IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 27TH JULY 2011 / 5TH SRAVANA 1933 LA.App..No. 184 of 2011() ------------------------------------- LAR.NO.111/2006 of SUB COURT,KOTTARAKKARA .................... APPELLANT(S): CLAIMANT --------------------------------------- RAJESWARY, AROGYAPRADAYINI VAIDYASHALA VEEDU, NILAMEL. BY ADV. SRI.V.JAYAKUMAR RESPONDENT(S): RESPONDENTS -------------------------------------------------- 1. THE SPECIAL TAHSILDAR (LA) NO.1, KOLLAM. 2. THE STATE OF KERALA. R1 & R2 BY SR GOVERNMENT PLEADER SRI.V.T.K.MOHANAN SMT.T.T.JOSEPHINA THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 27/07/2011, ALONG WITH LAA.NO.191 OF 2011 AND CONNECTED CASES,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts PIUS.C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------------- L.A.A.Nos.184, 191, 192 and 195 of 2011 ------------------------------- Dated this the 27th day of July, 2011. J U D G M E N T PIUS.C.KURIAKOSE, J. The claimants are the appellants in all these appeals. Their properties in Nilamel village situated almost on the Nilamel junction of M.C.Road were acquired for the purpose of upgradation of M.C.Road, under the Kerala State Transport Project. The acquisition was pursuant to Section 4(1) notification published on 19.7.2003. The LAO awarded land value at Rs.34,628/- per are. Before the reference court, which tried all the four references jointly, the evidence from the side of the claimants consisted of Exts.A1 to A4, Aws.1 and 2 apart from Ext.C1 Commission report and Ext.C2 Mahazar prepared by the Commissioner. The evidence on the side of the Government consisted of Exts.R1 to R4, which were the files pertaining to the awards in respect of the four cases. Ext.A1 was a post 2 L.A.A.Nos.184, 191, 192 and 195 of 2011 notification document executed four months subsequent to Section 4(1) notification. Ext.A1 reflected a land value of Rs.97,000/-. Ext.A1 was proved through AW2 who was an attestor to the document and broker, through whom Ext.A1 transaction was materialised. Both the claimants and AW2 gave evidence to the effect that Ext.A1 was a normal transaction. Ext.A2 was another document executed one year and four months after the notification. Ext.A2 reflected a land value of Rs.3,00,000/- per cent. Ext.A3 was the copy of the minutes of the DLPC meeting, which will reveal that the value was offered to the owners at Rs.55,000/- per cent, if they were willing to give up their claims for enhancement in land acquisition proceedings. Ext.A4 is the copy of a letter which was sent by one of the appellants, on behalf of all the appellants, to the Land Acquisition authority. The Advocate Commissioner in Ext.C1 report compared the properties covered by Exts.A1 and A2 with the acquired property. It was reported that the acquired properties were situated in Nilamel Junction abutting the M.C.Road and the properties covered by 3 L.A.A.Nos.184, 191, 192 and 195 of 2011 Exts.A1 and A2 were situated by the side of Nilamel- Kadakkal road, and that all those properties were having high commercial potentialities. The learned Sub Judge on evaluating the evidence had discarded Exts.A1 and A2 mainly for the reason that, they are documents which were executed much after the 4(1) notification. Ext.A3 was also discarded by the learned Sub Judge. At the same time, taking into account the uncontroverted oral evidence adduced by AW1, the learned Sub Judge would come to the conclusion that, the value awarded by the LAO is grossly inadequate what was done by the learned Sub Judge was to enhance the land value at 100% and refix the same at Rs.69,236/- per are. 2. In these appeals various grounds are raised assailing the award of the reference court. Mr.V.Jayakumar learned counsel for the appellants addressed submissions based on all the grounds raised in appeal. But the learned counsel gave more thrust submissions to the grounds, claiming enhancement of land value. The learned counsel would severely criticise the action of the learned Sub Judge 4 L.A.A.Nos.184, 191, 192 and 195 of 2011 in not relying on Ext.A3 and atleast Ext.A1. Strong reliance was placed by the learned counsel on the judgment of this Court in Spl.Tahsildar Vs. Muraleekrishnan (2009 KHC 1097), authored by one among us [CKAR (J)], to advance the argument that in appropriate cases, post notification documents can also be relied on, in the absence of a pre- notification documents. For the same proposition, Mr.Jayakumar relied on judgment of this Court in State of Kerala Vs. C.T.Hashim (2009 KHC 1342) authored by one among us [PCK(J)]. The learned counsel requested that atleast Ext.A1 document be relied on, as nothing has been brought out in cross examination of AW2 to discredit the normalcy of Ext.A1 transaction. The parties to Ext.A1 has no stakes at all in the present land acquisition proceedings, and nobody can argue that higher value shown in Ext.A1 is, on account of present acquisition which pertains to Nilamel Junction. 3. All the submissions of Mr.Jayakumar were very stiffly opposed by Mr.V.T.K.Mohanan, and Smt.Josephina, 5 L.A.A.Nos.184, 191, 192 and 195 of 2011 learned Government Pleaders, who appeared for the respondents in these appeals. According to them, Exts.A1 and A2 can not be relied on at all in these cases where the notes to award will show that there were pre-notification available in the relevant area. The claimants did not rely on the pre- notification documents because they knew that those documents reflected only lesser value than what is awarded by the LAO. The learned Government Pleader opposed placing reliance on Ext.A3 also. Ext.A3 was only an offer which was never accepted by the claimants. Ext.A3 at any rate according to them takes in 30%, which is payable as solatium and 12% interest by way of benefit under Section 23 (1A), if the properties were acquired under the provisions of the Land Acquisition Act. Therefore, the learned Government Pleader would argue that if this Court is inclined to have reliance on Ext.A3, 42% of the value reflected in Ext.A2 will have to be deducted and at the maximum the market value of the lands can be refixed at Rs.31,900/- per cent corresponding to Rs.78,824/-. 6 L.A.A.Nos.184, 191, 192 and 195 of 2011 4. We have given our anxious consideration to the rival submissions addressed at the Bar. We have made a re- appraisal of the evidence particularly Exts.A1, A2, A3, C1, C1(a) and oral evidences of Aws.1 and 2. One crucial aspect which has to be kept in mind while appreciating the evidence is that, the Government did not adduce even formal counter evidence to the oral evidence which was adduced from the side of the claimants. Ext.A3 is the minutes of the DLPC. Ext.A3 will show that DLPC offered a value of Rs.55,000/- per cent. Ext.A3 is contemporaneous with the Section 4(1) notification date period. We are not inclined to accept the arguments of the learned Government Pleaders that the market value offered under Ext.A3 takes into account not only the solatium but also the Section 23 (1A) component which is payable to the awardees in land acquisition cases. According to us, the component under Section 23(1A) is a special component calculated at the rate of 12% of the market value during the period from the date of Section 4(1) notification till date of award or date of taking possession, whichever is earlier. It has been 7 L.A.A.Nos.184, 191, 192 and 195 of 2011 judicially settled that Section 23(1A) component has been introduced by the Amendment Act 68 of 1984 only for accelerating the land acquisition proceedings. Component under Section 23(1A) is not part of the market value of the land though the same is part of the total compensation which will carry interest under Section 28. According to us, when Rs.55,000/- per cent is offered under Ext.A3, the DLPC in its mind had taken the market value of the land at the relevant time to be Rs.38,500/- per cent. According to us, Ext.A3 is a relevant piece of evidence which has to be taken into account while determining the market value of land. The question which now arises is whether Exts.A1 and A2 post notification documents can be relied on for determining correct market value of the lands under acquisition. We notice in this connection that, the Government did not bother even to produce the basis document for supporting the Officer's award. It is trite by decisions including the one cited by the learned counsel for the appellants that, in a case where pre- notification documents are not available and it becomes necessary to 8 L.A.A.Nos.184, 191, 192 and 195 of 2011 rely on post notification documents, there is nothing illegal in relying on any post notification also. It is equally trite that when pre-notification documents are relied on, it should be ensured that the higher value reflected in the post notification document is not the result of appreciation in land value resulting from the very acquisition. 5. Ext.A2 reflecting the value of Rs.3 lakhs, is about sixteen months post the notification. We discard Ext.A2 from the reckon straight away. Ext.A1, we feel stands on a different footing. Ext.A1 is executed just four months after the proclamation of the Section 4(1) notification. On going through Ext.A1 it appears to us that, Ext.A1 refers a normal transaction of sale and purchase of property by an NRI. AW2 has given evidence to the effect that, Ext.A1 reflects a normal transaction. Though AW2 was thoroughly cross examined, nothing is suggested in the cross examination that it is a higher value shown in Ext.A2, and that it was so shown intentionally for staking a higher claim for land value in a prospective land acquisition proceeding. It is not even suggested to AW2 that, the parties to Ext.A1 were 9 L.A.A.Nos.184, 191, 192 and 195 of 2011 having any states in the current land acquisition proceeding. We feel that atleast to a certain extent the value reflected in Ext.A1 can also be taken into account. We notice in this connection that, it has become evident that the acquired properties were situated on the Nilamel junction on the M.C.Road while Ext.A1 properties were situated on the side of Nilamel-Kadakkal road. Both the properties evidently had commercial potentialities. But we have no difficulty in accepting the submissions of the learned counsel for the appellants that, the properties with commercial potentialities on the very Nilamel junction will be more valuable than the properties with commercial importance in Nilamel- Kadakal road, some 250 meters away from the junction. Ext.A1 as already indicated, reflects a land value of Rs.97,000/-. The purchaser under Ext.A1 we notice is an NRI, who by all means appears to have been very keen on purchasing property near to the most important junction of his native place and we feel that, there is reason to think that the price paid by him was slightly higher than the market price. According to us, the 10 L.A.A.Nos.184, 191, 192 and 195 of 2011 correct market value of the land under acquisition can be arrived by taking into account the averages of amount of Rs.38,500/- and the value of Rs.97,000/- reflected in Ext.A1. The value thus comes to Rs.62,900/- which we round off to Rs.63,000/- per cent. The appeal is allowed refixing the value of land under acquisition at Rs.63,000/- per cent. The appellants will be entitled for all statutory benefits admissible under Sections 23(2), 23(1A) and under Section 28 of the Land Acquisition Act, on the total refixed compensation. The parties are directed to suffer their respective costs. PIUS.C.KURIAKOSE, JUDGE C.K.ABDUL REHIM, JUDGE ami/