1 is confirmed. Ext.A5 is also copy of a court judgment in L.A.R.No.10/1988. Ext.A5 property is situated 300 meters LAA.No.39/04 & connected cases 6 away from the acquired property. Acquisition under Ext.A5 was for doubling of railway line. The relevant Section 3(1) notification was on 19/05/1983. This property form part of St.Xaviers College campus. This property was bounded on the southern side by Periyar river. Ext.A9 relied on in this judgment was the judgment in L.A.R.No.128/1987. The land acquisition officer awarded land value at the rate of Rs. 16529/- which was enhanced by the reference court at Rs. 56,900/- per Are. 8. Ext.A6 is another document and Ext.A6 will reveal that the judgment of the reference court in Ext.A5 is confirmed by this court in L.A.A.No.193/93. Ext.A7 is certified copy of the judgment dated 24/10/1988 in L.A.R.No.78/1984. Ext.A7 is situated less than a kilometer away. Ext.A7 relates to acquisition for Municipal bus stand cum shopping complex. The relevant Section 4(1) notification was on 02/02/25/01/1981 and 2-2-1981 and the land acquisition officer awarded land value at the rate of Rs. 4,500/- per Are which was enhanced by the reference court at Rs. 24,470/- per Are. The same land acquisition officer after some six months, acquired the lands which are involved in these cases wherein he awarded much higher value for LAA.No.39/04 & connected cases 7 these properties. This is highlighted by the learned counsel for the claimants as a circumstance to argue that even according to the land acquisition officer, the acquired properties in these cases were more valuable than the properties in Ext.A7. We also feel that the above argument is not completely without merit. Ext.A8 is the judgment of this court confirming Ext.A7. Ext.A9 is the judgment in L.A.R.No.128/1987 covered by the very same notification and for the same purpose. But it is conceded that Ext.A9 judgment was set aside and remanded. This is so why Ext.A9 is not relied on by the reference court in these cases. But significantly, in Ext.A5, this Ext.A9 is relied on and the court refixed land value at Rs. 56,900/- per Are. 9. We have carefully gone through the judgment of the reference court and very anxiously considered the submissions addressed at the Bar. We have made a re-appraisal of the entire evidence in this case. We are of the view that the learned Subordinate was not justified in ignoring Ext.A1, which was confirmed, completely on the reason that the same was pursuant to a different section 4(1) notification and hence does not reveal the land value of the property at the relevant time. Though it is true that Ext.A1 does not reveal the LAA.No.39/04 & connected cases 8 land value of the property covered by Ext.A1 on the date of Section 4(1) notification in this case, Ext.A1 could have been relied on by the Sub Judge as a very valuable piece of evidence to find as to what was the market value of the property in that part of Aluva Town on the date of Ext.A1. Aluva is one of the ancient Municipalities in the State and the market value of the land in Aluva, especially those lands having direct frontage of the Periyar river, was always considerable. According to us, the acquired property enjoying frontage of Periyar river was more important and more valuable than the property covered by Ext.A1. Considering the importance of the acquired property, atleast 15% addition is to be given. Considering the irrefutable decision that the market value of land in Aluva Municipal Town has been steadily increasing during the relevant time( period from 17/6/1981), we are adding 60% on the value revealed under Ext.A1. A5 and A6 are not being relied on by us. However, we take notice of the findings in Ext.A5, which is confirmed under Ext.A6, that the market value of the property in Ext.A1 as on section 4(1) notification in this case was Rs.50,000/- per Are. The learned Judge, in our opinion, was in error in not placing reliance on Ext.A7 on the reason LAA.No.39/04 & connected cases 9 that nobody connected with Ext.A7 was examined. Ext.A7 was a judgment of the court. The claimant's evidence was that on a comparison, the acquired property was superior to Ext.A7 property. It should be noticed that award pertaining to Ext.P7 and the award pertaining to these properties were passed by the very same officer by determining market value more or less at the same time. According to the land acquisition officer, the acquired properties had more value than Ext.A7 property. Though it is certainly true that neither the claimant nor the party to Ext.A7 stated in so many words in their evidence that the acquired property and Ext.A7 properties are comparable. But, at the same time Ext.A7 was put in evidence by the claimants to substantiate their claim for enhancement and the further fact that the Ext.A7 is a judgment of the court rendered on evaluating the items of evidence which came before that court, which included various sale documents produced on either sides should have been given due weight. According to us, Ext.A7 also should have been taken into account by the learned Subordinate Judge for refixing the market value. It is seen from the judgment that the subordinate Judge has not taken into account the circumstance that all these properties are LAA.No.39/04 & connected cases 10 having frontage of Periyar river. Having frontage of Periyar river, in our opinion, is a plus point which enhances the value of land. Evaluating the entire evidence which came on record in these cases, we are of the view that the correct market value to be fixed for properties in category No.1 would be Rs.24,000/- per Are and the corresponding market value to be fixed for the properties in category No.2 will be Rs.19,000/- per Are. All these appeals will stand allowed to the above extent. It is needless to mention that the enhanced compensation to which the parties become entitled on account of refixation of market value will carry all statutory benefits admissible under Section 23(2) 23A and 28A of the Act. In the circumstances, parties will suffer their costs. PIUS.C.KURIAKOSE JUDGE C.K.ABDUL REHIM JUDGE sv/dpk LAA.No.39/04 & connected cases 11