IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE WEDNESDAY, THE 17TH SEPTEMBER 2008 / 26TH BHADRA 1930 LA.App..No. 312 of 1994(B) -------------------------- LAR.65/1991 of DISTRICT COURT, THALASSERY .................... APPELLANTS:PETITIONERS: ----------------------------- 1. BHAPPANTAKATH MARIYUMMA, D/O.MOHAMMAD, KALLIASSERY VILLAGE, KALLIASSERY AMSOM & DESOM. 2. BHAPPANTAKATH ABOOBAKER, DO. DO. 3. BHAPPANTAKATH ERAMULLAN, DO. DO. 4. BHAPPANTAKATH MAHAMOOD, DO. DO. 5. -DO- ABDULSALAM, DO. DO. 6. -DO- ABDULKAREEM, DO. DO. 7. -DO- ABDUL RAHMAN, DO. DO. (APPELLANTS 1 TO 4 AND 6 AND 7 BY POWER OF ATTORNEY, 5TH APPELLANT). BY ADV. SRI.BINOY RAM. V RESPONDENT:RESPONDENT: ------------------------------- THE SPECIAL TAHSILDAR, LAND ACQUISITION OFFICER, THALASSERY. BY GOVERNMENT PLEADER SMT.LATHA T.THANKAPPAN THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 17/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: LAA 312/94 JUDGMENT NO REPRESENTATION FOR THE APPELLANTS. THE APPEAL WILL STAND DISMISSED FOR DEFAULT. 17.9.2008 SD/- PIUS C.KURIAKOSE, JUDGE. SRD TRUE COPY P.A.TO JUDGE. PIUS.C.KURIAKOSE,J. ------------------------ L.A.A. No. 312 OF 1994 ------------------------ Dated this the 6th day of November, 2008 JUDGMENT This appeal is filed by the claimants whose properties were acquired for the establishment of an Engineering College at Kannur. The land acquisition officer awarded land value at the rate of Rs.6,450/- per Are, which was enhanced by the reference court relying on the evidence which came on record, to Rs.7,413/-. Even though several grounds have been raised in the appeal and the learned counsel for the appellant Sri.Binoy Ram addressed arguments on all the grounds, he would give thrust to one ground in the appeal memorandum that the learned Subordinate Judge was not justified in not granting the same market value which was granted for the properties involved in the other reference cases covered by the impugned common judgment. The impugned common judgment relates to nine cases including L.A.R.No.65/91 from which the present appeal arises. It is seen from the judgment that in all other cases S.A..No.312/1994 2 market value of the land was refixed by the court at Rs.3,500/- per cent while in the case of the appellants' properties, it was refixed only at a reduced rate of Rs.3,000/- per cent. 2. The question, which therefore seriously arises for consideration in this appeal, is whether the above difference made by the learned Subordinate Judge while refixing the value of the lands involved in this appeal is justified. The reasoning of the learned Subordinate Judge dealing with the above aspect of the matter is given from line 25 onwards on page No.11 of the judgment till line 10 of page No.12 which are quoted as follows; “Now I will consider as to what is the value to be fixed as regards the land involved in L.A.R. No.65/91. It is gatherable in the award in L.A.R. No.65/91 that total extent of the property acquired is 0.8680 hectare. The land is valued on the basis of Ext.R1 and Ext.A1. Total extent of the property covered by Ext.R1 is 441/2 cents. Extent of the property covered by Ext.A1 is 8 cents. It is well settled that value given to small plots of land cannot as such be adopted for valuing larger tracts of land. Reason is that retail price will be different from the whole sale price. Moreover, for converting a larger plot into a number of plots, a portion of the land will have to be left for providing amenities like road, drainage, drawing electric lines, etc. So from retail price whole sale price can be deduced by reducing the price from 10 to 5%. This is the well settled principle. No doubt plot involved in LAR No.65/91 is a larger plot having an extent of 0.8680 hectare. S.A..No.312/1994 3 But, in all other cases plot involved is less than 50 cents. More over it is even even admitted by the claimants in LAR No.65/91 even in the detailed statement that a portion of the land already had been fully utilised by him for excavation of laterite stones. It is not in dispute that there is a big pit in the property in LAR No.65/91. This is the result of quarrying laterite stones. On behalf of the claimants in LAR No.65/91 AW 2 was examined before court. It is categorically admitted by him in the cross examination that about 7 cents is lying as a big pit and it is the result of quarrying the laterite stones. It is also deposed by him that even before the death of his father, land was used as a quarry. It is also deposed by him that his father died before six years back. So it is clear that a portion of the land involved in LAR No.65/91 was used as a quarry atleast for 6 years. More over it is also deposed by AW2, that about I acre of property is rocky area. No doubt rocky area can be utilised for blasting and selling laterite stones. Considering all these aspects, I think alteast 15% can be deducted from the value fixed generally per cent i.e. from Rs.3,500/- for the purpose of arriving at the wholesale price and by taking into account the fact that a portion of the land involved in LAR 65/91 as already utilised for quarrying. When we work out 15% of 3500 comes to Rs.525/-. I think it can be limited to Rs.500/-. So value of he land involved in LAR 65/91 can be fixed as Rs.3000/- per cent.” 3. The above quoted portion of the judgment will show that the learned Subordinate Judge has given two reasons. The first reason is that total extent of the land acquired in this case is 86.80 Ares and that applying the well settled principles that S.A..No.312/1994 4 value given to the small plots of lands cannot be adopted for valuing larger tracts of land on the reason that retail price will be different from the whole sale price and the further reason that for converting larger plot into a number of smaller plots, a portion of the land will have to be left out for providing amenities like road, drainage, drawing electric lines, etc, the learned Judge would held that that there is justification for making a cut of 10 to 15%. The learned Judge noticed that unlike the properties , which were acquired in this case, the properties which were acquired in the other cases covered by the common judgment were relatively smaller plots extending to below 50 cents. The above reason, in my opinion, cannot be a good reason for reducing the value of the acquired properties if the acquired properties in all other respects are similar to the properties covered by the other cases in the common judgment. It is not quite just or proper to apply the principle of reducing a portion from the wholesale price for evaluating the market value of the acquired properties though that principle may have some application where comparable sales are considered by the reference court for determining the market value of the S.A..No.312/1994 5 properties under acquisition. From the point of the requisitioning authority, the acquired properties in this case and the acquired properties in the other cases covered by the common judgment were to be enjoyed as one holding. Essentially, determination of market value in the land Acquisition cases is the exercise of determining the price which a willing purchaser will be prepared to pay to a willing seller. The properties of the appellants were being acquired in exercise of powers eminent domain. The appellants on their own would not have sold their properties in wholesale. They could have, if they so desired, sold a portion of their properties in retail also in which case they could have received the retail price. 4. Even as I do not approve the application of the principle stated by the learned Subordinate Judge has applicable for valuation of larger plots, I am not inclined to interfere with the judgment of the court below since I find that there are atleast two other good reasons justifying the determination of a lesser value for the appellants properties than the price determined for the properties covered by the other cases. The land acquisition officer had awarded land value in the other cases at the rate of S.A..No.312/1994 6 Rs.8,645/- while for the appellants' properties he had fixed only Rs.6,450/- Thus, the awarding officer himself has treated the appellants' properties as inferior to the properties covered by the other cases. 5. The other reason justifying adoption of different standards for the present case and the other cases is that it had been admitted by the appellants in their statement itself that a portion of their land had already been fully utilised by them, for excavation of laterite stones. It was found by the court below on the basis of evidence adduced by the AW2 himself that portion of the acquired properties were laterite quarries and big pits have already been developed on the properties even during the life time of their father. It was conceded by AW-2 himself that atleast one acre of property was lying as rocky area unlike the properties covered by the other cases. It was taking into account, those reasons also, that the learned Subordinate Judge decided to award only 85% of the value determined for the property involved in the other cases to the appellants. The said decision in my opinion, cannot be said to be vitiated in any manner. S.A..No.312/1994 7 The appeal fails and the same will stand dismissed. No costs. PIUS.C.KURIAKOSE,JUDGE) dpk S.A..No.312/1994 8 PIUS.C.KURIAKOSE,J. ------------------------ S.A.No. 312 OF 1994 ------------------------ JUDGMENT 6TH NOVEMBER 2008