IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 27TH AUGUST 2009 / 5TH BHADRA 1931 LA.App..No. 754 of 2008() ------------------------- LAR.58/2006 of III ADDL.SUB COURT, ERNAKULAM .................... APPELLANT(S): CLAIMANT ---------------------- POWER OF ATTORNEY HOLDER TO THE ARCHBISHOP OF THE ARCHDIOCESE OF VARAPOLY- FR.JEROME CHAMMINIKODATH, AGED 48 YEARS S/O.VARUTHUKUTTY, RESIDING AT LATIN ARCHBISHOP'S HOUSE, BROADWAY, ERNAKULAM, COCHIN-682031. BY ADV. SRI.L.ALOYSIUS THOMAS SRI.T.P.SAJAN RESPONDENT(S): RESPONDENTS -------------------------- 1. SPECIAL TAHSILDAR (L.A), RAILWAYS ERNAKULAM. 2. THE DEPUTY CHIEF ENGINEER SOUTHERN RAILWAYS, ERNAKULAM. ADV. SRI.M.C.CHERIAN,SR.SC.,RAILWAYS FOR R2 GOVT.PLEADER . SRI.BASANT BALAJI THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 27/08/2009, ALONG WITH LAA NO. 1422 OF 2008 AND CONNECTED CASE THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ L.A.A.Nos. 754, 1316 & 1422 OF 2008 ------------------------ Dated this the 27th day of August, 2009 JUDGMENT Pius C.Kuriakose, J. These appeals are directed against the common judgment of the Land Acquisition Reference Court viz. IInd Additional Subordinate Judges, Court Ernakulam in L.A.R. Nos.58/2006 and 318/2006. L.A.A. No. 1316/2008 is the appeal preferred by the claimant, the Archdiocese of Verapoly against the judgment and decree in L.A.R. No. 318/2006 and L.A.A. No. 754/2008 is the appeal filed by the claimant against the judgment and decree in L.A.R. No. 58/2006. L.A.A. No. 1422/2008 is the appeal preferred by the Government against the judgment and decree in L.A.R. No. 58/2006. 2. The acquisition was of land in Kureekkad village of Kanayannur Taluk for the purpose of doubling of railway track between Ernakulam and Mulanthuruthy. The notification under Section 4(1) relating to L.A.R. No. 58/2006 was published on L.A.A..No.754/2008 & others. 2 18/12/2003. But the Section 4 (1) notification pertaining to L.A.R. No. 318/2006 was published on 16/12/2004. The properties involved in both the LARs were included by the Land Acquisition Officer in category 1 itself. For the properties in LAR No.58/2006, the the land value was awarded at the rate of Rs.23,704/- per Are and for the properties in L.A.R. No.318/2006, the land value was awarded by the Land Acquisition Officer at the rate of Rs. 46,267/- per Are. The claim of the owner claimant Archdiocese was that the properties were part of a total extent of 32 cents of land purchased by sale deed Nos. 3011/2000, 3013/2000 and 3015/2000 of the Sub Registry, Mulamthuruthy for the purpose of construction of a place of worship. The property was selected for putting up a church in view of its easy accessibility and availability of transportation facilities and vehicular services. It was claimed that properties were situated in Kureekkad junction surrounded by various public and private establishments and institutions and that the value of the property as on the date of notification was Rs.1,00,000/- per cent. The second respondent in the LAR, the requisitioning authority, disputed the claim and contended that L.A.A..No.754/2008 & others. 3 the value awarded by the Land Acquisition Officer was quite adequate if not excessive. The Reference Court formulated the requisite points and enquired into the reference cases after passing an order of joint trial. On the side of the claimants, the evidence consisted of Ext.A1 power of attorney and Ext.A2 sale deed No. 769/2002 dated 23/4/2002 of the Sub Registry, Mulanthuruthy. On the side of the respondents, documentary evidence consisted of Ext.R1 sale deed No. 499/2001 dated 28/2/2010 of the Sub Registry Mulanthuruthy, Ext.R2 sale deed No. 3011/2000 dated 24/11/2000, Ext.R3 sale deed No. 3013/2000 dated 24/11/2000 and Ext.R4 sale deed No.3015/200 dated 24/11/2000. Exts.R1 to R4 were in fact the documents under which the property under acquisition was purchased by the claimants for sale consideration of Rs.96,361/- per Are. Ext.A2 was a document pertaining to 8 cents of land revealing centage value of Rs.53,625/- per cent. Ext.R5 was another item of evidence produced by the respondents and the same was the copy of sale deed No. 2310/2004 dated 10/8/2004 of the Sub Registry, Mulanthuruthy. The centage value revealed under Ext.R5 was Rs.49,500/- per cent. Ext.R5 was infact L.A.A..No.754/2008 & others. 4 document in respect of purchase of another item of 10 cents by the claimant diocese itself for the purpose of relocating the church which existed on the property under acquisition. Exts.R6 to R9 were copies of Mahazar, notes to award, etc. in the cases. The oral evidence on the side of the claimants consisted of the testimony of AW1, a priest who was the power of attorney holder for the Archbishop of the diocese. No counter oral evidence was adduced on the side of the respondents. 3. The Learned Subordinate Judge did not place reliance on Exts.R1 to R4 documents under which the properties under acquisition were purchased by the appellant. The court below did not place reliance on Ext. A2 deed either. What the court below did was to place reliance on Ext.R5 document executed in favour of the claimant during August 2004 revealing land value of Rs.1,22,265/- per Are. According to the court below, Ext.R5 was a dependable document since it was executed 8 months after the first Section 4 (1) notification and four months before Section 4 (1) notification. Relying on Ext.R5, the court below refixed the value of land involved in LAR No. 318/2006 at Rs.1,10,040/- per Are. Similarly, the value of the properties L.A.A..No.754/2008 & others. 5 involved in LAR No. 58/2006 was refixed making deduction of 10% at Rs.99,040/- per Are. The references were answered in that way. The Reference Court did not grant any enhancement towards the value of the building which existed on the acquired property for which the land Acquisition Officer had awarded compensation of Rs. 76,113/- in LAR No. 58/2006. In the appeals preferred by the claimant, they challenge the judgment of the Reference Court contending that the market value refixed by the Reference Court is inadequate, while in the appeal preferred by the Government it is contended that the land value refixed by the Reference Court in LAR No. 58/2006 is excessive. 4. It was very extensive submissions, which were addressed before us by the learned counsel Sri. L.Aloysius Thomas appearing for the parties and Sri.M.C.Cherian, learned Standing Counsel for the Railways and Sri.Basant Balaji, learned senior Government Pleader for the Government. Sri.Aloysius Thomas would argue that the court below ought to have refixed the market value of the land under acquisition on the basis of Exts.R1 to R4, the very title documents, under which the properties under acquisition were purchased four years prior to L.A.A..No.754/2008 & others. 6 the date of Section 4(1) notification. The learned counsel argued that the court below was wrong in not placing reliance on Ext.A2 which is a document discussed in the notes to award. The property under acquisition was situated on Kureekkad junction itself and was having commercial potentialities also. The land value has been on increase at the rate of 15% per year in that locality and if additions at that rate are given to the value reflected in Exts.R1 to R4, it will be seen that the same is equal to the value reflected in Ext.A2. The learned counsel in this context relied on Ext.A1 proceedings of the District Collector. Sri.Aloysius Thomas submitted that the court below was wrong in observing that there was no evidence to prove the similarity of the properties covered by Ext.A2 and the properties under acquisition. From Ext.A1 proceedings of the District Collector itself, it is clear that the distance between the acquired properties and the property covered by Ext.A2 is less than 100 meters. This will be clear from Ext.R7 Mahazar also. According to the learned counsel, existence of a toddy shop near to Ext.A2 property is a minus factor for that property and not a plus factor. The counsel submitted that the acquired properties were L.A.A..No.754/2008 & others. 7 nearer to Kureekkad junction in comparison to the properties covered by Exts.A2 and R5. The learned counsel referred to the judgment of the Supreme Court in Krishi Utpadan Mandi Samiti Sahaswan, District Badaun through its Secretary v. Bipin Kumar and Another (2004 (SC) 283) and argued that 15% enhancement every year could be granted on the value reflected in Exts.R1 to R4, which even according to the learned Sub Judge were purchases in due course by the diocese. The learned counsel ultimately requested that the appeals filed by the claimant be allowed in full. 5. All the submissions of Sri.Aloysius Thomas were very stiffly resisted by Sri.M.C.Cherian, learned standing counsel for the Railways. Sri.Cherian submitted that there was no warrant at all for interfering with the judgment of the Reference Court in favour of the claimants. According to him, neither Ext.A2 nor Ext.R5 were reliable documents. Sri.Cherian requested that the appeal preferred by the Government against the judgment and decree in L.A.R. No. 58/2006 be allowed. Sri.Cherian was supported in all his submissions by Sri.Basant Balaji, learned senior Government Pleader. L.A.A..No.754/2008 & others. 8 6. We have very anxiously considered the rival submissions addressed at the Bar. We have scanned the impugned judgment. We have made a reappraisal of the evidence which was available before the Reference Court. We cannot approve the action of the learned Sub Judge in placing reliance on Ext.R5 alone. According to us, Exts.R2 , R3 and R4 were also relevant documents. We are unable to accept the argument of Sri.Aloysious Thomas that Kureekkad is an urban area nor can we accept the argument of Sri.Cherian and the Government Pleader Sri.Basant Balaji that Kureekkad is an upcountry rural area. Kureekkad, in our view, is a semi urban area. Relying on the principles laid down by the Supreme Court in G.M.Oil & Natural Gas Cor.Ltd. v. R.Jivanbhai Patel & Anr. (2008 SAR (Civil) 894), we are of the view that during the relevant period land value in Kureekkad has been increasing at the rate of 10% per year. When the average value of the properties covered by Exts.R2 to R4 is calculated on that basis as on the date of Section 4 (1) notification in this case, it will be seen that the same comes to Rs.1,28,250/- per Aae. We notice that the court below has deducted 10% of the value revealed in Ext.R5 on the reason that L.A.A..No.754/2008 & others. 9 the property covered by that document had more locational advantages. According to us, the proper percentage to be deducted will be only 5% since it is in evidence that distance between the two properties is just 20 meters. The acquired properties were Church site and Ext.R5 property was also purchased for the purpose of constructing the new church. Thus value of the acquired property, if determined on the basis of Ext.R5 will be Rs.1,22,265/-. Taking the average of 1,28,250/- and Rs.1,22,265/- the value should comes to Rs.1,25,267.50 which we round off to Rs.1,25,000/- per Are. Thus According to us, as on the date of Section 4 (1) notification, the value of the property will be Rs.1,25,000/- per Are. This means that for the properties acquired in LAR No. 318/2006, the market value will have to be fixed at Rs.1,25,000/- per Are. Making 10% deduction, we refix the value of land acquired in LAR No.58/2006 at Rs.,1,12,500/- per Are. 7. The upshot of the above discussion is that L.A.A. Nos. 754/2008 and 1316/2008 will stand allowed. The value of the properties in L.A.A. No. 754/2008 is refixed at Rs.1,12,500/- per Are and the value of the property involved in L.A.A. L.A.A..No.754/2008 & others. 10 No.1316/2008 is refixed at Rs.1,25,000/- per Are. L.A.A. No.1422/2008 will stand dismissed. The parties are directed to suffer their respective costs. PIUS C.KURIAKOSE,JUDGE K.SURENDRA MOHAN, JUDGE dpk