IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 1ST SEPTEMBER 2011 / 10TH BHADRA 1933 LA.App..No. 1212 of 2008() -------------------------- LAR.28/2006 of SUB COURT, TIRUR .................... APPELLANT(S): CLAIMANT ---------------------- PARAPPURATH HAMZA, S/O.KUNHALAVI, THRIKKANDIYUR, TIRUR, MALAPPURAM, BY MUKTHIAR AGENT PARAPPURATH KUNHUTTY, 'JAREENA MANZIL', NIRAMARUTHUR, TIRUR, MALAPPURAM. BY SRI.T.KRISHNANUNNI (SENIOR) BY ADV. SRI.C.M.MOHAMMED IQUABAL RESPONDENT(S)/RESPONDENTS: --------------- 1. THE SPECIAL TAHSILDAR, LA(G), TIRUR. 2. THE EXE. ENGINEER, KERALA WATER AUTHORITY, PUBLIC HEALTH DIVISION, EDAPAL, MALAPPURAM DISTRICT. GOVERNMENT PLEADER SMT.T.T.JOSEPHINA SMT.AMBIKA DEVI, SC, KWA FOR R2 THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 01/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ L.A.A.No.1212 OF 2008 ------------------------ Dated this the 1st day of September, 2011 JUDGMENT Pius C.Kuriakose, J. The claimant is in appeal. The property situated within the limits of Tirur Municipal town was acquired pursuant to Section 4 (1) notification published on 7/1/1994. The acquisition was at the instance of the Kerala Water Authority for the construction of water tank. The Land Acquisition Officer awarded land value at the rate of Rs.12,430/- per cent on the basis of the basis documents. The evidence before the Reference Court consisted of Exts.A1 to A3 and Ext.C1 plan prepared by the Commissioner and Ext.C2 report submitted by the commissioner. The commissioner in Ext.C2 reported that the property under acquisition was similar in all respects to the property covered by Ext.A2. Ext.A1 was a post notification document executed three months after the date of promulgation of section 4(1) notification reflecting an approximate land value of Rs.89,000/- LAA.No.1212/2008 2 per cent. Ext.A1 was discarded by the learned Subordinate Judge and, in our opinion, rightly for the reason that Ext.A1 took in a substantial building and no separate value was shown in Ext.A1 for the building. Ext.A3 was a post notification document executed some four years subsequent to Section 4 (1) notification. According to us, the learned Subordinate Judge rightly discarded Ext.A3 from consideration. Ext.A2 was another post notification document executed about one year after the notification under Section 4 (1) was published. It was in respect of Ext.A2 that the commissioner in Ext.C2 reported that the property was similar in all respects to the acquired property. The learned Subordinate Judge discarded Ext.A2 for two reasons. Firstly, because the purchaser under Ext.A2 was having ownership over the adjacent property and hence he was very keen on purchasing Ext.A2 property . The second reason was that Ext.A2 was executed one year subsequent to section 4 (1) notification. 2. In this appeal various grounds are raised and Sri.T.Krishnanunni learned senior counsel for the appellant addressed us in detail on the basis of the grounds. According to LAA.No.1212/2008 3 the learned senior counsel, though the market value of the land acquired is to be determined as on the date of Section 4 (1) notification, ideally on the basis of pre notification documents there is no absolute prohibition against relying on post notification documents when pre notification documents are not available. There is no suggestion even in cross examination that Ext.A2 was an artificial document brought into existence for the purpose of seeking a higher claim in the prospective LAR. The construction put up by the requisitioning authority was a water tank and the emergence of a new water tank will not have any bearing on the land value in the locality. According to the learned senior counsel, even if the view of the learned Subordinate Judge that the purchaser under Ext.A2 was keen on purchasing the property is correct, then also appropriate deductions could be made and Ext.A2 itself could be relied on. 3. Submissions of the learned senior counsel were opposed very stiffly by the learned Standing counsel for the requisitioning authority, who was supported in all the submissions by the learned Government Pleader. According to the Standing Counsel, it is the correct value which has been awarded by the LAA.No.1212/2008 4 learned Sub Judge and there is no justification for granting any further enhancement . Post notification documents are not to be relied on at all , so submitted the learned standing counsel. 4. We have given our anxious consideration to the rival submissions addressed at the Bar. We have made quick survey of the evidence particularly Exts.C1, C2 and A2. Ext.A2, as already noticed, is a post notification document. Ext.A2 property was purchased by somebody who was having ownership over the adjacent property. The learned Subordinate Judge was, in our view, justified in taking the view that purchaser under Ext.A2 was very enthusiastic in purchasing Ext.A2 property and hence paid higher price than the market value of the property in the locality. We also notice that Ext.A2 was executed about one year after promulgation of Section 4 (1) notification. We are therefore, not inclined to award value reflected in Ext.A2. But, taking into account Ext.A2 to a certain extent and the finding of the advocate commissioner regarding the comparability of Ext.A2 property and the property under acquisition together with the oral evidence adduced by PW1, we feel that the rate presently fixed by the learned Subordinate Judge under the LAA.No.1212/2008 5 impugned judgment is too low. On our re- appreciation of the evidence on record, we are inclined to refix the value of the land under acquisition at Rs.24,000/- per cent. The same is accordingly refixed. The appeal will stand allowed to the above extent. The appellant will be entitled for all statutory benefits admissible under Section 23(2), 23(1A) and Section 28 of the Act on the total refixed compensation. However, while decree is drafted and provision is made for interest under Section 28, the period of 73 days of which the appeal was delayed will be excluded. The appeal will stand allowed, however without any order as to costs. PIUS C.KURIAKOSE,JUDGE C.K.ABDUL REHIM,JUDGE. dpk LAA.No.1212/2008 6