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. 1508 of 2008() -------------------------- LAR.99/1996 of ADDL.SUB COURT,KOLLAM .................... APPELLANT-CLAIMANT(S): -------------------------------- SWARNALETHA, VETTUTHARA VEEDU NEENDAKARA MURI, NEENDAKARA VILLAGE KOLLAM. BY ADV. SRI.N.DHARMADAN (SR.) SMT.D.P.RENU RESPONDENT/RESPONDENT(S): ----------------------------------- STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, KOLLAM. SR. GOVERNMENT PLEADER SRI.BASANT BALAJI THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 13/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & M.C. HARI RANI, JJ. ----------------------------------------------- L.A.A. No. 1508 OF 2008 ----------------------------------------------- Dated this the 13th day of January, 2009 J U D G M E N T Being aggrieved by the judgment of the reference court the claimant in a land acquisition case has come up in appeal. The acquisition was of 12.55 Ares of land in Kilikolloor Village of Kollam District for the purpose of constructing the National Highway bye-pass, Kollam. The appellant claimed Rs.4500/- per cent as land value. But the L.A. Officer would fix land value at the rate of Rs.1416/- per Are corresponding to Rs.574/- per cent. Acquisition was pursuant to a notification under section 4(1) which was published on 5-6-1990. The L.A. Officer classified the properties under acquisition as dry lands and wet lands and the appellant's property was included in the category of wet land. For the corresponding dry lands the L.A. Officer awarded Rs.7,290/- per Are and there were other reference cases initiated at the instance of the owners of the acquired dry lands. The evidence before the reference court in the first instance consisted of Exts.A1 and A2 sale deeds and the oral testimony of the appellant's brother as AW- 1. The ground which was seriously urged before the reference court was that the L.A. Officer went wrong in classifying the property under acquisition as wet land. It was contended that the property should L.A.A. N0. 1508/08 -2- have been included in the category of dry lands. Ext.A1 was copy of sale deed No.2458/87 dated 23-11-1987 executed in favour of the Eravipuram Panchayat by one Nissar. The land value reflected in Ext.A1 was Rs.22,690/- per are. Ext.A2 was a still earlier sale deed dated 3-11-1983 which revealed a land value of roughly Rs.6000/- per Are. The reference court repelled the contention of the appellant that the properties were not wet lands relying on the mahazar prepared at the time of taking over of possession. A1 & A2 documents were also ignored on the reason that the documents pertain to dry lands and not to wet lands. However, in view of the convincing and unchallenged evidence which had been adduced by AW-1 regarding the lie and location of the lands and its potentialities and proximity to the various commercial centres and institutions the court below could do guess work and fixed the value of land under acquisition at Rs.5000/- per Are. The Government preferred appeal against the judgment and this court would under Annexure-1 judgment dated 4-12-2007 in LAA. No.734/06 set aside the judgment of the reference court and remand the matter back to the reference court for fresh decision giving opportunity to both sides to adduce evidence. After remand the additional evidence on the side of the appellant claimant consisted of L.A.A. N0. 1508/08 -3- Exts.A1 to A8 which were copies of judgments of the reference court in connected matters and C-1 commissioner's report. The appellant got herself examined as a witness AW-1(?) and another witness AW-2 was also examined on the side of the claimant. This time also the reference court reiterated its view that the acquired properties were wet lands only. It was noticed that the judgments Exts.A1 to A8 pertain to acquisition of dry lands and it was held that those judgments could not be relied on for fixing the value of the acquired lands which were wet lands. The commissioner's report Ext.C-1 which revealed that the remainder portions of the acquired property were in the process of reclamation and that improvements had been effected on such remainder portion was also not relied on by the learned Judge for the reason that the visit of the commissioner was long after the date of the relevant notification under section 4(1). Ultimately the reference court would come to the conclusion that the appellants are entitled only for an enhancement of Rs.637.2 per Are over what had been awarded by the L.A. Officer. We have heard the submissions of Sri.N.Dharmadan, learned senior counsel for the appellant and those of Sri.Basant Balaji, learned Govt. Pleader for respondent. Drawing my attention to the L.A.A. N0. 1508/08 -4- Commissioner's report and the evidence available in the case the learned senior counsel submitted that the reference court was not at all justified in taking the view that the acquired property was wet land. According to him, originally the acquired property as well as the adjacent property which were lying contiguous to the same were wet lands. The evidence was that all the properties immediately surrounding the acquired property had been completely reclaimed and buildings had been put up on the same. The commissioner's report revealed that even a portion of the remainder property of the appellant subsequently sold by her is now being used as an automobile workshop. It is inconceivable according to the learned senior counsel that the property of the appellant which is relatively a small plot would remain as a wet land engulf within extensive areas of dry or reclaimed lands. The learned senior counsel would lastly submit that at best it could be stated that the acquired property was waste land. The learned senior counsel argued that the reference court committed the mistake of completely ignoring the evidence that had been adduced by the parties prior to the order of remand passed by this Court. Order of remand was passed by this Court at the instance of the Government so as to enable the Government “to adduce evidence before the L.A.A. N0. 1508/08 -5- reference court and to justify the fixation of land value by the land acquisition officer”. After remand no additional evidence whatsoever was adduced by the Government. The order of remand does not have the effect of effacing the evidence which the appellant had adduced before the court prior to remand. That evidence consisted of Ext.A1 and A2 sale deeds and the oral testimony of AW-1 Chandrabhanu, brother of the appellant. Subsequent to the remand the appellant produced additional documents. Instead of marking them as Exts.A3 to A10 the learned Judge marked them as Exts.A1 to A8 ignoring Exts.A1 and A2 which were already on record. Similarly, instead of examining the additional witnesses as AW-2 and AW-3 what the learned Judge did was to ignore the evidence already given by the brother of the appellant as AW-1 completely and examined the additional witnesses as Aws. 1 and 2. The reference court was not justified in ignoring its own earlier judgment dated 8-4-2005 altogether. Mr.Basant Balaji, learned Govt. Pleader would oppose all the submissions of the learned senior counsel stiffly. The learned Govt. Pleader argued that the contention of the appellant that the acquired properties were dry lands could not be countenanced in the teeth of L.A.A. N0. 1508/08 -6- the mahazar prepared at the time of acquisition. The appellant herself was an attester to the mahazar and in the award enquiry also the appellant admitted before the L.A. Officer that her acquired properties were wet lands. Reclamation of adjacent properties was not of much consequence. The question to be considered is whether as on the date of the notification under section 4(1) the acquired property was dry in nature. Though the nature of the adjoining properties may indicate that the acquired property was also capable of being reclaimed, the fact remains that it had not been reclaimed. When the attention of the learned Govt. Pleader was drawn by us to Annexure-5 judgment in LAA. No.426/07 arising from LAR. No.93/97 of the same reference court relating to the acquisition of dry lands refusing to interfere with the fixation of a value of Rs.16350/- per Are learned Govt. Pleader would submit that for the dry lands the awarding officer himself had awarded a value of Rs.7290/- per Are. The learned counsel submitted that even if this court takes the view that the ratio maintained by the land acquisition officer between the value of dry lands and corresponding wet lands is correct then also there is no justification for awarding more than Rs.3186/- per Are for the acquired properties in this case. The acquired properties would not have fetched even that L.A.A. N0. 1508/08 -7- much of value since they were lying as waste land for a very long period despite reclamation of the neighbouring properties, according to the learned Govt. Pleader. We have considered the rival submissions addressed at the Bar. We are of the view that the court below was not justified in completely ignoring the evidence which was already on record in the case prior to the order of remand passed by this court. True, this court set aside the previous judgment of the reference court and remanded the matter giving opportunity to both sides to adduce further evidence. This court did not express any opinion on the probative value of the evidence which was already on record. An order of remand does not amount to effacing the evidence already on record. The remand order in this case was passed by this court on the request of the Government that the Government be given opportunity to adduce evidence to show that the value determined by the awarding officer (Rs.1416/- per Are) is the correct market value of the property at the relevant date. Importantly, the Government had not adduced any counter evidence to Exts.A1, A2 and AW-1's testimony at the pre-remand stage and the request was made obviously to adduce counter evidence. Interestingly, after remand also the Government did not adduce any L.A.A. N0. 1508/08 -8- counter evidence. Exts.A1 and A2 produced prior to remand and all the documents produced subsequent to remand which are copies of relevant judgments regarding the acquisition of dry land have been rejected by the reference court on the reason that the lands covered by those documents were all dry lands in contrast to the acquired properties which were wet lands. But when dry lands and wet lands are situated within a given local area there must be some co-relation between the values of those lands which were lying contiguously and are being acquired for a common purpose. This must be why the learned Govt. Pleader when confronted with the situation of the finality attained by the fixation of value for dry land by this court at Rs.16350/- would submit that if a proportionate increase is given in the value of the acquired properties the appellant may have to be given land value of Rs.3186/-. We are of the view that Ext.A1 though is in respect of dry lands has some relevance in determining the market value of the acquired properties. Ext.A1 property was situated near to the acquired properties and A1 document is executed years prior to the date of publication of the relevant notification under section 4(1). We have reason to think that the price actually paid and received have been correctly disclosed in Ext.A1 since the same is in L.A.A. N0. 1508/08 -9- favour of a local authority. A1 reveals a valuation of more than Rs.22,000/- and odd per Are. If additions are given on account of passage of time till the promulgation of the notification under section 4 (1) the value of A1 property as on the date of Section 4(1) notification will have to be found to be much more. There is force in the argument of the learned Govt. Pleader that in the teeth of the mahazar to which the appellant is an attester the claim that the acquired properties were dry lands cannot be accepted. But at the same time, we are of the view that in quality the acquired properties were slightly superior to ordinary wet lands. There is evidence including Ext.C1 Commissioner's report to hold that the acquired properties were capable of easy reclamation, the remainder portions of the acquired properties have already been reclaimed. All the surrounding properties have been reclaimed and buildings put up. Taking all these facts into account we feel that there is every justification for refixing the market value of the acquired property at the relevant date of section 4(1) notification at Rs.4500/- per Are. Accordingly allowing the appeal we fix the value of the acquired properties as Rs.4500/- per Are. Appellant will be entitled to enhanced compensation for the entire extent of properties acquired on the basis L.A.A. N0. 1508/08 -10- of such refixation. It is needless to mention that the appellant will also be entitled for all statutory benefits under sections 23(2), 23(1-A) and Section 28 on the enhanced compensation. The appeal is allowed to the above extent, but in the circumstances the parties will suffer their respective costs. (PIUS C.KURIAKOSE, JUDGE) (M.C. HARI RANI, JUDGE) KSV/-