IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 11TH NOVEMBER 2009 / 20TH KARTHIKA 1931 LA.App..No. 911 of 2003() ------------------------- LAR.42/1998 of SUB COURT, MANJERI .................... APPELLANT(S): CLAIMANT ---------------------- P.A.MUHAMMED NISHAD, PARAMBATTU HOUSE, UMMINIPARAMBU P.O., KONDOTTY, MALAPPURAM DISTRICT.(MUKTHIAR AGENT OF P.A. MOHAMMEDKUTTY HAJI) BY ADV. SRI.BABU S. NAIR SRI.JIJO PAUL RESPONDENT(S): RESPONDENTS -------------------------- 1. THE DISTRICT COLLECTOR, MALAPPURAM. 2. THE AIRPORT DIRECTOR, AIRPORT AUTHORITY OF INDIA, CALICUT AIRPORT, KARIPOOR P.O. MALAPPURAM DISTRICT. ADV. SRI.N.N.SUGUNAPALAN, SC, CALICUT AIRPOR FOR R2 GOVERNMENT PLEADER SMT.P.N.SUMANGALA FOR R1 THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 11/11/2009, ALONG WITH LAA NO. 318 OF 2004 ETC. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ. ---------------------------------------------------------------- LAA. Nos. 911 of 2003, 86, 142, 148, 149, 318, 319, 320, 325, 382, 445, 446, 927 & 1020 of 2004, 43 of 2005, 832 of 2006, 13 & 1460 of 2007 ------------------------------------------------------------------- Dated this the 11th day of November, 2009 J U D G M E N T Pius C. Kuriakose, J. All these appeals pertain to acquisition of land in Nediyiruppu, Pallikal and Kondotty Villages of Malappuram District for the purpose of expansion of the run way of Calicut Airport. The relevant Section 4(1) notification was published on 15-11-1993. The L.A. Officer categorised the lands into 8 Taks. Included in Tak No. I were properties situated within a distance of 100 metres from the Kondotty – Tirur Angady Road which was taken as the land mark by the land acquisition officer for the purpose of categorisation and for fixation of land value. For properties in Tak No. I the L.A.O. awarded land value at the rate of Rs.11,880/- per cent. Included in Tak No.II were properties situated within 100 metres to 300 metres of Kondotty – Tirur Angady Road. LAA. 911/03 etc. - 2 - For these properties the L.A.O. awarded land value at the rate of Rs.8539/- per cent. Included in Tak No. III were properties situated within a distance of 300 to 500 metres from the above road and for these properties the LAO awarded land value at the rate of Rs.7351/- per cent. Included in Tak No. IV were properties situated within a distance of 500 metres to 700 metres of the above road and for these properties LAO awarded land value at the rate of Rs.6916/- per cent. Included in Tak No.V were properties situated within a distance of 700 metres to 900 metres from the above road and for these properties the LAO awarded land value at the rate of Rs.6225/- per cent. Included in Tak No.VI were properties situated beyond 200 metres from the properties in Tak No.V. For these properties the LAO fixed land value at the rate of Rs.5602/- per cent. Included in Tak No.7 were properties situated 200 metres from the properties of Tak No.VI and for these properties LAO awarded land value at the rate of Rs.5042/- per cent. LAA. 911/03 etc. - 3 - Included in Tak No.VIII were properties situated within a further distance of 200 metres of properties in Tak No.VII and for these properties the LAO awarded land value at the rate of Rs.4703/- per cent. The land acquisition officer relied on the basis document which was produced as Ext.B1, viz., document No.1662/1992 dated 21-5-1992 of the Sub Registry, Kondotty. Taking into account passage of time since execution of basis document till date of promulgation of the Section 4(1) notification, the L.A. Officer awarded land value of Rs.11,880/- per cent for properties in Tak No.I and made deductions for the purpose of fixing the value of the properties in the lower Taks. Before the reference court strong reliance was placed by the claimants on document No.1803/94 of the Sub Registry, Kondotty which was marked as Ext.A1 in some of the cases and as Ext.A2 in other cases. This document is executed by the Kondotty PCC Society and is being referred to hereafter as the Kondotty Society's document. The court below did not LAA. 911/03 etc. - 4 - place reliance on the Kondotty Society's document mainly on two reasons. The first reason was that the Kondotty Society's document is actually executed after the promulgation of Section 4(1) Notification and therefore the Kondotty Society's document is a post notification document. The second reason stated by the court below was that in the oral evidence adduced by the Secretary of the Society which is executant of the document, he stated that the rate received under the society's document was higher than the prevailing market rate. The court below made comparison of the properties under acquisition (particularly the property in Tak No.I) and the property covered by the basis document. The court below found that quality wise, the property covered by the basis document was inferior to the property under acquisition since it is lying at a depth of at least 10 ft. from the road level and was rocky land. But, according to the court below the property covered by the basis document was situated by the side of national LAA. 911/03 etc. - 5 - highway and therefore in terms of locational importance and advantages the basis property was superior to the properties in question which were having only nearness to other roads like PWD road, municipal road etc. What the reference court did was to rely on the basis document itself and to re-fix the value of properties in Tak – I at Rs.16,500/- per cent, thus granting an increase of 39% over what was awarded by the LAO. For properties in Tak – II the court below would re-fix land value at Rs.11,000/- per cent, thus granting an increase of 41% over what was awarded by the L.A. Officer for properties in Tak No. II situated in Pallikkal Village. The court below fixed land value at various rates for properties in other Taks under various judgments. These appeals involve only properties included in Tak Nos. I, II, IV, V and VIII. For properties in Tak No.IV situated in Nediyiruppu Village, the court below fixed land value at the rate of Rs.13,000/- per cent. For properties in Tak No.V situated in Nediyiruppu Village the LAA. 911/03 etc. - 6 - court below fixed land value at the rate of Rs.11,000/- per cent. For properties in Tak No.VIII in Nediyiruppu Village, the court below fixed land value at the rate of Rs.8000/- per cent. The requisitioning authority, the Airport Director as well as some of the claimants have come up in appeal. 2. LAA. No. 382/04 is the appeal preferred by the requisitioning authority against the judgment and decree in LAR. No. 58/97 and LAA. No. 1460/07 is the appeal preferred by the claimants against the same judgment and decree. LAA. No. 86/04 and LAA. No. 446/04 are respectively the appeal preferred by the claimant and the requisitioning authority against the judgment and decree in LAR. No. 59/97. LAA. No. 149/04 is the appeal preferred by the claimant against the judgment and decree in LAR. No. 60/97. In fact the requisitioning authority had also preferred LAA. No. 447/04 against the same judgment and decree which stands already dismissed by judgment dated 17-9-2009 on the reason that the enhancement is not LAA. 911/03 etc. - 7 - excessive. LAA. Nos.148/04 and 445/04 are respectively the appeal preferred by the claimant and the requisitioning authority against the judgment and decree in LAR. No. 65/97. LAA. Nos. 318/04 is the claimant's appeal preferred against the judgment and decree in LAR. No. 105/97. In fact, by our judgment dated 17-9-2009 we already dismissed LAA. No. 361/04 preferred by the requisitioning authority against the judgment and decree on the reason that the enhancement is not excessive. LAA. No. 319/04 is the appeal preferred by the claimant against the judgment and decree in LAR. No. 106/97. We have already dismissed LAA. No. 896/04 preferred by the requisitioning authority against the same judgment and decree by judgment dated 17-9-2009 on the reason that the enhancement granted is not excessive. LAA No. 325/04 is the appeal preferred by the claimant against the judgment and decree in LAR. No. 107/97. We have already dismissed LAA. No.999/04 preferred by the requisitioning authority against the same LAA. 911/03 etc. - 8 - judgment and decree on the reason that the enhancement granted is not excessive. LAA. No. 320/04 is the appeal preferred by the claimant against the judgment and decree in LAR. No. 108/97 and LAA. No. 927/04 is the appeal preferred by the requisitioning authority against the same judgment and decree. LAA. No. 1020/04 is the appeal preferred by the requisitioning authority against the judgment and decree in LAR. No. 81/97. LAA. No. 911/03 is the appeal preferred by the claimant against the judgment and decree in LAR. No. 42/98. LAA. No. 832/06 is the appeal preferred by the requisitioning authority against the judgment and decree in LAR. No. 43/97. LAA. No. 43/05 is the appeal preferred by the requisitioning authority against the judgment and decree in LAR. No. 29/97. LAA. No. 13/07 is the appeal preferred by the requisitioning authority against the judgment and decree in LAR. No. 78/98. LAA. No. 142/04 is the appeal preferred by the requisitioning authority against the judgment and decree in LAR. No. LAA. 911/03 etc. - 9 - 66/97. While the requisitioning authority in the appeals preferred by them contends that the enhancement granted by the reference court is excessive the claimants in their appeals contend that the enhancement granted by the reference court is quite inadequate. 3. We have heard the submissions of Sri. Rajesh R.Kormath and Sri.Babu S.Nair, learned counsel for the claimants and those of Sri.N.N.Sugunapalan, learned senior counsel for the requisitioning authority. We have also heard the submissions of the Govt. Pleader Smt. P.N.Sumangala for the Government. Very extensive submissions were addressed before us by the learned counsel for the claimants and the learned senior counsel for the requisitioning authority in support of the grounds raised in the appeals filed by their respective parties. Our attention was drawn to the various items of evidence oral and documentary. 4. Sri. N.N.Sugunapalan, learned senior counsel for LAA. 911/03 etc. - 10 - the requisitioning authority would argue that at any rate the court below was not justified in awarding a uniform rate of value in the cases where the extent involved is small and also in the cases where the extent involved is fairly large. According to the learned counsel, extents exceeding 50 cents are to be taken as large extents and for such large extents suitable deductions are to be made on the value to be fixed by this court. In this connection, learned senior counsel relied on the judgment of the Supreme Court in State of J. & K. v. Mohammad Mateen Wani, AIR 1998 SC 2470, Haryana State Electricity Board v. Maha Singh, AIR 1997 SC 2552 and also the judgment of the Supreme Court in Gafar and others v. Moradabad Development Authority and another, (2007) 7 SCC 614. The learned senior counsel drew our attention to our earlier judgment dismissing the appeals preferred by the requisitioning authority. According to the learned counsel, doctrine of merger applies and hence it is not open to this court to grant any enhancement on the LAA. 911/03 etc. - 11 - appeals preferred by the claimants. For this proposition the learned senior counsel relied on the judgment of the Supreme Court in Chandi Prasad v. Jagidish Prasad, (2004) 8 SCC 724. The learned senior counsel also relied on the judgment of the Supreme Court in Spl. Deputy Collector and others v. Chakali Linga and others, (2005) 13 SCC 404 for the same proposition. 5. One of the arguments mainly made by Sri.Rajesh R.Kormath and Sri.Babu S. Nair was that the reference court was not at all justified in discarding the Kondotty Society's document. The learned counsel submitted that the property covered by the Kondotty Society's document was actually seedment area (Palliyad land) virtually paddy field. Learned counsel pointed out that though it is true that the Society's document was executed after the notification under Section 4(1) was promulgated, in this case the documents produced along with IA. No. 3765 of 2009 in LAA. No. 86/04 will reveal that the decision was taken by the general body of LAA. 911/03 etc. - 12 - the Kondotty PCC Society to sell the property in public auction on 17-4-1993, several months prior to the date of promulgation of Section 4(1) notification. According to the learned counsel, the evidence in this case is to the effect that the higher value received for that property had nothing to do with the present acquisition. 6. We have very anxiously considered the rival submissions addressed at the Bar. We have made a reappraisal of the evidence which was available before the reference court. 7. Considering the averments in the affidavit in support of IA. 3765/09 in LAA. 86/04 and the submissions addressed at the Bar we have allowed the said IA and received the documents produced along with that IA as evidence in the reference case pertaining to LAA. No.86/04. The documents so received in evidence are (1) Exts. A8 dated 17-4-1993 – certified copy of the proceedings of the general body meeting of PCC Society in which decision is taken by the LAA. 911/03 etc. - 13 - society to sell the property covered by the Society's document in public auction. (2) Ext. A9 copy of page number 7 of Chandrika Newspaper inviting tenders from indenting buyers for the purchase of the property. A9 will show that the advertisement was released in Chandrika Newspaper as early as on 3-11-1993. (3) Ext.A10 is the details relating to the bids received by the Society pursuant to the notification released by the society. It is seen that pursuant to the notification, 21 bids received by PCC Society were for amounts more than Rs.10,000/- per cent. When the average of those 21 bids is taken it will be seen that the same is Rs.14,056.85. We are discarding a few bids received by the Society for amounts below Rs.10,000/- for the reason that the amounts offered in those bids are very small amounts and in our opinion those bids were submitted not by bonafide purchasers but only by chance takers. We are of the considered view that the court below was not justified in discarding Society's document altogether. Exts. LAA. 911/03 etc. - 14 - A8, A9 and A10 admitted by us in evidence will certainly reveal that Kondotty Society's document records a genuine transaction. We are convinced that the decision to sell the property covered by that document and the price mentioned in that document was taken much prior to the date of promulgation of Section 4(1) notification in the present case. We are also convinced that the fixation of the price under that document was not influenced by the present acquisition. It should be remembered that the present acquisition was the third phase of acquisition for the Calicut Airport. The Airport and the run way was already established pursuant to the two earlier phases of acquisition. At the same time, we accept the evidence of the secretary of the society that the price mentioned in Ext.A1 was slightly higher than the market value of the property at the relevant time. However, we hold that A1 records a genuine transaction between a willing seller and a willing buyer. We also notice that when compared to the LAA. 911/03 etc. - 15 - land under acquisition, A1 property was much inferior . A1 property was seedment area (Palliyad) virtually a paddy field and in our opinion the market value of the property under acquisition included in Tak No.I will be at least 20% more than the property covered by Society's document. Thus going by the Society's document the value reflected in the document is Rs.25,000/- per cent. If society's document is taken as a guide, the value of acquired property in Tak No.I will be Rs.30,000/-. We are not prepared to hold that the value of the property in Tak No. I is Rs.30,000/- per cent. We notice, as already stated, 21 bids received pursuant to the notification issued by the society were for more than Rs.10,000/- per cent as follows: Rs.25000.50 per cent Rs.13250.00 per cent Rs.12550.00 per cent Rs.17211.00 per cent Rs.10100.00 per cent LAA. 911/03 etc. - 16 - Rs.10050.00 per cent Rs.20000.00 per cent Rs.19000.00 per cent Rs.15600.50 per cent Rs.11500.00 per cent Rs.11600.00 per cent Rs.14500.00 per cent Rs.10725.00 per cent Rs.10100.00 per cent Rs.15000.00 per cent Rs.20000.00 per cent Rs.14001.00 per cent Rs.13505.00 per cent Rs.15000.00 per cent Rs.16000.00 per cent Rs.15500.00 per cent The average of these bids will come to Rs.14,056/-. 8. It was by relying on Ext.B1 basis document that the LAA. 911/03 etc. - 17 - reference court fixed the market value of the lands under acquisition. Ext.B1 revealed a land value of Rs.11,000/- per cent. The land acquisition officer added Rs.880/- per cent and fixed the value of properties in Tak No. I at Rs.11,880/- taking into account the passage of time. We notice that B1 is executed about one year prior to the date of Section 4(1) notification and when 10% is added to the value in B1 for passage of time, the value even as per B1 will come to Rs.12,000/- as on the date of notification. The reference court has taken the view that though quality wise inferior, in terms of locational advantages B1 property is superior to the properties under acquisition. The reasoning of the learned Sub Judge is that the basis property was situated by the side of the National Highway. According to us, the view of the court below that B1 property had more locational advantages and importance is not correct. Some of the properties included in Tak No.I were enjoying the direct frontage of the trunk road (PWD road). B1 property LAA. 911/03 etc. - 18 - of course was having the frontage of the national highway. Having regard to the area where the property under acquisition are situated -semi urban area of Kondotty Town, B1 in our opinion, property situated on the national highway but away from the town areas of Kondotty Town, will not have any locational advantages over the properties situated by the side of the trunk road which passes through the town. Quality wise it has been rightly found by the learned Sub Judge that B1 property is inferior to the property under acquisition. The same was lying at a depth of 10 to 20 ft. from the road level and was a rocky area. For inferiority of B1 property to the property under acquisition at least 35% of the value reflected therein has to be added and in that way, based on B1 itself, the value of the property under acquisition in Tak No. I will have to be taken as Rs.16,335/-. Taking an average of the three figures quoted above, the value of the property under acquisition included in Tak No. I will come to Rs.20,130/- LAA. 911/03 etc. - 19 - which we round off to Rs.20,250/-. This in our opinion will be more or less the market value of the properties included in Tak No. I. 9. The Government did not contend that the ratio fixed by the LA officer between the value of the properties included in different Taks is not correct. Sri. N.N. Sugunapalan, learned senior counsel also submitted that the rate fixed by the LA officer between the values of various Taks is more or less correct. We don't think that the ratio fixed by the officer and for that matter the reference court under the impugned judgment between the values of the properties included in the 8 different Taks is correct. Adopting a realistic view, we fix the value of the properties in Tak No. II at Rs.13,750 per cent, the value of the properties in Tak No. IV at Rs.11,500/- per cent, the value of properties in Tak No. V at Rs.10,500/- per cent and value of properties in Tak No. VIII at Rs.7500/- per cent. According to us, the value of properties in Tak No. III, VI LAA. 911/03 etc. - 20 - and VII will be respectively at Rs.12,000/-, Rs.9000/- and Rs.8,200/-. 10. We have been informed about the judgment of another Division Bench of this Court in LAA. No. 1130 of 2003 wherein this court did not interfere with the re- fixation of land value for property in Tak No. V at Rs.11,500/- per cent. We are not inclined to rely on that judgment for two reasons. Under that judgment this court declining a request by the requisitioning authority for an order of remand has only observed that Rs.12,000/- per cent is not excessive in the case of land around the Airport. We are also told that the above issue has not become final. 11. We are not impressed by the argument of the learned senior counsel for the requisitioning authority that our earlier judgments dismissing the appeals preferred by the requisitioning authority bar the claimant's appeal. Doctrine of merger cannot have any application in these cases. We dismissed a few appeals preferred by the LAA. 911/03 etc. - 21 - requisitioning authority on the reason that the enhancement granted by the reference court in those cases was not excessive. Such dismissal at a time when the appeals preferred by the claimants were pending was obviously without prejudice to the claimants' rights in their appeals. But we notice some merit in the submission of the learned senior counsel that suitable deduction is to be made when the land under acquisition is extensive. According to us, only those cases where more than one acre of land involved need be treated as large area and the percentage of deduction to be made is 10% for property in Tak No.I and 7.5% for properties in other Taks. 12. The result is that the value of the properties in Tak - I will stand re-fixed as Rs.20,250/-. Tak – II – Rs.13,750/-, Tak – III – Rs.12,000/-, Tak – IV – Rs.11,500/-, Tak – V – Rs.10,500/-, Tak – VI – Rs.9,000/-, Tak – VII – Rs.8200/-, and Tak – VIII – Rs.7500/-. It is noticed that the total extent involved in LAA. No.911/03 is LAA. 911/03 etc. - 22 - more than one acre. Hence a deduction of 7.5% has to be made from the value fixed by us for properties in Tak – II. Accordingly that appeal will stand allowed re-fixing market value of the land under acquisition at 12,718.75. LAA. No.86/04 stands allowed re-fixing the market value of the property under acquisition at Rs.13,750/- per cent. LAA. No. 142/04 is allowed and we re-fix the land value at Rs.11500/- per cent. LAA. Nos. 148/04, 149/04 and 318/04 will stand allowed re-fixing the market value at Rs.13,750/- per cent. In view of the largeness of the extent involved in LAA. Nos. 319/04 and 325/04, 10% will have to be deducted from the sum of Rs.20,250/- per cent already fixed by us towards value to be given for properties in Tak – I. Accordingly we allow these appeals re-fixing market value of the property under acquisition at Rs.18,225/- per cent. LAA. No. 320/04 will stand allowed. The action of the learned Sub Judge in including the property involved in this case in Tak – I is approved and the market value is re-fixed LAA. 911/03 etc. - 23 - at Rs.20,250/- per cent. LAA. No. 1020/04 will stand allowed. The value of land under acquisition is re-fixed at Rs.11,500/- per cent. In view of the largeness of the extent involved in this case we deduct 7.5% and re-fix the value of land at Rs.10,637.50. LAA. Nos. 43/05 & 832/06 will stand allowed re-fixing market value of the land at Rs.7500/-