Kerala High Court · 2009

LAA. 911/03 etc. - 4 -place reliance on the Kondotty Society's document mainlyon two reasons. The first reason was that the KondottySociety's document is actually executed after thepromulgation of Section 4(1) Notification and therefore theKondotty Society's document is a post notificationdocument. The second reason stated by the court below wasthat in the oral evidence adduced by the Secretary of theSociety which is executant of the document, he stated thatthe rate received under the society's document was higherthan the prevailing market rate. The court below madecomparison of the properties under acquisition (particularlythe property in Tak No.I) and the property covered by thebasis document. The court below found that quality wise,the property covered by the basis document was inferior tothe property under acquisition since it is lying at a depth ofat least 10 ft. from the road level and was rocky land.But, according to the court below the property covered bythe basis document was situated by the side of national LAA. 911/03 etc. - 5 -highway and therefore in terms of locational importanceand advantages the basis property was superior to theproperties in question which were having only nearness toother roads like PWD road, municipal road etc. What thereference court did was to rely on the basis document itselfand to re-fix the value of properties in Tak – I atRs.16,500/- per cent, thus granting an increase of 39% overwhat was awarded by the LAO. For properties in Tak – IIthe court below would re-fix land value at Rs.11,000/- percent, thus granting an increase of 41% over what wasawarded by the L.A. Officer for properties in Tak No. IIsituated in Pallikkal Village. The court below fixed landvalue at various rates for properties in other Taks undervarious judgments. These appeals involve only propertiesincluded in Tak Nos. I, II, IV, V and VIII. For properties inTak No.IV situated in Nediyiruppu Village, the court belowfixed land value at the rate of Rs.13,000/- per cent. Forproperties in Tak No.V situated in Nediyiruppu Village the LAA. 911/03 etc. - 6 -court below fixed land value at the rate of Rs.11,000/- percent. For properties in Tak No.VIII in Nediyiruppu Village,the court below fixed land value at the rate of Rs.8000/- percent. The requisitioning authority, the Airport Director aswell as some of the claimants have come up in appeal. 2. LAA. No. 382/04 is the appeal preferred by therequisitioning authority against the judgment and decree inLAR. No. 58/97 and LAA. No. 1460/07 is the appealpreferred by the claimants against the same judgment anddecree. LAA. No. 86/04 and LAA. No. 446/04 arerespectively the appeal preferred by the claimant and therequisitioning authority against the judgment and decree inLAR. No. 59/97. LAA. No. 149/04 is the appeal preferred bythe claimant against the judgment and decree in LAR. No.60/97. In fact the requisitioning authority had alsopreferred LAA. No. 447/04 against the same judgment anddecree which stands already dismissed by judgment dated17-9-2009 on the reason that the enhancement is not LAA. 911/03 etc. - 7 -excessive. LAA. Nos.148/04 and 445/04 are respectivelythe appeal preferred by the claimant and the requisitioningauthority against the judgment and decree in LAR. No.65/97. LAA. Nos. 318/04 is the claimant's appeal preferredagainst the judgment and decree in LAR. No. 105/97. Infact, by our judgment dated 17-9-2009 we alreadydismissed LAA. No. 361/04 preferred by the requisitioningauthority against the judgment and decree on the reasonthat the enhancement is not excessive. LAA. No. 319/04 isthe appeal preferred by the claimant against the judgmentand decree in LAR. No. 106/97. We have already dismissedLAA. No. 896/04 preferred by the requisitioning authorityagainst the same judgment and decree by judgment dated17-9-2009 on the reason that the enhancement granted isnot excessive. LAA No. 325/04 is the appeal preferred bythe claimant against the judgment and decree in LAR. No.107/97. We have already dismissed LAA. No.999/04preferred by the requisitioning authority against the same LAA. 911/03 etc. - 8 -judgment and decree on the reason that the enhancementgranted is not excessive. LAA. No. 320/04 is the appealpreferred by the claimant against the judgment and decreein LAR. No. 108/97 and LAA. No. 927/04 is the appealpreferred by the requisitioning authority against the samejudgment and decree. LAA. No. 1020/04 is the appealpreferred by the requisitioning authority against thejudgment and decree in LAR. No. 81/97. LAA. No. 911/03 isthe appeal preferred by the claimant against the judgmentand decree in LAR. No. 42/98. LAA. No. 832/06 is theappeal preferred by the requisitioning authority against thejudgment and decree in LAR. No. 43/97. LAA. No. 43/05 isthe appeal preferred by the requisitioning authority againstthe judgment and decree in LAR. No. 29/97. LAA. No.13/07 is the appeal preferred by the requisitioning authorityagainst the judgment and decree in LAR. No. 78/98. LAA.No. 142/04 is the appeal preferred by the requisitioningauthority against the judgment and decree in LAR. No. LAA. 911/03 etc. - 9 -66/97. While the requisitioning authority in the appealspreferred by them contends that the enhancement grantedby the reference court is excessive the claimants in theirappeals contend that the enhancement granted by thereference court is quite inadequate. 3. We have heard the submissions of Sri. RajeshR.Kormath and Sri.Babu S.Nair, learned counsel for theclaimants and those of Sri.N.N.Sugunapalan, learned seniorcounsel for the requisitioning authority. We have also heardthe submissions of the Govt. Pleader Smt. P.N.Sumangalafor the Government. Very extensive submissions wereaddressed before us by the learned counsel for theclaimants and the learned senior counsel for therequisitioning authority in support of the grounds raised inthe appeals filed by their respective parties. Our attentionwas drawn to the various items of evidence oral anddocumentary. 4. Sri. N.N.Sugunapalan, learned senior counsel for LAA. 911/03 etc. - 10 -the requisitioning authority would argue that at any rate thecourt below was not justified in awarding a uniform rate ofvalue in the cases where the extent involved is small andalso in the cases where the extent involved is fairly large.According to the learned counsel, extents exceeding 50cents are to be taken as large extents and for such largeextents suitable deductions are to be made on the value tobe fixed by this court. In this connection, learned seniorcounsel relied on the judgment of the Supreme Court inState of J. & K. v. Mohammad Mateen Wani, AIR 1998 SC2470, Haryana State Electricity Board v. Maha Singh, AIR1997 SC 2552 and also the judgment of the Supreme Courtin Gafar and others v. Moradabad Development Authorityand another, (2007) 7 SCC 614. The learned senior counseldrew our attention to our earlier judgment dismissing theappeals preferred by the requisitioning authority. Accordingto the learned counsel, doctrine of merger applies and henceit is not open to this court to grant any enhancement on the LAA. 911/03 etc. - 11 -appeals preferred by the claimants. For this proposition thelearned senior counsel relied on the judgment of theSupreme Court in Chandi Prasad v. Jagidish Prasad, (2004)8 SCC 724. The learned senior counsel also relied on thejudgment of the Supreme Court in Spl. Deputy Collector andothers v. Chakali Linga and others, (2005) 13 SCC 404 forthe same proposition.5. One of the arguments mainly made by Sri.RajeshR.Kormath and Sri.Babu S. Nair was that the reference courtwas not at all justified in discarding the Kondotty Society'sdocument. The learned counsel submitted that the propertycovered by the Kondotty Society's document was actuallyseedment area (Palliyad land) virtually paddy field. Learnedcounsel pointed out that though it is true that the Society'sdocument was executed after the notification under Section4(1) was promulgated, in this case the documents producedalong with IA. No. 3765 of 2009 in LAA. No. 86/04 willreveal that the decision was taken by the general body of LAA. 911/03 etc. - 12 -the Kondotty PCC Society to sell the property in publicauction on 17-4-1993, several months prior to the date ofpromulgation of Section 4(1) notification. According to thelearned counsel, the evidence in this case is to the effectthat the higher value received for that property had nothingto do with the present acquisition.6. We have very anxiously considered the rivalsubmissions addressed at the Bar. We have made areappraisal of the evidence which was available before thereference court. 7. Considering the averments in the affidavit in supportof IA. 3765/09 in LAA. 86/04 and the submissions addressedat the Bar we have allowed the said IA and received thedocuments produced along with that IA as evidence in thereference case pertaining to LAA. No.86/04. The documentsso received in evidence are (1) Exts. A8 dated 17-4-1993 –certified copy of the proceedings of the general bodymeeting of PCC Society in which decision is taken by the LAA. 911/03 etc. - 13 -society to sell the property covered by the Society'sdocument in public auction. (2) Ext. A9 copy of pagenumber 7 of Chandrika Newspaper inviting tenders fromindenting buyers for the purchase of the property. A9 willshow that the advertisement was released in ChandrikaNewspaper as early as on 3-11-1993. (3) Ext.A10 is thedetails relating to the bids received by the Society pursuantto the notification released by the society. It is seen thatpursuant to the notification, 21 bids received by PCC Societywere for amounts more than Rs.10,000/- per cent. Whenthe average of those 21 bids is taken it will be seen that thesame is Rs.14,056.85. We are discarding a few bidsreceived by the Society for amounts below Rs.10,000/- forthe reason that the amounts offered in those bids are verysmall amounts and in our opinion those bids were submittednot by bonafide purchasers but only by chance takers. Weare of the considered view that the court below was notjustified in discarding Society's document altogether. Exts. LAA. 911/03 etc. - 14 -A8, A9 and A10 admitted by us in evidence will certainlyreveal that Kondotty Society's document records a genuinetransaction. We are convinced that the decision to sell theproperty covered by that document and the price mentionedin that document was taken much prior to the date ofpromulgation of Section 4(1) notification in the presentcase. We are also convinced that the fixation of the priceunder that document was not influenced by the presentacquisition. It should be remembered that the presentacquisition was the third phase of acquisition for the CalicutAirport. The Airport and the run way was alreadyestablished pursuant to the two earlier phases ofacquisition. At the same time, we accept the evidence ofthe secretary of the society that the price mentioned inExt.A1 was slightly higher than the market value of theproperty at the relevant time. However, we hold that A1records a genuine transaction between a willing seller and awilling buyer. We also notice that when compared to the LAA. 911/03 etc. - 15 -land under acquisition, A1 property was much inferior . A1property was seedment area (Palliyad) virtually a paddyfield and in our opinion the market value of the propertyunder acquisition included in Tak No.I will be at least 20%more than the property covered by Society's document.Thus going by the Society's document the value reflected inthe document is Rs.25,000/- per cent. If society'sdocument is taken as a guide, the value of acquiredproperty in Tak No.I will be Rs.30,000/-. We are notprepared to hold that the value of the property in Tak No. Iis Rs.30,000/- per cent. We notice, as already stated, 21bids received pursuant to the notification issued by thesociety were for more than Rs.10,000/- per cent as follows:Rs.25000.50 per centRs.13250.00 per cent Rs.12550.00 per centRs.17211.00 per centRs.10100.00 per cent LAA. 911/03 etc. - 16 -Rs.10050.00 per centRs.20000.00 per centRs.19000.00 per centRs.15600.50 per centRs.11500.00 per centRs.11600.00 per centRs.14500.00 per centRs.10725.00 per centRs.10100.00 per centRs.15000.00 per centRs.20000.00 per centRs.14001.00 per centRs.13505.00 per centRs.15000.00 per centRs.16000.00 per centRs.15500.00 per centThe average of these bids will come to Rs.14,056/-. 8. It was by relying on Ext.B1 basis document that the LAA. 911/03 etc. - 17 -reference court fixed the market value of the lands underacquisition. Ext.B1 revealed a land value of Rs.11,000/- percent. The land acquisition officer added Rs.880/- per centand fixed the value of properties in Tak No. I at Rs.11,880/-taking into account the passage of time. We notice that B1is executed about one year prior to the date of Section 4(1)notification and when 10% is added to the value in B1 forpassage of time, the value even as per B1 will come toRs.12,000/- as on the date of notification. The referencecourt has taken the view that though quality wise inferior,in terms of locational advantages B1 property is superior tothe properties under acquisition. The reasoning of thelearned Sub Judge is that the basis property was situatedby the side of the National Highway. According to us, theview of the court below that B1 property had morelocational advantages and importance is not correct. Someof the properties included in Tak No.I were enjoying thedirect frontage of the trunk road (PWD road). B1 property LAA. 911/03 etc. - 18 -of course was having the frontage of the national highway.Having regard to the area where the property underacquisition are situated -semi urban area of Kondotty Town,B1 in our opinion, property situated on the nationalhighway but away from the town areas of Kondotty Town,will not have any locational advantages over the propertiessituated by the side of the trunk road which passes throughthe town. Quality wise it has been rightly found by thelearned Sub Judge that B1 property is inferior to theproperty under acquisition. The same was lying at a depthof 10 to 20 ft. from the road level and was a rocky area.For inferiority of B1 property to the property underacquisition at least 35% of the value reflected therein hasto be added and in that way, based on B1 itself, the valueof the property under acquisition in Tak No. I will have tobe taken as Rs.16,335/-. Taking an average of the threefigures quoted above, the value of the property underacquisition included in Tak No. I will come to Rs.20,130/- LAA. 911/03 etc. - 19 -which we round off to Rs.20,250/-. This in our opinion willbe more or less the market value of the properties includedin Tak No. I.9. The Government did not contend that the ratio fixedby the LA officer between the value of the propertiesincluded in different Taks is not correct. Sri. N.N.Sugunapalan, learned senior counsel also submitted that therate fixed by the LA officer between the values of variousTaks is more or less correct. We don't think that the ratiofixed by the officer and for that matter the reference courtunder the impugned judgment between the values of theproperties included in the 8 different Taks is correct.Adopting a realistic view, we fix the value of the propertiesin Tak No. II at Rs.13,750 per cent, the value of theproperties in Tak No. IV at Rs.11,500/- per cent, the valueof properties in Tak No. V at Rs.10,500/- per cent and valueof properties in Tak No. VIII at Rs.7500/- per cent.According to us, the value of properties in Tak No. III, VI LAA. 911/03 etc. - 20 -and VII will be respectively at Rs.12,000/-, Rs.9000/- andRs.8,200/-. 10. We have been informed about the judgment ofanother Division Bench of this Court in LAA. No. 1130 of2003 wherein this court did not interfere with the re-fixation of land value for property in Tak No. V atRs.11,500/- per cent. We are not inclined to rely on thatjudgment for two reasons. Under that judgment this courtdeclining a request by the requisitioning authority for anorder of remand has only observed that Rs.12,000/- percent is not excessive in the case of land around the Airport.We are also told that the above issue has not become final.11. We are not impressed by the argument of thelearned senior counsel for the requisitioning authority thatour earlier judgments dismissing the appeals preferred bythe requisitioning authority bar the claimant's appeal.Doctrine of merger cannot have any application in thesecases. We dismissed a few appeals preferred by the LAA. 911/03 etc. - 21 -requisitioning authority on the reason that the enhancementgranted by the reference court in those cases was notexcessive. Such dismissal at a time when the appealspreferred by the claimants were pending was obviouslywithout prejudice to the claimants' rights in their appeals.But we notice some merit in the submission of the learnedsenior counsel that suitable deduction is to be made whenthe land under acquisition is extensive. According to us,only those cases where more than one acre of land involvedneed be treated as large area and the percentage ofdeduction to be made is 10% for property in Tak No.I and7.5% for properties in other Taks.12. The result is that the value of the properties in Tak- I will stand re-fixed as Rs.20,250/-. Tak – II –Rs.13,750/-, Tak – III – Rs.12,000/-, Tak – IV –Rs.11,500/-, Tak – V – Rs.10,500/-, Tak – VI – Rs.9,000/-,Tak – VII – Rs.8200/-, and Tak – VIII – Rs.7500/-. It isnoticed that the total extent involved in LAA. No.911/03 is LAA. 911/03 etc. - 22 -more than one acre. Hence a deduction of 7.5% has to bemade from the value fixed by us for properties in Tak – II.Accordingly that appeal will stand allowed re-fixing marketvalue of the land under acquisition at 12,718.75. LAA.No.86/04 stands allowed re-fixing the market value of theproperty under acquisition at Rs.13,750/- per cent. LAA.No. 142/04 is allowed and we re-fix the land value atRs.11500/- per cent. LAA. Nos. 148/04, 149/04 and 318/04will stand allowed re-fixing the market value at Rs.13,750/-per cent. In view of the largeness of the extent involved inLAA. Nos. 319/04 and 325/04, 10% will have to bededucted from the sum of Rs.20,250/- per cent alreadyfixed by us towards value to be given for properties in Tak –I. Accordingly we allow these appeals re-fixing marketvalue of the property under acquisition at Rs.18,225/- percent. LAA. No. 320/04 will stand allowed. The action of thelearned Sub Judge in including the property involved in thiscase in Tak – I is approved and the market value is re-fixed LAA. 911/03 etc. - 23 -at Rs.20,250/- per cent. LAA. No. 1020/04 will standallowed. The value of land under acquisition is re-fixed atRs.11,500/- per cent. In view of the largeness of the extentinvolved in this case we deduct 7.5% and re-fix the value ofland at Rs.10,637.50. LAA. Nos. 43/05 & 832/06 will standallowed re-fixing market value of the land at Rs.7500/- percent. LAA. No.13/07 stands allowed and market value ofthe land is re-fixed at Rs.10,500/- per cent. LAA.No.1460/07 is allowed re-fixing market value of the land atRs.13,750/- per cent. LAA. Nos. 382/04, 445/04, 446/04 &927/04 will stand dismissed. The parties are directed tosuffer their costs. PIUS C.KURIAKOSE, JUDGEK.SURENDRA MOHAN, JUDGEksv/-The following sentence “The petitioner/claimant in L.A.A.319/2004 will be entitled to an amount of 12% per annum on themarket value of the acquired land from 15/11/1993 to the date ofaward of the Land Acquisition Officer” is incorporated as penultimatesentence in the judgment dated 11-11-2009 in L.A.A. 911/2003 andconnected cases vide order dated 21/01/2010 in I.A.4642/2009.Sd/- Registrar (Judicial) LAA. 911/03 etc. - 24 -PIUS C.KURIAKOSE &K.SURENDRA MOHAN, JJ. LAA. Nos. 911 of 2003, 86, 142, 148, 149, 318, 319, 320, 325, 382, 445, 446, 927 & 1020 of 2004, 43 of 2005, 832 of 2006, 13 & 1460 of 2007 11th November, 2009