IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 3RD JUNE 2010 / 13TH JYAISTHA 1932 LA.App..No. 1012 of 2009() ------------------------------------ LAR.163/2007 of SUB COURT, PALA .................... APPELLANT(S): CLAIMANT ---------------------- THOMMAN JOSEPH, CHOWATTU KUNNEL, EDAPPADY KARA, BHARANANGANAM, REPRESENTED BY POWER OF ATTORNEY HOLDER, GEORGE, S/O.THOMMAN JOSEPH,CHOWATTU KUNNEL, EDAPPADY KARA, BHARANANGANAM. BY ADV. SRI.T.I.ABDUL SALAM RESPONDENT(S): RESPONDENT ------------------------- STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, KOTTAYAM. SR. GOVERNMENT PLEADER LATHA T.THANKAPPAN THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 03/06/2010, ALONG WITH LAA. NO.1013 OF 2009 AND CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ ----------------------------------------------------------- L.A.A Nos.1012, 1013, 1014, 1141, 1237, 1238 AND 1239 OF 2009 ------------------------------------ Dated this the 3rd day of June 2010 ORDER Pius C kuriakose These appeals filed by the claimants are directed against a common judgment of the Subordinate Judge's Court, Pala dated 30/01/2009. All these cases pertain to acquisition of land in Bharananganam village for the purpose of upgradation of the Ettumanoor – Poonjar State highway. The acquisition was pursuant to Section 4(1) notification dated 30/06/2004. The lands were all garden lands enjoying frontage of the existing Ettumanoor – Poonjar road. The Land Acquisition Officer awarded land value at the uniform rate of Rs.16, 480/- per Are. In the cases where structures existed on the properties, value towards structures were also awarded. Before the reference court, the claimants claimed enhancement in land value as well as structure value. They took out commission also in support of their claims. It was on Ext.A1 to A3 that the claimants mostly relied on in support of their claim for enhancement in land value. Ext.A1 was a sale deed dated 05/06/1986 in respect of 20 cents reflecting a land value of Rs.25,000/- per cent. The court below did not place reliance on L.A.A Nos.1012, 1013, 1014, 1141, 1237, 1238 AND 1239 OF 2009 2 Ext.A1 saying that it is a fancy price which was paid by the vendee under Ext.A1 which is none other than the St. Alphonsa Church, Bharananganam who according to the learned Judge were very eager to purchase the property for any price in view of the impending canonization of Sister Alphonsa. Ext.A2 was a sale deed dated 10/11/1987 executed in favour of the Bharananganam panchayat in respect of 3 cents of land reflecting a land value of Rs.18,000/-. Ext.A2 land was purchased by Bharananganam panchayat for the purpose of constructing road for water storage tank. Ext.A2 reflected a land value of Rs.18,000/-. Ext.A2 was also rejected by the court below saying that since construction of the road was an absolute necessity for the panchayat, it became inclined to pay value much higher than the market value for the property. Ultimately it was on Ext.A3 that the learned Judge placed reliance to certain extent. Ext.A3 showed that the District Collector had issued some proceedings fixing market value of lands in the same village in 2002 at the rate of Rs.41,000/- per are. The learned Subordinate Judge re-fixed the land value at Rs.45,000/- per are. In L.A.A No.1141/2009 and L.A.A No.1238/2009, the appellant claims enhanced land value of Rs.55,000/- per are. Thus total re-fixed land value claim here in these appeals is Rs.1,00,000/- per are. In all other appeals the appellants claim enhancement of land value by Rs.30,000/- per are. Thus, claiming re-fixed land value of Rs.75,000/- L.A.A Nos.1012, 1013, 1014, 1141, 1237, 1238 AND 1239 OF 2009 3 per are. 2. In L.A.R No.1/2008 corresponding to L.A.A No.1239/2009, the Land Acquisition Officer had awarded structure value of Rs.3,048/-. In L.A.A No.1239/2009 there is a further claim for additional structure value of Rs.26,675/- In L.A.R No.145/2007 corresponding to L.A.A No.1014/2009, the Land Acquisition Officer had awarded structure value of Rs.70,286/-. In that case the appellant claims additional structure value of Rs.88,540/-. In L.A.R No.159/2007 corresponding to L.A.A No.1013/2009, the Land Acquisition Officer had awarded structure value of Rs.1,76,545/-. In that appeal he is claiming additional structure value of Rs.28,950/- . In L.A.R No.163/2007 corresponding to L.A.A No.1012/2009, the appellant had not been awarded any value towards structure. However, in this appeal he is claiming structure value. in view of the fact that so much of amount is necessary for putting up a boundary wall for securing the remainder property from erosion. 3. In these appeals, the claimants have raised various grounds contending that the compensation re-determined by the reference court is grossly inadequate. Sri.T.I.Abdul Salam, learned counsel for the appellants argued very strenuously before us on the basis of the grounds raised. According to him, there was no justification for the court below in discarding Exts.A1 and A2. Particularly he highlighted L.A.A Nos.1012, 1013, 1014, 1141, 1237, 1238 AND 1239 OF 2009 4 Ext.A2 and submitted that the property covered by Ext.A2 was situated 500 meters away from the town in an interior area. According to him, if Ext.A2 is relied on and proper additions at the rate of 15% per year are given on the value reflected in Ext.A2, the market value of these properties will have to be re-fixed at atleast Rs.1,00,000/- per are. Mr. T.I.Abdul Salam further submitted that the claims for additional structure value are all on the basis of the report submitted by the commissioner to which no objection had been filed by the State. Learned counsel also referred to the commissioner's reports and submitted that the property was situated at the Bharananganam junction itself, the land where has become much more valuable on account of the canonization of Sister Alphonsa. 4. All the submissions of Mr.T.I.Abdul Salam were stiffly resisted by the learned Govt. Pleaders Smt.Latha and Smt.Bindhu who appeared for the respondents. According to them, the evidence available in the case has been correctly appreciated by the learned Subordinate Judge. They also submitted that this court in certain other cases pertaining to acquisition of land for the same purpose had approved enhancement in land value at the rate granted under the impugned judgment. The learned Govt. Pleader would oppose the request for enhancement in structure value. The Commissioner's reports are not acceptable. Particularly with reference to L.A.A L.A.A Nos.1012, 1013, 1014, 1141, 1237, 1238 AND 1239 OF 2009 5 No.1012/2009, She submitted that the claim for additional value of structures is not sustainable since no structure existed and no structure value was awarded by the Land Acquisition Officer in that case. In reply, Mr. Salam submitted that the very same court in L.A R.Nos.3, 4 and 6 of 2008 subsequently has fixed Rs.86,450/- per are as the market value of identical properties. The properties in those three cases were in fact not situated in the junction. Govt. Pleader submitted that those judgments are yet to become final. 5. We have very anxiously considered the submissions. We are not able to approve the view of the learned Subordinate Judge. But, at the same time, we will agree with the learned Subordinate Judge and say that the church become inclined to pay a slightly higher value than the market value for the property covered by Ext.A1. At the same time, we cannot approve the discarding of Ext.A2. Ext.A2 was in respect of a property situated away from Bharananganam Junction. Ext.A2 was in 1987. The purchaser of Ext.A2 was none other than the local panchayat. Ext.A2 reflects a land value of Rs.18,000/- per cent. Ext.A2 could have been relied on and appropriate additions could have been made treating area in question as at least a semi urban area. Ext.A3 was also relevant to a certain extent as found by the learned Subordinate Judge. According to us, Exts.A1, A2 and A3 as well as the oral evidence adduced by the parties and the report submitted by the L.A.A Nos.1012, 1013, 1014, 1141, 1237, 1238 AND 1239 OF 2009 6 commissioner are of relevance for determining the correct market value. On our re-appreciation of the evidence including Exts.A1, A2 and A3, we are of the view that the correct land value at the relevant time will have to be fixed at Rs.85,000/- per are. We also find merit in the submissions of Mr. Salam that the court below went wrong in disallowing the appellant's claim towards enhanced structure altogether. Of course L.A.R.No.163/2007 corresponding to L.A.A No.1012/2009 is a case where no structures existed on the property. But in that case the claim is based on a commissioner's report that for putting up walls for securing the remaining property from erosion and sliding, the amount claimed by the appellant towards structure value is necessary. Even in that case, according to us, at least a portion of the claim could have been allowed by the learned Subordinate Judge. 6. The result of the above discussions accordingly is as follows. (i) All the appeals will stand allowed re-fixing the market value of the land under acquisition at Rs.85,000/- per are. This means that the appellants in L.A.A No.1238/2009 and 1141/2009 will be entitled for enhancement in land value at the rate of 40,000/- per are and since the appellants in other cases have limited their claims to Rs.75,000/- per are, their claims for enhancement in land value in those appeals will stand allowed in full. L.A.A Nos.1012, 1013, 1014, 1141, 1237, 1238 AND 1239 OF 2009 7 (ii) The appellant in L.A.A No.1239/2009 corresponding to L.A R.No.1/2008 is awarded an amount of Rs.5,000/- towards additional value for structures. (iii) The appellant in L.A.A No.1014/2009 is further granted additional value for structures at Rs.25,000/-. Similarly the appellant in L.A.A No.1013/2009 is allowed a sum of Rs.25,480/- for additional structure value. (iv) The appellant in L.A.A No.1012/2009 is awarded Rs.30,000/- towards the 'structure value' claimed by him. The parties are directed to suffer their respective costs. It is needless to mention that the appellants will be entitled for all statutory benefits resulting from the re-fixation of compensation under this judgment admissible under Section 23(2), 28 and 23(1)(A) of the Land Acquisition Act. Sd/- PIUS C. KURIAKOSE, J Sd/- C.K.ABDUL REHIM, J //TRUE COPY// P.A TO JUDGE vdv