IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 24TH AUGUST 2011 / 2ND BHADRA 1933 LA.App..No. 80 of 2008(D) ------------------------- LAR.185/2000 of ADDL.SUB COURT,KOLLAM .................... APPELLANTS/CLAIMANTS: ------------------------ 1. S. UNNIKRISHNAN, PUTHEN VEETIL KIZHAKKATHIL, AZHEEKAL, ALAPPAD VILLAGE, HOUSE NO.13, VANDANAM, NEERKUNNAM, ALAPPUZHA. 2. SULEKHA, W/O.S.UNNIKRISHNAN, PUTHEN VEETIL KIZHAKKATHIL, AZHEEKAL, ALAPPAD VILLAGE, HOUSE NO.13, VANDANAM, NEERKUNNAM, ALAPPUZHA. BY ADV. SMT.R.RANJINI SRI.S.RENJITH RESPONDENTS/RESPONDENTS: --------------------------- 1. STATE OF KERALA, REP. BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 2. INLAND WATER WAYS AUTHORITY OF INDIA, (MINISTRY OF SHIPPING GOVT.OF INDIA) HAVING ITS REGIONAL OFFICE, PARAMARA SHOPPING COMPLEX, PARAMARA ROAD, COCHIN-18, REP. BY ITS DIRECTOR, S. DANDAPAT. ADV. SRI.V.SANTHARAM, SC, IWAI GOVERNMENT PLEADER SRI.T.T.JOSEPHINA THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 24/08/2011 ALONG WITH LAA NO.89 OF 2008, 90 OF 2008, 982 OF 2008, 1197 OF 2008, 1611 OF 2008 AND 2421 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM,JJ. ------------------------------- LAA.NOs. 80,89,90,982,1197,1611 & 2421 of 2008 --------------------------------- Dated this the 24th day of August, 2011 JUDGMENT Pius C.Kuriakose ,J. All these appeals preferred by the claimants challenging what they described as the gross inadequacy of the compensation determined by the Reference Court for their properties in Alappad Village, Kollam District which were acquired for the purpose of Inland Waterways Authority of India. The acquisition was pursuant to section 4(1) notification dated 13.1.1998. The Land Acquisition Officer categorised the land under acquisition into 3. Included in category 1 where dry lands which were road frontage properties at a value of Rs.8784/- per cent. Included in category 2 where dry lands without road frontage at a value of Rs.7808/- per cent. Included in the 3rd category were wet lands valued at Rs.927/- per cent. Before the Reference Court apart from the oral evidence it was mainly on Exts.A1 and A2 that the appellants relied on. Exts.A1 and A2 were pre-notification documents executed on 16.9.1995 in respect of the property in Oachira LAA.80/2008 & conn. Cases. 2 Village . The learned Subordinate Judge discarded Exts.A1 and A2 from consideration for the reason that Exts.A1 and A2 properties were small bits and for the further reason that there was no evidence adduced by the parties to show that the properties covered by Exts.A1 and A2 were comparable to the properties under acquisition. Finally discarding Exts.A1 and A2 what the learned Subordinate Judge did was to notice the oral evidence that the properties were having several potential value and to refix the market value of properties included in all the 3 categories by granting enhancement of 60%. Thus the market value of category 1 was refixed at Rs.14054/- per cent. Similarly the value of properties in categories 2 and 3 were refixed respectively at Rs.12,492.8 and Rs.1483.2 per cent. 2. In these appeals filed by the petitioners various grounds are raised assailing the finding of the learned Subordinate Judge. It is urged that the appreciation of evidence by the learned Subordinate Judge was quite improper. It is urged that Exts.A1 and A2 should have been relied on by the learned Subordinate Judge while refixing the land value. It was Smt. R.Ranjini who appeared on behalf of most of the claimants LAA.80/2008 & conn. Cases. 3 in the reference court who piloted the arguments on behalf of the appellants. We heard Sri. K.T.Thomas, learned counsel for the appellants in LAA.Nos. 982/08 and 1197/2008 and Sri. P.Sreekumar also addressed arguments based on the grounds raised in the appeals preferred by the respective claimants. In their arguments of learned counsel for the appellants highlighted the following points (1) Exts.A1 and A2 documents were executed about 3 years prior to the promulgation of the notification under section 4(1). In cross examination it was not suggested that the market value reflected in those documents is not the correct market value of properties involved therein. There is no finding by the court below on Exts.A1 and A2 do not record genuine transactions. Even if the court below felt that the properties covered by Exts.A1 and A2 were superior to the properties under acquisition then also considering the fact that the distance between acquired properties and properties covered by Exts.A1 and A2 was only 2 km., the learned Subordinate Judge could have made reasonable deductions and refixed the market value accordingly. Document No.2475/95 of Oachira Sub Registry dated 17.9.97 discussed by the Land Acquisition Officer LAA.80/2008 & conn. Cases. 4 as item No.7 in its notes to award was discarded by the Land Acquisition Officer for the reason that the same related to wet land. The learned Subordinate Judge could have relied on that document and refixed the land value keeping in mind the ratio maintained by the Land Acquisition Officer between the values of wet land and dry land. 3. Sri.V.Santharam, learned Standing Counsel for the requisitioning authority would oppose the submissions made by Smt. Ranjini, Sri. K.T.Thomas and Sri.Sreekumar very stiffly. Learned counsel pointed out that the learned Subordinate Judge who had occasion to deal with a number of cases pertaining to acquisition for the purpose of Inland Waterways Authority of India of properties situated in various villages of Kollam District had kept in mind the rates fixed by him in respect of the land in those villages and that was why he took the decision for enhancement at 60% over what was awarded by the Land Acquisition Officer. The reason stated by the learned Subordinate judge for discarding Exts. A1 and A2 are very sound. No evidence was placed on record by any of the claimants to prove the comparability of the properties covered by those two LAA.80/2008 & conn. Cases. 5 documents and the properties under acquisition or for that matter the properties covered by the basis document relied on by the Land Acquisition officer. 4. Strong exception was taken by Sri.Santharam to the submission of Smt.Ranjini regarding document which is described in the notes to award as serial No.7. It is not correct to say that the above document pertained to wet land. Mr.Santharam also drew our attention to various judgments of this court fixing or granting approval to fixation of land value in various villages of Kollam District at 60% above the rate awarded by the Land Acquisition Officer. He submitted that if we interfere with the impugned judgment or pass an order of remand giving opportunity to the appellants to adduce fresh evidence, the same will result in upsetting judgments which have already attained finality. 5. We have given our very anxious consideration to the rival submissions addressed at the bar. As already indicated Exts.A1 and A2 were two items of evidence which were relied on by the appellants/claimants in support of their claim for enhancement over what was awarded by the Land Acquisition LAA.80/2008 & conn. Cases. 6 Officer. Those two documents were in respect of the properties situated in Oachira Village, while the properties under acquisition were in Alappat village. But if those properties were situated not far away from the properties under acquisition it is possible that the value reflected in those documents can have some bearing on the correct market value to be fixed for the properties under acquisition. But as rightly noticed by the learned Subordinate judge as regards the comparability of the properties covered by Exts.A1 and 2 and for that matter the basis property no acceptable evidence has been adduced by the claimants. They never chose to take out a commission so that the properties covered by Exts.A1 and A2 and the basis properties can be inspected by the parties and a report submitted to the court regarding their comparability. So also, it was only formal proof that was given in respect of Exts.A1 and A2 in terms of section 51A. The appellants could have adduced better evidence by examining one of the parties to Exts.A1 and A2 and proved that Exts.A1 and A2 to be records of normal transaction. 6. The statement of Smt. Ranjini with reference to the documents which is referred to and discussed as serial LAA.80/2008 & conn. Cases. 7 number 7 in the notes to award had some appeal. But we do not agree that the property covered by that document was wet land. It is discernible from the discussions in the notes to award itself that those properties were reclaimed land. It is clear to our mind that the value of reclaimed land will be more than the value of the wet land while the same will be less than the value of the corresponding dry land. In other words the value of reclaimed land reflected in a normal sale transaction can have some bearing while determining the correct value of dry and wet lands situated in a given local area. No evidence whatsoever was adduced by the claimant before the court below in respect of the document which is discussed as serial No.7. Therefore the value reflected for reclaimed land also cannot be taken into account for determining the market value of the land under acquisition. We feel that in all these cases the claimants/appellants can be afforded opportunity to substantiate their claims for higher value by adducing more evidence. We are however inclined to afford such opportunity only by imposing stringent conditions, as we notice that there was lethargy on the part of the appellants in the matter of adducing proper evidence before the reference court. LAA.80/2008 & conn. Cases. 8 The result of the above discussion therefore is follows. 7. We set aside the judgments and decrees under appeal and remand LAR Nos.185,151,152,164,187,153 & 155 of 2000 to the additional Subordinate Judge's Court, Kollam. The learned Subordinate Judge is directed to permit the appellants to adduce whatever further evidence they want to adduce for substantiating their claims for enhanced land value. It is open to the appellants to apply for issuance of commission. If the appellants adduce further evidence, the requisitioning authority and the State also can be permitted to adduce counter evidence. The learned Subordinate Judge will take a fresh decision on the basis of the evidence already on record and the evidence which comes further on record keeping in mind the observations made by us in the judgment. We make it clear once again that the decision in these cases will have to be taken on the basis of the evidence which comes on record. It is open to the requisitioning authority to place reliance on the judgment passed by this court in respect of the properties in other villages of Kollam District by producing copies of those judgments. But those judgments by themselves will not be conclusive and the decision will have to LAA.80/2008 & conn. Cases. 9 be taken on the totality of the evidence which comes on record. Parties will enter appearance before the reference court on 22.9.2011. The learned Subordinate Judge will expedite matters and will pass revised judgment early, at any rate within four months thereafter. This judgment remanding all these case will become operative only subject to the following conditions. 8. If the appellants become eligible for enhanced compensation over and above what is awarded under the impugned judgment such enhanced compensation will not carry interest under section 28 of the land Acquisition Act during the period from 21.6.2007 till the date of the revised award. (2) The registry will refund only 75% of the court fee remitted on the respective appeal memoranda to the counsel for the appellants. The balance 25% will be forfeited by the appellants to the Government. PIUS C. KURIAKOSE,JUDGE C.K.ABDUL REHIM,JUDGE pmn/ LAA.80/2008 & conn. Cases. 10