IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 15TH JULY 2009 / 24TH ASHADHA 1931 LA.App..No. 814 of 2005() ------------------------- LAR.17/2004 of III ADDL.SUB COURT, ERNAKULAM .................... APPELLANT(S): CLAIMANT: ----------------------- MARY XAVIER, W/O XAVIER, KATTUPARAMBIL HOUSE, KALOOR DESOM, KATHRUKKADAVU. BY ADV. SRI.SATHISH NINAN SRI.SANTHOSH MATHEW RESPONDENTS/RESPONDENT: --------------- 1. STATE OF KERALA. 2. THE SECRETARY, G.C.D.A., ERNAKULAM. ADV. SRI.P.R.RAMACHANDRA MENON, SC,GCDA FOR R2 GOVT.PLEADER SMT.SUMANGALA P.N. SRI.MILLU DANDAPANI FOR R2 THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 15/07/2009, ALONG WITH LAA NO. 810 OF 2005 AND CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE & P.Q.BARKATH ALI, JJ. ------------------------ L.A.A.Nos.810,813,814,1280,1246 &1266/2005 ------------------------ Dated this the 15th day of July, 2009 JUDGMENT Pius C.Kuriakose, J. These are all appeals preferred by the claimants being dissatisfied with the refixation of compensation done by the land acquisition reference court. The acquisition was of property in Elamkulam village for the formation of Kaloor – Kadavandra road, a project of the second respondent GCDA. Relevant Section 4 (1) notification was published on 17/11/2000. The land acquisition officer categorised the properties into three. They are as follows; category 1- dry lands with tar road frontage. Category 2- dry lands with tar road access. Category 3 wet lands having canal frontage and pathway facility. For properties in category 1, the land acquisition officer, relying on the basis document, fixed the land value at the rate of Rs.1,35,800/- per Are and for properties in category 2 relying on the same document the land acquisition officer fixed the land value at LAA.No.814/2005 & conn.cases 2 Rs.1,08,640/- per Are i.e 20% less than the value given for the properties in category 1. For properties in category 3, the land acquisition officer awarded land value at the rate of Rs.95,060/- i.e.10%less than the value given for the properties in category 2. 2. In these appeals, we are concerned with properties in categories 2 and 3 only. Under the impugned judgment, the reference court refixed the land value of the properties in category 2 at Rs.1,49,000/- per Are corresponding to Rs.60324/- per cent. For the properties in category No.3 , the land value was refixed at Rs.129,010/- corresponding to Rs.50,000/- per cent. In these appeals, the claimants assail the findings of the court below regarding the market value of the properties under acquisition and contend that documents Exts.A3 and A4 were relevant documents which should have been relied on. 3. We have heard the submissions of Sri.Sathish Ninan, and Smt.R.Ranjini, the learned counsel for the appellants and those of Smt.Sumathi Dandapani, learned senior counsel and Sri.S.B.Premachandra Prabhu, learned standing counsel for the requisitioning authority-GCDA. We have also heard the submissions of Smt.Sumangala, learned Government Pleader. LAA.No.814/2005 & conn.cases 3 4. We have made a reappraisal of the evidence, which was available before the reference court. Exts.A1, A2 , A3 and A4 were relied on by the claimants in support of their claim for enhanced land value. Exts.A1 and A2 were post notification documents and, in our opinion, the court below rightly rejected them from consideration. Ext.A3 was a sale deed executed in 1995 by the GCDA in favour of one Babu Thomas, a builder. A3 was in respect of 18.632 cents of land having centage value of Rs.1,52,000/-. It was in respect of property situated near to the Rajiv Gandhi Indoor Stadium. Ext.A3 was rejected by the learned subordinate Judge on the reason that Ext.A3 properties were more important than the properties under acquisition, which were situated near to St.Francis Church on the old Kaloor -Kadavandra road. Ext.A4 was another pre notification document pertaining to 4.027 cents. Ext.A4 revealed land value of Rs. 2 Lakhs per cent. A4 property was situated in Thammanam – Pulleppady road. Ext.A4 was in fact properly proved by examining AW3. However, the learned Subordinate Judge rejected Ext.A4 on the reason that the purchaser Thammanam Co-operative Bank was eager to purchase that LAA.No.814/2005 & conn.cases 4 property and the price paid is a fancy price. On going through the testimony of AW3, we find that the above findings of the learned Subordinate Judge regarding Ext.A4, are to a certain extent, supported by the testimony of AW3. We, therefore, approve the action of the learned Subordinate Judge in having rejected Ext.A4. Thus, we are now left with the basis document relied by the land acquisition officer and Ext.A3. Even according to the learned subordinate Judge, the basis document is not dependable and that is why much higher value than the value revealed in the basis document is granted under the impugned judgment to the claimants. 5. The argument which was seriously raised by Sri.Satish Ninan and Smt.Ranjini learned counsel for the appellants was that the court below went wrong in rejecting Ext.A3. According to them, even if the finding of the learned Subordinate Judge that Ext.A3 properties is more important than the properties under acquisition is correct, then also Ext.A3 could have been relied on after making suitable deduction from the value reflected in Ext.A3. Smt.Ranjini, learned counsel for the appellants, by referring to the commission report in her appeal submitted by an LAA.No.814/2005 & conn.cases 5 Advocate who was appointed by this court O.P. No.35178/2001, argued that the property of her clients under acquisition was equally if not more important than the property in category 2. She pointed out that the advocate commissioner recommended value of Rs.2 Lakhs to 2.5 Lakhs per cent for the properties under acquisition in her cases and 2.5 Lakhs to 3 Lakhs per cent for properties categorised in category 2 by the land acquisition officer. 6. Having considered the submissions and having reappraised the evidence, particularly Ext.A3, we are of the view that the learned Subordinate Judge was not justified in rejecting Ext.A3 completely. It is true that unlike properties under acquisition, Ext.A3 properties were situated near to Kadavathara junction, which is an important junction on Sahodaran Ayyappan road. But, at the same time, it should not have been forgotten that the acquired properties were situated just 1 Km. away from the Kaloor Junction, which is also an important junction on the Aluva – Ernakulam Highway. We are prepared to agree with the learned Subordinate Judge in his opinion that the value of the acquired properties would never have been the same as the LAA.No.814/2005 & conn.cases 6 value of the properties covered by Ext.A3. But, at the same time, distance between these two properties was below 1.5 Km. There must be some co-relation between the value of properties situated at two points within the radius of 1.5 Km. According to us, the value of the acquired properties situated at a distance of 1.5 Km from the Rajiv Gandhi International Stdium should be atleast 37% of the value of the properties in Rajiv Gandhi stadium area. As already stated, centage value revealed by Ext.A3 property is 1,52,000/- This was in the year 1995. The gap between the date of that document and date of section 4(1) notification in these cases is five years. It has to be found that the property under acquisition is situated in an urban area. Going by the principles laid by by the Supreme Court in G.M.Oil & Natural Gas Corporation Ltd. (2008 SAR(Civil) 894) there is justification for adding at the rate of 10% to 15% per year for passage of time on the value reflected in pre notification documents. We feel, on the facts of these cases, that appropriate percentage to be added per year is 13 %. Adding that way, we find that the correct market value of the property covered by Ext.A3 as on the date of Section 4(1) notification in LAA.No.814/2005 & conn.cases 7 these cases is Rs.2,50,800/-. On our view, the value of the acquired property should be around Rs.37% of the value in Ext.A3. We fix the value of the acquired properties, which were included in category 2 by the land acquisition officer (L.A.A.Nos.810, 813 & 814/2005), at Rs.92,000/- per cent. According to the land acquisition officer ratio between the values of the properties in category 2 and category 3 is 100 :90. Keeping that ratio in mind and taking into account the advantages, which were being enjoyed by the properties included in category 3 as revealed by the commissioner's report, we refix the land value of the acquired properties (L.A.A.Nos.1246, 1266 & 1280/2005) in category 3 at Rs.83,000/-. 7. Appeals will stand allowed to that extent. It is needless to mention that the appellants will be eligible for all statutory benefits admissible under Section 23(2), 23(1A) and Section 28 of the Land acquisition Act for the total enhanced compensation to which them become eligible by virtue of our re fixation under this judgment. Parties are directed to suffer their costs. Memo submitted by Sri.R.Lakshmi Narayan is recorded. Smt.Ranjini, learned counsel for the appellants is permitted to LAA.No.814/2005 & conn.cases 8 enter appearance on behalf of the appellants in his place. PIUS.C.KURIAKOSE,JUDGE P.Q.BARKATH ALI, JUDGE dpk