High Court Kerala High Court

Jameela vs The Special Tahsildar on 25 June, 2010

Kerala High Court
Jameela vs The Special Tahsildar on 25 June, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

LA.App..No. 815 of 2009()


1. JAMEELA, W/O. HAMSA, NAUSHAD MANZIL
                      ...  Petitioner

                        Vs



1. THE SPECIAL TAHSILDAR, LAND
                       ...       Respondent

2. THE MANAGING DIRECTOR, BEKAL RESORTS

                For Petitioner  :SRI.K.JAYAKUMAR

                For Respondent  :SRI.K.JAJU BABU

The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice C.K.ABDUL REHIM

 Dated :25/06/2010

 O R D E R
               PIUS C. KURIAKOSE &
              C. K. ABDUL REHIM, JJ.
    ------------------------------------------------
       L. A. A. Nos.815, 816 & 817 of 2009
    ------------------------------------------------
       Dated this the 25th day of June, 2010

                    JUDGMENT

Pius C. Kuriakose, J

These three appeals are preferred by the

claimants. The lands under acquisition were in

Kalanad village and the acquisition was pursuant

to Section 4(1) notification published on 30/10/99

at the instance of the Managing Director, Bakel

Resorts Development Corporation. The Land

Acquisition Officer relying on the basis document

fixed the land value at Rs.11,000/- per cent. The

reference Court in the first instance would re-fix

the land value at Rs.9,000/- per cent. Appeal was

preferred by the state to which cross objections

L. A. A. Nos.815, 816 & 817 of 2009 -2-

were preferred by the claimant. This Court

considering the appeals and cross objections vide

judgment in LAA.584/06 and connected cases set

aside the award of the Reference Court and

remanded the cases back to the Reference Court

giving opportunity to both sides to adduce

evidence regarding the correct market value of

the property. Pursuant to the remand additional

documents were produced and witnesses were

recalled and examined. The evidence on record

before the court after completion of the enquiry

pursuant to the remand order consisted of

Exts.R1, R2, A1 to A37, C1 to C4 oral evidence of

AW1 and AW2, RW1 and RW2. Reliance was

mostly placed by the claimant on Exts.A20, A21,

L. A. A. Nos.815, 816 & 817 of 2009 -3-

A29 and A30 which were court judgments in

respect of acquisition of land in the same village,

but pursuant to notifications five years and seven

years earlier to the present notification. The

Advocate Commissioner in Ext.A2 had made a

comparison of the properties covered by Exts.A20,

A21, A29 and A30 with the properties under

acquisition and submitted a report to the effect

that there is perfect comparison between the

properties thereby indicating that there is

justification for awarding value at the rate of

Rs.13,000/- which was the value awarded under

Exts.A20, A21, A29 and A30. The Commissioners

who were asked to value the properties on the

basis of the improvements available on the

L. A. A. Nos.815, 816 & 817 of 2009 -4-

properties would report that the property has to

be paid value at the rate of Rs.8,000/-, 9,000/-

and a maximum of Rs.9,500/- per cent. The

learned Subordinate Judge did not become

inclined to place any reliance on Exts.A20, A21,

A29 or A30. This was because it was noticed that

those judgments were in respect of acquisition

many years subsequent to the present acquisition.

Though Ext.A18 was also relied on, the court

below did not accept the claim since Ext.A18 was

found to be a property situated in the very town.

The court below did not accept recommendations

of the Advocate Commissioner based on the

improvements on the property in full but

ultimately what the court below did was to fix the

L. A. A. Nos.815, 816 & 817 of 2009 -5-

market value at Rs.9,000/- per cent taking an

average of Rs.6,000/- and Rs.13,000/- which are

respectively the minimum value and maximum

value reflected by the various documents

produced.

2. In these appeals, the appellants have

raised various grounds contending that the market

value re-fixed by the court below is grossly

inadequate. Sri.S.V.Balakrishna Iyer, the learned

counsel for the appellants addressed arguments

before us based on the various grounds.

Sri.Balakrishna Iyer referred to Exts.A20, A21,

A29 and A30 and the various commission reports.

According to Sri.Balakrishna Iyer, the learned

Subordinate Judge was actually mislead by the

L. A. A. Nos.815, 816 & 817 of 2009 -6-

terms of the remand order passed by this Court

which directed the Subordinate Judge to re-fix the

market value based on the evidence that comes

on record. The learned Subordinate Judge

misunderstood the remand order as one directing

him to confine the enquiry to the question as to

whether Rs.10,000/- is the appropriate value to

be awarded. Sri.Balakrishna Iyer requested that

the appeals be allowed in full and the market

value be re-fixed at Rs.15,000/- per cent.

3. All the submissions of Sri.Balakrishna Iyer

were very stiffly resisted by Sri.K.Jaju Babu, the

Standing Counsel for the Requisitioning Authority

who was supported in all his submissions by

Smt.Latha T. Thankappan, the learned Senior

L. A. A. Nos.815, 816 & 817 of 2009 -7-

Government Pleader.

4. We have considered the rival submissions

addressed at the Bar. We have made a reappraisal

of the evidence. We have gone through the

judgment of the learned Subordinate Judge. We

do not find any warrant for interfering with the

impugned award at the instance of the claimant.

Before this Court also reliance was placed more by

Sri.Balakrishna Iyer on Exts.A20, A21, A29 and

A30 and the recommendations in Ext.C2 report

which was actually based on Exts.A20, A21, A29

and A30. Exts.A20, A21, A29 and A30 were

certainly court judgments in respect of acquisition

of land in the same village. But those cases relate

to acquisitions pursuant to notification five years

L. A. A. Nos.815, 816 & 817 of 2009 -8-

and seven years subsequent. Having regard to the

principles laid down by the Supreme Court in

G.M., Oil & Natural Gas Cor. Ltd. v. R. Jivanbhai Patel

& Anr. (2008 SAR (Civil) 894), the court is to be

extremely slow and circumspect while relying on

post notification documents. Post notification

document can be resorted to only when pre-

notification documents are not available at all. In

the instant case including the basis document

several pre-notification documents are available.

We therefore, justify the action of the learned

Subordinate Judge in having not placed reliance

on Exts.A20, A21, A29 and A30.

5. When the Reference Court ventures to rely

on Commissioner’s Report for recommendations of

L. A. A. Nos.815, 816 & 817 of 2009 -9-

the Advocate Commissioner based on local

inspection unless those recommendations are

based on market value reflected in a genuine

transaction of property and certified copies of

those transactions are made available to the court

the recommendations of the Commissioner should

not be accepted. [see judgment of the Supreme

Court in Gafar v. Moradabad Development

Authority (2007(7) SCC 614)].

6. Having reappraised the evidence by

ourselves, we are of the view that the learned

Subordinate Judge was extremely liberal towards

the claimants in the matter of determining the

market value. According to us, it is more or less

the correct market value of the property which

L. A. A. Nos.815, 816 & 817 of 2009 -10-

has been arrived at by the learned Subordinate

Judge. The claimants/appellants cannot have any

legitimate grievance regarding the market value

presently re-fixed.

7. We dismiss these appeals without any

order as to costs.

PIUS C. KURIAKOSE
JUDGE

C. K. ABDUL REHIM
JUDGE
kns/-

L. A. A. Nos.815, 816 & 817 of 2009 -11-