IN THE HIGH COURT OF KERALA AT ERNAKULAM
LA.App..No. 717 of 2003(K)
1. AMMED, S/O. POCKER, AVALATH HOUSE,
... Petitioner
Vs
1. THE DISTRICT COLLECTOR, KOZHIKODE.
... Respondent
2. THE EXECUTIVE ENGINEER, PWD ROAD
For Petitioner :SRI.R.K.MURALEEDHARAN
For Respondent :ADDL.ADVOCATE GENERAL
Dated :05/02/2009
O R D E R
PIUS C. KURIAKOSE & M.C. HARI RANI,JJ
==============================
L.A.A.NOS.717 & 770 OF 2003
============================
DATED THIS THE 5TH DAY OF FEBRUARY 2009
JUDGMENT
Pius C.Kuriakose,J.
Impugned in these appeals are the awards of the Reference
Court in acquisition pursuant to a notification under Section 4
(1) published on 28-11-1997 for the widening of the Payyoli-
Perambra road at Meppayur town. The Land Acquisition Officer
awarded the land value at the rate of Rs.4124/- per cent relying
on the basis document. Evidence before the Reference Court
consisted mainly on Exts.A1 to A3 and also the report submitted
by the Commissioner in the three cases which were considered
by the learned Subordinate Judge together apart from the oral
testimony of the claimants, AW1 to AW3. On the side of the
Government, counter evidence consisted of the oral testimony of
RW1, the Land Acquisition Officer. Ext.A1 was certified copy of a
sale transaction some 12 years prior to the notification under
LAA.717 & 770/2003 -2-
Section 4(1) which related to just one cent of land and
reflected a land land value of Rs.40,000/- per cent. Ext.A3 was
certified copy of a sale deed executed about one year prior to
the date of publication of Section 4(1) notification and it revealed
land value at the rate of Rs.20,000/- per cent. Though the
Advocate Commissioner, who was deputed by the court on
application submitted by the claimants, was taken to the
property covered by Ext.A1, he was not taken to the property
covered by Ext.A3. Both Exts.A1 and A3 were marked through
the claimants only. The parties to those documents were not
examined at all. RW1, the Land Acquisition Officer would swear
that it is a fancy price which is seen paid in Ext.A1 document.
Though RW1 was cross examined at considerable length, no
specific challenge is made to the version in chief examination
that the price shown in Ext.A1 does not reflect the market value
of the property but is a fancy price. The Reference Court on an
evaluation of the evidence noticed that the acquired properties
are unlike the property covered by the basis document situated
in the town area of Meppaayur Town and concluded in our
opinion correctly that it was not safe to rely on the basis
LAA.717 & 770/2003 -3-
document. The Advocate Commissioner had recommended land
value of Rs.30,000/- per cent, obviously, on the basis of the
value revealed in Ext.A1. The court did not become inclined to
accept the recommendation. However, the court accepted the
Advocate Commissioner’s report regarding the locational and
other advantages relating to the acquired properties and also
on the basis of the other evidence on record found that the
correct market value of the property at the relevant time was
Rs.12,124/- per cent.
2. We have heard the submissions of Mr.R.K.Muraleedharan,
learned counsel for the appellant and those of the learned
Government Pleaders Mr.P.K.Babu and Mr.Basant Balaji.
3. Mr.Muraleedharan would argue that the court below was
not at all justified in not placing reliance on Ext.A1. The distance
between Ext.A1 property and the acquired property was only 45
metres. Counsel highlighted that this was not disputed even by
RW1. RW1 had no case that Ext.A1 is a collusive transaction.
Ext.A1 is executed 12 years prior to the date of notification and
therefore, acquisition proceedings were not in contemplation at
LAA.717 & 770/2003 -4-
that time. Mr.Muraleedharan referred to a judgment of the
Supreme Court in Cement Corporation of India Ltd. v.
Purya, 2004(3)K.L.T. 737 in which it is held that examination
of the parties to the document is not necessary for proving the
transaction recorded in the document.
4. The learned Government Pleaders would resist the
submissions of Mr.Muraleedharan. According to them, RW1 had
clearly stated that it is a fancy price which was paid in Ext.A1 and
that part of RW1’s testimony had not been specifically
challenged.
5. We have anxiously considered the submissions at the
Bar. Ext.A1 pertains to a plot having just one cent in extent.
Ext.A1 is executed more than 12 years prior to Section 4(1)
notification. It is true that Section 51A of the Land Acquisition
Act and also the principles laid down by the Supreme court in the
decision referred to above will justify marking of documents in
evidence, even without evidence the parties or anybody else
acquainted with the documents. But marking was not amount to
proving the transactions recorded in a document. There was no
challenge against the version of RW1 that it is a fancy price which
LAA.717 & 770/2003 -5-
is shown in Ext.A1. We are of the view that the finding of the
court below that Ext.A1 cannot be relied on is justified. But at
the same time we feel that we should give an opportunity to the
appellant for proving Ext.A3. Ext.A3 is executed just one year
prior to Section 4(1)notification and there is no case for RW1 that
the value shown in Ext.A3 is a fancy price. We feel that the
appellant should be permitted to prove the transaction recorded
in Ext.A3 by examining either the parties to the document or
their successors or anybody acquainted with the execution of the
document. If so advised, the appellants can take out a
commission to compare the properties acquired and the property
covered by Ext.A3. Accordingly, we set aside the judgment
under appeal and remand L.A.R.Nos.3/2001, 6/2001 and
13/2001 back to the Sub Court, Koyilandy. That court will
permit both sides to adduce whatever evidence they want to and
will pass revise judgment on the basis of the evidence already on
record and the evidence to be adduced in the case. Considering
the order of remand passed, refund the full court fee paid to the
appeal memoranda to the counsel for the appellants.
Considering the age of the claimants, there will be a direction to
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the Reference Court to expedite matters and to ensure that the
trial is completed and revised judgment is passed at the earliest,
at any rate, within three months from the date of receipt of a
copy of this judgment. Transmit the records back to the lower
court immediately. The L.A.As. are allowed by way of remand.
No costs.
Sd/-
PIUS C. KURIAKOSE,
JUDGE
Sd/-
M.C. HARI RANI,
JUDGE
ks.
LAA.717 & 770/2003 -7-
PIUS C.KURIAKOSE &
M.C. HARI RANI, JJ.
L.A.A.NOS. 717 & 770 OF
2003
JUDGMENT
05-02-2009