Smt. Treesa Joseph vs State Of Kerala on 11 June, 2012

[Cites 20, Cited by 2]

Kerala High Court

Smt. Treesa Joseph vs State Of Kerala on 11 June, 2012

The claimants in L.A.R. No. 25 of 2010 on the file of the Additional Sub Court, Irinjalakuda are the appellants in L.A.R. No. 475 of 2010, whereas the requisitioning authority, the Secretary, Chalakudy Municipality, is the appellant in L.A.A. No. 554 of 2010. While the claimant is seeking enhancement of the land value as re- determined by the reference court, the requisitioning authority is aggrieved by such enhancement.

2. Briefly stated the facts of the case are as follows:

Notification under Section 4(1) of the Land Acquisition Act, 1894 was issued on 14.09.2007 for the acquisition of 1.2459 hectares of land within Chalakudy Municipality for construction of a public play ground. By the said notification, 4 Ares of land comprised in Survey No. 289/3 and 5 of East Chalakudy Village owned by the claimants was acquired. In the award that was passed on 22.02.2010, the Land Acquisition Officer awarded land value at `1,28,000 per Are. At the instance of claimants, reference under Section 18 was made. Before the Reference Court, the claimants claimed land value at the rate of LAA Nos.475 & 554 of 2012 2 `10,00,000/- per cent. However, in the judgment under appeal, the reference court awarded land value at the rate of `9,88,000/- per Are (`4,00,000/- per cent). Such re-determination of the land value was placing reliance on Ext.A3 document. Aggrieved by the re-

determination of the land value as above and claiming enhancement thereof, the claimants have come up in appeal in L.A.A. No.475/2012 and the requisitioning authority seeks reduction of the land value in L.A.A. No.554 of 2012.

3. In the submissions made before us, the counsel for the Municipality contended that the Government of Kerala had fixed the fair value of ` 1 lakh per Are for the land in the area in question by a notification issued under Section 28A of the Kerala Stamp Act. It was also contended that in the Detailed Town Planning Scheme framed under the Town Planning Act, the land is classified as an agricultural land and therefore the reference court, should have re-determined the land value treating the land as an agricultural land adopting fair value as the basis. According to him, the reference court illegally determined the land value taking into account the potentiality of utilising the land for commercial purposes. According to the learned counsel, in Ext.B10, the Fair Value Notification, Ext.B9, the Village Survey Settlement Register and in the award of the Land Acquisition LAA Nos.475 & 554 of 2012 3 Officer, the land has been described as wet land. It is stated that these facts and pieces of evidence were ignored by the reference court while re-determining the land value.

4. The counsel further contended that conversion of the land for any purpose other than for growing food crops would have been possible only in terms of the Kerala Land Utilisation Order and that the reference court did not take into account such restrictions imposed on the owner of the land while fixing the land value. The learned counsel further placed considerable reliance on Exts.B1 to B4 documents executed on 17.04.2007, 28.06.2007, 04.09.2007 and 20.08.2007 respectively. According to him, the land value mentioned in these documents involving neighbouring lands, was `30,000/- per cent, `14,995/- per cent, `52,807/- per cent and `28,815/- per cent respectively. It is stated that these documents concerning comparable lands in the immediate neighbourhood were ignored by the reference court and reliance was placed on Ext.A3 dated 05.11.2007. The counsel made specific reference to the fact that Ext.A3 is a post- notification document and that too, concerning a property situated about 2 kms. away from the acquired land. For all these reasons, according to the learned counsel, re-determination of the land value is totally illegal and should be interfered with.

LAA Nos.475 & 554 of 2012 4

5. On the other hand, the learned counsel for the claimants referred us to the evidence of RW1, where he himself has spoken about the commercial importance of the land under acquisition. He also referred us to paragraphs 9 and 10 of the judgment, where this aspect of the matter has been discussed by the reference court. Therefore, according to him, the requisitioning authority cannot object to the re-determination of land value relying on classification of the land as an agricultural land or wet land. Insofar as Exts.B1 to B4 are concerned, counsel contended that the documents are undervalued documents and he also referred us to the evidence of RW2, the Secretary of the Municipality itself and submitted that the witness had no knowledge, whatsoever, either about the nature of the land, its commercial importance or the prevailing price. According to the learned counsel, when several documents of comparable lands are available before it, the reference court was bound to adopt the document showing highest land value paid. To substantiate this contention, he also placed reliance on the judgments of the Apex Court which will be referred in the course of this judgment. Counsel also referred us to Ext.A8, the basic valuation report, which shows that the Land Acquisition Officer had considered all relevant documents executed within a period of three years prior to Section 4(1) LAA Nos.475 & 554 of 2012 5 notification and has not chosen to rely on Exts.B1 to B4. According to him, this itself shows that Exts.B1 to B4 were also considered by the Awarding Officer and he has ignored the same being an under valued document. The counsel then made reference to the judgment of this Court in Special Land Acquisition Officer v. Rafiq Saheb1 to contend that the potential use of the land should also be considered while determining the land value. Insofar as Ext.A3 relied on by the reference court is concerned, it was pointed out that the vendee of the document was examined as a witness in L.A.R. No. 21 of 2010 and the deposition of that witness has been produced by the appellant as an additional document before this Court in L.A.A.No. 475 of 2012. According to the learned counsel, from the evidence tendered by this witness, it is obvious that the price shown in Ext.A3 was far less than what was actually paid. Therefore, according to the learned counsel, the reference court cannot be accused of having committed an illegality in relying on Ext.A3. On these counts, the counsel submitted that there is no substance in the objections raised by the appellant in L.A.A. No. 554 of 2012.

6. Insofar as L.A.A.No. 475 of 2012 is concerned, the counsel for the appellants, the claimants before the reference court, placed reliance on Exts.A4 to A7. According to him, these documents were 1 2011(3) KLT SN 40 LAA Nos.475 & 554 of 2012 6 executed on 03.11.2008, 27.11.2008, 05.02.2002 and 03.04.2002 respectively. It was pointed out that as per Exts.A4, 1.775 cents of land was purchased for `18,48,958/- per Are. It was pointed out that the same was the consideration shown in Ext.A5 also. He invited our attention to Exts.A6 and A7, wherein also `4,94,699/- and `4,21,482/- per Are are the respective sale consideration. The learned counsel invited our attention to the evidence of RW2, the Secretary of the Municipality, and contended that the land conveyed as per Exts.A4 to A7 and the acquired land were of equal commercial importance. On this basis, the learned counsel contended that the land value as re- determined by the reference court was grossly inadequate.

7. However, these submissions were contradicted by the learned counsel appearing for the Municipality and the learned Government Pleader. According to them, the properties covered by Exts.A4 to A7 were purchased at fancy prices and were utilised for the construction of a jewellery shop. It was pointed out that this land is totally incomparable to the land under acquisition and therefore the fancy price shown in Exts.A4 to A7 cannot form the basis for the fixation of the land value of the acquired land.

8. We have considered the submissions made. Insofar as L.A.A. No. 554 of 2012 filed by the Chalakudy Municipality is concerned, as LAA Nos.475 & 554 of 2012 7 we have already stated, though the notification under Section 4(1) was for the purpose of construction of a play ground for the public and was for the acquisition of 1.2459 hectares of land, as far as the claimants herein are concerned, only 4 Ares of land comprised in Survey No. 283/3 &5 of East Chalakudy village was included in the notification. While in the award passed on 22.02.2010, Land Acquisition Officer awarded `1,28,000/- per Are as the land value, the reference court enhanced the same to `9,88,000/- per Are (`4,00,000/- per cent) against the claim of `10,00,000/- per cent. This claim for `10,00,000/- was sought to be substantiated by the claimants by relying on Exts.A3 to A7 and was sought to be contradicted by the Municipality by relying on Exts.B1 and B4 documents. However, the reference court relied on Ext.A3 dated 05.11.2007. Ext.A3 is a document evidencing conveyance of 21 cents of land for `2,81,925/- per cent. Though this land is said to be situated 2 kms away from the acquired property, the reference court has chosen to eschew Exts.A4 to A7 and B1 to B4 and placed reliance on Ext.A3. The reference court reduced 15% from the sale value shown in Ext.A3 on the basis that the price therein is a fancy price and arrived at `2,39,636/-. The reference court found that `2,39,636/- represents only 60% of the value of the land and quantified the actual value of the land by adding thereon 40% more. LAA Nos.475 & 554 of 2012 8 On that basis, the land value was estimated at `3,99,393/-, which was rounded off to `4,60,000/- per cent. It is on that basis the reference court has awarded `9,88,000/- per Are. The question that we are called upon to decide in these appeals is whether such re- determination of land value, placing reliance on Ext.A3, calls for any interference on the grounds raised by either of the parties.

9. The first contention raised by the learned counsel for the appellant in L.A.A. No. 554 of 2012 is that the acquired land is a wet land and was classified as an agricultural land in the Detailed Town Planning Scheme framed under the Town Planning Act. According to him, since the land is classified as above, it could not have been utilized for any purpose other than for growing food crops and that any conversion thereof was possible only in terms of the provisions contained in the Kerala Land Utilisation Order issued under the Essential Commodities Act. It was argued that such a land could not have been treated as land with commercial importance as wrongly done by the reference court. In this connection, Counsel referred us to Ext.B9, the Village Survey Settlement Register, Ext.B10, the Fair Value Notification issued under Section 28A of the Kerala Stamp Act, and also the award of the Land Acquisition Officer describing the land as wet land. He also placed reliance on paragraph 16 of the judgment of LAA Nos.475 & 554 of 2012 9 the Apex Court in Lal Chand v. Union of India2. According to the learned counsel, while determining land value, the reference court should have considered only the existing potential and not the future prospects . This contention was sought to be substantiated by referring to the judgments of the Apex Court in Special Land Acquisition Officer v. Karigowda & others3 and Union of India v. Rajkumar Baghal Singh (Dead) through LRs and others4, which laid down the principle that the market value has to be the value of the land as on the date of 4(1) notification.

10. Insofar as these aspects of the matter are concerned, although it appears to be true that in the fair value notification and the village records, the land has been classified as wet land, the evidence in the case and the realities of the ground show that the land, in fact, was a fully developed land and its description as a wet land is far from reality. Admittedly, the land in question is situated almost in the heart of Chalakudy Town, the commercial importance of which is in evidence and which has been discussed by the reference court in paragraphs 9 and 10 of the judgment, which reads thus:

"9. RW1 is the land acquisition officer. She had passed Ext.A1 award. In the course of cross examination, she has stated that Chalakudy North Junction is the confluence of Chalakudy old highway road, market road 2 (2009) 15 SCC 769 3 (2010) 5 SCC 708 4 (2014) 10 SCC 422 LAA Nos.475 & 554 of 2012 10 and Railway Station road. There are several commercial institutions, shops, shopping complexes, banks, hotels, cinema theaters, and Government institutions in Chalakudy north junction. It is most important junction of the Chalakudy town. There is a YMCA road passing through the western side of the post office. That road goes in northern direction. It is having a width of 12 feet. The acquired property is situated on the western side of said YMCA road. The court building, municipal office, veterinary hospital, sub treasury building office, office of the block panchayath, and hotel Medeow International are situated in Chalakudy Municipal junction. The railway station road connects North Junction and Municipal junction. There are several commercial shops and government institutions and banks on either side of Railway Station road. The acquired property of claimants in this case is situated adjacent to Railway Station road. RW1 stated that the acquired property is lying little below the level of the road. This property is situated in the middle of, and between, municipal junction and north junction. RW1 will further say that the properties are situated 100 meters away from Chalakudy North Junction. It is so stated in Ext.A8 proposals given by second respondent for acquisition. It was suggested to her that place where town post office is situated is the main important place of the Chalakudy town. She replied that it is important place and there are more important places in Chalakudy town. She further admitted Railway Station road is one of the most important road of Chalakudy town. She again stated that she does not know whether there are more important roads other than this road in Chalakudy town. She cannot say whether the value of the land on sides of Railway Station road will decrease as distance increases from municipal junction to western direction. However, she stated that the roads that divert from or begins from Railway Station road will be less important.

10. RW1 further stated that the basic land is situated 2 kilometers away from the acquired land. It is situated 2 kilometers away to the south of acquired land. As per Ext.A1 there is only a road on one side of the property. The witness stated that there has been change after 2005. She will admit that when the municipal road on the side of the basic land is compared to Railway Station road, the Railway station road is more important. She has further stated that acquired properties are important than the basic land. She is not aware of the Ext.A2 to A5 documents. The admissions made by RW1, the evidence given by PW1 and RW2, the secretary of the municipality, and, Ext.C1 and C2 report and sketches given by the Commissioner will show that the acquired property is situated at an important part of the Chalakudy North Junction. North Junction is a town. Acquired property is situated on the side of railway station road. The city is situated little away from the NH47. However, it LAA Nos.475 & 554 of 2012 11 appears that the properties in the north junction is more valuable than land that abuts the present national High Way 47. Ext.A2 to A7 are different title deeds produced by claimant to show the value of the acquired land. As already stated Ext.A1 is the title deed which was relied upon by the first respondent as a basic document. RW1 herself has admitted that basic land document property is lying 2 kilometers away from acquired property, whereas the acquired property is situated about 100 to 150 meters to the west of north junction. NH 47 and Ext.A1 property lies to the further west of acquired property. This A1 land is lying to the west of National High Way whereas the National High way is lying westwards of acquired property. The sketches submitted by the Commissioner, are only rough sketches. The properties are not drawn in scale."

11. When such a land is acquired, according to us, though the value to be determined is the value as on the date of Section 4(1) notification, such determination cannot be on the basis that the land is a wet land or agricultural land. This is all the more so for the reason that the land in question was acquired for the construction of a public play ground, and on acquisition a stadium was constructed by the Municipality itself. That apart, the Division Bench of this Court in its judgment in Refiq Saheb (supra) has also taken the view that the capability of the future user of the land is also a fact to be considered at the time when the land value is awarded. Taking note of all these aspects, we confess our inability to accept the contention of the learned counsel for the Municipality that the value of the land in question ought to have been determined on the basis that it is a wet land.

LAA Nos.475 & 554 of 2012 12

12. Another contention of the learned counsel for the Municipality was that the land is as an agricultural land as per the Town Planning Scheme framed under the Town Planning Act. Relying on the judgments of this Court in Sayeesh Kumar v. State of Kerala5 and Philip George v. State of Kerala6, the learned counsel contended that even the Government has no power to grant exemption from the Town Planning Scheme and that except by modification of the Town Planning Scheme change of user is illegal. Therefore, according to the learned counsel, when such a land is classified as an agricultural land, the reference court could not have awarded compensation describing it as a commercial land and that too, ignoring the restrictions on the user of the land by its owner. Insofar as this contention of the learned counsel for the Municipality is concerned, we must first state that in the statement filed by the requisitioning authority before the reference court, no contention whatsoever has been raised relying on the Town Planning Scheme and the categorisation of the land therein. In the absence of such a plea raised in its pleadings, the appellant Municipality could not have even adduced any evidence relying on the classification of the land in the Town Planning Scheme and even if any evidence is adduced, that is 5 2005(4) KLT 1027 6 201492) KLT 116 LAA Nos.475 & 554 of 2012 13 liable to be eschewed from consideration. That apart, if as a matter of fact the land in question was classified as an agricultural land in the Town Planning Scheme, we also wonder how the acquired land, which is classified in the Town Planning Scheme as an agricultural land, could have been utilized by the Municipality for the construction of a public play ground. Even the Municipality does not have a case that the Town Planning Scheme was modified by the Government or that the Town Planning Scheme was withdrawn by the Government. Despite all these, the Municipality itself, having chosen to utilise the land for a purpose other than for what was reserved in the Town Planning Scheme, cannot now be permitted to raise an argument that determination of land value should be on the basis of the classification of the land as found in the Town Planning Scheme.

13. The third aspect of the matter is the reliance placed on by the learned counsel on the provisions of the Kerala Land Utilization Order issued under the Essential Commodities Act, 1955. Even though it is true that the Kerala Land Utilization Order placed restrictions on the diversion of use of land utilized for the purpose of growing food crops, Rule 6, which mandates permission for such diversion, would apply only if it is established that food crops were being grown in the land during the 3 years preceding the introduction of the Land LAA Nos.475 & 554 of 2012 14 Utilisation Order. Insofar as this aspect is concerned, we find that there is no evidence at all in this case. Consequently, the Kerala Land Utilisation Order also cannot be pressed into service by the appellants.

14. The learned counsel for the Municipality has placed reliance on Ext.B10, the notification issued under Section 28A of the Kerala Stamp Act. The counsel contended that as per this notification, fair value fixed for land in the area of the acquired land was `1 lakh per Are. Referring to the judgment of this Court in State of Kerala v Thomas7 the counsel contended that the notification under Section 28A of the Stamp Act is a relevant piece of evidence in the determination of the land value under the Land Acquisition Act. According to him, therefore, the reference court should not have ignored Ext.B10 fair value notification and fixed the land value at `9,88,000/- per Are.

15. Law is trite that fair value fixed under Section 28A of the Act represents the minimum land value for the purpose of levy of stamp duty. Such fixation of fair value does not mean that the land which is covered by the notification under Section 28A would not fetch any value in excess thereof or that value in excess thereof does not represent the market value of such land. Therefore, even in spite of a notification under Section 28A, which is only a piece of evidence, if the 7 2016(1) KLT 502 LAA Nos.475 & 554 of 2012 15 evidence before the court shows that the land value of the acquired land was higher than what was prescribed as the fair value, law permits the court in fixing the land value accepting the value as established by evidence. Therefore, though the notification under Section 28A is a relevant piece of evidence as held by this Court, that notification is not a conclusive proof of the land value and nor can such notification be to the exclusion of other evidence available before Court. Therefore, we are not persuaded to think that the learned counsel is justified in contending that the court below erred in fixing the land value, in excess of what is prescribed in Ext.B10.

16. One of the major complaints raised by the learned counsel for the Municipality was that the court below erred in not placing reliance on Exts.B1 to B4. Exts.B1 to B4, shows that the land value mentioned therein were `30,000/-, `14,995/-, `52,807/- and `28,815/- per cent respectively. It is stated that these lands are situated adjacent to the acquired land and that, therefore, there was no compelling reason for the court to place reliance entirely on Ext.A3, concerning a plot of land situated about 2 kms. away from the acquired land. We find that Exts.B1 to B4 were marked through RW2, the secretary of the appellant Municipality. A reading of his evidence shows that apart from producing the documents, he had no knowledge LAA Nos.475 & 554 of 2012 16 about location of the land, about the value of the land or the nature of the land covered by these documents. In other words, apart from producing Exts.B1 to B4, he had no knowledge whatsoever about the lands which are the subject matter of these documents.

17. In this context, we may profitably refer to the judgment of the Apex Court in Pal Singh v Union Territory of Chandigarh8. That was a case wherein the judgment in a previous case concerning the very same acquisition was relied on for determination of land value. Dealing with the nature of the evidence required for placing reliance on such a judgment, the Apex Court held that for a judgment relating to the value of land to be admitted in evidence either as an instance or as one from which the market value of the acquired land could be inferred or deducted, it must have been a previous judgment of court and as an instance, it must have been proved by the person relying upon such judgment by adducing evidence aliunde that due regard being given to all attendant facts and circumstances, it could furnish the basis for determining the market value of acquired land. This judgment has been followed by the Bombay High Court in its judgment in The Special Land Acquisition Officer(7) Bombay and Bombay Suburban District Municipal Corporation v Vishanji Virji Mepani 8 1992(4) SCC 400 LAA Nos.475 & 554 of 2012 17 and another9 (AIR 1996 Bombay 366) where in paragraph-25, it has been held that while relying upon previous judgments or awards in respect of acquisition of lands, there has to be evidence to find out how far the same would be comparable to the acquired land.

18. In so far as this case is concerned, deposition of RW2, does not contain any such evidence. Not even an attempt has been made to lead evidence in such a manner. There is no other evidence adduced by any other witness also. In such circumstances, mere production of Exts.B1 to B4 was totally insufficient for the Municipality to raise its claim on the basis of Exts.B1 to B4 and to contend that the land value should have been awarded relying upon those documents. Therefore, this plea now raised by the Municipality also has to be rejected and we do so.

19. Then, what remains is whether the reference court was justified in placing reliance on Ext.A3. We have already referred to the judgments cited by the counsel for the claimant in Lalchand v Union of India and another10 and Mehrawal Khewaji Trust (Regd.) Faridkot & others v. State of Punjab & others11 which laid down that when several documents are available, the transaction which represents the highest value should be adopted. If this principle is 9 AIR 1996 Bombay 366 10 AIR 2010 SC 170 11 AIR 2012 SC 2721 LAA Nos.475 & 554 of 2012 18 strictly applied, it might have been possible for the claimants to contend that the reference court should have placed reliance on Exts.A4 to A7 instead of Ext.A3. However, a reading of the judgment in this appeal itself will show that the court has chosen Ext.A3 as the best acceptable document and as per this document, the land value per cent was `2,81,925/-. While, in this context, reference has to be made to Ext.A1, the additional document produced before this Court by the appellants in LAA No.475 of 2002. Ext.A1 is the evidence of the vendee in Ext.A3 who was examined as a witness in LAR No.21 of 2010, a connected case. This evidence shows that the property covered by Ext.A3 was purchased by a congregation of christian nuns and in her evidence this witness has confessed that the value shown in the document was not the real value and that the value paid by them per cent was `5,25,000/- per cent. She has candidly stated that undervaluation was done on the insistence of the vendor and that the real value paid by them is disclosed in the accounts of the congregation and also in their minutes of the meeting which resolved to purchase the property. This evidence, therefore, shows that the court below could not have ignored the value shown in Ext.A3.

20. True; the learned counsel for the appellant Municipality relied on the judgment of the Apex Court in Krishi Utpadan Mandi LAA Nos.475 & 554 of 2012 19 Samiti v Bipin Kumar12 to contend that in view of Section 92 of the Evidence Act, the evidence against a party's own document is inadmissible. A reading of the judgment shows that a party to the proceedings therein had adduced evidence which was inconsistent with his own document and it was in that context, the Apex Court has referred to Section 92 and held the evidence to be done in this Court. In so far as this case is concerned, the evidence tendered was not by a party to the proceedings. Secondly, the evidence, if at all, is against the party herself, in as much as the party has chosen to be exposed to the penal proceedings provided under the Kerala Stamp Act. In any view, her evidence discloses that the court below could have safely accepted the price as disclosed in Ext.A3. And it is on that basis the value has been re-determined. We do not find any justifiable reason to upset such a basis adopted by the reference court.

21. Therefore, we do not find any substance in the grounds urged by the learned counsel for the appellant in LAA No.554 of 2012.

22. Now, what remains is LAA No.475 of 2012 filed by the claimants seeking enhancement of land value.

23. As we have already stated before the reference court, the claimants had claimed `10 lakh per cent. And the Court awarded `4 lakh per cent (`9,88,000/- per Are). Before us, the learned counsel for 12 2004(2) SCC 283 LAA Nos.475 & 554 of 2012 20 the claimant placed reliance mainly on Exts.A4 to A7. Exts.A4 and A5 shows the purchase of 1.78 cents of land each on 3.11.2008 and 27.11.2008 for `18,48,958/- per Are. Exts.A6 and A7 were executed between the same parties on 5.2.2002 and 3.4.2002 respectively. The price mentioned in these exhibits are `4,94,699/- and `4,21,485 per Are. The learned counsel submitted that the lands covered by Exts.A4 to A7 constituted one consolidated plot and according to him, the document executed in 2002, itself shows that the property had a value of `5 lakhs per Are even at that point of time. The counsel argued that such price had increased to more than `18 lakhs in 2008. It was contended that when the claimant's land situated in the very same locality was acquired in 2007, they were also entitled to comparable land value. It was on this basis he argued for enhancement.

24. However, a reading of these documents show that the property covered by Exts.A4 to A7 were having far more commercial importance than the acquired land. This is evident from the further fact that the properties in question were utilised for the construction of a jewellery complex. When such a land is acquired a fancy price would have been paid, and therefore, it will not be safe or reliable to rely on these documents and to determine the land value of the acquired land on that basis. In our view, the land value of the acquired land was LAA Nos.475 & 554 of 2012 21 appropriately fixed by the reference court placing reliance on Ext.A3. We are not therefore persuaded to think that we should place reliance on Exts.A4 and A5 post notification documents and enhance the land value further. In other words, Appeal No.475 of 2012 filed by the claimants also deserve to be dismissed and we do so.

The upshot of the above discussion is that both the appeals are devoid of merits and are liable to be dismissed. We do so. No order as costs.

ANTONY DOMINIC, JUDGE.

DAMA SESHADRI NAIDU, JUDGE.

rv/css LAA Nos.475 & 554 of 2012 22

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