IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 9TH JULY 2009 / 18TH ASHADHA 1931 LA.App..No. 1133 of 2007() -------------------------- LAR.33/2005 of SUB COURT, VADAKARA .................... APPELLANTS / CLAIMANTS --------------------------------------- 1. SULAIKHA, W/O.CHANDROTH KUNHAMMED, RESIDING AT SULAIKHA MANZIL, NADAKKUTHAZHA VILLAGE, PUDUPPANAM DESOM, VATAKARA TALUK, P.O.PUDUPPANAM. 2. MASHOOD, S/O.CHANDROTH KUNHAMMED, DO. DO. 3. MUSTAFA, DO. DO. BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR RESPONDENTS / RESPONDENTS ---------------------------------------------- 1. THE SPECIAL TAHSILDAR (LA), NHI, KOZHIKODE. 2. THE EXECUTIVE ENGINEER, N.H.DIVISION, KOZHIKODE. BY GOVERNMENT PLEADER Smt. LATHA T. THANKAPPAN THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 09/07/2009, ALONG WITH LAA No. 371 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: kkms/ PIUS C. KURIAKOSE & P.Q.BARKATH ALI, JJ. = = = = = = = = = = = = = = == = = = = = = L.A.A. Nos. 1133 OF 2007 & 371 OF 2008 = = = = = = = = = = = = = == = = = = = = = Dated this the 9th day of July 2009. JUDGMENT Pius C. Kuriakose, J. These are appeals preferred by the claimants. The cases pertain to acquisition of land in Nadakkumthazha Village in Vadakara Taluk for the purpose of reconstruction of old bridge and Karimpanapalam and for the approach road and also for widening of the existing National Highway-17. The Section 4(1) Notification was published on 16.12.2004. The Land Acquisition Officer fixed land value at the rate of Rs.28,888.35 per cent. The reference court under the impugned judgment re-fixed the land value uniformly at Rs.50,000/- per cent. There was a claim in L.A.R. No. 33/2005 corresponding to L.A.A.No.1133/2007 for enhanced compensation towards value of building which existed on the property under acquisition in that case. That claim was completely turned down by the learned Subordinate Judge in the Judgment. In both the appeals, the claimants complain that the L.A.A. Nos. 1133 OF 2007 & 371 OF 2008 2 re-fixed market value by the Reference Court is inadequate in L.A.R. No.1133/2007. The appellant claimant placed reliance on the judgment of this Court in State of Kerala v. Kuruvila (2005 (3) KLT 580) and contend that the building in question being an 'A' Class building, the depreciation to be deducted from the first year onwards was 5/6 percent per year. On that basis it is urged that atleast a further amount of Rs.40,000/- should be awarded towards the value of the building. 2. We have heard the submissions of Sri.M.Gopikrishnan Nambiar, learned counsel for the appellant / claimant and those of Smt. Latha T.Thankappan, Senior Government Pleader appeared for the respondents. We have carefully gone through the impugned judgment. We have made a reappraisal of the evidence. We shall first consider the question of correct market value of the land under acquisition. The claimants rely mainly on Ext.A1 sale deed dated 19.03.2002 which is in favour of Reliance Company. Ext.A1 shows that the land was sold for a value of Rs.75,000/-. Claimants also rely on Ext.A2 sale deed dated 27.01.1998 executed by the Secretary of Vadakara Autorikshaw L.A.A. Nos. 1133 OF 2007 & 371 OF 2008 3 Drivers Co-operative Society in favour of two individuals. Ext.A2 reveals a land value of Rs.1,78,000/- per cent. The Advocate Commissioner deputed by the Court had submitted Ext.X1 report and Ext.X2 sketch. It was reported in Ext.X1 that the acquired property enjoyed more advantages than Ext.A1 property. It was also reported that unlike the acquired property Ext.A1 property did not have the direct frontage of National Highway-17. As regards, Ext.A2 it was reported that the property covered by Ext.A2 was nearer in distance to the new bus stand at Vadakara. The claimants produced Ext.X7 series of documents to prove that the transaction recorded in Ext.A2 is a genuine transaction. The learned Subordinate Judge did not place any reliance on Ext.A1 on the reason that Ext.A1 is executed not in favour of a private person and even held that Ext.A1 is purchased by Reliance company for a fancy price. As regards, Ext.A2 despite the production of all the documents which would show that Ext.A2 records a transaction in usual course of business, the learned Subordinate Judge did not blamed the claimant for not producing the Minutes Book recording the decision taken to assign the L.A.A. Nos. 1133 OF 2007 & 371 OF 2008 4 property. 3. Having considered the submissions addressed at the Bar and having made a reappraisal of the evidence we feel that the learned Sub-ordinate Judge was not at all justified in not placing any reliance on Ext.A1. The property under acquisition was superior to Ext. A1 property in view of it having direct frontage of National Highway-17. May be it is true that the purchaser being Reliance Company, there was no bargaining and the Company became willing to pay the price demanded by the vendor. At the same time, it cannot be forgotten that the price demanded by the vendor therein was the maximum price which was available at that time. To reject Ext.A1 on the reason that the purchaser is a Company and that the price paid is a fancy price, in our opinion, was not justified. We rely on Ext.A1 taking into account, the circumstances that Reliance Company was keen on purchasing the property and became willing to pay the price demanded by the vendor and re-fix the market value of the property under acquisition at the relevant time at Rs.55,000/- per cent. We are sure that the acquired property which enjoyed L.A.A. Nos. 1133 OF 2007 & 371 OF 2008 5 more advantages than Ext.A1 property would have fetched atleast that price for a willing seller from a willing purchaser. 4. Coming to the claim for further building value price in L.A.A.1133/2007. Even though we find merit in the submission of Mr. M.Gopikrishnan Nambiar that the correct depreciation to be deducted per year for A Class Building is 5/6 percent from the first year of construction, as rightly noticed by the learned Subordinate Judge, there is no legal evidence in the cases to hold that the building in question was 'A' Class building and also to determine as to what was the age of the building. We notice that no steps were taken by the appellant for facilitating the production of the detailed valuation statement relied on by the Land Acquisition Authority for passing their award. Even though Mr. M.Gopikrishnan Nambiar requested that an order of remand be passed, we are not inclined to accept that request. 5. The result is that both the appeals will stand allowed and the market value of the acquired property will stand refixed at Rs.55,000/- per cent. It is needless to mention that the claimants will be entitled for all statutory benefits admissible L.A.A. Nos. 1133 OF 2007 & 371 OF 2008 6 under Section 23(1A), 23(2) and 28 of the Land Acquisition Act on the total re-fixed compensation to which they become eligible by virtue of our re-fixation of the compensation under this judgment. Appeals are allowed to the above extent without any order as to cost. PIUS C. KURIAKOSE JUDGE P.Q.BARKATH ALI JUDGE kkms/