IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 20TH NOVEMBER 2009 / 29TH KARTHIKA 1931 LA.App..No. 987 of 2009() ------------------------- LAR.41/2003 of SUB COURT, PALA .................... APPELLANT(S): CLIAIMANTS ------------------------ 1. TESSY ALEX, MOOZHAYIL LALAM KARA AND VILLAGE, PALA. 2. ANNAKKUTTY, DO-DO- BY ADV. SRI.MATHEW JOHN (K) SRI.AJEESH K.SASI RESPONDENT(S): --------------- STATE OF KERALA, REP. BY THE DISTRICT COLLECTOR, KOTTAYAM. GOVERNMENT PLEADER SRI.SHYSON P.MANGUZHA THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 20/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ. ``````````````````````````````````````````````````````` L.A.A. No. 987 of 2009 B ``````````````````````````````````````````````````````` Dated this the 20th day of November, 2009 J U D G M E N T Pius C. Kuriakose, J. The claimants are in appeal. Their property situated admittedly in the heart of Pala Municipal town in close proximity to the Kurisupalli junction was acquired pursuant to Section 4(1) notification published on 08-04-2000 for the purpose of widening of Ettumanoor – Erattupetta State Highway. The Land Acquisition Officer awarded land value at the rate of Rs.80,233/- per Are. Being not satisfied, the appellants claimants facilitated a reference under Section 18 to the reference court. The evidence on the appellant's side consisted of Exts.A2 and A3 sale documents executed three years prior to the 4(1) notification reflecting land value of Rs.2 lakhs per cent. Ext.A4 is the valuation certificate issued by a private valuer AW6 recommending for a value of Rs.4 lakhs per cent. Exts.A5, A5(a) and A5(b) were separate sale deeds executed by different owners in favour of the Pala LAA.987/09 : 2 : Municipality ten months prior to Section 4(1) notification revealing land value of Rs.2 lakhs and Rs.1,68,000/- per cent respectively. Apart from that, there was a report of the Advocate Commissioner as Ext.C1. The Commissioner, on the basis of a local inspection conducted by him, recommended that the property was situated on the most important point in Pala Municipal town and he reported that the property under acquisition is far better than the property covered by Exts.A2 and A3. The oral evidence consisted of the testimonies of AW1, the claimant, AW2, the person who purchased the building which existed on the property. AW3 was a document writer who was examined to prove Ext.T1 fair value statement. Going by Ext.T1, value of the property under acquisition for the purpose of the stamp duty was fixed as Rs.1.6 lakhs, while the value of the property covered by Exts.A2 and A3 was fixed as Rs.35,000/- per cent only. AW4, the valuer – officer of the District Co-operative Bank, was examined to prove that the property under acquisition was valued by him in 1997 for a sum of Rs.3 lakhs per cent. AW5 was the Commissioner. AW6 was the author of Ext.A4 and AW7 was the Secretary of the Municipality LAA.987/09 : 3 : who was examined to prove Exts.A5, A5(a) and A5(b). AW8 was examined for proving the rent of the building, which existed on the property under acquisition. Yet another item which was on evidence was Ext.T2, the copy of the Municipal Council resolution to purchase the properties under Exts.A5, A5(a) and A5(b). The learned Sub Judge did not place reliance on any of the documents produced in support of the claim. Nevertheless, the learned Sub Judge accepted the Commissioner’s report and found that the property under acquisition was perhaps the most valuable one in Pala Town and on that basis after discarding the documents put in evidence, the learned Judge enhanced the value at 122% over what was awarded by the Land Acquisition Officer and refixed the same as Rs.2 lakhs per Are. 2. Sri.Mathew John drew our attention to the entire evidence on record. He pointed out that the property covered by Exts.A2 and A3 were far inferior to the property under acquisition. For Exts.A2 and A3, three years prior to the acquisition, the land value paid was Rs.2 lakhs per cent. It is not suggested at all in cross examination that Exts.A2 and A3 are not genuine LAA.987/09 : 4 : documents and that the value revealed therein is not the correct value actually paid. Learned counsel for the appellants referred to Ext.A4 valuation report and submitted that the same was duly proved by the oral evidence which was given by AW6. The learned counsel also took us to Ext.A5(a) and A5(b). He submitted that the learned Judge discarded Ext.A5, A5(a) and A5 (b) on the reason that the Pala Municipality which had already got free surrender of the properties lying adjacent to the properties covered by Exts.A5, A5(a) and A5(b), for purchasing the property covered by these documents became willing to pay higher value than the correct market value. According to the learned counsel, the Municipality could have got the powers of eminent domain exercised and acquired those properties. The Municipality will never pay a fancy price and will only pay the correct market price. The learned counsel submitted that the property under acquisition was the most valuable in the town Exts.A3 and A4 may be taken as a proper guide. Appropriate additions may be given for passage of time. Further additions may be given for the superiority of the property under acquisition and the appeal may LAA.987/09 : 5 : be allowed in full, so requested Mr.Mathew John. 3. All the submissions of Sri.Mathew John were resisted by the learned Government Pleader. Our attention was drawn by the learned Government Pleader to the judgment of this court in LAA.No.1269/2009, wherein this Court dismissed the appeal preferred by the government under which the reference court had refixed the marked value at Rs.2 lakhs per Are. According to the learned Government Pleader, granting compensation over and above that rate may necessitate reopening of even settled cases. The learned Government Pleader would support the impugned judgment on the various reasons stated by the learned Sub Judge in the judgment. 4. We have considered the rival submissions. We have carefully scanned the evidence, particularly Exts.A2, A3, A4, A5, A5(a) and A5(b). We have gone through the impugned judgment and we are in agreement with the learned Sub Judge that the property under acquisition was the most valuable property in the area of the Pala Municipal town. We are unable to approve the action of the learned Judge in discarding Exts.A2, A3, A5, A5(a) LAA.987/09 : 6 : and A5(b). It is not suggested by the government in cross examination of the witnesses that these documents are created for the purpose of staking higher claims in land acquisition cases. In fact, it would appear that the learned Judge also was of the opinion that these documents record genuine transactions. The learned Sub Judge held that properties covered by these documents were not comparable to the acquired property. True the properties were not similar but the fact remains that the property under acquisition was much more superior and valuable than those covered by these documents. If the property covered by Exts.A2, A3, A5, A5(a) and A5(b) could fetch an average value of Rs.2,00,000/-(approximate) the property under acquisition should fetch a higher value. The learned Judge was expected to redetermine the market value of the land on the basis of the materials which came on record. We notice that Exts.A3 and A4 are executed three years prior to the date of 4(1) notification. By all standards the value of the properties covered by Exts.A2 and A3 situated on the market road in Pala would have enhanced by 12.5% per year. Thus, we add 37.5% to the value reflected in LAA.987/09 : 7 : Exts.A2 and A3 means that the value of the properties covered by Exts.A2 and A3 which will come to Rs.2,75,000/-. We are not inclined to make any addition in the value reflected in Exts.A5, A5 (a) and A5(b). The average of the value of properties covered by Exts.A2 and A3 as on the date of notification and the value of Exts.A5, A5(a) and A5(b) will be Rs.2,14,333/-. As already indicated, the learned Sub Judge found that the acquired property was superior property. For the superiority, we add 15% and the amount will come to Rs.2,46,482/- which we round off to Rs.2,50,000/-. We are of the view that the correct market value of the property at the relevant time will be at least Rs.2,50,000/-. We allow the appeal and in modification of the judgment of the reference court, we refix at Rs.2,50,000/- per cent. The appeal is allowed as above. It is made clear that on the total enhancement of compensation by virtue of this judgment the appellants will be entitled for all statutory benefits admissible under sections 23(1A) and 28 of the Land Acquisition Act. We clarify that this decision has been taken by us on the basis of the evidence which was available on record, taking into account the uniqueness of the LAA.987/09 : 8 : property under acquisition. This decision will not be a precedent for any other case relating to acquisition for the same purpose and pursuant to the same notification. (PIUS C. KURIAKOSE, JUDGE) (K.SURENDRA MOHAN, JUDGE) aks