IN THE HIGH COURT OF KERALA AT ERNAKULAM
LA.App..No. 1001 of 2007()
1. SAJEEV JOHN, S/O. JOHN,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.C.UNNIKRISHNAN (KOLLAM)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :17/03/2009
O R D E R
PIUS.C.KURIAKOSE & K.SURENDRA MOHAN, JJ.
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L.A.A.Nos.1001 & 1034/2007
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Dated this the 17th day of March, 2009
JUDGMENT
Pius C.Kuriakose, J.
The claimants, who are nephew and uncle respectively, are
the appellants in these appeals. The appellants impugn the
common judgment of the land acquisition reference court viz. the
Subordinate Judge’s Court, Muvattupuzha. The acquisition was
for the construction of a canal for Muvattupuzha Valley Irrigation
Project and the acquired properties are in Koothattukulam village
within the limits of Koothattukulam town. The relevant Section 4
(1) notification was published on 28/1/1999. The land
acquisition officer awarded land value at the rate of Rs.21,606/-
per Are corresponding to Rs.8744/- per cent. The reference
court tried both the cases jointly and the evidence adduced by
the parties consisted of Ext.A1- copy of judgment of the same
court in L.A.R. No.178/01 and the oral testimonies of AW1-
claimant in LAR No.154/2005 (corresponding to
L.A.A.No.1034/2007) and AW2, the advocate commissioner, who
submitted Ext.X1 report and Exts.X1(a) location sketch and
L.A.A..Nos.1001 & 1034/2007 2
Ext.X1(b) Rough sketch on the basis of an inspection in which
she compared Ext.A1 property with the acquired property. On
the side of the Government, no counter oral evidence was
adduced and the evidence consisted only of Exts. R1 and R2
copies of Mahazar prepared while the properties were taken over.
The advocate commissioner in Ext.X1 reported that the acquired
property was superior to Ext.A1 property in as much as the
acquired property was having direct frontage of the Main Central
Road while Ext.A1 property had frontage of only a Bye Road
starting from M.C.Road. No objections were filed by the
Government to Ext.X1. Nevertheless, the learned Subordinate
Judge did not become inclined to place reliance on Ext.A1. In
these appeals the judgment of the reference court is impugned
on various grounds.
2. We have heard the submissions of Sri.James Abraham,
learned counsel for the petitioner and those of Sri.P.K.Babu and
Sri.Basant Balaji, learned senior Government Pleaders for the
respondent.
3. Sri.James Abraham, would assail the impugned
judgment on the various grounds raised in the memorandum of
L.A.A..Nos.1001 & 1034/2007 3
appeals, while the learned Government Pleaders would support
the impugned judgment on the reasons stated therein. We
have considered the submissions and we have gone through the
entire evidence, which is available before us. Ext.A1 is the
judgment of the same court regarding the acquisition of
properties in the same village. Ext.A1 was pursuant to a
notification which was published some 17 months after the
publication of the corresponding notification in this case. The
learned Subordinate Judge did not become inclined to place any
reliance on Ext.A1 on the reason that the properties in Ext.A1
and the acquired properties are not “similar or similarly situated”
and on the reason that notification under Section 4(1)
corresponding to Ext.A1 is a subsequent one. It is not an
absolute Rule that post notification documents shall not be
considered while determining the correct market value of the
properties under acquisition. The Rule is that if pre-notification
documents are available, probative value will be attached to
such documents and only in the complete absence of any pre-
notification documents, post notification documents can be
considered, provided it is ensured that the higher value reflected
L.A.A..Nos.1001 & 1034/2007 4
in the post notification documents is not the result of
developments which are attributable to the acquisition in
question. It is also necessary when post notification documents
are relied it should be ensured that there has not been any extra
spurt in the land value in the area during the period between the
date of Section 4(1) notification relating to the acquisition in
question and the date of the post notification document. As
already indicated, the evidence in these cases is one sided. As
against Ext.A1, AW1 and AW2, there is not even formal counter
oral evidence adduced by the Government. Even without
objections, AW-2 advocate commissioner was cross examined by
the Government and we do not find any suggestion in the cross
examination of AW-2 that the higher value revealed in Ext.A1 is
due to the development in the locality as a result of the
acquisition in question or that during the period between Ext.A1
and Section 4(1) notification in these cases there has been
sudden spurt in the value of the land. True, the learned
Subordinate Judge is correct in observing that the acquired
properties and the A1 properties are not similar or similarly
situated. In fact, the evidence is that the acquired property,
L.A.A..Nos.1001 & 1034/2007 5
which is situated in the same village as the properties covered
by Ext.A1, is superior to the properties covered by Ext.A1 in as
much as it was having the direct frontage of the M.C.Road, while
Ext.A1 property was having frontage of only Bye road starting
from the Main Central Road. According to us, the learned
Subordinate Judge could have placed reliance on Ext.A1 for the
purpose of making a correct guess as to what could have been
the correct market value of the acquired property as on the date
of relevant Section 4(1) notification. In land acquisition cases,
determination of market value, to a certain extent, may have to
be on the basis of guess work. The only thing necessary while
courts proceed to determine the market value based on guess
work is that the guess should have some nexus to the evidence
which is available on record. According to us, making a good
guess regarding the correct market value of the acquired
property at the relevant time relying on the relevant materials
like Exts.A1, X1 and the testimonies of AW1 and AW2, it can be
safely concluded that the correct market value of the acquired
property at the relevant time was Rs.16,000/- per cent. This
means that both the appellants will be entitled to the enhanced
L.A.A..Nos.1001 & 1034/2007 6
land value over what is already granted to them under the
impugned judgment at the rate of Rs.3759/- per cent. It is
needless to mention that the appellants will be entitled to all the
statutory benefits admissible under Sections 23(2), 23(1A) and
Section 28 of the Land acquisition Act on the redetermined
market value.
The appeals will stand allowed to the above extent, but in
the circumstances, the parties are directed to suffer their costs.
PIUS.C.KURIAKOSE,JUDGE
K.SURENDRA MOHAN, JUDGE
dpk