IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 29TH SEPTEMBER 2009 / 7TH ASWINA 1931 LA.App..No. 403 of 2007() ------------------------- LAR.20/2003 of SUB COURT, VADAKARA .................... APPELLANT(S): RESPONDENT NO.2 ----------------------------- THE SECRETARY, BADAGARA MUNICIPALITY, BADAGARA, KOZHIKODE DISTRICT. BY ADV. SRI.P.K.VIJAYAMOHANAN SRI.O.V.MANIPRASAD RESPONDENT(S): CLAIMANTS & THE IST RESPONDENT --------------------------------------------- 1. KANDIYIL SUDHAKARA KURUP, S/O.AMMALU AMMA, RESIDING AT KANDIYIL NEAR PUBLIC LIBRARY, BADAGARA. 2. THE SPECIAL TAHASILDAR (LA), QUILANDI, KOZHIKODE DISTRICT. GOVERNMENT PLEADER SRI.P.K.BABU FOR R2 SRI.K.RAKESH ROSHAN FOR R1 SMT.THUSHARA.V FOR R1 THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 29/09/2009, ALONG WITH LAA NO. 419/2007 & CONNECTED CCASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ L.A.A.Nos.317, 322,324, 326,339,347,350,353, 366,367,377,397,403 & 419 of 2007 ------------------------ Dated this the 29th day of September, 2009 JUDGMENT Pius C.Kuriakose, J. All these appeals have been preferred by the Badagara Municipality, the requisitioning authority. The acquisition was for the purpose of construction of a link road connecting the C.C.Road to Viliappilly Road. Relevant Section 4 (1) notification was published on 27/4/1999. The award was passed on 29/5/2002. The Land Acquisition Officer awarded land value at the rate of Rs.7612.53/- per cent. The claimants produced various documents including Ext.A2 judgment of the same Reference Court in acquisition pertaining to other reaches of the same road, but pursuant to a notification published 10 years earlier. The Government produced Ext.B8 judgment, which was a judgment of the Reference Court pertaining to the acquisition for the same purpose pursuant to a notification published 10 years earlier. The learned Sub Judge did not become inclined to L.A.A.No.317/2007 & others. 2 place reliance on any of the documents produced by the claimants. What the learned Subordinate Judge did was to notice that under Ext.A2, the land value had been refixed at Rs.20,000/- per cent and that under Ext.B8, the land value had been refixed at Rs.15,000/- per cent. The learned Sub Judge took an average and concluded that as on the date of Exts.A2 and B8, value of the property as per those judgments was Rs.17,500/-. The learned Subordinate Judge would add at the rate of 10% every year for the period of 10 years which passed from the date of Section 4(1) notification relating to Exts.A2 and B8 till the date of Section 4(1) notification pursuant to which, the acquisition was made. Thus, the land value was refixed at Rs.35,000/- per cent. In these appeals, the requisitioning authority challenges the value refixed by the learned Sub Judge as excessive. It is urged that the lands were low lying lands and that they had to be raised by 5 metres, so as to enable the Municipality to accomplish its purpose of constructing the link L.A.A.No.317/2007 & others. 3 road. The action of the learned Sub Judge in making additions at the uniform rate of 10% every year is also comes up for strong attack in all these appeals. 2. The memorandum of Cross Objection (C.O. No.82/2007) has been filed by the claimant in L.A.A. No.322/2007, the appeal preferred by the requisitioning authority against the judgment and decree in L.A.R No.23/2003. In memorandum of Cross Objection, the decision of the learned Subordinate Judge is challenged and it is contended that the enhancement granted by the Reference Court is inadequate. In the cross objection it is claimed that the market value should have been refixed at Rs.1,00,000/- per cent as claimed in the claim statement filed before the Land Acquisition Officer and the Reference Court. 3. We have heard the submissions of Sri. Allen Pappali, learned counsel for the appellant, Sri.Parthasarathy, learned counsel for the Cross objector in L.A.A. No.322/2007, Sri.M.Gopikrishnan Nambiar and Sri.K.Rakesh Roshan, learned L.A.A.No.317/2007 & others. 4 counsel appearing for the various claimants and Sri.P.K.Babu, learned senior Government Pleader appearing for the Government. 4. Sri.P.K.Babu, learned senior Government Pleader would support all the submissions of Sri.Pappalli. The learned counsel Sri.Papalli submitted that the court below was not justified in making additions at a uniform rate of 10% for each year which passed after section 4(1) notification relating to the acquisition in question. This part of the Vadakara Municipality was actually rural area and that addition exceeding 5% per year was not at all justified, according to the learned counsel. The learned counsel submitted that lands were low lying lands and that huge amounts had to be expended by the Municipality, so that the Municipality's purpose of constructing link road could be accomplished. Sri.Parthasarathy, learned counsel for the cross objector would submit that the market value fixed by the L.A.A.No.317/2007 & others. 5 Reference Court is inadequate. According to him, having regard to the importance of the locality, which is in evidence, there was justification for refixing the value at Rs.1,00,000/- per cent. He would submit that it is not correct to say that this part of the Vadakara Municipality was rural and became urban only recently. Though it is true that no building existed on the lands under acquisition, in close proximity to the lands where existed commercial buildings and land under acquisition had commercial potentiality. The learned counsel pointed out that on account of the acquisition and the emergence of the Link Road at 5 metres away from the levels of the remainder land, the value of the remainder land has become reduced considerably. The counsel submits that this court may keep in mind this aspect of the matter while refixing the compensation. Sri.Rakesh Roshan and Sri.Gopikrishnan Nambiar would support all the submissions of Sri.Parthasarathy. Sri.Rakesh Roshan in particular would submit that the Land Acquisition Officer, who was examined as RW1, had L.A.A.No.317/2007 & others. 6 no answer when it was suggested to him in cross examination that land value was increasing in the area till 1989 at 15 to 20% every year. Referring to Ext.A1, the learned counsel submitted that Ext.A1 reveals land value of Rs.1,78,000/- per cent. Ext.A1 was executed by s Co-operative Society. The reasoning of the learned Sub Judge for rejecting Ext.A1 that it is executed by the Co-operative Society in favour of two of its members is not a sound reasoning at all. 5. We have very anxiously considered the rival submissions addressed at the Bar. We have made a through reappraisal of the evidence which was available before the court below. Even though the reasoning of the court below that Ext.A1 document cannot be relied on for the reason that a Co-operative Society is the executant of that document and that the document is in favour of two of its members, is not a sound reasoning, we are able to approve the action of the learned Subordinate Judge in L.A.A.No.317/2007 & others. 7 not placing reliance on Ext.A1. This is because there is no acceptable evidence regarding the comparability of the property under acquisition and the property covered by Ext.A1. On the available evidence it can be held that the property under acquisition was much inferior in value as well as quality to the property covered by Ext.A1. According to us also, the only documents which could have been safely relied on were Exts.A2 and Ext.B2 and the court below was justified in taking the average of the value reflected in these documents ( Rs.17,500/-.) as the basic figure. At the same time, we cannot approve the action of the learned Subordinate Judge in making additions at the rate of 10% per Are for passage of 10 years period between the date of Section 4(1) notification relating to Ext.A2 and Ext.B8 till date of Section 4 (1) notification in the present case. The Supreme Court in a recent decision in G.M.Oil & Natural Gas Corporation Ltd. v. R.Jivanbhai Patel & another (2008 SAR (Civil) 894) observed that the proper percentage to be added in rural L.A.A.No.317/2007 & others. 8 areas for passage of time is between 5 to 7.5% and that in urban area the same can be upto 15%. According to us, the area of the property under acquisition cannot be branded as an urban area. It was only rural area under the process of development as urban. The maximum percentage which could have been added per year in this case was 7.5% and when additions were made in that way the market value of the land will come to Rs.30,625/- which we round off to Rs.31,000/-. The result of the above discussion is that the market value of the land under acquisition is refixed at Rs.31,000/- in modification of the fixation done under the impugned judgment. The appeals are allowed as above. The Cross Objection is dismissed. The parties will suffer their respective costs. It is, however, made clear that on the total enhanced compensation to which the claimants become entitled by virtue of the refixation done under this judgment, the claimants will be entitled for all L.A.A.No.317/2007 & others. 9 statutory benefits admissible under Section 23 (1A), 23(2) and 28 of the Land acquisition Act. PIUS C.KURIAKOSE,JUDGE K.SURENDRA MOHAN, JUDGE dpk