IN THE HIGH COURT OF KERALA AT ERNAKULAM
LA.App..No. 976 of 2002(D)
1. THE SECRETARY, THRISSUR CORPORATION,
... Petitioner
Vs
1. SYED HUSSAIN SHAH, S/O. SYEDAMMU,
... Respondent
2. SYED MUHAMMED SHAH, S/O. SYEDAMMU,
3. SYED YOOSAF SHAH, S/O. SYEDAMMU,
4. THE SPECIAL TAHSILDAR (LA), THRISSUR
For Petitioner :SRI.K.B.MOHANDAS,SC,THRISSUR CORPORATIO
For Respondent :SRI.SHAJI P.CHALY
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :25/06/2009
O R D E R
PIUS C. KURIAKOSE & P.Q.BARKATH ALI, JJ.
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LAA. Nos. 976 & 1751 of 2002, 524, 527 & 573 of 2006
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Dated this the 25th day of June, 2009
J U D G M E N T
Pius C.Kuriakose, J.
LAA. Nos. 976 of 2002, 524 of 2006 and 527 of 2006
are preferred by the requisitioning authority, the
Corporation of Thrissur, while LAA. Nos. 1751 of 2002 and
573 of 2006 are preferred by the claimants. All these cases
pertain to acquisition of land within the erstwhile Trichur
Municipality, presently the Corporation of Thrissur for the
purpose of widening of Pattalom Road and construction of a
Shopping Centre. The relevant section 4(1) notification was
published on 13-5-1996. The land acquisition officer
awarded land value at the rate of Rs.1,45,400/- per Are
corresponding to Rs.58,842.5 per cent. The reference court
would re-fix the land value on the basis of the evidence
LAA. N0s. 976/02 etc.
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which came on record at Rs.97,600/- per cent. In the
appeals preferred by them, the claimants pray that relying
on sale deed No.1898/95 which was marked as Ext.A1 in
LAR. No. 50/04 corresponding to LAA. Nos. 573/06 and
524/06 the market value of the lands under acquisition be
uniformly fixed between Rs.4,02,152.63 and Rs.4 lakhs per
cent. The requisitioning authority on the contrary in their
appeals contend that the enhancement presently granted by
the reference court is excessive and seeks that award of the
land acquisition officer be approved or at least the
enhancement granted by the reference court be reduced
considerably.
2. We have heard the submissions of Sri. S.V.
Balakrishna Iyer, learned senior counsel for the appellants in
LAA. No.573 of 2006, Sri.S.P.Chaly, Advocate for the
appellants in LAA. No. 1751 of 2002 and those of
Sri.K.B.Mohandas, standing counsel for the Corporation of
Thrissur and also those of Sri.Basant Balaji, senior Govt.
LAA. N0s. 976/02 etc.
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Pleader.
3. We have made a reappraisal of the evidence which
was available before the reference court. Pursuant to our
directions it was submitted before us by the learned Govt.
Pleader on the basis of the instructions received by him
from the Government that as per the Fair Value Order
issued by the Government in the context of stamp duty to
be collected on documents submitted for registration at
Trichur that the ratio between the value of land on the
Swaraj Round, the Municipal Office Road and the Pattalom
Road is Rs.50 lakhs : Rs.30 lakhs : Rs.15 lakhs. Though
information was sought for regarding the value under the
Fair Value Order for lands on Post Office Road, the same
was not furnished.
4. Sri.S.V.Balakrishna Iyer as well as Mr.Chaly would
argue that the court below was not justified in rejecting
Ext.A1 sale document altogether. According to them, A1
was in respect of property on the Post Office Road situated
LAA. N0s. 976/02 etc.
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at a distance of just 120 metres from the property under
acquisition. They submitted that A1 document had been
proved to the very hilt by examining AW2 whose credibility
was not shaken in cross-examination. A1 reveals land value
of more than Rs.4 lakhs per cent. The learned Subordinate
Judge rejected Ext.A1 on the reason that the property
covered by A1 was not barren land but took in a building
also and that the building was not separately valued in the
document. It was submitted that yet another reason for
rejecting Ext.A1 was that going by the schedule description
of A1 the property took in some “Kuzhikoors”. It was
submitted by the learned counsel that it was an old Post
Office building which existed on the A1 property and that
within a few days of the agreement which preceded Ext.A1,
the building was easily removed. The building did not have
even a nominal value. The expression “Kuzhikoors” crept
into the schedule description only due to the usage of a
routine expression by the document writer and the same did
LAA. N0s. 976/02 etc.
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not have much significance. The learned counsel submitted
that it is relying on Ext.R2 award of the court that the
learned Subordinate Judge granted enhancement under the
impugned judgments. In R2, the document relied on was
document No.501/94 which was in respect of land situated
at Veliyannoor, which was far inferior to land on Pattalom
Road and Post Office Road which are by all standards land
with utmost commercial potentiality. Mr.Balakrishna Iyer
submitted that even going by the information supplied by
the learned Govt. Pleader based on the Fair Value Order it
can be easily assumed that the ratio between the value of
properties on Pattalom Road and those on the Post Office
Road should be 15 : 20. Even adopting that ratio the
learned counsel argued that there is justification for
granting at least Rs.3,15,750/- per cent as land value. Mr.
Balakrishna Iyer would fortify his submissions on the
authority of the judgment of the Supreme Court in Hasanali
Walimchand v. State of Maharashtra, (1998) 2 SCC 388 and
LAA. N0s. 976/02 etc.
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also on the judgment of the Supreme Court in Shaji
Kuriakose & another v. Indian Oil Corporation Ltd. (2001(3)
ILR Kerala 605. Counsel submitted that the relevant factors
to be taken into account while proceeding to determine
market value on the basis of value revealed in a comparable
sale document are the following: (1) The sale must be a
genuine transaction. (2) The sale deed must have been
executed at a time proximate to the date of issuance of
section 4(1) notification. (3) The land covered by the sale
must be in the vicinity of the acquired land. (4) The land
covered by the sale must be similar to the acquired land.
(5) The size of plot of the land covered by the sale should
be comparable to the land acquired. According to the
learned senior counsel, this is a case where all these five
factors are satisfied and there is no reason why Ext.A1
should not be adopted completely for determining market
value.
5. All the submissions of the learned senior counsel and
LAA. N0s. 976/02 etc.
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Mr.Chaly were very forcefully resisted by Sri.K.B.Mohandas,
learned standing counsel for the Corporation. Submissions
of Mr.Mohandas were supported by Mr.Basant Balaji,
learned senior Govt. Pleader. Mr.Basant Balaji submitted
that it may not be very safe to rely on the ratio fixed as per
the Fair Value Order to arrive at the ratio between the
values of the properties at various points in Thrissur
Corporation in 1996. In 1996, Pattalom Road did not have
even 1/5th importance of areas like Post Office Road,
Municipal Office Road and Swaraj Round. Learned senior
Govt. Pleader also submitted that the Fair Value Order has
been suspended by the Government in view of the
anomalies noticed therein. According to the learned
counsel, Ext.R2 judgment relied on by the learned Sub
Judge has attained finality and the maximum which could
have been granted to the claimants has already been
granted by the reference court.
6. We have very anxiously considered the rival
LAA. N0s. 976/02 etc.
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submissions addressed at the Bar. Determination of market
value in land acquisition cases will involve a little bit of
guess work and evaluation of imponderables. The safest
method to determine market value of properties acquired,
even according to the judgment of the Supreme Court in
Shaji Kuriakose v. Indian Oil Corporation relied on by the
learned counsel for the claimant is comparable sales
methods. It would appear that at least four of the five
factors mentioned by the Supreme Court in that judgment
are applicable to the property covered by Ext.A1. But the
first factor mentioned by the Supreme Court is that the sale
must be proved to be a genuine transaction. Ext.A1
document was sought to be proved through AW-2 who is
party to A1. AW2 was cross-examined not only by the
counsel for the Corporation but also by the Govt. Pleader for
the State and the L.A. Authority. It is not suggested to AW2
that the transaction is not a genuine one or that an inflated
value was shown in the document so that the claimant can
LAA. N0s. 976/02 etc.
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stake claim for a higher value in the land acquisition case.
However, we are not inclined to place complete reliance on
the oral evidence given by AW2 since it appears to us that
he who is a friend of one of the claimants has given an
exaggerated version regarding relative importance and
value of the property under acquisition and the property
covered by Ext.A1. According to us it may not be safe to
place complete reliance on Ext.A1 for determining market
value of the acquired properties. This does not mean that
we are rejecting Ext.A1 from consideration altogether.
7. Ext.R2 is the document which was relied on by the
learned Sub Judge. The basis document Ext.R1 was not
relied on by the learned Subordinate Judge and according to
us, on good reasons. The learned Subordinate Judge relied
on Ext.R2. In R2, as already stated, enhancement was
granted on the basis of document No.1501/94. It is not
disputed before us that the said document pertains to
property in Veliyannoor which situated 430 metres south-
LAA. N0s. 976/02 etc.
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west of the acquired property. We do not find any difficulty
to accept the argument of the learned counsel for the
claimants that in terms of market value and commercial
potentiality the acquired property on Pattalom Road is far
superior to the property in Veliyannoor at the relevant time.
So relying on Ext.R2 for determining market value of the
acquired property will also not be safe.
8. We notice our judgment dated 1-6-2009 in LAA.
Nos. 960 and 1043 of 2000. Those cases were in respect of
acquisition at the instance of the Thrissur Municipal
Corporation itself. The purpose of the acquisition in that
case was for construction of bell mouth and shopping centre
at the point where the Municipal Office Road meets the
Swaraj Round. The relevant notification under section 3(1)
of the Kerala Act, corresponding to section 4(1) of the
Central Act, in those cases was published on 15-7-1989.
The land acquisition officer in those cases awarded land
value at the rate of Rs.18,297/- per cent. The reference
LAA. N0s. 976/02 etc.
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court under the judgments impugned in those cases, which
were revised judgments passed pursuant to an order of
remand passed by this Court, would re-fix land value of the
properties under acquisition in those cases at Rs.1,50,000/-
per cent.
9. Dismissing the claimants’ appeal, we under that
judgment would approve the fixation of market value of
those properties at Rs.1,50,000/- per cent. The judgment
of the Honourable Supreme Court in G.M.Oil Oil & Natural
Gas Corpn. Ltd. v. R.Jivanbhai Patel & another, 2008 SAR
(Civil) 894 will now be noticed. It is laid down by the
Supreme Court therein that when courts proceed to rely on
pre-notification documents and determine market value by
giving addition to the value revealed by those documents for
passage of time, the appropriate percentage of additions to
be made in urban areas shall not be more than 10% to
15%. We have no doubt at all in our minds that the lands
under acquisition were situated in a purely urban area. As
LAA. N0s. 976/02 etc.
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for the lands covered by our judgment in LAA Nos. 960 and
1043 of 2000, i.e., situated on the northern end point of
Municipal Office Road, the same by all standards were in
urban area. Adopting the principles laid down by the
Supreme Court in that judgment, addition at the rate of
12.5% per Are will have to be given to the property covered
by that judgment and in that way the market value of the
property covered by that judgment (Municipal Office Road
property) as on the date of the 4(1) notification in this case
will come to Rs.2,71,500/-. Going by the Fair Value Order,
the value of the properties of Pattalom Road should be at
least 50% of the value of properties on M.O. Road.
Calculating that way, the value of the acquired properties
can come only to Rs.1,35,750/-.
10. Though we have found elsewhere in the judgment
that AW-2, who is a friend of one of the claimants in the
case has exaggerated while deposing about the relative
importance and value of properties on Post Office Road and
LAA. N0s. 976/02 etc.
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Pattalom Road we notice once again that it was not even
suggested to AW-2 that it is a bogus transaction which is
recorded in Ext.A1. The learned Subordinate Judge also
does not hold that the transaction recorded in Ext.A1 is not
a genuine one. On the contrary, the Subordinate Judge
rejects Ext.A1 for the reason that a building existed on the
property and that the building was not separately valued
and on the further reason that going by the schedule
description of the document “Kuzhikoors” also existed. As
for the “Kuzhikoors” we are inclined to accept the
submission of Mr.Balakrishna Iyer. As for the buildings also
since it is not disputed that the building which existed was
the old dilapidated building of the old Post Office which
existed on the property, the value of the building if at all to
be taken into account was only a small portion of the total
consideration set out in the document. We rely on Ext.A1
for holding that the market value of the property on the Post
Office Road at the relevant time should have been above
LAA. N0s. 976/02 etc.
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Rs.3,50,000/-. As already stated, the learned Govt. Pleader
was unable to supply us information regarding the land
value fixed under the Fair Value Order for properties on the
Post Office Road. But we feel that the ratio between the
value of properties on Pattalom Road at the relevant time
should have been between 55 to 60% of the value of
properties on the Post Office Road. Relying on our own
judgment in LAA. Nos. 960 and 1043 of 2000 and our
findings rendered herein above regarding the market value
of the properties on Post Office Road and Pattalom Road we
are of the view that the correct market value of the acquired
properties at the relevant time can be fairly and reasonably
fixed at Rs.1,97,600/- per cent.
10. Accordingly we set aside the judgments and
decrees under appeals and fix the value of the properties
under acquisition at Rs.1,97,600/- per cent. It is needless
to mention that the claimants will be entitled to all statutory
benefits admissible to them under Sections 23(1A), 23(2)
LAA. N0s. 976/02 etc.
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and 28 of the L.A. Act including interest on solatium. The
appeals filed by the claimants are allowed. The appeals filed
by the requisitioning authority are dismissed. But in the
circumstances both sides are directed to suffer their costs.
(PIUS C.KURIAKOSE, JUDGE)
(P.Q. BARKATH ALI, JUDGE)
ksv/-
LAA. N0s. 976/02 etc.
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PIUS C.KURIAKOSE &
P.Q.BARKATH ALI, JJ.
LAA. Nos. 976 & 1751 of
2002, 524, 527 & 573 of
2006
J U D G M E N T
25th June, 2009