IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 LA.App..No. 28 of 2005(Y) & CO.NO.63/2005 ------------------------- LAR.66/1990 of PRL.SUB COURT,THRISSUR .................... APPELLANT(S): 2ND RESPONDENT ---------------------------- BHARAT SANCHAR NIGAM LTD., REP. BY THE GENERAL MANAGER, B.S.N.L., THRISSUR. BY ADV. SRI.MATHEWS K.PHILIP,SC, BSNL RESPONDENT(S): CLAIMANTS A TO C & E TO G/1ST RESPONDENT ------------------------------------------------------- 1. C.J.GEORGE, CHAMMANAM HOUSE, MISSION QUARTERS, THRISSUR. 2. C.J.ABRAHAM, CHAMMANAM HOUSE, MISSION QUARTERS, THRISSUR. 3. C.J.JOHNSON, CHAMMANAM HOUSE, MISSION QUARTERS, THRISSUR. 4. MARIYAMMA VARGHESE,D/O.LATE M.A.VARGHESE MULLANGATT HOUSE, THRISSUR. 5. LEENA JOHNSON, D/O.LATE M.A.VARGHESE, MULLANGATT HOUSE, THRISSUR. 6. ANITHA JOSE, D/O.LATE M.A.VARGHESE, MULLANGATT HOUSE, THRISSUR. 7. SPECIAL TAHSILDAR, LA(NH), THRISSUR. ADV. SRI.T.KRISHNAN UNNI FOR R1 TO 3 GOVT. PLEADER SRI.BASANT BALAJI THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 06/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - L.A.A.No. 28 OF 2005 & Cross Objection No.63 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6h day of July, 2009 JUDGMENT Pius.C.Kuriakose, J. The appeal is preferred by the requisitioning authority- the BSNL and the memorandum of cross objection is filed by the claimants-land owners. The acquisition was of properties in Chembukkavu village within the limits of Thrissur Municipal Corporation for the purpose of construction of microwave UNF station at Thrissur. The relevant Section 4(1) notification was published on 13-04-1987. The land acquisition officer awarded land value at the rate of Rs.11,000/- per cent. The reference court in the first instance refixed the land value at Rs. 12,000/- per cent. On appeal L.A.A.No.1163/1997 preferred by the claimants, the judgment of the reference court was set aside and the reference case was remanded. The impugned judgment refixing the land value at Rs. 15,000/- per cent was passed by the reference court thereafter. 2. The evidence before the reference court consisted of Ext.A1 sale document executed between TUDA, Thrissur and the LIC of India. This was a pre-notification document and it revealed a land LAA.No.28/05 2 value of Rs. 30,000/- per cent. On the side of the claimants, there was the oral evidence of AW1 who gave evidence on behalf of all the claimants. On the side of the respondents, the valuation assistant was examined as RW1 and a functionary of the TUDA, party to Ext.A1 was examined as RW2. Copies of the basis documents and sketch were marked respectively as Exts.R1, R2 and R3. The learned Subordinate Judge did not become inclined to place reliance on Ext.A1 on the reason that the claimant has not made any attempt to prove the transaction recorded in Ext.A1 by examining a party or anybody who is acquainted with the execution of Ext.A1 on their side. 3. We have heard the submissions of Sri.T.Krishnanunni, learned senior counsel for the claimants/cross objectors and those of Sri.Mathews.K.Philip, learned standing counsel for the appellant/requisitining authority. Sri.Mathews would submit that having chosen to reject Ext.A1 document, the court below was not at all justified in enhancing the market value by Rs. 4000/- per cent purely on guess work. He would justify the decision of the learned Subordinate Judge not to place reliance on Ext.A1. According to him, the evidence of RW2 will reveal that towards development charges LAA.No.28/05 3 including expenses for providing facilities for the fairly large extent covered by Ext.A1 as well as the adjoining lands which also belong to TUDA, substantial amounts had been expended by TUDA. The market value of Rs. 30,000/- disclosed in Ext.A1 was fixed taking into account such expenditure also. Sri.Mathews argued that there is no comparison at all between Ext.A1 property and the acquired property. 4. Sri.Krishnanunni, learned senior counsel per contra would submit that the court below was wrong in thinking that no party acquainted with the execution of Ext.A1 document has been examined in this case. RW2 was a functionary of TUDA, the vendor in Ext.A1. In as much as RW2 was examined, the court below should have seen that there was sufficient proof regarding the genuineness of the transaction recorded in Ext.A1 and the correctness of the market value seen paid under Ext.A1. Sri.Krishnanunni submitted that the acquired property was superior in nature and quality to the property covered by Ext.A1. The acquired property even according to the award was original dry land while Ext.A1 property was original wet land , but reclaimed subsequently. The so called facilities claimed to have been provided to the property covered by Ext.A1 were all facilities which LAA.No.28/05 4 were being enjoyed by the acquired property already. Learned senior counsel asserted that the acquired property was superior. 5. We have considered the rival submissions and we have gone through the impugned judgment. A reading of the impugned judgment will show that the one reason on which the learned Subordinate Judge has declined to place reliance on Ext.A1 is that no party to Ext.A1 has been examined for proving the transaction recorded in Ext.A1. We will immediately notice in this context that there is nothing in the evidence to show that it is not a genuine transaction which is recorded in Ext.A1 or that the value seen paid as per Ext.A1 was not actually paid and received by the party to Ext.A1. It is true that RW 2 was not cited or examined on the side of the claimants. RW 2 was a witness in the case though perhaps he was examined at the instance of the requisitioning authority. RW2's evidence will show that the property originally was wet land and that several development works were done on that property before it was sold to LIC. The development works done and the facilities provided to the property covered by Ext.A1 were as could be gathered from the recitals in the document, reclamation of the properties/conversion of wet land to dry LAA.No.28/05 5 land and construction of internal roads and facilities such as electrification and water supply. 6. We do not find any serious cross examination regarding the assertion of AW1 in his evidence that the acquired properties were in enjoyment of most of these facilities. We are of the view that the learned Subordinate Judge was not justified in rejecting Ext.A1 altogether from consideration. Even if, we accept the case of the requisitioning authority that Ext.A1 properties were enjoying more facilities than the acquired properties by virtue of the developments claimed to have been made on the property as stated by RW2 , then also there is no justification for deducting more than 1/3 of the value revealed in Ext.A1. Even after deducting 1/3 of the value revealed in Ext.A1, the market value of the acquired property at the relevant time has to be fixed at Rs. 20,000/- per cent. The result of the above discussion is that the appeal preferred by the requisitioning authority will stand dismissed. The Cross Objection will stand upheld. The market value of the acquired property will stand refixed at Rs. 20,000/- per cent. It is needless to mention that the claimants/ cross objectors will be entitled to all statutory benefits LAA.No.28/05 6 admissible under Sections 23(2), 23(1A) and Section 28 of the Land Acquisition Act . The appeal is dismissed and the Cross Objection is allowed. But , in the circumstances, parties are directed to suffer their costs. It is seen that the appeal and the memorandum of cross objection were once dismissed for default and they were restored back to file by order of this court dated 19-07-2006 in M.J.C.No.265/2005. Considering the dismissal of the memorandum of cross objections and its restoration, it is ordered that the total enhanced compensation to which the cross objectors/claimants will be eligible by virtue of our refixation of market value under this judgment, will not carry interest otherwise admissible under Section 28 during the period from 30-10-2005 till 19-07-2006. PIUS.C.KURIAKOSE JUDGE P.Q.BARKATH ALI JUDGE sv. LAA.No.28/05 7