STATE OF KERALA Vs. JOSE SIMON

JUDGEMENT

(1.) L.A.A. Nos. 132/2008, 722/2008 and 732/2008 have been preferred by the claimants while all other appeals have been preferred by the Government. All these appeals pertain to acquisition of land in Thodupuzha and Karikkode villages for the purpose of construction of Kanjiramattom-Mangattukavala Road. The relevant notification under Section 4(1) was published on 18-2-2000. The Land Acquisition Officer catergorized the properties under acquisition into two groups, viz, Group-I and Group-II on the basis of availability of PWS road frontage or frontage of other roads respectively. For properties coming in Group-I, the Land Acquisition Officer awarded the land value at the rate of Rs. 6541/-per cent corresponding to Rs. 16,165/-per Are. This was done by relying on basis document which was proved in the case as Ext. R4. Since the Awarding Officer did not come across a document which is suitable for fixing market value for properties coming in Group-II, what he did was to award 76% of the value he fixed for properties in Group-I as the value of properties in Group-II. Thus for the properties in Group-II he fixed the land value at the rale of Rs. 5,000/- per cent corresponding to Rs. 12,250/-per Are. Before the Reference Court, the evidence on the side of the claimants consisted of Exts. A1 to A4 and the oral testimonies of AWs. 1 to 3 an Ext. Xl on the side of the respondent/Government, which consisted of Exts Rl to R4. Ect. R4 as already indicated was the copy of the basis document. There was no counter oral evidence on the side of the Government. Ext. C1 commission report submitted by the Commission, who was deputed on the application submitted by the claimants and Exts. C1(a) rough sketch prepared by him appended to the said report also formed part of the evidence. The Reference Court on evaluating the evidence would find that the Land Acquisition Officer was not justified in relying on Ext. R4 document to fix the market value of the properties under acquisition and we also feel that the above view taken by the Reference Court is correct. Ext. A2 is copy of sale deed No. 722/98 dated 26-3-1998 (some two years prior to the publication of the notification under Section 4(1)). Ext. A2 pertains to 6.10 cents of land. The bare land value revealed by Ext. A2 is Rs. 70,146/- per cent. It was noticed by the Reference Court that Ext. A2 property is situated at Manakkattu Junction on the northern side of Thodupuzha town unlike the acquired property in the leading case L.A.R. 88/2003 (subject matter of L.A.A. No. 121/2008 and 132/2008) which is situated in the southern side of the town. The Advocate Commissioner had reported in Ext. C1 commission report that Ext. A2 property pertains to land which is inferior in quality to the acquired property and that Ext. A2 land was low lying land. The Commissioner had also reported that in terms of value also the acquired property was superior to Ext. A2 property. The learned judge has accepted Ext. A2 recording a genuine sale executed in usual course of business and has observed in the judgment that "Ext.A2 can also be taken note of for comparative study". Ext.A3 was a post notification document in respect of property in Thodupuzha Village revealing centage value of Rs. one.lakh per cent. Ext. A3 was rejected by the court below and in our opinion on good reasons. The claimants relied mostly on Ext. A4 document. Ext. A4 was in respect of 34 cents of land situated neat to Mangtattukavala. The purchaser in Ext. A4 was a Government of India Company, viz, Indian Oil Corporation and centage value as revealed in Ext. A2\4 is Rs. 1,60,500/-. The learned Subordinate Judge found on the basis of Ext. C1 and the oral testimony of AW3. the Commissioner, that Ext. A4 property was situated at a distance of 100 metres away from the acquired property. It was also found that in all relevant aspects the properties covered by Ext. A4 and acquired property are comparable. Reliance on Ext. A4 was stiffly resisted by the Government on the ground that being the result of a negotiation between a government on the ground that Ext. A4 is a post notification document and also on the ground that being the result of a negotiation between a Government of India Company which was badly in need of a site to put up a petroleum outlet, the company became prepared to purchase the property paying price which was higher than the prevailing market rate. The learned Subordinate Judge has considered the arguments of the Government that being a post-notification document, Ext. A4 cannot be relied on. The learned Judge has referred to judgment of this Court in Narayana Iyer v. State of Kerla,1990 1 KerLT 432, Jacob v. State of Kerala,1998 1 ILR 119 and State of Kerala v. Dr. Susheela Varghese & Others,1992 2 KerLJ 594 and taken the view that there is no bar in relying on sale documents which are executed subsequent to the publication of the notification under Section 4(1). Thus purporting to follow the ratio of those judgments, the learned Judge has proceeded to rely on Ext. A4. However, the learned Judge did take into account the circumstance that execution of Ext. A4 is 25 months after the date of publication of the relevant Section 4(1) notification and on that reason the court would make a reduction of 30% from the value of Rs. 1,60,500/-reflected in Ext. A4. The court would also find on the basis of the sketch which was appended to Ext. Al file (the file pertaining to purchase of Ext. A4 property by the I.O.C) that unlike the acquired property, A4 property was already a developed property. Noticing the complete absence of any evidence on the side of the claimants showing that the acquired property was also developed property, the learned Judge deducted 10% of the value shown in Ext. A4 towards development charges. Over and above these two deductions, a further deduction of 5% was also made towards incidental charges and thus the learned judge concluded that the correct market value of the property under acquisition was 55% of the land value revealed in Ext. A4 and would refix the land value at Rs. 82,500/- per cent. The Government in these appeals challenge reliance placed by the Reference Court on Ext. A4 and also the enhancement granted to the claimants above the rate fixed by the officer in his original award. The Claimants in their appeals are claiming enhancement of Rs. 24,075/- per cent over and above what is awarded under the impugned judgment for properties coming in Group II.

(2.) We have heard the submissions of Mr. P.K. Babu, learned Senior Government Pleader in some of the appeals preferred by the Government and those of Mr. Basant Balaji, learned Senior Government Pleader in the other appeals preferred by the Government. We have heard the submissions of Mr. Raju K. Mathews, learned counsel for the appellants in L.A.A. Nos. 132, 722 & 732/2008 in support of those appeals and also in defence of appeals L.A.A. Nos. 121/08, 135/2008 & L.A.A. No. 1791/ 2007. We have also heard the submissions of Smt. Sudha Babu and Sri. Mathew John, learned counsel for the respondents/claimants in the other L.A.As.

(3.) The learned Government pleaders would assail the findings of the reference court. According to them, the Reference court was not at all justified in placing reliance on Ext. A4. It was submitted that Ext. A4 cannot be treated as a normal transaction in the sense that it was got executed by a multi-crore highly profit making Government of India Company who were very keen on establishing and developing a petroleum outlet within the area of Thodupuzha Municipality and were prepared to pay any price demanded by the purchasers. Ext. A4, it was argued, at any rate should not have been taken into account since it was a post notification document and the land value in the locality had increased due to several reasons including the reason that the Kanjiramattom-Mangattu Kavala road was coming up in the area. Any increase in the land value on account of the subject acquisition is to be ignored even in terms of Section 24 so submitted by the learned Government Pleaders.