IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MRS.JUSTICE M.C.HARI RANI TUESDAY, THE 13TH JANUARY 2009 / 23RD POUSHA 1930 LA.App..No. 1031 of 2008() -------------------------- LAR.252/2004 of I ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT(S): 1ST RESPONDENT. ----------------------------- STATE OF KERALA, REPRESENTED BY THE SPECIAL TAHSILDAR, LA (PWD), (SC), THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.BASANT BALAJI RESPONDENT(S): CLAIMANTS. ------------------------- 1. BERKUMANS, TC 47/941, POONTHURA, THIRUVANANTHAPURAM.(DIED) 2. WILFRATTA BERKUMANS, W/O. BERKUMANS, T.C.69/1757, POONTHURA POST, THIRUVANANTHAPURAM. 3. BERNABAS, S/O. LATE BERKUMANS, T.C.47/941, POONTHURA, THIRUVANANTHAPURAM. 4. RACHEL MARRY, D/O. LATE BERKUMANS, T.C.47/941, POONTHURA, THIRUVANANTHAPURAM. 5. RACHEL ANASWARA, D/O. LATE BERKUMANS, T.C.47/941, POONTHURA, THIRUVANANTHAPURAM. 6. SUREKHA, D/O. LATE BERKUMANS, T.C.47/941, POONTHURA, THIRUVANANTHAPURAM. 7. JIJY, D/O. LATE BERKUMANS, T.C.47/941, POONTHURA, THIRUVANANTHAPURAM. ADV. SRI.R.MANOJ FOR R2&4-7 Death of R1 is recorded vide order dated 13-01-09 in memo of Cf.No.6628/08. THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 13/01/2009 ALONG WITH LAA.NOS. 882/08, 1082/08, 1089/08, 1359/08, 973/08, 946/08, 988/08, 1028/08 & 929/08, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE & M.C.HARI RANI, JJ. - - - - - - - - - - - - - - - - - - - - - L.A.A.NOs.1031, 882, 1082, 1089,1359, 973, 946,988, 1028, 929 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of January, 2009 JUDGMENT Pius.C.Kuriakose, J. These are all appeals preferred by the government challenging enhancement of land acquisition compensation, awarded by the Subordinate Judges Court, Thiruvananthapuram in land acquisition reference cases. The reference cases pertained to acquisition of land in Muttathara village within the limits of Thiruvananthapuram city for the construction of Moonathumukku bridge and approach road. The relevant section 4(1) notification was published on 16-02-2001. The land acquisition officer categorised lands under acquisition into two categories. Properties in category No.1 were properties which had direct frontage of road and properties in category No.2 were properties which did not have such frontage. For properties in category No.1, the land acquisition officer awarded land value at the rate of Rs. 42,538/- per Are and for the properties in category No.2, he awarded land value at the rate of Rs. 34032/- . LAA.No.1031/08 & connected cases 2 2. Before the reference court, the parties in the first four cases which pertain to acquisition of land in category No.2 relied on Ext.A1, copy of sale deed No. 3482/99 of Sub Registry, Thiruvananthapuram and in the remaining cases pertaining to lands in category 1, the evidence on the side of the claimants mainly consisted of Ext.A1, copy of sale deed No. 558/99 of the Sub Registry, Thiruvananthapuram. The oral evidence in the first four cases was given by the claimants alone. In the first four cases, the claimants did not take out any commission for having a comparative assessment of the properties covered by Ext.A1 relied on by them and the properties under acquisition. Those claimants did not take out even a commission to substantiate their claim for compensation on account of diminution of land value of reminder properties and also on account of enhanced land value for the structures which exist on the properties. In the other cases however a commission was taken out and the commissioner filed his report. Advocate commissioner was examined also. 3. On an evaluation of the evidence, the reference court LAA.No.1031/08 & connected cases 3 enhanced the value of properties in category No.1 to Rs. 1,40,000/- per Are. This the learned Judge did, relying on the recitals in the documents produced by the claimants and the oral testimonies of the claimant. In the cases pertaining to acquisition of properties in category No.1, the reference court virtually accepted the commissioner's report and the testimony of commissioner and awarded compensation at various rates stated in the judgments towards value of structures and also towards shifting charges wrongly referred in some of the cases as compensation for loss of earnings. Surprisingly, even in those cases pertaining to acquisition of land in category No.2 where no commission had been taken out and reports obtained, the court would award enhanced compensation towards value of structures and also towards diminution of land value. 4. We have heard the submissions of Sri.Basant Balaji, learned Government Pleader and also those of Sri.R.Manoj, learned counsel for the claimants. Sri.Basant Balaji would argue that the reference court was not at all justified in doing away with the categorisation of the properties under acquisition which had been LAA.No.1031/08 & connected cases 4 made by the land acquisition officer on a rational basis. Learned Government Pleader submitted that there was difference between the values of the properties having direct road frontage and those properties which did not have direct road frontage. Sri.Basant argued that in the four cases pertaining to lands in category No.2, the reference court has awarded enhanced compensation towards value of structures and also towards injurious affection of the remainder properties relying only on the oral testimony of the respective claimants. He also argued that even in the other cases pertaining to lands in category No.1, the enhancement granted by the court below towards value of structures and injurious affection was excessive. The learned Government Pleader also argued that the two documents relied on by the claimants had not been properly proved and therefore there was no legal evidence available before the court on the basis of which enhancement could have been granted. 5. Sri.R.Manoj, learned counsel for the claimants would resist the submissions of Sri.Basant Balaji. He argued that there is no warrant for interfering with the conclusions of the reference court. LAA.No.1031/08 & connected cases 5 According to him, the properties are situated within the limits of Thiruvananthapuram corporation and the two documents relied on by the claimants reveal the correct market value of the property at the relevant time. Our attention was drawn by the learned counsel to the judgment of the Honourable Supreme Court in Cement Corporation of India Ltd. v. Purya (2004(3) KLT 737(SC) and the learned counsel argued that Section 51 A of the Land Acquisition Act would enable the party to produce certified copy of sale deeds in support of his claim for enhanced compensation in land acquisition cases. The court has discretion to rely on that certified copy without any formal proof regarding the execution of the deed in question and grant enhancement acting only on the recitals in the document. Learned counsel submitted that there was commissioner's report atleast in those cases pertaining to land in category No.1 and no objection whatsoever had been filed by the Government to the commissioner's report. The commissioner had been examined and the commissioner despite searching cross examination stood by his report. Therefore, according to the learned counsel atleast in those cases pertaining to LAA.No.1031/08 & connected cases 6 lands in category No.1, the award of compensation on account of value of structures and shifting charges and injurious affection should be sustained. 6. We have anxiously considered the rival submissions addressed at the Bar. We are of the view that the court below was not justified in relying on the recitals in the two documents relied on by the claimants in support of their claim for enhanced land value ( Ext.A1 in the respective cases) and on the oral testimonies of the respective claimants alone for enhancing the land value. We certainly approve the view of the learned Sub Judge that the basis document is not dependable. In land acquisition cases, the claimants occupy the position of plaintiffs in suits and the government occupies the position of defendants and as it is claimants who are seeking enhancement, it was the obligation of the claimants to have adduced acceptable legal evidence to support their claims. Exts.A1 documents were marked in evidence through the respective claimant. The marking was certainly justified in view of Section 51A of the Land Acquisition Act. But mere marking of the documents does not LAA.No.1031/08 & connected cases 7 amount to reception of the document as evidence and will not amount to proving the transaction recorded in the document. 7. As noticed by the Constitution Bench of the Supreme Court in Cement Corporation of India Ltd. v. Purya (2004(3)KLT 737 (SC), marking of the document through a non party to the document though permissible under Section 51 A “ would not mean that contents of the transaction as evidenced by the registered sale deed would automatically be accepted.” The court is given a discretion to accept the contents of the documents. We are of the view that in these cases the court below has exercised that discretion wrongly. The best evidence which could have been adduced by the claimants was a commissioner's report on the basis of inspection of the properties covered by Ext.A1 and the acquired properties and a comparative assessment by the commissioner on the basis of such inspection. The rule is always best evidence and when such evidence is not forthcoming from the side of the claimants, the court below should not have ventured to grant enhanced compensation relying on Ext.A1 alone. According to us in the nature of these cases, it is not LAA.No.1031/08 & connected cases 8 safe to rely on the recitals in Ext.A1 alone. As for the oral testimonies of the claimants in the context of Ext.A1, the version of the respective claimant regarding the recitals in the document has been challenged in cross examination. In that situation, it was for the claimants to have examined one of the parties to the document or somebody acquainted with the execution of the document or the property covered by the document and thereby brought in more reasonable legal evidence regarding the transactions recorded therein. 8. As for the award of enhanced compensation towards value of structures, we notice that in the four cases pertaining to acquisition of properties in category No.2, as already stated, there is no commissioner's report at all. Therefore, the award of enhanced compensation towards value of structures in those cases is not at all justifiable. The same is the position regarding award of compensation towards diminution of land value for the remainder properties in those cases. As for the cases pertaining to lands in category No.1, Commissioner's report is available. Since those commissioner's reports were obtained with notice to both sides and since no objection LAA.No.1031/08 & connected cases 9 whatsoever was filed by the government to the commissioner's report, the court below was justified in relying on those commissioner's report and awarding enhanced compensation towards value of structures to those parties. At the same time, even in those cases we are unable to approve the award of compensation to some of the claimants towards injurious affection or diminution of land value. 9. The compensation for injurious affection or diminution of land value is a compensation which is grantable in terms of clause fourthly of Section 23(1) of the Land Acquisition Act. But then, such a compensation is to be awarded not in respect of the acquired property but in respect of the unacquired properties of the claimants which have been affected on account of the acquisition of the acquired property. In other words, in all cases where more than nominal amounts are awarded by land acquisition courts towards injurious affection or diminution in land value, the land acquisition court is expected to arrive at a finding as to what is the percentage of diminution in the land value of the unacquired properties and then quantify the amount on the basis of the extent of the unacquired LAA.No.1031/08 & connected cases 10 properties. We notice that the approach of the reference court in these cases was not that. The court in these cases appears to have applied the rule of thumb to award substantial amounts towards compensation for diminution of land value without any reference to the extent of the remainder unacquired property or the percentage of diminution. Therefore we are unable to approve the award of compensation for injurious affection by the reference court even in those cases where unopposed commissioner's reports are available. 10. We will now deal with the argument of the learned Government Pleader that the court below was not justified in doing away with the categorisation which had been made by the land acquisition officer. Even though Sri.Manoj, learned counsel for the respondent endeavoured to support the decision of the reference court to determine the market value for properties in category Nos. 1 and 2 uniformly, we are of the view that there is and has to be real and marked difference in the values of properties enjoying direct road frontage and properties not enjoying any road frontage. We find that the land acquisition officer has awarded 80% of the value awarded to LAA.No.1031/08 & connected cases 11 properties in category No.1 to properties in category No.2. Though the difference in the values is not much, the said difference was perfectly justified and in our opinion should have been sustained by the reference court also. 11. Sri. Manoj, learned counsel for the respondents submitted that if an opportunity is given, the claimants will be able to adduce fresh evidence, even it be, by applying for issuance of commissions. He submitted that the parties will certainly be able to prove the transactions recorded in the two documents relied on by them. Sri.Basant Balaji, learned Government Pleader submitted that if this court becomes inclined to remand the matter back to the reference court, opportunity be granted to the government also to adduce counter evidence. We feel that in the light of our discussions as above and in view of the circumstances which attend on these cases, the matter has to go back to the reference court. Accordingly, allowing these appeals to the following extent, we remand all these appeals back to the reference court. 1) The judgments under appeal are set LAA.No.1031/08 & connected cases 12 aside except to the extent they pertain to award of compensation for value of structures in cases pertaining to acquisition of land falling under category No.1 based on commissioner's reports and in respect of award of shifting charges to claimants in respect of properties in both categories. 2) The reference court will afford opportunity to both sides to adduce whatever evidence they want to and will pass revised judgments on the basis of the evidence already on record and the additional evidence which comes to be adduced. While awarding compensation to eligible claimants towards diminution of land value, the reference court will have due regard to our observations made herein before. It is clarified that the above order of remand will become operative only if the appellant deposits 50% of the compensation awarded under the impugned decrees within three months. Once such LAA.No.1031/08 & connected cases 13 deposits are made, the execution court will permit the respondents- claimants to withdraw the amounts. PIUS.C.KURIAKOSE JUDGE M.C.HARI RANI JUDGE sv