IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 3RD DECEMBER 2009 / 12TH AGRAHAYANA 1931 LA.App..No. 1066 of 2004() -------------------------- LAR.19/2000 of II ADDL.SUB COURT,THRISSUR .................... APPELLANT(S): CLAIMANT: ----------------------- LAL XAVIOUR, S/O. KOKKATTU KAVIOUR AVITTATHOOR REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, KURIAN FRANCIS, PADIKKALA HOUSE, EAST FORT, THRISSUR. BY ADV. SRI.SATHISH NINAN SRI.SANTHOSH MATHEW RESPONDENT(S): RESPONDENTS: --------------------------- 1. THE SPECIAL TAHSILDAR, L.A., GENERAL, THRISSUR. 2. THE DIRECTOR, KILA, MULAMKUNNATHUKAVU, THRISSUR. ADV. SRI.K.B.MOHANDAS FOR R2 SRI.LELLULAL T.G.THUNDATHIL FOR R2 GOVERNMENT PLEADER SRI. ARAVIND BABU FOR R1 THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 03/12/2009, ALONG WITH LAA. 11/05 ETC. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ. -------------------------------------------------------- LAA. Nos. 1066 of 2004, 11, 33, 405, 652 of 2005 & 454 of 2006 ------------------------------------------------------------- Dated this the 3rd day of November, 2009 J U D G M E N T Pius C. Kuriakose, J. The claimants are in appeal. The learned Subordinate Judge decided as many as 12 land acquisition reference cases including the cases which are subject matter of these appeals by a common judgment. The acquisition was for the purpose of construction of staff quarters for the KILA, Mulankunnathukavu, Thrissur. The relevant Section 4(1) notification was published on 3-3-1999. The properties were in Killannur Village near Mulankunnathukavu, Thrissur. The land acquisition officer categorised the land under acquisition into two, categories 1 and 2. Included in category- 1 were properties having tarred road frontage and properties included in category-2 were properties without such road frontage. For properties in category – 1 the LA Officer awarded land value at the rate of Rs.26,500/- per LAA. 1066/04 etc. - 2 - Are corresponding to Rs.10,728/- per cent. For properties in category – 2 the LA Officer awarded land value at the rate of Rs.25,300/- per Are corresponding to Rs.10,121/- per cent. Before the reference court evidence on the side of the claimants consisted of Exts.A1 to A12 and oral evidence of witnesses AWs. 1 to 8 (mostly the claimants themselves). On the side of the Government and the requisitioning authority, evidence consisted of Exts.R1 to R6 and the oral evidence of RW1. Apart from that, the reports submitted by commissioners and plans were marked as Exts.X1 to X4. The learned Subordinate Judge on evaluating the evidence came to the conclusion that sale documents Exts.A2 and A3 relied on mainly by the claimants in support of their claim for enhancement in land value were brought into existence deliberately by the claimants in anticipation of the land acquisition proceedings. The learned Sub Judge accepted the contention of the Government and the requisitioning authority that the L.A. Officer himself with the intention of ensuring that the claimants are awarded even more LAA. 1066/04 etc. - 3 - amounts than the correct market value chose as the basis document Ext.R5 which had no comparison at all with the properties under acquisition. In the result, the learned Subordinate Judge would confirm the award passed by the land acquisition officer and answer the reference accordingly. These appeals are preferred by the claimants raising various grounds assailing the judgment of the reference court. 2. We have heard the submissions of Sri.Sathish Ninan and Sri. Jijo Paul, learned counsel for the appellants claimants. We have also heard the submissions of Sri.K.B.Mohandas, learned counsel for the KILA, requisitioning authority and the learned Govt. Pleader for the State. Even though the learned counsel for the appellants addressed arguments on all the grounds raised in the memorandum of appeal they would ultimately confine their submissions to two points. They submitted that the land acquisition officer had recommended that for the passage of time between the date of the basis document R5 LAA. 1066/04 etc. - 4 - and the date of promulgation of the section 4(1) notification at the rate of 12% per year should be added. According to them, the District Collector without any justification turned down that recommendation stating that under section 23 (1A) of the Land Acquisition Act the claimants are getting additional amount at the rate of 12% for the period between section 4(1) notification and the date of passage of the award or the date of taking possession, whichever is earlier. The other point which was highlighted by the learned counsel for the appellants was that along with IA. 1713/04 the claimants had produced the notices issued by the District Registrar, Thrissur initiating proceedings under section 45A of the Stamp Act in respect of R5 alleging under valuation. It was submitted by the learned counsel that those proceedings culminated in a finding that the correct value of the property covered by that document is at least 30% more than what is recorded in the document. The learned counsel requested that the land value may be re- fixed at least 45% above what was awarded by the land LAA. 1066/04 etc. - 5 - acquisition officer taking into account the above two aspects. 3. All the submissions of the learned counsel for the appellants were very stiffly resisted by Mr.K.B.Mohandas who was supported in his submissions by the learned Govt. Pleader. Mr.Mohandas submitted that the basis property had no comparison at all with the properties under acquisition. The basis properties were enjoying the direct frontage of the Thrissur – Shornur State Highway. That property was enjoying commercial potentialities unlike the properties under acquisition which was situated 100 to 200 metres to the east of the State Highway margin. Substantial portion of the properties under acquisition had been excavated to considerable depths. Even the claimants had previously negotiated with the KILA to have received a different rate for properties much lesser than what is awarded by the LA Officer. The LA Officer, according to the learned counsel, on extraneous considerations chose Ext.R5 document which was far more superior to the properties LAA. 1066/04 etc. - 6 - under acquisition. According to the learned counsel, the L.A. Officer deducted 65% from the value reflected in R5 for determining the value for property in category – 1 and another 5% for fixing the value of properties in category – 2. Deduction should have been much more. Learned counsel submitted that the clear finding entered by the reference court is that the documents put in evidence by the claimants are artificial documents and this court may not show any indulgence towards such claimants since they have already received more than the actual market value of the property under acquisition. 4. We have very anxiously considered the rival submissions addressed at the Bar. We have scanned the impugned judgments. We are of the view that the learned Subordinate Judge was justified in finding that Exts.A2 and A3, the two documents put in evidence by the claimants in support of their claim for enhanced land value could not have been relied on. But at the same time, we feel that having chosen Ext.R5 as a basis and having approved and LAA. 1066/04 etc. - 7 - the award passed on the basis of Ext.R5, the reference court should not have ignored the passage of 14 months after the execution of Ext.R5 till the promulgation of the notification. Even though notice No.1721/97/TSR dated 18- 11-02 issued by the District Registrar in respect of Ext.R5 in terms of Section 45A of the Kerala Stamp Act is not seen discussed by the learned Subordinate Judge, those proceedings should be presumed to have been initiated by the District Registrar on valid reasons. We have reason to believe that the correct market value of the property covered by Ext.R5 (not the property under acquisition) was at least slightly more than the value recorded in that document. Taking these two aspects into account, we are of the view that the reference court should not have answered the references in the negative. We re-fix value of the properties included by the L.A. Officer in category – 1 at Rs.29,150/- per Are. Similarly, we re-fix the value of properties included in category – 2 by the L.A. Officer at Rs.27,500/- per Are. LAA. 1066/04 etc. - 8 - The appeals are allowed to the above limited extent, but without any order as to costs. It is needless to mention that the appellants will be entitled for all statutory benefits admissible under Sections 23(2), 23(1A) and 28 of the Land Acquisition Act. PIUS C.KURIAKOSE, JUDGE K.SURENDRA MOHAN, JUDGE ksv/-