Praseed.C Vs. State of Kerala - Court Judgment

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, THE16H DAY OF MARCH201226TH PHALGUNA1933LA.App..No. 1151 of 2010 (C) ----------------------------------- LAR.10/2008 of PRL.SUB COURT,KOTTAYAM ---------------- APPELLANT(S)/CLAIMANT: ----------------------------- PRASEED C., S/O. CHANDRASEKHARAN NAIR, AKKAL, ANIKKAD NORTH. BY ADV. SRI.T.I.ABDUL SALAM RESPONDENT(S)/RESPONDENTS: ------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, KOTTAYAM-686501 2. THE DIRECTOR, CENTRE FOR CONTINUING EDUCATION KERALA THIRUVANANTHAPURAM-683602 SR. GOVT. PLEADER SRI.C.R.SYAMKUMAR THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON1603-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ.

------------------------------------------------ L. A. A No.1151 of 2010 ------------------------------------------------ Dated this the 16th day of March, 2012 JUDGMENT

Pius C. Kuriakose, J The claimant is the appellant. His land with building was acquired by the Government for the purpose of K.R.Narayanan Memorial National Institute of Visual Science and Arts. The land was in Chengalam village of Kottayam District. The property was situated at a distance of one kilometre from Kanjiramattom junction. The property was enjoying the frontage of two roads. The acquisition was pursuant to Section 4(1) notification published on 23/05/06. The Land Acquisition Officer awarded land value at the rate of ` 6,619/- per Are. Before the Reference Court, the appellant relied mainly on Ext.A1 Sale Deed. Ext.A1 Sale Deed was executed on 17/02/03. Ext.A1 related to 17 cents of land. For three cents covered by Ext.A1 land value was L. A. A No.1151 of 2010 -2- paid at the rate of ` 33,000/- per cent. For the balance extent of 14 cents land value was paid at the rate of ` 49,000/- per cent. The Reference Court discarded Ext.A1 for the reason that Ext.A1 was purchased by the purchaser for a fancy price and does not reveal the normal market value in the locality. It was also noticed that Ext.A1 was in a different village viz. Akalakunnam village situated 1.5 kilometres away. Ultimately the learned Subordinate Judge found that Ext.R1 basis document relied on by the Government was in respect of property much inferior to the properties under acquisition. In this regard Ext.C1 Commission Report was relied on. In view of the inferiority of the basis property, the learned Subordinate Judge enhanced the value awarded by the Land Acquisition Officer by 60% and re-fixed the value at ` 10,590/- per Are.

2. In this appeal, it is urged that the compensation awarded by the court below towards value of the buildings and other improvements is inadequate. It is also urged that the market value of the land fixed is too low and that Ext.A1 L. A. A No.1151 of 2010 -3- document should have been relied on. The claim for land value is limited to ` 24,000/- per Are more than what is awarded by the Reference Court. Claim for building value is limited to ` 50,000/-.

3. Sri.T.I.Abdul Salam, the learned counsel for the appellant would address strenuous submissions before us based on various grounds raised in the memorandum of appeal. Sri.Abdul Salam drew our attention to Ext.C1 Commission Report and submitted that the property under acquisition was enjoying the frontage of two roads and the distance between the property under acquisition at Kanjiramattom junction is one kilometre. He pointed out with reference to the Commission Report that in Kanjiramattom junction there are so many institutions. Though in Akalakunnam village as the distance between Ext.A1 property and the property under acquisition is 1.5 kms the learned Subordinate Judge should have relied on Ext.A1, so submitted Sri.Abdul Salam. Sri.Abdul Salam submitted that the compensation awarded by the court below for the L. A. A No.1151 of 2010 -4- building is too low. The building had been let out to a hotelier for conducting a hotel and was fetching to the owner substantial amount by way of rent. The Advocate Commissioner recommended that the correct value of the building is ` 4 lakhs. Therefore, the claim of the appellant regarding the building value should be allowed in full.

4. All the submissions of Sri.Abdul Salam were opposed by Sri.C.R.Syamkumar, the learned Senior Government Pleader. According to him, the court below was perfectly justified in discarding Ext.A1. He pointed out that though the Commissioner was taken to many other places he was not taken to the property covered by Ext.A1. Therefore, there is no comparison of the property under acquisition and the property covered by Ext.A1. Sri.Syamkumar then submitted that the Advocate Commissioner was not assisted by an Engineer in the matter of evaluating the building. The report is that of a layman and the same cannot be accepted as evidence.

5. We have given our anxious consideration to the rival L. A. A No.1151 of 2010 -5- submissions addressed at the Bar. We have carefully gone through the impugned judgment. We have made a quick re- appraisal of the evidence especially Ext.A1 document and Ext.C1 Commissioner's Report. We are of the view that the report submitted by the Commissioner can be relied on only for understanding the importance of the locality and its nearness to junctions such as Kanjiramattom junction. The recommendations of the Commissioner regarding the market value of the land cannot be accepted as they are not founded on value reflected in Sale Documents as the numbers of the Sale Documents are not even referred to by the Commissioner. The recommendations of the Commissioner regarding the value to be given to the building cannot be accepted as the Commissioner did not have the assistance of any expert Engineer in valuing the building. We are placing reliance on the Commissioner's Report only for understanding the locational importance of the property under acquisition and its nearness to places like Kanjiramattom junction which seems to be a road L. A. A No.1151 of 2010 -6- junction in a rural area. We rely on Ext.C1 to find that the property was enjoying the frontage of road on two sides. According to us the action of the learned Subordinate Judge in discarding Ext.A1 for the purpose of determining the market value can be accepted. Significantly the Advocate Commissioner who submitted a report as Ext.C1 was not taken to the property covered by Ext.A1. The appellant did not want the Commissioner to compare the property under acquisition and Ext.A1 property for reasons best known to him. We notice in this context that Ext.A1 was in a different village. But we find that the distance between Ext.A1 property and the property under acquisition is only 1.5 km. Ext.A1 is not a document which can be relied on to any considerable extent for fixing the market value of the land involved in this case. We take into account Ext.A1 only for the purpose of understanding that in Akalakunnam village a village situated 1.5 kms away the value of the land is ranging between ` 33,000/- per cent to ` 49,000/- per cent. It has been clearly found by the learned Subordinate Judge L. A. A No.1151 of 2010 -7- that the basis property was not at all comparable to the property under acquisition. Basis property was a low lying land. The court below found that even though it had been raised by three feet still there was earth down between that property and the road of three feet.

6. We are fairly convinced that the property under acquisition which was lying on a level with the road was enjoying the frontage of two roads was far superior to the basis property. According to us, the addition of 60% granted by the learned Subordinate Judge on the value reflected in the basis document is not adequate. We also keep in mind that for certain parcels of land in Akalakunnam village the parties were paid ` 33,000/- per cent. We are convinced that the market value fixed by the learned Subordinate Judge is not sufficient. The determination of market value of land in land acquisition cases can involve a certain amount of guess work and evaluation of even imponderables. We feel that on a proper appreciation of the evidence, doing guess work based on the evidence available on record including what is L. A. A No.1151 of 2010 -8- reported by the Commissioner in Ext.C1 - the locational advantages, the market value of the land under acquisition can be reasonably re-fixed at ` 20,000/- per Are. But we notice that the properties under acquisition was a fairly large area. Hence, we have to apply the principles laid own by the Supreme Court in L. A. O & Sub-collector, Gadwal v. Sreelatha Bhoopal (AIR1997SC2552, Gafar & Ors. v. Moradabad Development Authority & Anr. (2007(7) SCC614 and State of J & K v. Mohammad Mateen Wani (AIR1998SC2470. We therefore deduct 7.5% from the above rate of ` 20,000/- fixed by us and re-fix the value of the land under acquisition at ` 18,500/- per Are.

7. As for the building, we are sure that enhancement of 10% given by the learned Subordinate Judge is inadequate. The Commission report certainly is not acceptable. But at the same time, the learned Subordinate Judge could have noticed that the PWD's schedule of rates adopted by the L.A. Authority for fixing the value of the building are not realistic. L. A. A No.1151 of 2010 -9- Even the PWD is tendering out its civil works at 30 to 35% above its own published schedule of rates. We award to the appellant ` 33,500/- more as value for the building.

8. The appeal is allowed to the above extent only. On the enhanced compensation, the appellant becomes eligible for all statutory benefits admissible under Sections 23(2), 23(1A) and under Section 28 of the Land Acquisition Act. The appellant is awarded proportionate costs also. Decree copy will be issued to the appellant only after ensuring that the full court fee payable on the appeal memorandum is remitted by the appellant. Sd/- PIUS C. KURIAKOSE JUDGE Sd/- A. V. RAMAKRISHNA PILLAI JUDGE kns/- //TRUE COPY// P.A. TO JUDGE L. A. A No.1151 of 2010 -10-