Remanded

Xavier v. Special Tahsildar

Kerala HC2 Jul 2009LA.App./601/2006

Case brief

AI extract

What is this about?

High Court set aside Subordinate Judge's judgment in land acquisition reference for improper valuation methodology and remanded matter to re-examine comparability of evidence, validity of reference without protest, and permit fresh evidence.

What did the court decide?

Judgment and decree set aside and matter remanded to the Subordinate Judge to permit evidence on comparability and validity of reference, and to pass revised judgment within four months.

Xavier Vs Special Tahsildar — Land Acquisition | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931

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LA.App..No. 601 of 2006() ------------------------LAR.20/2004 of II ADDL.SUB COURT,THRISSUR ....................

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APPELLANT(S): CLAIMANT

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----------------------

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XAVIER, S/O.DEVASSY, ARAKKAL HOUSE, PUZHAKKAL, THRISSUR DISTRICT.

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BY ADV. SRI.N.P.SAMUEL SRI.P.M.MOHAMED ALI

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RESPONDENT(S): RESPONDENTS

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---------------

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1. THE SPECIAL TAHSILDAR, L.A.(GENERAL), THRISSUR.

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2. THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, THRISSUR.

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3. THE DISTRICT COLLECTOR, THRISSUR.

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BY GOVT. PLEADER SRI.BASANT BALAJI

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THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 02/07/2009 ALONG WITH LA.A.NO.1640/07, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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PIUS.C.KURIAKOSE & P.Q.BARKATH ALI, JJ.

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L.A.A.Nos. 601 OF 2006 & 1640 OF 2007

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- - - - Dated this the 2^nd day of July, 2009

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JUDGMENT

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Pius.C.Kuriakose, J.

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L.A.A.No.601/06 is preferred by the claimant. L.A.A.No.1640/07 is preferred by the government. These appeals pertain to acquisition of land at Puzhakkal Padom in Ayyanthole village pursuant to a Section 4 (1) notification published on 04-10-1999. The land acquisition officer included the property under acquisition in category No.2 i.e. wet lands which do not have direct frontage of Thrissur-Kunnamkulam state Highway and awarded land value at the rate of Rs. 3410/- per Are. In fact pursuant to a subsequent notification dated 29-07-2000, the very same land acquisition officer awarded land value at the rate of Rs. 3710/- per Are for similar lands i.e. wet lands without frontage of the state Highway. For those properties the reference court refixed land value at the rate of RS. 7042.50 per Are.

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We have by our judgment in L.A.A.No.9/207 and by other judgments dismissed the government's appeals challenging such

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refixation by the reference court. Before the reference court in this case, the evidence on the side of the claimant in support of his claim for enhanced land value consisted of Ext.A5 and A6 documents. On the side of the government, the same consisted of Ext.R1 and R2 basis documents relied on by the land acquisition officer for fixing the value of two categories of lands under acquisition apart from the oral evidence adduced by the appellant/claimant and a witness AW2. On the side of the government, the Revenue Inspector who prepared the DVS was examined as RW1. The report submitted by the Advocate Commissioner Smt.K.S.Sunila on the basis of a local inspection was Ext.C1 and sketch submitted by her was Ext.C1(a). The learned Subordinate Judge did not become inclined to place reliance on Ext.A5 or Ext.A6. What the learned Subordinate Judge did was to rely on Ext.R2 which had been relied on by the land acquisition officer for fixing the market value of lands in category No.1 having direct frontage of the State Highway at Rs. 11,660/-. Relying on Ext.R2, the learned Subordinate Judge refixed the value of lands under acquisition at Rs. 11,111/- per Are. The Government challenges such re-fixation

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in their appeal as excessive, while the claimant in L.A.A.No.601/06 prays that the market value be enhanced further by Rs. 30,000/- per cent.

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We have heard the submissions of Sri.Basant Balaji, learned senior Government Pleader and those of Sri.N.P.Samual, learned counsel for the claimant. Sri.Basant Balaji invited our attention to our judgment in L.A.A.No.9/07. He submitted that the properties involved in L.A.A.No.9/07 and the properties involved in these cases were exactly similar wet lands without frontage of the state Highway. The acquisition in L.A.A.No.9/07 was about one year subsequently and that was why a slightly higher amount of Rs. 3,710/- per Are was granted by the land acquisition officer. This court by judgment in L.A.A.No.9/07 has approved the refixation of the value of lands under acquisition in that case at Rs. 7042.35/-. Learned senior Government Pleader submitted that the learned Subordinate Judge himself has fixed a uniform value for lands which were uniformly valued by the land acquisition officer except in the present case. In the present case alone, about 300% increase has been given over the value awarded by the land

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acquisition officer, while in all other cases, the rate of increase given is around 90% only. There was no justification for granting this exorbitant increase in this particular case. Reliance placed by the learned Subordinate Judge on Ext.R2 according to the learned Government Pleader was totally unjustified since the property covered by Ext.R2 and the acquired property was not comparable. Ext.R2 property was a property having direct frontage of the road. Ext.R2 property was dry land situated adjoining the compound of West Fort Hospital who are the vendee in Ext.R2. Ext.R2 was not a normal sale transaction . At any rate, the Advocate Commissioner who submitted Ext.C1 was not asked to file report regarding the comparability between Ext.R2 property and the property under acquisition.

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Sri.N.P.Samual, learned counsel for the claimant would

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resist all the submissions of Sri.Basant Balaji. He would read over to us Ext.C1 Commissioner's report. He submitted that the Toyota show room, the housing colony promoted by Manuel Sons and ever so many other developments have emerged in the immediate vicinity of the property under acquisition at the time of inspection by the

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Commissioner. According to him, the distance between the acquired property and the margin of the state Highway was only 75 metres. The enhancement granted was inadequate, so submitted Sri.N.P.Samual.

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We have anxiously considered the rival submissions. We

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are of the view that the learned Subordinate Judge was not justified, in the absence of any acceptable evidence regarding the comparability between the properties covered by Ext.R2 and the acquired property at the relevant time, in relying on Ext.R2 for the purpose of determining the market value of the acquired property. Admittedly, the acquired property did not enjoy the direct frontage of the State Highway , while the property covered by Ext.R2 did enjoy such frontage. May be Sri.Samual is correct when he submits that the purchaser is a company and the vendors are private individuals who happened to be the Directors of the company and there is no warrant for presuming that the transaction recorded in Ext.R2 is not a genuine transaction. But at the same time, the fact remains that despite having taken out a commission and obtained a report regarding the developments in the locality even in 2005, which is some five years after the relevant date, the

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Commissioner was not asked to report regarding the comparative nature of the property covered by Ext.R2 and the acquired property.

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We find some force in the submission of Sri.Basant Balaji that though in the basic records Ext.A6 property was shown as Nilam, in reality the same was reclaimed dry land and the purchaser Hospital was keen on purchasing that property for the expansion of hospital which is off late one of the flourishing Hi-tech hospitals in Thrissur. We have no difficulty to accept the submission of the learned Government Pleader that Ext.A6 property is situated in Poonkkunnam unlike the acquired property situated in the heart areas of the town.

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It should also be noticed that Exts.R1 and R2 documents were not documents relied on by the claimant. The learned Subordinate Judge who found him without any dependable document for the purpose of redetermination of the market value on his own relied on Ext.R2 forgetting that Ext.R2 was relied on by the land acquisition officer not for the purpose of determining the value of lands in the present category.

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We are of the view that the reliance placed on Ext.R2 by

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the learned Subordinate Judge was not proper. The impugned judgments and decrees therefore have to be set aside. At the same time, we are not inclined to decide the issue finally. We notice that one of the contentions seriously raised by the government before the reference court was that the reference was not a valid one and that the reference has been made even in the absence of protest by the claimant to the original compensation awarded, it is seen from the judgment that this aspect of the matter has not been considered by the learned Subordinate Judge. For the above reason and also considering the request of Sri.N.P.Samual that if given opportunity, the claimant will be able to adduce better evidence to support his claim for enhanced land value, we are inclined to pass an order of remand of the L.A.R . Accordingly, setting aside the judgment and decree under appeal, we remand L.A.R.No.20/2004 to the learned Subordinate Judge's court. That court is directed to permit both sides to adduce whatever evidence they want to. That court is permitted to examine the question whether there was any valid reference under Section 18 and to pass a revised judgment at the earliest and at any rate within four months of receiving a copy of

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this judgment. It is open to the government to produce before the reference court the judgments of this court in other cases pertaining to acquisition for the same purpose.

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Refund the full court fee paid on the memorandum of appeal to

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Sri.N.P.Samual, learned counsel for the appellant.

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PIUS.C.KURIAKOSE JUDGE

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P.Q.BARKATH ALI JUDGE

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sv.

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Xavier v. Special Tahsildar

Case brief

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Xavier v. Special Tahsildar

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