Kerala High Court
Philip George vs State Of Kerala & Others on 14 September, 2012
Author: Pius C. Kuriakose
Bench: Pius C.Kuriakose, A.V.Ramakrishna Pillai
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE
&
THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
FRIDAY, THE 14TH DAY OF SEPTEMBER 2012/23RD BHADRA 1934
LA.App..No. 10 of 2010 ( )
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AGAINST LAR NO.27/2007 OF THE PRINCIPAL SUBORDINATE JUDGE, KOTTAYAM
APPELLANT(S)/CLAIMANT:
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PHILIP GEORGE
VALLIALIL, AMAYANNOOR POST,
AYARKUNNAM VILLAGE, KOTTAYAM.
BY ADVS.SRI.MATHEW JOHN (K)
SRI.AJEESH K.SASI
RESPONDENT(S)/RESPONDENT:
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1. STATE OF KERALA & OTHERS
REP. BY THE DISTRICT COLLECTOR, KOTTAYAM.
2. SPECIAL TAHSILDAR (L.R.) GENERAL,
KOTTAYAM.
3. EXECUTIVE ENGINEER,
TRANSMISSION DIVISION, K.S.E.B.,
POOVANTHURUTH, KOTTAYAM.
R1 & R2 BY SR. GOVERNMENT PLEADER SRI. N.SURESH
R3 BY ADV. SRI.K.M.SATHYANATHA MENON,SC,KSEB
THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON
14-09-2012 ALONG WITH LAA. NO: 289/2010, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
BKA
PIUS C. KURIAKOSE &
A. V. RAMAKRISHNA PILLAI, JJ.
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L. A. A. Nos.10 & 289 of 2010
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Dated this the 14th day of September, 2012
J U D G M E N T
Pius C. Kuriakose, J.
Having regard to the submissions addressed before us by the learned counsel for the appellant, Adv.Sri.Mathew John and the learned Standing Counsel for the KSEB, Adv.Sri.K.M.Sathianatha Menon, we recall our judgment dated 09.08.2012 and dispose of the appeals by passing the following revised judgment.
2. These appeals have been filed by the claimants and since they arise out of a common award, we are deciding these appeals together.
3. The appeals pertain to acquisition of land in Ayarkunnam village for the purpose of establishment of a 11KV Sub Station for the Kerala State Electricity Board, the Requisitioning Authority. The acquisition was pursuant to Section 4(1) notification published on 16/07/05. The L. A. A Nos.10 & 289 of 2010 -2- property was dry land, part of a rubber plantation. The Land Acquisition Officer relying on Ext.A1 basis document awarded land value at the rate of ` 14,116/- per Are corresponding to ` 5,712/- per cent. Before the Reference Court the appellants relied on Exts.A1 to A6. Ext.A1 was the basis document relied on by the Land Acquisition Officer. Ext.A2 was a Sale Deed dated 12/01/96 in respect of a property in the very same village but situated in a more important area having direct frontage of Manarcadu - Ayarkunnam. Ext.A2 pertains to 10 cents of land and reflected a land value of ` 45,000/- per cent. Ext.A3 was copy of the plaint in O.S.350/99 of the Sub Court, Kottayam, a suit for specific performance. Ext.A4 was copy of the agreement for sale dated 14/12/98 on the basis of which Ext.A3 plaint was presented. Ext.A4 shows that properties situated hardly 15 metres away from the property under acquisition (property belonging to the brother of the appellants in LAA.10/10) was agreed to be sold for a sum of L. A. A Nos.10 & 289 of 2010 -3- ` 45,000/- per cent. Ext.A5 was the compromise petition entered between the parties to Ext.A3 suit and Ext.A6 is the judgment recording the above compromise. Ext.A1(a) marked again as Ext.X4 series, is the copy of the proceedings initiated by the District Registrar under Section 45A of the Kerala Stamp Act for the alleged undervaluation of Ext.A1 document. Under Ext.A1 it was finally decided by the District Registrar that the market value of the property covered by Ext.A1 was ` 50,000/- per cent. The vendee under Ext.A1 finally remitted the stamp duty on the basis that value of property is ` 50,000/- per cent. Ext.C1 is the report submitted by the Commissioner on the basis of the inspection of the property under acquisition and the properties covered by the documents relied on. Going by Ext.C1 the distance between the property under acquisition and the property covered by Exts.A3 to A6 is only 50 metres.
4. The learned Subordinate Judge did not place any L. A. A Nos.10 & 289 of 2010 -4- reliance on Exts.A3 to A6 mainly on the reason that those documents pertain to period of time much anterior to the acquisition and also for the reason that the properties are situated far away. Another reason stated by the learned Subordinate Judge is that compared to the extent involved in LAA.289/10 corresponding to LAR 26/07, the extent involved in Exts.A3 to A6 is small. Ext.A1(a) proceedings (Ext.X4 series) were also ignored by the learned Subordinate Judge (notwithstanding the oral evidence given by AW6 District Registrar) taking a view that those proceedings do not appear to be genuine. Ext.A2 was also discarded by the learned Subordinate Judge for the reason that the extent involved is only 10 cents and that the property is situated in a much more important area and also for the reason that Ext.A2 was executed about 10 years prior to the acquisition. The learned Subordinate Judge would ultimately on guess estimate re-fix the value of the land under acquisition at ` 17,239/- per Are. According to L. A. A Nos.10 & 289 of 2010 -5- the appellant the rate re-fixed is grossly inadequate.
5. We have heard the submissions of Sri.Mathew John, the learned counsel for the appellant and Sri.K.M.Sathianatha Menon, the learned Standing Counsel for the KSEB/the requisitioning authority. We have heard the learned Senior Government Pleader Sri.N.Suresh, also. Sri.Mathew John would draw our attention to the various items of evidence, particularly Exts.A1 to A6, A1(a) series, X4 series and the oral evidence adduced by the parties including the oral evidence of the District Registrar AW6. He drew our attention to Ext.C1 Commission report also. According to him, the learned Subordinate Judge could have placed reliance on Exts.A3 to A6 which pertain to a period of time when the present land acquisition proceedings were not in contemplation at all. As regards Ext.A2 Sri.Mathew John submitted that though it is true that Ext.A2 is in respect of properties situated in an important area the learned Subordinate Judge could have relied on Ext.A2 after L. A. A Nos.10 & 289 of 2010 -6- making some cuts for the relative importance of the area. Sri.Mathew further submitted that in the light of the convincing oral evidence given by AW6, the learned Subordinate Judge was in error taking the view that Ext.A1
(a) to Ext.X4 series proceedings did not appear to be genuine. Counsel submitted that there is every justification for re-fixing the value of the land under acquisition at ` 50,000/- per cent, the rate claimed in these appeals.
6. The senior Government Pleader, per contra, would support the impugned judgment. According to him, reasonable compensation has been awarded by the learned Subordinate Judge and there is no warrant for increasing the compensation.
7. Sri.K.M.Sathianatha Menon, the learned Standing Counsel for the KSEB, would also support the impugned judgment. According to him, the finding presently entered by the learned Subordinate Judge regarding the market value of the land under acquisition is a correct finding L. A. A Nos.10 & 289 of 2010 -7- justifiable on the evidence which is actually available on record. There is no warrant for increasing the market value.
8. We have given our anxious consideration to the submissions addressed at the Bar. We have made a re- appraisal of the evidence available on record before the learned Subordinate Judge. We are of the view that the learned Subordinate Judge was not justified in discarding the documents placed on record by the appellants especially Ext.A2 sale deed and Ext.C1 Commission Report. Ext.A2 was a document executed about 10 years prior to the date of promulgation of Section 4(1) notification. Even though there is a bar to the Land Acquisition Officer in considering the documents executed beyond a period of three years prior to the promulgation of Section 4(1) notification, there is no such bar as far the reference court under Section 18 is concerned. We are of the view that Ext.A2 can be accepted as a document recording a genuine transaction especially as L. A. A Nos.10 & 289 of 2010 -8- nobody has a case that higher than normal value has been shown in Ext.A2 with any oblique motives. But it is clear from Ext.C1 itself that Ext.A2 is situated in a much more important area and Ext.A2 property has got a direct frontage of a much more important thoroughfare. We also notice that Ext.A2 involves only ten cents, a relatively small extent. We deduct 40% of the value reflected in Ext.A2 for the importance of the area where Ext.A2 property is situated over the property under acquisition. We make a further deduction of 15% for the smallness of the extent. But at the same time we notice that Ext.A2 was executed nine years prior to date of promulgation of Section 4(1) notification. Ayarkunam is a semi urban area and additions has to be made at the rate of 10% per year. When deductions and additions are made as indicated above the value of the property under acquisition can be safely re- fixed at ` 39,000/- per cent corresponding to ` 96,369/- per Are. We allow LAA.10/10 and come to the conclusion that L. A. A Nos.10 & 289 of 2010 -9- the value of the land under acquisition involved in this case at ` 39,000/- per cent.
9. However, we are not in a position to award the same rate of land value to the appellant in LAA.289/10. We find that the extent of property involved in that appeal is a fairly large extent of 74.12 Ares. Following the principle laid down by the Supreme Court in LAO & Sub Collector, Gadwal v. Sreelatha Bhoopal (AIR 1997 (SC) 2552), Gafar & ors. v. Moradabad Development Authority and another (2007(7) SCC 614), State of J&K v. Mohammad Mateen Wani (AIR 1998 (SC) 2470) we make a cut of 15% towards the largeness of the extent and re-fix the market value of land involved in that appeal at ` 33,150/- per cent corresponding to ` 81,914/- per Are.
10. Both the appellants will be entitled for all statutory benefits admissible under Sections 23(2), 23(1A) and under Section 28 of the Land Acquisition Act. The appellants will be entitled for full cost also. Decree copy will be issued to L. A. A Nos.10 & 289 of 2010 -10- the appellant only after ensuring that the full court fee payable on the appeal memorandum is remitted by the appellants.
However, as LAA.289/10 was instituted by the appellant as an indigent person the court fee payable on the appeal memorandum shall be the first charge on the compensation amount. Out of the compensation amount the court fee shall be paid by the Requisitioning Authority to the Government.
Sd/-
PIUS C. KURIAKOSE JUDGE Sd/-
A. V. RAMAKRISHNA PILLAI JUDGE bka/-
//True copy// PA to Judge