IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 LA.App..No. 403 of 2005(A) -------------------------- LAR.8/1992 of SUB COURT, PATHANAMTHITTA .................... APPELLANT/ADDITIONAL 2ND RESPONDENT ------------------------------------------------- KALANJOOR GRAMA PANCHAYATH, KALANJOOR P.O., PATHANAMTHITTA REPRESENTED BY ITS SECRETARY. BY ADV. SRI.V.PHILIP MATHEW RESPONDENTS: CLAIMANTS AND 1st : RESPONDENT --------------- 1. KESAVAN POTY RAMAN POTTY, PLASTHANATHU MADOM, KALANJOOR MURI, KALANJOOR VILLAGE, ADOOR TALUK. 2. KESAVAN POTTY VASUDEVAN POTTY PLASTHANATHU MADOM, KALANJOOR MURI, KALANJOOR VILLAGE, ADOOR TALUK. 3. RUGMINI DEVI, PLASTHANATHU MADOM, KALANJOOR MURI, KALANJOOR VILLAGE, ADOOR TALUK. 4. GEETHA DEVI, PLASTHANATHU MADOM, KALANJOOR MURI, KALANJOOR VILLAGE, ADOOR TALUK. 5. SREEKANTH, PLASTHANATHU MADOM, KALANJOOR MURI, KALANJOOR VILLAGE, ADOOR TALUK. 6. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, PATHANAMTHITTA. ADV. SRI.V.G.ARUN FOR R1 TO 5. SRI.T.R.HARIKUMAR FOR R1-5 SR. GOVERNMENT PLEADER SRI P.K.BABU FOR R6 THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 26/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & P.Q. BARKATH ALI, JJ. --------------------------------------------- L.A.A. 403 0f 2005 --------------------------------------------- Dated: MAY 26, 2009 JUDGMENT Pius C. Kuriakose, J. Even though Sri V.Philip Mathew, learned counsel for the appellant Panchayat, the requisitioning authority, has addressed us very strenuously and persuasively, we are not inclined to interfere with the impugned judgment. The appeal pertains to acquisition of land in Kalanjoor village for the purpose of construction of an open air theater-cum-stadium and cultural centre for the panchayat. The relevant sec.4(1) notification was published on 4.4.1989 and the land acquisition officer awarded land value at the rate of Rs.4703/- per cent. 2. Before the Reference Court, the evidence consisted of Exts.A1 to A4 documents, oral testimony of Aws.1 to 3, Commission Report Ext.C1 and mahazar Ext.C2 prepared by the Commissioner. No counter oral evidence was adduced either by the appellant requisitioning authority or by the Government. Exts.A2 to A4 were all post-notification documents and hence rightly excluded by the learned Subordinate Judge from L.A.A. 403 0f 2005 2 consideration for determining the land value. Ext.A1 sale deed was executed more than three years prior to the notification and it revealed a land value of Rs.10,000/- per cent. The advocate Commissioner in Ext.C1 reported that the property was comparable to Ext.A1 property and the court below noticed the passage of time since the execution of Ext.A1 and refixed the land value at Rs.35297/- per Are corresponding to Rs.14284/- per cent. Sri V. Philip Mathews, learned counsel for the appellant, submitted that the Panchayat did not get sufficient opportunity for adducing evidence. He would hand over to us certified copies of documents Nos.425/2004, 1472/1992 and 1365/2003 of the Sub Registry, Pathanapuram. As regards document No.425/2004, the learned counsel submitted that the said document is between close relatives of some of the claimants and the said document will reveal that even after the present acquisition and all the developments which have taken place subsequent to the relevant sec.4(1) notification, the market value of property in the area remains far below Rs.10,000/-. Learned counsel pointed out that Ext.A1 pertains to a small plot and hence it should not have been relied on. Mr. Philip very L.A.A. 403 0f 2005 3 fervently appealed for an order of remand so that the documents handed over by him to us can be produced before the court below. On hearing a submission by Mr. Philip that AW.1 had admitted before the court below that the acquired property is 'nilam' and not 'garden land', we called for the records and we have gone through the entire testimony of AW.1. The testimony reveals that though AW.1 has stated that the property is 'nilam', he has denied the suggestion that the property was under paddy cultivation and has asserted that the property was a rubber plantation. 3. All the submissions of Mr. Philip were very strenuously resisted by Mr.T.R.Harikumar. He submitted that in the first instance the Reference Court fixed the compensation at Rs.44697/- per Are. The case was remanded on an appeal preferred by the Government mainly in view of the circumstance that the requisitioning authority, a necessary party, had not been made a party before the Reference Court. It was accordingly that the Panchayat came on record. Mr. Harikumar submitted that the Panchayat received adequate opportunity for substantiating its contentions by adducing evidence. Still it did L.A.A. 403 0f 2005 4 not adduce even formal counter evidence. 4. We have considered the rival submissions and we have gone through the evidence available on record. We are not much impressed by the submissions of Mr. Philip that document No.425/2004 executed between close relatives of the claimants is a relevant document. As it is obvious, the said document is a post notification document and it has been held by the Supreme Court in G.M.Oil and Natural Gas Cor. Ltd. v. R. Jivanbhai Patel and Another – 2008 SAR (Civil) 894, that the reference court should be very slow in relying on post-notification documents since the relevant date for determining the market value is the date of sec.4(1) notification. It should be noticed that documents Exts.A2, A3 and A4 put in evidence by the claimant were rejected for the reason that they were post-notification documents. The evidence adduced by AW.1 does not reveal any specific admission by that witness that the property in question was 'nilam' under cultivation. In fact the evidence is to the effect that the property was rubber plantation. There is no room for any controversy as to what was the real nature of the property at the time of acquisition. The mahazar reveals that in these L.A.A. 403 0f 2005 5 properties extending to 22 Ares there stood as many as 91 rubber trees under tapping and 19 coconut trees of various heights. The mahazar describes the property as 'nilam nikathu purayidam'. May be it is true that originally the property was wet land which was subsequently reclaimed as a rubber plantation. Ext.A1 pertains to property comparable to the acquired property as has been reported by the Advocate Commissioner also. It is true that under the impugned judgment the respondent has been awarded more than what is fixed as market value in Ext.A1 as there is a gap of more than three years between the date of Ext.A1 and the date of publication of notification under sec.4(1). According to us the Subordinate Judge was justified in giving additions taking into account the passage of time. The result is that the appeal fails and it stands dismissed. No costs. PIUS C. KURIAKOSE, JUDGE P.Q. BARKATH ALI, JUDGE mt/-