IN THE HIGH COURT OF KERALA AT ERNAKULAM
LA.App..No. 465 of 2005()
1. THE MANAGING DIRECTOR, KSIDC,
... Petitioner
Vs
1. THE DISTRICT COLLECTOR,
... Respondent
2. POKKATTU RAGHAVAN,
For Petitioner :SRI.JOBY CYRIAC
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :02/09/2008
O R D E R
PIUS C. KURIAKOSE, J.
---------------------------------------------------------------------
LAA. Nos.465/05, 467/05, 647/05, 659/05, 660/05 & 811/05
----------------------------------------------------------------------
Dated this the 2nd day of September, 2008
J U D G M E N T
All these appeals filed by the requisitioning authority, the
Managing Director, KSIDC, Trivandrum are directed against a common
judgment of the Subordinate Judge’s Court, Quilandy in land
acquisition reference cases pertaining to acquisition in Kinaloor Village
for the purpose of widening of the Kinalur – Vattoli Bazar Public Road
leading to the Industrial Growth Centre established by the appellant.
The relevant notification under section 4(1) was on 25-4-1999. The
land acquisition officer had categorised the lands involved in all these
appeals other than LAA. No. 465/05 as garden lands and had fixed the
land value at the rate of Rs.3034/- per cent relying on document
No.227/96 dated 12-7-1996 of SRO Thamarassery. Similarly for wet
lands the land acquisition officer had awarded land value at the rate of
Rs.367/- per cent relying on the document which is marked in the case
as Ext.R7. These references under section 18 of the Land Acquisition
Act were initiated at the instance of the land owner claimants who
were dissatisfied with the awards passed by the L.A. Officer. The
learned Subordinate Judge would consolidate LAR. Nos.16/03, 17/03,
19/03, 20/03, 33/03, 34/03, 52/03, 60/03, 64/03 and 65/03 and try
LAA.N0. 465/05 etc.
-2-
them jointly. LAA. No. 811 pertains to LAR. No. 20/03 while LAA.
Nos.465/05, 660/05, 659/05, 467/05 and 647/05 pertain respectively
to LAR. Nos. 33/03, 64/03, 34/03, 16/03 and 65/03. The evidence
before the Reference Court consisted of Ext.A1 copy of Kanam
assignment deed dated 9-12-1997 and Ext.A2 copy of Jenmam
assignment deed dated 7-2-1989 and the oral testimony of AW-1
claimant in one of the cases on the side of the claimants. On the side
of the respondents it consisted of Exts.R1 to R8 and oral testimonies of
RW-1 and RW-2. Apart from that, report of a commissioner who was
deputed by the court for the purpose of inspecting the properties and
making a comparative assessment of the acquired properties and the
properties covered by Exts.A1 and A2 was marked as Ext. X-1. The
Advocate Commissioner in Ext.X-1 recommended that a value of
Rs.15,000/- per cent be fixed for the garden lands and a sum of
Rs.3000/- per cent be fixed for wet lands which were acquired. Ext.A1
pertains to sale of 6 cents of garden land at the rate of Rs.20,000/-
per cent. It came out in evidence that A1 property was situated just
half a kilometre away from the acquired property. The Commissioner
had recommended a value ofRs.15,000/- per cent for the acquired
property after deducting Rs.5000/- for the extra commercial
LAA.N0. 465/05 etc.
-3-
advantages which A1 properties were enjoyed. As for Ext.A2 it was
noticed in evidence that the property covered by Ext.A2 was situated
at a distance of 1 kilometre from the acquired land and that it did not
have any road access. It was also noticed that the acquired property
did not have road access and it was relying on Ext.A2 that the
commissioner had recommended Rs.3000/- per cent for the wet land.
The reference court however did not become inclined to rely on Ext.A1
on the reason that the vendor in Ext.A1 was interested in the land
acquisition cases since other property of that vendor was also acquired
for the very same purpose. For that reason the court below concluded
that the sale revealed by Ext.A1 cannot be treated as a sale by a
genuine seller to a genuine purchaser for a genuine price. Court below
did not accept Ext.A2 either for the reason that A2 property was
having proximity to the stadium as well as to the main areas of the
town. Ultimately what the court below did was to notice the time land
between the date of 4(1) notification and the basis document Exts.R7
and R8 and also to notice the absence of tarred road frontage for the
above properties covered by Exts.R7 and R8 and to enhance the value
for dry lands to Rs.6000/- per cent and the value of the wet lands to
Rs.1250/- per cent. For doing so, the reference court added a sum of
LAA.N0. 465/05 etc.
-4-
Rs.1966/- per cent to the value of dry lands for passage of time and
added a further amount of Rs.1000/- per cent for the road frontage
which the acquired properties were enjoyed. Similarly a sum of
Rs.383/- per cent was added to the value of wet lands for passage of
time and a further sum of Rs.5000/- was added for the road frontage
advantage which the acquired properties were enjoying.
I have heard the submissions of Sri.Joby Cyriac, learned counsel
for the appellant, Sri.R.K.Muraleedharan, learned counsel for the cross
objector respondent and Sri.Basant Balaji, the learned Government
Pleader.
The learned counsel for the appellant would support the decision
of the learned Subordinate Judge to discard Exts.A1 and A2.
According to him having discarded Exts.A1 and A2 there was no
evidence on the basis of which enhancement should be granted and
the present enhancement and the enhancement now granted is not
founded on any legal evidence. Sri.R.K.Muraleedharan, learned
counsel for the cross objector would assail the findings of the learned
Subordinate Judge regarding the market value of the acquired
properties at the relevant time. According to him the learned
Subordinate Judge was not at all justified in discarding Exts.A1 and A2.
LAA.N0. 465/05 etc.
-5-
Ext.X-1 commissioner’s report which was a part of the record in the
case should have been accepted and value of dry land should have
been fixed at Rs.12,000/- per cent and value of wet land should have
been fixed similarly at Rs.3000/- per cent. He would further submitted
that the finding of the learned Subordinate Judge that the acquired
properties did not have any commercial importance and that the
properties could be used only as residential plots was also
unreasonable. The learned Government Pleader would support the
findings of the learned Subordinate Judge and submitted that there
is absolutely no warrant for any interference. In reply the learned
counsel for the requisitioning authority (appellant) would read over to
me the evidence which had been given by the vendor in Ext.A1 who
had been examined as a witness in another case. He submitted that it
is crystal clear from that evidence that the vendor in Ext.A1 had
accepted Ext.A1 document showing an inflated value with the intention
of staking a claim for that value before the awarding officer when he
himself is called by the awarding officer for the enquiry in connection
with acquisition of his common property. A2 property was situated
near to the town and had a close proximity to the stadium and
therefore there was no comparability between Ext.A2 and the acquired
LAA.N0. 465/05 etc.
-6-
property and the wet lands among the acquired property.
I have considered the rival submissions addressed at the Bar. I
have carefully gone through the impugned judgment and I have
scanned the evidence which was recorded by that court.
Exts.A1 and A2 were the principal item of evidence on the basis
of which the claimant respondents claim enhanced land value. A1 was
rejected by the reference court on the reason that the vendor in
Ext.A1 was a party interested in the land acquisition since his
properties were also acquired in the same acquisition and the very
execution of Ext.A1 is at a time when he has been put to notice
regarding the acquisition of his own properties. The evidence given by
the vendor in Ext.A1 in another case which was read over to me which
is established the very hilt that the finding of the learned Subordinate
Judge that an inflated price has been shown in Ext.A1 is a correct
finding. More over, in this case I find that no endeavour has been
made by the claimants to prove Ext.A1 property by examining anybody
connected with the execution of that document despite the challenge
made on Ext.A1 by the respondents. Similarly I am of the view that
the finding of learned Subordinate Judge that there is no comparability
between the wet lands covered by A2 and the wet lands involved in
LAA.N0. 465/05 etc.
-7-
these cases is also reasonable. A2 properties were situated closer to
town and very near to stadium. A2 documents also was never
attempted to be proved by examining any of the parties to the same.
Nevertheless I feel that the learned Subordinate Judge had erred in
concluding that the dry lands involved in this acquisition did not have
any commercial potentiality and could have been used only as
residential sites. It is admitted that all the dry lands involved in the
acquisition were having direct frontage of the Kinalur – Vattoli Bazar
Public Road. The learned Subordinate Judge’s conclusion that these
properties did not have commercial potentiality is based on the report
of the Advocate Commissioner in Ext.X-1 that as matters obtained now
these properties did not have nearness to any commercial
establishment or offices. While assessing the potentiality of a given
property for commercial use the question to be considered is not
whether the properties having nearness to the existing commercial
establishments the question to be considered is whether in future
these properties can be diverted or is likely to be diverted as
commercial properties. In my opinion any property having direct
frontage of a public road within a town or village will have some
commercial potentiality at least in the sense that shops or like
LAA.N0. 465/05 etc.
-8-
establishments can be put up. Land value of dry lands have been
enhanced toRs.6000/- per cent taking into account passage of time
and nearness to road frontage. If the learned Subordinate Judge had
taken into the possibility of the lands put to commercial use at least to
a certain extent then at least Rs.1500/- per cent would have been
added to the value presently fixed by the learned Judge for dry lands. I
add that amount to the value fixed by the learned Subordinate Judge
and re-fix the land value of dry lands/garden lands involving the
acquisition at Rs.7500/- per cent. It is almost on the same reasoning
that the learned Subordinate Judge re-fixed value of wet lands at
Rs.1250/-. According to Ext.X-1 report the ratio between the values of
dry lands and wet lands in the locality is Rs.15,000- : Rs.3000/-.
According to the learned Subordinate Judge, the same is Rs.6000/- :
Rs.1250/-. Thus according to the advocate commissioner and the court
the ratio of Rs.3034/- : 367 between the value of dry lands and wet
lands maintained by the land acquisition officer is not the correct ratio.
I am also inclined to take the view that the reference court as well as
the commissioner have come to a more correct decision as regards the
ration between the two categories of properties in the locality. When it
is found that the correct value of dry lands is Rs.7500/- per cent the
LAA.N0. 465/05 etc.
-9-
value of wet lands in my opinion should be Rs.1600/- per cent. Thus
dismissing the appeals and allowing cross objections in part I re-fix the
value of garden lands acquired in all these cases at Rs.7500/- per cent
and the value of wet lands at Rs.1600/- per cent. The claimants will
be entitled for all statutory benefits admissible to them including
solatium, the amount under section 23-A and interest under 28. The
parties are directed to suffer their costs in the appeal and the cross
objections.
(PIUS C.KURIAKOSE, JUDGE)