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 28TH MAY 2009 / 7TH JYAISHTA 1931 LA.App..No. 954 of 2002() ------------------------- LAR.527/1998 of PRINCIPAL SUB COURT, NORTH PARAVUR .................... APPELLANT : CLAIMANT ------------------------- RAPHY S/O. JOSEPH, MANGALI MALPAN HOUSE, VADAKKUMBAGHAM, MANJAPRA. BY ADV. SRI.P.N.RAMAKRISHNAN NAIR SRI.P.VISWANATHAN RESPONDENT : RESPONDENT ------------------------- STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO THE GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. BY SR. GOVERNMENT PLEADER SRI BASANT BALAJI THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 28/05/2009 ALONG WITH LAA 1506, 1552, 1774 & 1852 OF 2002 AND LA.A. 264, 296, 318, 323 & 713 OF 2003, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & P.Q. BARKATH ALI, JJ. -------------------------------------------------------------- L.A.A. 954, 1506, 1552, 1756, 1774 & 1852 of 2002 and L.A.A. 264, 296, 318, 323, 713 & 1233 of 2003 -------------------------------------------------------------- Dated: MAY 28, 2009 JUDGMENT Pius C. Kuriakose, J. All these appeals are preferred by the claimants being dissatisfied by the award of the Land Acquisition Reference Court. The cases pertain to acquisition for the Edamalayar Irrigation Project, Chalakkudy. LAA 954/2002 corresponds to LAR 527/1998, LAA 1506/2002 corresponds to LAR 645/1998, LAA 1552/2002 corresponds to LAR 526/1998, LAA 1756/2002 corresponds to LAR 528/1998, LAA 1774/2002 corresponds to LAR 530/1998, LAA 1852/2002 corresponds to LAR 646/1998, LAA 264/2003 corresponds to LAR 525/1998, LAA 296/2003 corresponds to LAR 529/1998, LAA 318/2003 corresponds to LAR 576/1998, LAA 323/2003 corresponds to LAR 569/1998, LAA 713/2003 corresponds to LAR 566/1998, LAA 1233/2003 corresponds to LAR 571/1998. 2. LAA 954/2002 and 1506/2002 and LAA 1233/2003 and L.A.A. 954, 1506, 1552, 1756, 1774 & 1852 of 2002 and L.A.A. 264, 296, 318, 323, 713 & 1233 of 2003 2 323/2003 pertain to acquisition pursuant to sec.4(1) notification published on 9.1.1994 while the other appeals pertain to acquisition pursuant to notifications dated 17.7.1995 and 19.7.1995. All the properties were situated in Ayyampuzha village. The land acquisition officer categorised the properties under acquisition into as many as 8 categories. We, in these appeals, are concerned only with categories II, IV and V. The properties in Category II were properties having direct frontage of Panchayat road. Properties in Category IV were properties having access to the PWD tarred road through a 3 meter wide road. Properties in Category V were properties having access to Panchayat road through a two meter wide road. As against claims ranging between Rs.20,000/- per cent to Rs.50,000/- per cent, the land acquisition officer awarded land value at the rate of Rs.4700/- per Are for properties in Category II. Similarly, he awarded land value at the rate of Rs.4200/- per Are for properties in Category No.IV. For properties in Category No.V, he awarded land value at the rate of Rs.3200/- per Are. LAR Nos.527/98 and 647/98 were disposed of by the Reference Court by a common judgment dated 30.11.2001 while LAR Nos.526/98, L.A.A. 954, 1506, 1552, 1756, 1774 & 1852 of 2002 and L.A.A. 264, 296, 318, 323, 713 & 1233 of 2003 3 528/98 and 646/98 were disposed of by another common judgment dated 26.11.2001. The other LAR Cases were all disposed of by separate judgments on various dates. The evidence adduced on the side of the claimants consisted of Exts.A1 to A5, R1 to R5 and the oral testimonies of Aws.1 to 3 and RW.1. Ext.A1 was a sale deed dated 6.2.1995 (subsequent to the notification dated 9.5.1994, but prior to the notifications dated 17.7.1995 and 19.7.1995). Ext.A1 revealed a centage value of Rs.5988.75. Ext.A2 was a post notification document dated 6.11.1996 which was proved by AW.2, son of the vendor, and the same revealed a land value of Rs.8500/- per cent. Ext.A3 was another sale document dated 6.2.1995 which was subsequent to the notification dated 9.5.1994, but prior to the other notifications. Ext.A3 revealed a land value of Rs.5000/- per cent. Ext.A4 is an award passed by the land acquisition officer in an acquisition of property in the same village for the same purpose pursuant to a fresh notification dated 29.11.1996. Ext.A4 award was duly proved through AW.2 who was the second claimant/second awardee in Ext.A4. Ext.A4 revealed a land value of Rs.14,675/- per Are. Ext.A5 is the judgment of L.A.A. 954, 1506, 1552, 1756, 1774 & 1852 of 2002 and L.A.A. 264, 296, 318, 323, 713 & 1233 of 2003 4 this Court in LAA 903/1996 series. Ext.A5 was in respect of acquisition of property in the same village for the same purpose, but pursuant to a notification of the year 1990. Ext.R5 was the basic document and Exts.R1 to R4 were the note to award, sketch, mahazar and the valuation statement. 3. We have heard the submissions of Mr. P.Viswanathan, learned counsel for the appellants in LAA Nos.954/02, 1506/02,1552/02, 1756/02, 1852/02, 1774/02, 264/03 and 296/03 and also those of Mr. Firoz K. Robin, learned counsel appearing for the appellants in LAA Nos.713/03, 318/03, 323/03 and 1233/03. We also heard the submissions of Mr. Basant Balaji, learned Senior Government Pleader, for the Government. 4. Mr. P.Viswanathan and Mr. Firoz K. Robin would assail the determination of market value by the Reference Court on the various grounds raised in the memoranda of appeals. According to them, the value presently fixed by the Reference Court is far below the correct market value of the property. Strong reliance was placed by the learned counsel on Ext.A4. He submitted that Ext.A1 was excluded from consideration in LAR Nos.527/98, 648/98, 571/98 and 569/98 on the technical reason that the said L.A.A. 954, 1506, 1552, 1756, 1774 & 1852 of 2002 and L.A.A. 264, 296, 318, 323, 713 & 1233 of 2003 5 document is a post-notification document. Learned counsel pointed out that as far as the other cases are concerned, the said notification was a pre-notification document. The Government cannot have a case that Ext.A1 document is not a genuine document since the Government has relied on Ext.A1 document itself for passing award in Ext.A4 case. The learned counsel also submitted that the Government cannot have a case that during the period between the relevant sec.4(1) notifications in these cases, there was an upsurge in price, since the awarding officer has fixed the same rate of value for similar properties under both these awards. The learned counsel further submitted that in terms of Ext.A4, the market value of properties in Category No.II as on 29.11.1996 which is just one year subsequent to the notification of 17.7.1995 and 19.7.1995 is Rs.14,675/- per Are. According to them, since there is no evidence to hold that during the period of one year from 17.11.1995 to 29.11.1996 there has been upsurge of price for properties in Category No.II, the same value as awarded in Ext.A4 can be granted. 5. The submissions of the learned counsel for the appellants were forcibly resisted by Mr.Basant Balaji. He L.A.A. 954, 1506, 1552, 1756, 1774 & 1852 of 2002 and L.A.A. 264, 296, 318, 323, 713 & 1233 of 2003 6 submitted that it is more or less the correct market value of the property at the relevant time which has been arrived at by the court below and there is no warrant for granting any enhancement. There is no comparison between the properties covered by Ext.A4 and the acquired properties in these case, submitted the learned Government Pleader. 6. We have very anxiously considered the rival submissions addressed above. We have gone through the records which are available before us. As rightly submitted by the learned counsel for the appellants, the Government cannot legitimately contend that there has been much upsurge in price during the period between the notifications of 9.7.1994 and 17.7.1995 since it is seen that the awarding officer under the awards pursuant to these notifications has fixed the same price for properties in a given category. Ext.A1 was rejected by the Rent Control Court on the technical reason that the same is a post-notification document. Here again we find that Ext.A1 can be branded as a post-notification document only in respect of cases pursuant to the notification dated 9.5.1994. In respect of the other cases, Ext.A1 was a pre-notification document. That Ext.A1 is a L.A.A. 954, 1506, 1552, 1756, 1774 & 1852 of 2002 and L.A.A. 264, 296, 318, 323, 713 & 1233 of 2003 7 genuine document cannot be of much dispute since the land acquisition officer has relied on Ext.A1 while passing Ext.A4 award and Ext.A5 is the judgment of this Court in acquisition for the same purpose pursuant to a notification which was five years prior to the notification of 1995. Under Ext.A5 this Court has fixed the land value of properties similar to properties ins Category II at Rs.5750/-. Following the principles laid down by the Supreme Court in G.M.Oil and Natural Gas Cor. Ltd. v. R. Jivanbhai Patel and Another – 2008 SAR (Civil) 894, it has to be taken that the increase per year in the land value in the area of the acquired properties which is mostly rural cannot be more than 6% per year. Adopting the said principle, on the basis of Ext.A5, the value of Ext.A5 property as on the date of the notification of 1995 can be arrived at Rs.7495/-. At the same time, Ext.A4 is a document having considerable probative value. Ext.A4 is binding on the Government. While passing Ext.A4, as already indicated, Ext.A1 document has been relied on as a genuine transaction. Ext.A4 is of 6.1.2000 and, if appropriate deductions are made on the value revealed by Ext.A4, it can be concluded that the value of Ext.A4 property as on the date of the L.A.A. 954, 1506, 1552, 1756, 1774 & 1852 of 2002 and L.A.A. 264, 296, 318, 323, 713 & 1233 of 2003 8 1995 notification is Rs.13,000/- per Are. Determination of market value in land acquisition cases will involve a certain amount of guess work and evaluation of imponderable. When guess work is adopted for arriving at value, the question to be considered is whether it is a good guess that the court or the officer has made. According to us, any guess which has got some foundation on the evidence on record will be a good guess. Exts.A4 and A5 are valuable items of evidence and drawing necessary conclusions on the basis of Exts.A4 and A5 and the other evidence available on record, we are of the view that the correct market value of the properties in Category No.II as on the dates of all the notifications involved in these cases is Rs.10,000/- per Are. Relying on Ext.A5, it is not difficult to deduce that the value of that property as on the date of 17.7.1995 and 19.7.1995 notifications was Rs.7475/-. At the same time the probative value of Ext.A4 cannot also be ignored. Ext.A4 is an award passed by the land acquisition officer pursuant to a notification dated 29.11.1996 and for the same purpose and in the same village. Under Ext.A4, relying on Ext.A1, the land acquisition officer has awarded land value at Rs.14675/- per Are. L.A.A. 954, 1506, 1552, 1756, 1774 & 1852 of 2002 and L.A.A. 264, 296, 318, 323, 713 & 1233 of 2003 9 Thus, according to the land acquisition officer, Ext.A1 is a genuine transaction. That is why he relied on Ext.A1 while passing Ext.A4. But we notice that Ext.A4 is pursuant to a notification which is more than one year subsequent to 1995 notification. Some deduction necessarily has to be made. We deduct Rs.1674/- and deduce that if Ext.A4 is a dependable document, the value will come to Rs.13000/- per Are. Taking both Exts.A4 and A5 into account, the market value of properties in category II should come to Rs.10,486/- per Are. We round off that amount to Rs.10,000/- per Are and fix the market value of properties covered by the 1995 acquisition in Category No.II at Rs.10,000/- per Are. If the ratio fixed by the awarding officer under his award between the various categories, to which there cannot be any objection from the side of the Government, is maintained, the value of properties in Category No.IV will be Rs.8900/- per Are. For Category No.V, we fix the land value at Rs.6800/-. 8. The appellant in L.A.A.1233/2003 has yet another grievance. On the acquired property in his case, there existed a residential building, compound wall, well, water tank, latrine and L.A.A. 954, 1506, 1552, 1756, 1774 & 1852 of 2002 and L.A.A. 264, 296, 318, 323, 713 & 1233 of 2003 10 bathroom. The awarding officer adopting the PWD schedule of rates had fixed the value of the residential building and the other structures at Rs.4669/-. The appellant claimed refixed value of Rs.1,25,500/- for the building, Rs.40,500/- for the compound wall and Rs.7,500/- for other structures on the basis of Exts.A3 and A4. Exts.A3 and A4 were reports of an advocate commissioner and an engineer filed before the local Munsiff Court in a suit filed by the appellant. The engineer was examined also before the reference court. But, while the engineer stuck by his report, he confessed before the reference court that his appointment was made not by the Munsiff court, but by the Advocate commissioner. The reference court did not become inclined to accept Exts.A3 and A4 and accordingly turned down the appellant's claim for enhancement towards value of the building and other structures completely. Having examined the materials and having considered the rival submissions in the context of the claim for enhancement, we are of the view that there was justification for granting some enhancement atleast by taking into account the ground reality that even the public works department tenders out its building work at rates higher than L.A.A. 954, 1506, 1552, 1756, 1774 & 1852 of 2002 and L.A.A. 264, 296, 318, 323, 713 & 1233 of 2003 11 its own schedule of rates. We feel having regard to the circumstance of this case that the appellant is eligible for further amount of Rs.25,000/- towards value of the building, compound wall and other structures. Accordingly, we award an additional amount of Rs.25,000/- to the appellant in L.A.A. No.1233/2003 on that ground. 9. The result of the above discussion is that all these appeals will stand allowed to the above extent. All the appellants will be entitled for enhancement of compensation on the basis of the refixation of the market value as made above. It is needless to mention that the parties will be entitled for all statutory benefits admissible to them under sec.23(2), 23(1A) and 28 of the Land Acquisition Act on the total amount of compensation which is admissible to them. The parties will suffer their respective costs in these appeals. PIUS C. KURIAKOSE, JUDGE P.Q. BARKATH ALI, JUDGE mt/- L.A.A. 954, 1506, 1552, 1756, 1774 & 1852 of 2002 and L.A.A. 264, 296, 318, 323, 713 & 1233 of 2003 12 PIUS C. KURIAKOSE & P.Q. BARKATH ALI, JJ. -------------------------------------- L.A.A. 954, 1506, 1552, 1756, 1774 & 1852 of 2002 and L.A.A. 264, 296, 318, 323, 713 & 1233 of 2003 JUDGMENT ------------------------------------- Dated: MAY 28, 2009