IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 LA.App..No. 94 of 2009() ---------------------------------- LAR.56/2004 of ADDITIONAL SUB COURT, NORTH PARAVUR .................... APPELLANT/CLAIMANT --------------------------------- SANTHA FRANCIS, W/O.FRANCIS, PANDARAVALAPPIL HOUSE, THRISSUR, REPRESENTED BY POWER OF ATTORNEY HOLDER DR.RAPHEAL T.PAUL, PANDARAVALAPPIL (THEKKENATH), ALUVA, ALUVA TALUK ERNAKULAM DISTRICT. BY ADV. MR.C.JAYACHANDRAN RESPONDENT/RESPONDENT ------------------------------------------ STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR. BY SR. GOVERNMENT PLEADER MR.BASANT BALAJI. THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 14/10/2009, ALONG WITH LAA NO.151 OF 2009 LAA NO.116 OF 2009 AND LAA NO.117 OF 2009, THE COURT ON 04/12/2009 DELIVERED THE FOLLOWING: rs. PIUS C. KURIAKOSE & K. SURENDRA MOHAN, JJ. ------------------------------------------------------------------- L.A.A.NOS: 94, 116,117 & 151 OF 2009 ----------------------------------------------------------- Dated this the 4th December, 2009. JUDGMENT SURENDRA MOHAN, J. The above appeals are filed by the claimants in LAR Nos: 56/2004, 57/2004, 58/2004 and 59/2004 challenging the award dated 31.1.2007 of the Additional Sub Court, North Paravoor. The Court below has passed a common judgment in respect of all the four references. All the cases were jointly tried and evidence was also adduced in common. These cases relate to claims for enhanced compensation for lands acquired for widening the one way traffic road in Aluva Municipality. The lands in all the cases except LAR 58/2004 were acquired as per the same Section 4(1) notification dated 3.7.1996. The land in LAR 58/2004 was acquired as per a Section 4(1) notification dated 21.7.1997. The properties acquired are all situate in Aluva West Village, comprised in survey Nos: 73/59, 73/60, 73/61 and 73/91. The properties acquired had different extents, with buildings situate therein. After the Section 4(1) notification, the Land Acquisition Officer passed separate LAA NOS: 94/2009 ETC. 2 awards in all the four cases granting an amount of Rs.1,35,666/- per Are as land value for the land acquired. In LAR 56/2004, an amount of Rs.44,754/- was awarded as the value of the building therein while in LAR 57/2004 an amount of Rs.53,713/- was awarded. In LAR 58/2004 Rs.9,875/- was awarded as the value of the structure. Since there were no structures in LAR 59/2004 no compensation for structures was awarded. 2. Dissatisfied with the award of the Land Acquisition Officer, the Claimants sought a reference to the Sub Court, for determination of the correct market value of the acquired properties. Accordingly the cases were referred to the Additional Sub Court, North Paravoor and were numbered as LAR Nos: 56/2004, 57/2004, 58/2004 and 59/2004. As noticed above, they were tried together since they relate to the same acquistion. All the claimants were represented by their common power of attorney holder, Dr. Rapheal. T.Paul. 3. According to the claimants, the extents of the acquired properties shown in the land acquisition proceedings were not LAA NOS: 94/2009 ETC. 3 correct. Therefore, they have not been granted compensation for the actual extent of property acquired from their possession. They also claimed compensation for the buildings that were lost in the acquistion. According to the claimants, the properties are situate in the heart of Aluva Municipal Town which is the centre of all commercial activity. By virtue of their location, the acquired lands enjoyed substantial advantages and were not comparable to the other properties acquired by the same notification. According to them, they had not been awarded proper land value considering the commercial value of the properties. They claimed that they were entitled to get at least Rs. 2 lakhs per cent for the acquired properties. Identical contentions are raised on behalf of all the claimants. 4. The evidence in these cases consists of the oral evidence of A.W.1 who is the power of attorney holder of the claimants and A.W.2 who is the surveyor who had been deputed to measure the property as per order in O.S.890/1997 of the Munsiff's Court, Aluva LAA NOS: 94/2009 ETC. 4 and Exts.A1 to A3 (series) documents. No evidence was adduced on the side of the respondent. 5. The Reference Court, on a consideration of the evidence on record found that the land value awarded by the Land Acquistion Officer was not correct. Therefore, the Court granted an enhancement in land value by Rs.74,616/- per Are. Thus the total land value as per the judgment of the reference Court works out to Rs.2,10,282/- per Are. The Court found that the value of the structures or buildings was calculated by the Land Acquisition Officer on the basis of the PWD rates. Since the PWD rates were found to be much less than the actual prevailing rates of construction, an enhancement in the value of structures by 30% also has been granted. The claimants have filed the present appeals, being dissatisfied with the compensation awarded by the Reference Court. 6. According to Mr. C. Jayachandran, counsel for the appellants, all the properties in the present cases were situate at a prominent junction in the heart of Aluva Municipal Town. LAA NOS: 94/2009 ETC. 5 According to him, the properties being right at the junction, enjoyed definite advantages that were not enjoyed by the other properties acquired in the same acquisition. Since it cannot be disputed that properties closer to the junction were more valuable than those away from the junction, the properties at the junction enjoyed superior locational advantages which have not been taken note of by the Reference Court. According to him, the Reference Court has implicitly followed Exts.A1 and A2 judgments by which compensation was awarded to other properties in the same acquisition. The Court below has failed to award any additional value for the locational advantages enjoyed by the properties of the claimants. The counsel also contended that the Court seriously went wrong in rejecting the contention of the claimants that extents of land far in excess of the notified extent were actually taken possession of by the Land Acquisition Officer for which compensation has not been granted. The counsel also pointed out that the value awarded for the structures in the property were also too low and had to be refixed. LAA NOS: 94/2009 ETC. 6 7. The learned Govt. Pleader on the other hand pointed out that the claimants had not raised any dispute regarding the extent of the property acquired, in their respective claim statements submitted before the Land Acquisition Officer. Therefore, it is contended that the claimants were not entitled to raise the said question before the Reference Court or before this Court. According to the learned Govt. Pleader the Reference Court had granted enhancement in the value of structures to the tune of 30% but, there was no evidence to support such enhancement. In view of the above, it is pointed out that the judgment of the Reference Court does not call for any interference. 8. We have heard Mr. C.Jayachandran, counsel for the claimants as well as Mr. Basant Balaji, Senior Govt. Pleader who appears for the respondent. We have anxiously considered the rival contentions. 9. The counsel for the appellants has produced additional documents in these appeals along with a petition under Order 41 Rule 27 of the Code of Civil Procedure for receiving the same. The appellants have also produced documents to show that the land LAA NOS: 94/2009 ETC. 7 value in the locality is to the tune of Rs.2 lakhs per cent. Other documents to show that they are not in possession of any balance extent of property after the acquisition, have also been produced. According to the counsel, as per a communication issued by the Land Acquisition Officer, it has been admitted that the entire property owned by the claimants have been acquired for the widening of the road and that the claimants are not in possession of any remainder property. It is contended that a proper opportunity to produce the above items of evidence before the Court below was not given to the claimants. 10. The properties that are the subject matter of these appeals enjoy a very substantial advantage, being situate right at the most important junction in Aluva Municipal Town. Therefore, the properties of the claimants enjoyed a superior locational advantage, which was not available to the other properties acquired, that were not situate exactly at the junction. In view of the above, the properties of the claimants had to be treated separately and given a LAA NOS: 94/2009 ETC. 8 land value in excess of the land value given to the other properties, considering the very prominent location at which the said lands were situate. However, it is seen that while fixing the land value the above aspect has not been taken into account by the Reference Court. It is also worth noticing that proper evidence regarding all the special advantages that were enjoyed by these properties have not been brought on record by reliable evidence. The appellants have produced additional documents which show an enhanced value for properties having less commercial importance. The said properties have been sold before the date of the Section 4(1) notification in the present case. The additional documents disclose value that is more than what has been awarded by the Reference Court. The appellants have also produced additional documents to show that the actual extent of the property acquired from them was in excess of the extent for which compensation has been granted to them. On the basis of the above additional materials, it is contended that the judgment of the Reference Court is wrong and does not reflect the LAA NOS: 94/2009 ETC. 9 correct market value of the acquired property. It is submitted that if an opportunity is given to the claimants they would be able to substantiate their contentions before the Reference Court by letting in reliable and proper evidence. 11. In the light of the additional documents produced before this Court, we also feel that the value fixed by the Reference Court for the land as well as the structures do not reflect the correct market value of the properties acquired. Therefore, the common judgment of the Reference Court in these references is not sustainable. 12. The Reference Court has rejected the contentions of the claimants regarding the mistake in the actual extent of land that has been acquired. The Court below has found that the appellants were not entitled to raise the contention regarding the extent because they had not raised any such contention in their claim statement submitted to the Land Acquisition Officer. The learned Senior Govt. Pleader also points out that the claimants should not be allowed to LAA NOS: 94/2009 ETC. 10 raise the question regarding the actual extent of land acquired, since they had not raised such a claim before the Land Acquisition Officer. However, we notice that when a reference is made to the Land Acquisition Court, the Court is entitled to go into the question of both the value of the land as well as the extent of the property actually acquired. It cannot be disputed that the actual extent of property that has been acquired from the claimants has a direct relation to the determination of the correct value of the land acquired. Thus, the land value will change depending upon any change in the extent of the land acquired. Therefore, the issue regarding the extent of the land actually acquired, is a collateral issue that arises for the determination of the Reference Court in all cases. In view of the above, the Reference Court was in error in not considering the issue regarding the correct extent of the land actually required, in its judgment under appeal. 13. The Reference Court has rejected the Commission report, Ext.A3 and the report of the Engineer who valued the structures in LAA NOS: 94/2009 ETC. 11 the acquired property for the reason that neither the Commissioner nor the Engineer were examined to prove the said documents. The counsel for the claimants also prayed for an opportunity to examine the Commissioner as well as the Engineer as witnesses to substantiate their claims. 14. We notice from the above that the Reference Court has not arrived at or fixed the value of the land and buildings acquired from the claimants in a proper manner. The compensation presently awarded does not represent the actual market value of the acquired property and structures. Therefore, this is a fit case in which the matter is required to be remanded to the Reference Court for determination of the market value of the acquired properties afresh. However, since it is due to the lack of diligence on the part of the claimants that it has become necessary to remand the matter, we feel that the claimants should not be held entitled to interest under Section 28 of the Land Acquisition Act for the lapse of time that has been occasioned due to the neglect on their part. It is also necessary LAA NOS: 94/2009 ETC. 12 to put them to terms for their lapses. 15. For the foregoing reasons all these appeals are allowed as follows:- i) The common judgment and decree dated 31.1.2007 of the Sub Court, North Paravoor in LAR Nos: 56/2004, 57/2004, 58/2004 & 59/2004 is set aside. ii) LAR 56/2004, 57/2004, 58/2004 and 59/2004 are remanded to the Sub Court, North Paravoor for trial and disposal afresh, after affording an opportunity to the claimants as well as the respondent to adduce all further evidence in support of their respective contentions. Both parties shall be free to adduce further evidence both oral and documentary in support of their respective contentions. iii) The claimants shall not be paid interest under Section 28 of the Land Acquisition Act on any compensation that may be awarded to them as per the revised judgment to be passed by the Reference Court in the above references, in excess of what has been awarded LAA NOS: 94/2009 ETC. 13 by the present judgment. iv) The appellants/claimants in each of these appeals shall pay an amount of Rs.750/- (Rupees seven hundred and fifty only) to the Kerala Mediation Centre and shall produce receipt for such payment before the Sub Court, North Paravoor failing which, the benefits of this remand order shall not enure to them. In the circumstances of the case there will be no order as to costs. PIUS C. KURIAKOSE Judge K. SURENDRA MOHAN Judge jj LAA NOS: 94/2009 ETC. 14 K.K.DENESAN & V. RAMKUMAR, JJ. ---------------------------------------------------- M.F.A.NO: ----------------------------------------------------- JUDGMENT Dated: