IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 4TH JUNE 2009 / 14TH JYAISHTA 1931 LA.App..No. 540 of 2004(D) -------------------------- LAR.8/2001 of SUB COURT, VADAKARA .................... APPELLANT(S): RESPONDENTS ------------------------- 1. THE SPECIAL DEPUTY COLLECTOR (L.A.) K.S.E.B., KOZHIKODE. 2. THE EXECUTIVE ENGINEER, T.C.DIVISION, KERALA STATE ELECTRICITY BOARD, KOZHIKODE. BY ADV. SRI.C.K.KARUNAKARAN, SC FOR KSEB RESPONDENT(S): CLAIMANT ----------------------- VALIYAPARAMBATH MATHA, W/O. KANARAN MASTER CHIYYUR P.O.VISHNUMANGALAM, VADAKARA TALUK, KOZHIKODE DISTRICT. ADV. SRI.R.PARTHASARATHY FOR R1 SMT.S.LAKSHMY FOR R1 THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 04/06/2009, ALONG WITH LAA. 550/04 ETC. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & P.Q. BARKATH ALI, JJ. ------------------------------------------------------------------ LAA. Nos. 540, 550, 551, 941 of 2004, 1029 of 2005 & 302 of 2007 ------------------------------------------------------------------- Dated this the 4th day of June, 2009 J U D G M E N T Pius C.Kuriakose, J. All these appeals pertain to acquisition of land in Nadapuram Village for the construction of 110 K.V. Sub Station for the appellant requisitioning authority, viz. The Kerala State Electricity Board. The relevant section 4(1) notification was published on 28-5-1999. The awarding officer categorized the land under acquisition into two, garden lands and wet lands. For garden lands he awarded land value at the rate of Rs.8100/- per Are corresponding to Rs.3278/-per cent. For wet land he awarded land value at the rate of Rs.6480/- per Are corresponding to Rs.2622/- per cent. The learned Subordinate Judge decided the LAR cases pertaining to these appeals by separate judgments. LAA. No. 941/04 pertains to LAR No. 9/01. LAA. No. 302 of 2007 pertains to LAR. No. 4/01. LAA. No. 1029 of 2005 LAA. N0s. 540/01 etc. -2- pertains to LAR. No. 7 of 2001 and the same unlike the other appeals, is preferred by the Government. LAA. No. 540 of 2004 pertains to LAR. No. 8 of 2001. LAA. No. 550 of 2004 pertains to LAR. No. 6 of 2001 and LAA. No. 551 of 2004 pertains to LAR. No. 5 of 2001. In LAA. No.550 of 2004 the claimant has preferred Cross Objection 11 of 2006 and in LAA. No. 551 of 2004 the claimant has preferred cross objection 113 of 2004. The evidence before the reference court in LAR No. 9 of 2001 consisted of Ext. A1 certified copy of an assignment deed dated 20-4-1998 executed by one Paru in favour one Balan and Ext.X-1 commission report and Ext. X-2 sketch plan submitted by the Commissioner apart from the evidence of claimant in that case as AW-1. In the other cases also the very same assignment deed was relied on by the claimants in respect of their claim for enhanced land value and in some of the other cases also there were commission reports by the commissioner deputed to the effect that the acquired LAA. N0s. 540/01 etc. -3- properties were situated in a very important locality having nearness to important institutions in the area. The learned Subordinate Judge on analyzing the evidence which was adduced in LAR No. 9/01 did not become inclined to place reliance on Ext.A1 document. The Commissioner in that case had recommended a land value of Rs.17,500/- per cent for garden lands and Rs.14,000/- per cent for wed lands. The learned Judge would observe that since Ext.A1 was specifically rejected the recommendation even if it is based on Ext.A1 could not be accepted. Thus the commissioner's recommendation was rejected by the learned Sub Judge. Thus the two tangible items of evidence on the side of the claimant were rejected by the learned Sub Judge. However, relying on the oral evidence of the parties that the properties under acquisition are lying in a commercially important area, what the learned Sub Judge ultimately did was to decide the issue on the basis of guess work alone holding that “it is only just and fair to fix the market value LAA. N0s. 540/01 etc. -4- of the garden land acquired at Rs.16,500/- per cent and to fix the market value of the wet lands acquired on the same reasoning at Rs.13,500/- per cent. On going through the impugned judgments in the other appeals and cross objections also we find that it is essentially on the basis of the judgment in LAR. No. 9 of 2001 that the learned Subordinate Judge has refixed market value of the lands. In fact, it is the same rate which has been awarded by the learned Sub Judge in the other cases also for the garden lands and wet lands. 2. We have heard the submissions of Mr.C.K.Karunakaran, learned standing counsel for the Electricity Board and Mr.P.K.Babu, learned Sr. Govt. Pleader for the State, Sri.V.N.Rameshan Nambiseen, learned counsel for some of the respondents cross objectors and also Sri.P.K.Behanan, learned counsel for the respondent claimant in LAA. No. 941 of 2004. The learned standing counsel for the K.S.E.B. and the learned Govt. Pleader LAA. N0s. 540/01 etc. -5- would assail the judgment of the reference court mainly on the reason that the said judgment rests only on the guess work by the learned Sub Judge. According to them, the learned Sub Judge having rejected all the evidence which was adduced on behalf of the claimant was not justified in granting enhancement to this extent which comes to more than 4 times the rates originally granted by the L.A. Officer. The learned standing counsel for the K.S.E.B. would further submit that the Board did not get sufficient opportunity to produce evidence which they could have, for showing that the award of the L.A. Officer was reasonable. Sri.V.N.Rameshan Nambeesan and Sri.P.K.Behanan however, would submit that the court or the claimants are not to blame for the non-participation of the Electricity Board in the proceedings before the court below. The cases were not decided in one day. The cases stood posted for trial before the Sub Court for days together and if the Electricity Board was vigilant they could have participated in LAA. N0s. 540/01 etc. -6- the enquiry. While arguing that the enhancement presently granted under the impugned judgment is by no standards excessive Mr.Rameshan Nambeesan would submit that the property of his clients was superior to the properties involved in the other cases. According to him, the evidence adduced in the cases in which he appears will show that the properties of his clients are superior and hence eligible for award of value higher than what is presently granted under the impugned judgment. 3. We have very anxiously considered the rival submissions addressed at the Bar. We find considerable force in the submission of the learned standing counsel for the Electricity Board and the learned Govt. Pleader that the court below was not justified in determining the market value of the acquired properties at more than 4 times the rate fixed by the awarding officer relying solely on guess work. It is a matter of common knowledge that determination of market value in land acquisition cases will LAA. N0s. 540/01 etc. -7- involve a certain extent of guess work. In the instant case what we find is that the learned Sub Judge has at least in LAR. No. 9/01 expressly rejected the evidence adduced by the claimants including the commission report and has proceeded to decide the issue solely on guess work. We are unable to approve the same. We find some merit in the submission of the learned standing counsel for the KSEB that due to some communication gap between the Government Pleader and the Executive Engineer of the Electricity Board, the Board was unable to participate in the enquiry effectively. For both these reasons we are inclined to set aside the impugned judgments and decrees and remand the LARs. back to the reference court. The issues raised by Mr.Rameshan Nambeesan through memorandum of cross objection filed in LAA. Nos. 550 & 551 of 2004 will also be considered by the reference court while holding the enquiry pursuant to the order of remand. The learned Sub Judge will afford adequate opportunity to the appellants, the LAA. N0s. 540/01 etc. -8- Government and the claimants to adduce whatever further evidence they have at their command. It is open to the parties in LAA. Nos. 550/04, 551/04 and 302/07 to adduce evidence and convince the reference court that the properties involved in those cases are superior even to the other properties involved in the cases. Though the remand is necessitated to a certain extent due to fault of the claimants also, we are inclined to refund the full court fee paid on the appeal memorandum and the cross objections to the counsel for the appellants and the cross objectors. Having gone through the evidence before the court below we feel that the correct market value of the properties under acquisition will be at least 50% of the market value determined by the reference court under the impugned judgments. It is noticed that this court while ordering stay has imposed a condition that at least 50% of the compensation due under the impugned decrees should be deposited. It is stated that in LAR. No.9/01 pertaining to LAA. N0s. 540/01 etc. -9- LAA. No. 941 of 2004 the entire amount is deposited. It is ordered that the amounts deposited in cases other than LAR. No. 9/01 will be released to the concerned claimants and 50% of the amount deposited in LAR. No. 9/01 will be released to the claimants in that case. The learned Subordinate Judge will ensure that the enquiry pursuant to this remand judgment is completed and fresh judgment is passed at the earliest, at any rate, within 5 months of receiving copy of this judgment. Transmit the records back to the reference court forthwith. (PIUS C.KURIAKOSE, JUDGE) (P.Q. BARKATH ALI, JUDGE) ksv/- LAA. N0s. 540/01 etc. -10-