IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 2ND SEPTEMBER 2008 / 11TH BHADRA 1930 LA.App..No. 465 of 2005 & Cross Objection. 29/07 ------------------------- LAR.33/2003 of SUB COURT, QUILANDY .................... APPELLANT: RESPONDENT. ---------------------- THE MANAGING DIRECTOR, KSIDC, THIRUVANANTHAPURAM. BY ADV. SRI.JOBY CYRIAC RESPONDENTS: CLAIMANTS. ----------------------- 1. THE DISTRICT COLLECTOR, KOZHIKODE. 2. POKKATTU RAGHAVAN, S/O.KANARAN, SIVAPURAM. BALUSSERY. BY SR. GOVERNMENT PLEADER SRI.BASANT BALAJI FOR R1 SRI.R.K.MURALEEDHARAN FOR R2 THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 02/09/2008, ALONG WITH LAA NO. 467/05 ETC. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE, J. --------------------------------------------------------------------- LAA. Nos.465/05, 467/05, 647/05, 659/05, 660/05 & 811/05 ---------------------------------------------------------------------- Dated this the 2nd day of September, 2008 J U D G M E N T All these appeals filed by the requisitioning authority, the Managing Director, KSIDC, Trivandrum are directed against a common judgment of the Subordinate Judge's Court, Quilandy in land acquisition reference cases pertaining to acquisition in Kinaloor Village for the purpose of widening of the Kinalur – Vattoli Bazar Public Road leading to the Industrial Growth Centre established by the appellant. The relevant notification under section 4(1) was on 25-4-1999. The land acquisition officer had categorised the lands involved in all these appeals other than LAA. No. 465/05 as garden lands and had fixed the land value at the rate of Rs.3034/- per cent relying on document No.227/96 dated 12-7-1996 of SRO Thamarassery. Similarly for wet lands the land acquisition officer had awarded land value at the rate of Rs.367/- per cent relying on the document which is marked in the case as Ext.R7. These references under section 18 of the Land Acquisition Act were initiated at the instance of the land owner claimants who were dissatisfied with the awards passed by the L.A. Officer. The learned Subordinate Judge would consolidate LAR. Nos.16/03, 17/03, 19/03, 20/03, 33/03, 34/03, 52/03, 60/03, 64/03 and 65/03 and try LAA.N0. 465/05 etc. -2- them jointly. LAA. No. 811 pertains to LAR. No. 20/03 while LAA. Nos.465/05, 660/05, 659/05, 467/05 and 647/05 pertain respectively to LAR. Nos. 33/03, 64/03, 34/03, 16/03 and 65/03. The evidence before the Reference Court consisted of Ext.A1 copy of Kanam assignment deed dated 9-12-1997 and Ext.A2 copy of Jenmam assignment deed dated 7-2-1989 and the oral testimony of AW-1 claimant in one of the cases on the side of the claimants. On the side of the respondents it consisted of Exts.R1 to R8 and oral testimonies of RW-1 and RW-2. Apart from that, report of a commissioner who was deputed by the court for the purpose of inspecting the properties and making a comparative assessment of the acquired properties and the properties covered by Exts.A1 and A2 was marked as Ext. X-1. The Advocate Commissioner in Ext.X-1 recommended that a value of Rs.15,000/- per cent be fixed for the garden lands and a sum of Rs.3000/- per cent be fixed for wet lands which were acquired. Ext.A1 pertains to sale of 6 cents of garden land at the rate of Rs.20,000/- per cent. It came out in evidence that A1 property was situated just half a kilometre away from the acquired property. The Commissioner had recommended a value ofRs.15,000/- per cent for the acquired property after deducting Rs.5000/- for the extra commercial LAA.N0. 465/05 etc. -3- advantages which A1 properties were enjoyed. As for Ext.A2 it was noticed in evidence that the property covered by Ext.A2 was situated at a distance of 1 kilometre from the acquired land and that it did not have any road access. It was also noticed that the acquired property did not have road access and it was relying on Ext.A2 that the commissioner had recommended Rs.3000/- per cent for the wet land. The reference court however did not become inclined to rely on Ext.A1 on the reason that the vendor in Ext.A1 was interested in the land acquisition cases since other property of that vendor was also acquired for the very same purpose. For that reason the court below concluded that the sale revealed by Ext.A1 cannot be treated as a sale by a genuine seller to a genuine purchaser for a genuine price. Court below did not accept Ext.A2 either for the reason that A2 property was having proximity to the stadium as well as to the main areas of the town. Ultimately what the court below did was to notice the time land between the date of 4(1) notification and the basis document Exts.R7 and R8 and also to notice the absence of tarred road frontage for the above properties covered by Exts.R7 and R8 and to enhance the value for dry lands to Rs.6000/- per cent and the value of the wet lands to Rs.1250/- per cent. For doing so, the reference court added a sum of LAA.N0. 465/05 etc. -4- Rs.1966/- per cent to the value of dry lands for passage of time and added a further amount of Rs.1000/- per cent for the road frontage which the acquired properties were enjoyed. Similarly a sum of Rs.383/- per cent was added to the value of wet lands for passage of time and a further sum of Rs.5000/- was added for the road frontage advantage which the acquired properties were enjoying. I have heard the submissions of Sri.Joby Cyriac, learned counsel for the appellant, Sri.R.K.Muraleedharan, learned counsel for the cross objector respondent and Sri.Basant Balaji, the learned Government Pleader. The learned counsel for the appellant would support the decision of the learned Subordinate Judge to discard Exts.A1 and A2. According to him having discarded Exts.A1 and A2 there was no evidence on the basis of which enhancement should be granted and the present enhancement and the enhancement now granted is not founded on any legal evidence. Sri.R.K.Muraleedharan, learned counsel for the cross objector would assail the findings of the learned Subordinate Judge regarding the market value of the acquired properties at the relevant time. According to him the learned Subordinate Judge was not at all justified in discarding Exts.A1 and A2. LAA.N0. 465/05 etc. -5- Ext.X-1 commissioner's report which was a part of the record in the case should have been accepted and value of dry land should have been fixed at Rs.12,000/- per cent and value of wet land should have been fixed similarly at Rs.3000/- per cent. He would further submitted that the finding of the learned Subordinate Judge that the acquired properties did not have any commercial importance and that the properties could be used only as residential plots was also unreasonable. The learned Government Pleader would support the findings of the learned Subordinate Judge and submitted that there is absolutely no warrant for any interference. In reply the learned counsel for the requisitioning authority (appellant) would read over to me the evidence which had been given by the vendor in Ext.A1 who had been examined as a witness in another case. He submitted that it is crystal clear from that evidence that the vendor in Ext.A1 had accepted Ext.A1 document showing an inflated value with the intention of staking a claim for that value before the awarding officer when he himself is called by the awarding officer for the enquiry in connection with acquisition of his common property. A2 property was situated near to the town and had a close proximity to the stadium and therefore there was no comparability between Ext.A2 and the acquired LAA.N0. 465/05 etc. -6- property and the wet lands among the acquired property. I have considered the rival submissions addressed at the Bar. I have carefully gone through the impugned judgment and I have scanned the evidence which was recorded by that court. Exts.A1 and A2 were the principal item of evidence on the basis of which the claimant respondents claim enhanced land value. A1 was rejected by the reference court on the reason that the vendor in Ext.A1 was a party interested in the land acquisition since his properties were also acquired in the same acquisition and the very execution of Ext.A1 is at a time when he has been put to notice regarding the acquisition of his own properties. The evidence given by the vendor in Ext.A1 in another case which was read over to me which is established the very hilt that the finding of the learned Subordinate Judge that an inflated price has been shown in Ext.A1 is a correct finding. More over, in this case I find that no endeavour has been made by the claimants to prove Ext.A1 property by examining anybody connected with the execution of that document despite the challenge made on Ext.A1 by the respondents. Similarly I am of the view that the finding of learned Subordinate Judge that there is no comparability between the wet lands covered by A2 and the wet lands involved in LAA.N0. 465/05 etc. -7- these cases is also reasonable. A2 properties were situated closer to town and very near to stadium. A2 documents also was never attempted to be proved by examining any of the parties to the same. Nevertheless I feel that the learned Subordinate Judge had erred in concluding that the dry lands involved in this acquisition did not have any commercial potentiality and could have been used only as residential sites. It is admitted that all the dry lands involved in the acquisition were having direct frontage of the Kinalur - Vattoli Bazar Public Road. The learned Subordinate Judge's conclusion that these properties did not have commercial potentiality is based on the report of the Advocate Commissioner in Ext.X-1 that as matters obtained now these properties did not have nearness to any commercial establishment or offices. While assessing the potentiality of a given property for commercial use the question to be considered is not whether the properties having nearness to the existing commercial establishments the question to be considered is whether in future these properties can be diverted or is likely to be diverted as commercial properties. In my opinion any property having direct frontage of a public road within a town or village will have some commercial potentiality at least in the sense that shops or like LAA.N0. 465/05 etc. -8- establishments can be put up. Land value of dry lands have been enhanced toRs.6000/- per cent taking into account passage of time and nearness to road frontage. If the learned Subordinate Judge had taken into the possibility of the lands put to commercial use at least to a certain extent then at least Rs.1500/- per cent would have been added to the value presently fixed by the learned Judge for dry lands. I add that amount to the value fixed by the learned Subordinate Judge and re-fix the land value of dry lands/garden lands involving the acquisition at Rs.7500/- per cent. It is almost on the same reasoning that the learned Subordinate Judge re-fixed value of wet lands at Rs.1250/-. According to Ext.X-1 report the ratio between the values of dry lands and wet lands in the locality is Rs.15,000- : Rs.3000/-. According to the learned Subordinate Judge, the same is Rs.6000/- : Rs.1250/-. Thus according to the advocate commissioner and the court the ratio of Rs.3034/- : 367 between the value of dry lands and wet lands maintained by the land acquisition officer is not the correct ratio. I am also inclined to take the view that the reference court as well as the commissioner have come to a more correct decision as regards the ration between the two categories of properties in the locality. When it is found that the correct value of dry lands is Rs.7500/- per cent the LAA.N0. 465/05 etc. -9- value of wet lands in my opinion should be Rs.1600/- per cent. Thus dismissing the appeals and allowing cross objections in part I re-fix the value of garden lands acquired in all these cases at Rs.7500/- per cent and the value of wet lands at Rs.1600/- per cent. The claimants will be entitled for all statutory benefits admissible to them including solatium, the amount under section 23-A and interest under 28. The parties are directed to suffer their costs in the appeal and the cross objections. (PIUS C.KURIAKOSE, JUDGE)