IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 LA.App..No. 960 of 2000(D) -------------------------- LAR.46/1989 of II ADDL.SUB COURT,THRISSUR .................... APPELLANT(S)/CLAIMANTS: -------------- 1. N.C. DAVIS, JEWELLER (NADAKKAVUKARAN) KANAKA JEWELLERY, HIGH ROAD, THRISSUR. 2. C.P.BABY S/O CHUNGATHU PAVUNNY, JEWELLER, KANAKA JEWELLERY, HIGH ROAD, THRISSUR. BY ADV. SRI.A.K.CHINNAN SMT.GIGI MATHEW RESPONDENT(S): --------------- 1. SPECIAL TAHSILDAR (LA), THRISSUR MUNICIPALITY, THRISSUR. 2. SECRETARY, THRISSUR MUNICIPALITY, THRISSUR. ADV. SRI.K.B.MOHANDAS,SC,THRISSUR CORPORATIO FOR R2 SRI.LELLULAL T.G.THUNDATHIL FOR R2 SR. GOVT. PLEADER SRI.BASANT BALAJI FOR R1 THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 01/06/2009, ALONG WITH LAA NO. 1043 OF 2000 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & BARKATH ALI, JJ. ----------------------------------------------- LAA. No. 960 & 1043 OF 2000 ----------------------------------------------- Dated this the 1st day of June, 2009 J U D G M E N T Pius C.Kuriakose, J. These appeals are by the claimants who are not satisfied by the enhancement granted by the reference court. The acquisition was for the purpose of the second respondent requisitioning authority, the Thrissur Municipality. The purpose was for the construction of bell mouth and shopping centre at the junction of Swaraj Round and the Municipal Office Road. The relevant notification under section 3(1) (corresponding to section 4(1) of the Central Land Acquisition Act) was published on 15-7-1989. L.A. Officer awarded land value at the rate of Rs.43,156.22 per Are corresponding to Rs.18,297/- per cent. In the first instance, the parties before the reference court were the claimants and the LAA.N0s.960 & 1043 of 2000 -2- State only. At trial the evidence consisted of Exts.A1 to A6 and the oral evidence of the claimant as AW-1, apart from Ext. R1 sketch. The learned Subordinate Judge on evaluating the evidence would refix the value of the land at Rs.1.75 lakhs. The award was challenged by the Municipality by a writ petition mainly on the ground that the requisitioning authority, the Municipality did not get opportunity to participate in the trial. This court by judgment dated 6-1-1998 set aside the award of the reference court on the sole ground that the judgments and decrees of the reference court was passed without notice to the requisitioning authority and without affording an opportunity to raise any objection against the enhancement of compensation and also to establish such objections by adducing evidence. This court accordingly remanded the matter to the reference court LAA.N0s.960 & 1043 of 2000 -3- and directed the reference court to take a decision afresh. After remand the requisitioning authority produced Ext.R2 deed and a witness was examined on its behalf as RW-1. The learned Sub Judge would reappraise the entire evidence including Exts.R2 and RW-1 and would re-determine the value of the land at Rs.1,50,000/- per Are, i.e., Rs.25,000/- per cent. The court below had originally fixed land value at Rs.1,75,000/-. In fact the reference court passed a separate judgment in LAR. No. 45 of 1989 fixing market value of the land at the same rate. It is seen that a Division Bench of this court of which one of us (PCK(J) was also party has judgment dated 27-3-09 dismissed the appeal preferred by the Municipality against the judgment of the reference court in LAR. No. 45/89 stating inter alia that the Municipality has not preferred LAA.N0s.960 & 1043 of 2000 -4- appeal against the common judgment which is impugned herein. Thus the rate fixed by the reference court under the common judgment stands virtually approved by this court as against the requisitioning authority. 2. We have heard the submissions of Sri. A.K. Chinnan, learned counsel for the appellants and those of Sri. K.B. Mohandas, learned standing counsel for the requisitioning authority. We have heard the submissions of Mr. Basant Balaji, learned senior Govt. Pleader also. Mr.Chinnan would draw our attention to the evidence on record and the findings entered by the learned Subordinate Judge. He would read over to us the remand judgment passed by this Court in O.P. No. 13041 of 1996 and connected cases and submit that the purpose of the remand order passed by this court was to enable the requisitioning authority to adduce further LAA.N0s.960 & 1043 of 2000 -5- evidence. The only item of evidence which was produced by the requisitioning authority was Ext.R2. Ext.R2 was not a document pertaining to a comparable property. It was in respect of a property situated 100 metres away from the acquired property, which had direct frontage of the Swaraj Round which is by all standards the most valuable commercial property in Thrissur Municipal Town. Ext.R2 was rejected by the reference court and therefore the only evidence which was available before the reference court was the evidence which was available before that court prior to the remand order. Mr.Chinnan submitted that this court while passing the remand order had not expressed any dissatisfaction regarding the re-appreciation of the evidence already on record by the reference court. Thus in the light of the rejection of Ext.R2 by the reference LAA.N0s.960 & 1043 of 2000 -6- court, the inevitable conclusion was that the earlier finding that Rs.1,75,000/- is the market value of the property has to be restored. Exts.A2, A4 and A5 are three pre-notification sales relied on by the claimant in respect of their claim for enhancement. Ext.A2 reveals a centage value of Rs.10,000/- only. Ext.A4 which is dated 14-12-1977 reveals a centage value of around Rs.80,000/- only. So also Ext.A5 which is a document of 10-11-1976 reveals a centage value of Rs.80,000/- only. When the attention of Mr.Chinnan was drawn to the decision of the Supreme Court in G.M.Oil & Natural Gas Corn. Ltd. v. R.Jivanbhai Patel & another, 2008 SAR (Civil) 894 wherein the Supreme Court has taken the view that when courts proceed to rely on pre-notification documents and determine market value by giving addition to the value revealed by these documents for LAA.N0s.960 & 1043 of 2000 -7- passage of time the appropriate percentage of additions to be made in urban areas shall not be more than 10% to 15% Mr.Chinnan would submit that it may not be sufficient to classify the acquired property in this case as just urban land. These properties fall in still superior class being land with maximum commercial potentiality whose value cannot be assessed merely in terms of percentage mentioned in the judgment of the Supreme Court. According to the learned counsel, even the value of Rs.1,75,000/- determined by the reference court in its best judgment is inadequate. He submitted that in the present appeals the claimants are confining their claims to value at the rate of 1,75,000/-. Mr.Chinnan would lastly submit that this Court while passing the remand order directed the requisitioning authority to deposit 90% of the amount due under the original decree, thus LAA.N0s.960 & 1043 of 2000 -8- indicating very clearly that the correct market value of the property is at least 90% of Rs.1,75,000/-. 3. Resisting the submissions of Mr.Chinnan, Sri.K.B.Mohandas, learned standing counsel submitted that it has been clarified by this court in the remand order that this Court has not decided the correctness of otherwise of the determination of market value under the original judgment of the reference court. This court had remanded the matter, so that the reference court can take a fresh decision on the basis of the entire evidence which comes on record. According to him, as against the oral evidence of AW-1 the Municipality adduced counter oral evidence through RW-1. What the reference court did was to re-appreciate the entire evidence including the oral evidence of AW-1 and RW-1 and the additional documentary evidence Ext.R2 and LAA.N0s.960 & 1043 of 2000 -9- come to the conclusion that the correct market value of the property at the relevant time is Rs.1,50,000/- per cent and not the amount of Rs.1,75,000/- originally fixed. There is no warrant to interfere with the said conclusion, according to Mr.Mohandas. 4. We have anxiously considered the rival submissions addressed at the Bar. We are unable to accept the argument of Mr.A.K.Chinnan that in the light of the rejection of Ext.R2 by the learned Subordinate Judge, the only evidence on the basis of which the issues to be decided was the evidence which was already available before that court prior to the remand order. As already noticed by us, apart from Ext.R2 there was RW- 1's oral evidence which ran contrary to the oral evidence of AW-1, the claimant. We are not much impressed by the submission of Mr.Chinnan that in the absence of any LAA.N0s.960 & 1043 of 2000 -10- acceptable further evidence adduced on the side of the requisitioning authority the reference court was bound to follow its decision prior to the remand nor are we impressed by the argument that by insistence of deposit of 90% this court indicated that the correct market value is at least 90% of the originally fixed by the reference court. Remand order will show that the reference court has been directed to decide the issue fresh, which means that the reference court was expected to re- appreciate the entire evidence and come to its own conclusions without being influenced by the earlier decision. If the submission of Mr.Chinnan that the insistence of deposit of 90% is indicative of this court's mind as to what is the market value is correct, there would not have been specific clarifications in the remand order that this court has not decided the issue of the LAA.N0s.960 & 1043 of 2000 -11- correct market value of the acquired property or the correctness of the determination of the value of the acquired property by the reference court in its previous judgment. The only items of evidence on which the reference court could have relied for re-determining the market value was Exts.A2, A4 and A5. R2 was rightly rejected by the reference court which has given good reasons to disprove the action of the L.A. Officer in relying on Ext.R2 for determining the market value. The Supreme Court in 2008 SAR (Civil) 894 has held very clearly that when market value of lands situated in urban areas is determined with reference to pre-notification documents the percentage of addition to be given for passage of time should not be more than 15%. Even otherwise, according to us, determination of market value in land acquisition cases will involve guess work LAA.N0s.960 & 1043 of 2000 -12- and evaluation of imponderables. On going through the judgment it is seen that the learned Subordinate Judge has not relied on any of the three documents as such. The learned Subordinate Judge has kept in mind the data gatherable from Exts.A2, A4 and A5 and made his own guess work as to the correct market value of the acquired property at the relevant time. Having re- appreciated the evidence we feel that the approach of the learned Subordinate Judge was quite reasonable. The result is that the appeals fail and the same stand dismissed, but in the circumstance, no order as to costs. Mr.Chinnan complains and on good reasons that the requisitioning authority has not so far facilitated deposit of the entire compensation which is due to the appellant under the award of the reference court. LAA.N0s.960 & 1043 of 2000 -13- Therefore even as we dismiss the appeal we direct the second respondent to ensure that the entire balance amount which is due to the appellants is deposited before the reference court. It is needless to mention that the appellants will be entitled for all statutory benefits admissible to them under the Central Land Acquisition Act such as the solatium under section 23(2), the additional amount under section 23(1A) and interest at the statutory rates of 9% and 15% admissible under section 28. (PIUS C.KURIAKOSE, JUDGE) (P.Q.BARKATH ALI, JUDGE) ksv/- LAA.N0s.960 & 1043 of 2000 -14-