IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C. KURIAKOSE & THE HONOURABLE MRS.JUSTICE M.C. HARI RANI THURSDAY, THE 5TH FEBRUARY 2009 / 16TH MAGHA 1930 LA.App..No. 717 of 2003(K) -------------------------- LAR.3/2001 of SUB COURT, QUILANDY .................... APPELLANT(S): CLAIMANT ---------------------- AMMED, S/O. POCKER, AVALATH HOUSE, P.O.MEPPAYUR. BY ADV. SRI.R.K.MURALEEDHARAN SRI.R.PARTHASARATHY SMT.S.LAKSHMY RESPONDENTS: RESPONDENTS -------------------------- 1. THE DISTRICT COLLECTOR, KOZHIKODE. 2. THE EXECUTIVE ENGINEER, PWD ROAD DIVISION, KOZHIKODE. BY GOVT.PLEADERS MR. P.K.BABU & MR.BASANT BALAJI THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 05/02/2009, ALONG WITH LAA NO. 770 OF 2003,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & M.C. HARI RANI,JJ ============================== L.A.A.NOS.717 & 770 OF 2003 ============================ DATED THIS THE 5TH DAY OF FEBRUARY 2009 JUDGMENT Pius C.Kuriakose,J. Impugned in these appeals are the awards of the Reference Court in acquisition pursuant to a notification under Section 4 (1) published on 28-11-1997 for the widening of the Payyoli- Perambra road at Meppayur town. The Land Acquisition Officer awarded the land value at the rate of Rs.4124/- per cent relying on the basis document. Evidence before the Reference Court consisted mainly on Exts.A1 to A3 and also the report submitted by the Commissioner in the three cases which were considered by the learned Subordinate Judge together apart from the oral testimony of the claimants, AW1 to AW3. On the side of the Government, counter evidence consisted of the oral testimony of RW1, the Land Acquisition Officer. Ext.A1 was certified copy of a sale transaction some 12 years prior to the notification under LAA.717 & 770/2003 -2- Section 4(1) which related to just one cent of land and reflected a land land value of Rs.40,000/- per cent. Ext.A3 was certified copy of a sale deed executed about one year prior to the date of publication of Section 4(1) notification and it revealed land value at the rate of Rs.20,000/- per cent. Though the Advocate Commissioner, who was deputed by the court on application submitted by the claimants, was taken to the property covered by Ext.A1, he was not taken to the property covered by Ext.A3. Both Exts.A1 and A3 were marked through the claimants only. The parties to those documents were not examined at all. RW1, the Land Acquisition Officer would swear that it is a fancy price which is seen paid in Ext.A1 document. Though RW1 was cross examined at considerable length, no specific challenge is made to the version in chief examination that the price shown in Ext.A1 does not reflect the market value of the property but is a fancy price. The Reference Court on an evaluation of the evidence noticed that the acquired properties are unlike the property covered by the basis document situated in the town area of Meppaayur Town and concluded in our opinion correctly that it was not safe to rely on the basis LAA.717 & 770/2003 -3- document. The Advocate Commissioner had recommended land value of Rs.30,000/- per cent, obviously, on the basis of the value revealed in Ext.A1. The court did not become inclined to accept the recommendation. However, the court accepted the Advocate Commissioner's report regarding the locational and other advantages relating to the acquired properties and also on the basis of the other evidence on record found that the correct market value of the property at the relevant time was Rs.12,124/- per cent. 2. We have heard the submissions of Mr.R.K.Muraleedharan, learned counsel for the appellant and those of the learned Government Pleaders Mr.P.K.Babu and Mr.Basant Balaji. 3. Mr.Muraleedharan would argue that the court below was not at all justified in not placing reliance on Ext.A1. The distance between Ext.A1 property and the acquired property was only 45 metres. Counsel highlighted that this was not disputed even by RW1. RW1 had no case that Ext.A1 is a collusive transaction. Ext.A1 is executed 12 years prior to the date of notification and therefore, acquisition proceedings were not in contemplation at LAA.717 & 770/2003 -4- that time. Mr.Muraleedharan referred to a judgment of the Supreme Court in Cement Corporation of India Ltd. v. Purya, 2004(3)K.L.T. 737 in which it is held that examination of the parties to the document is not necessary for proving the transaction recorded in the document. 4. The learned Government Pleaders would resist the submissions of Mr.Muraleedharan. According to them, RW1 had clearly stated that it is a fancy price which was paid in Ext.A1 and that part of RW1's testimony had not been specifically challenged. 5. We have anxiously considered the submissions at the Bar. Ext.A1 pertains to a plot having just one cent in extent. Ext.A1 is executed more than 12 years prior to Section 4(1) notification. It is true that Section 51A of the Land Acquisition Act and also the principles laid down by the Supreme court in the decision referred to above will justify marking of documents in evidence, even without evidence the parties or anybody else acquainted with the documents. But marking was not amount to proving the transactions recorded in a document. There was no challenge against the version of RW1 that it is a fancy price which LAA.717 & 770/2003 -5- is shown in Ext.A1. We are of the view that the finding of the court below that Ext.A1 cannot be relied on is justified. But at the same time we feel that we should give an opportunity to the appellant for proving Ext.A3. Ext.A3 is executed just one year prior to Section 4(1)notification and there is no case for RW1 that the value shown in Ext.A3 is a fancy price. We feel that the appellant should be permitted to prove the transaction recorded in Ext.A3 by examining either the parties to the document or their successors or anybody acquainted with the execution of the document. If so advised, the appellants can take out a commission to compare the properties acquired and the property covered by Ext.A3. Accordingly, we set aside the judgment under appeal and remand L.A.R.Nos.3/2001, 6/2001 and 13/2001 back to the Sub Court, Koyilandy. That court will permit both sides to adduce whatever evidence they want to and will pass revise judgment on the basis of the evidence already on record and the evidence to be adduced in the case. Considering the order of remand passed, refund the full court fee paid to the appeal memoranda to the counsel for the appellants. Considering the age of the claimants, there will be a direction to LAA.717 & 770/2003 -6- the Reference Court to expedite matters and to ensure that the trial is completed and revised judgment is passed at the earliest, at any rate, within three months from the date of receipt of a copy of this judgment. Transmit the records back to the lower court immediately. The L.A.As. are allowed by way of remand. No costs. Sd/- PIUS C. KURIAKOSE, JUDGE Sd/- M.C. HARI RANI, JUDGE ks. LAA.717 & 770/2003 -7- PIUS C.KURIAKOSE & M.C. HARI RANI, JJ. L.A.A.NOS. 717 & 770 OF 2003 JUDGMENT 05-02-2009