IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 17TH MARCH 2011 / 26TH PHALGUNA 1932 LA.App..No. 612 of 2010(C) -------------------------- LAR.198/2005 of PRINCIPAL SUB COURT,KOTTAYAM .................... APPELLANT(S): CLAIMANT: ------------------------------------------ M.K.PONNAPPAN, S/O.RAMAN KUTTAPPAN, KARIPPURATHU, ARPOOKKARA. BY ADV. SRI.MATHEW JOHN (K) RESPONDENT(S): RESPONDENTS: ---------------------------------------------------- 1. STATE OF KERALA , REPRESENTED BY THE DISTRICT COLLECTOR, KOTTAYAM,. 2. THE EXEXCUTIVE ENGINEER, P.W.D.ROADS DIVISION, KOTTAYAM. R1 & R2 BY GOVERNMENT PLEADER SMT. T.T. JOSEPHINA THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 17/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss PIUS C. KURIAKOSE & N.K. BALAKRISHNAN, JJ. = = = = = = = = = = = = = = = = L.A.A. NO. 612 OF 2010 = = = = = = = = = = = = = = = = Dated this the 17th day of March, 2011. J U D G M E N T Pius C. Kuriakose, J. The claimant is the appellant. His land in Kaipuzha village was acquired for the formation of a road to the Kuttampuram Bridge. The Land Acquisition Officer would include a portion of the land in the category of dry lands and awarded to that portion the land value at the rate of Rs.4,390/- per cent. Remaining portion was included by him in the category of wet lands and he awarded to that portion land value at Rs.135/- per cent. There existed a building upon the property a portion of which fall within the alignment. The total extent of the building was about 940 sq.ft. For this L.A.A. NO. 612 OF 2010 -:2:- building portion which fell within the alignment the Land Acquisition Officer did not award any compensation for the reason that the claimant himself was permitted to remove the above portion and to take the materials himself. 2. Before the Reference Court one of the contentions raised by the appellants was that there was no justification for categorizing the lands under acquisition into dry lands and wet lands. Even the portion which was categorized as wet lands were dry lands at the time of acquisition. It was on Ext.A3 valuation report and C1 Commissioner's report obtained in a suit filed by the appellant that he relied on in respect of his claim for compensation for the building. The Commissioner had reported that the building was worth Rs.2,56,565/-. After making deductions the Commissioner fixed the L.A.A. NO. 612 OF 2010 -:3:- same at Rs.2,30,905/-. The appellant mainly relied on Ext.A2 document in support of his claim for enhanced land value. Ext.A2 was executed on 3.8.99, some 1½ years prior to the relevant notification. It reflected a value of Rs.20,000/- per cent. Ext.A2 was duly proved by the appellant by examining AW2 who was President of the Co-operative Bank, who were vendees under Ext.A2. Even though to AW2 it was suggested that it was a fancy price that had been paid by the Bank, he denied the same. The learned Subordinate Judge did not place reliance on Ext.A2. The learned Subordinate Judge did not award any compensation for the building for the reason that the entire materials of the building that had to be demolished on account of the acquisition was taken by the appellant himself. The Court below was not impressed by the L.A.A. NO. 612 OF 2010 -:4:- evidence of the appellant regarding categorization as wet lands or dry lands. Finally what the Court below did was to do guess work on the basis of the oral evidence and refix the market value of the dry lands under acquisition at Rs.6,146/- per cent and that of wet lands under acquisition at Rs.9,000/- per cent thus awarding a uniform enhancement of 40%. 3. In this appeal, appellants have raised grounds challenging judgment of the Reference Court in various respects. It is urged that the Court below should have found the entire property to be in the category of dry lands. It is also urged that at least Rs.50,000/- should have been awarded as compensation for the building. It is further urged that Ext.A2 should have been relied upon and a uniform rate of Rs.27,000/- should have been fixed for the L.A.A. NO. 612 OF 2010 -:5:- entire property. 4. Sri.Mathew John.K, learned counsel appearing for the appellant addressed very strong arguments based on the various grounds and drew our attention to the evidence on record and also to the judgment of the Reference Court. 5. Smt.T.T.Josephina, learned Government Pleader would oppose the submissions of Mr.Mathew John very forcefully. According to her Ext.A2 was not a normal transaction. Purchaser Bank was keen on purchasing the property and they paid a fancy price. It is not a normal transaction at all, according to her. As regards plea of compensation for the building Smt.T.T.Josephina submitted that neither Ext.A3 nor Ext.C1 will give any idea to this Court as to what was the extent of the building which had to be removed because of the acquisition. She L.A.A. NO. 612 OF 2010 -:6:- also submitted that as the appellant himself has taken the entire building materials he cannot claim further compensation. 6. Smt.T.T.Josephina would also submit that there was justification for categorizing a portion of the property as dry land and wet lands. 7. We have anxiously considered the arguments addressed at the bar. We have applied our mind to those items of evidence to which our attention was drawn. Particularly we have gone through the mahazar prepared at the time when the property was taken over. The claim of the appellant is that the properties which were treated as wet lands should have been treated as dry lands. Ext.R4 is a mahazar prepared at the time when the so called wet portion of the land was taken over. A reading of the mahazar would L.A.A. NO. 612 OF 2010 -:7:- show that at that time the property was not wet land. It is seen that the property by that time had been filled up with soil. At the same time we have reason to believe that the acquired property had been filled up with soil only at some time immediately previous to the preparation of the mahazar because it is seen from the mahazar itself that there were no improvements and not even vegetation at the time when the mahazar was prepared. We are not inclined to treat the property treated by the Land Acquisition Officer and by the Court as wet lands to be equal to the property treated as dry land. At the same time we find some force in the submissions of Sri.Mathew John that the property was not wet land as on the date of acquisition. We fell that as the property had been reclaimed at the time of the acquisition L.A.A. NO. 612 OF 2010 -:8:- the property treated as wet lands is entitled to be awarded 25% of the value to be awarded to the dry lands involved in the acquisition. 8. We shall now deal with the compensation if any to be paid to the appellant for the building portion which had to be removed. The Land Acquisition officer as well as the Land Acquisition Court have denied any compensation towards the building for the reason that the appellant himself was permitted to take all the building materials. According to us the approach of the Land Acquisition Officer as well as that of the Court was rather pedantic and unrealistic. The appellant became constrained to remove a portion of his building only because of the acquisition. It is in evidence that even the balance portion of the building had become worthless and appellant had to remove the entire L.A.A. NO. 612 OF 2010 -:9:- building. We feel that some compensation has to be awarded to the appellant withstanding the fact that the appellant himself could take the entire materials obtained by the demolition of the building. But as there is no sufficient data available regarding the extent of the building which fall within the alignment, we can only award compensation on the basis of guess work. According to us on a reasonable guess based on Exts.A1 and A3 the appellant can be awarded a total compensation of Rs.25,000/- towards compensation for the building portion which fell within the alignment area. We award that amount to the appellant. 9. Now we come to the question of fixation of market value for land. Ext.A2 has been completely discarded from the reckoning by the Land Acquisition Officer as well as by the Land L.A.A. NO. 612 OF 2010 -:10:- Acquisition Court. The Land Acquisition Officer discarded Ext.A2 after observing that the properties covered by Ext.A2 and the acquired property are similar for the reason that in Ext.A2 it is a high price that is shown. It is not observed by the Land Acquisition Officer that the purchase under Ext.A2 was for a fancy price on account of any special interest over the property. Ext.A2 has been proved through AW2. We have gone through the entire evidence adduced by AW2 while we cannot accept the submissions of the learned Government Pleader that under Ext.A2 vendee Bank was very enthusiastic to purchase the property covered by Ext.A2 and paid a fancy price, we feel that the price paid by the vendee for Ext.A2 was much higher than the value which prevailed in the locality at that relevant time. The vendee/Bank L.A.A. NO. 612 OF 2010 -:11:- was having other properties adjacent to Ext.A2 property including the Bank's premises itself. According to us the price of the property covered by Ext.A2 at the time of Ext.A2 should have been at least Rs.13,500/- per cent on that date. We are not inclined to make any additions for determining the value of the acquired property as there is no evidence in this case as to what was the rate of escalation in that area. As the Land Acquisition Officer himself has found that Ext.A2 property to be similar to the acquired property, we fix the market value of property treated as dry lands by the Land Acquisition Officer at Rs.13,500/- per cent. Hence modifying the judgment and decree of the Reference Court we refix the value of the property treated as dry lands by the Land Acquisition Officer at Rs.13,500/- per cent. As L.A.A. NO. 612 OF 2010 -:12:- we have already found the value of the property treated as wet lands to be 25% of the value of dry lands, we refix the value of the properties treated as wet lands by the Land Acquisition Officer at Rs.3375/- per cent. The appeal is allowed to the above extent. The parties will be entitled to all statutory benefits admissible which are provided under Sections 23(2), 23(1A) and S.28 of Land Acquisition Act. The parties shall suffer their respective costs. PIUS C. KURIAKOSE,JUDGE. N.K. BALAKRISHNAN,JUDGE. ul/-