N.E. Thomas vs The District Collector and The Executive Engineer

Pius C. Kuriakose, J.—The claimant is in appeal. 1.47 cents of land belonging to him together with a double storied building extending to 1356 sq. ft was acquired by the Government for the purposes of widening the Kasaragod-Kanhangad state highway. The acquisition was pursuant to Section 4(1) notification published on 03/03/05. The Land Acquisition Officer awarded land value at the rate of Rs. 24,442/- per cent. He also awarded a total amount of Rs. 1,72,989/- towards value of the building. Before the Reference Court the evidence consisted of Exts.A1 to A6, X1 Commission Report and X2 eye sketch prepared by the Commissioner apart from the oral evidence of Appellant as A.W. 1. It was mostly on Ext. A3 document that the Appellant relied on for the land value. Ext. A3 was a post notification document executed two years after the relevant date in favour of the LIC. Ext. A3 reflected a land value of Rs. 4,16,000/- per cent. The Advocate Commissioner had reported under Ext.X1 that Ext. A3 property and the property under acquisition are comparable. For enhancement in building value the Appellant relied on the valuation report submitted by an Engineer but the same was not marked in evidence as the Engineer was never examined. Ext. A6 was not relied on by the court below as the author of Ext. A6 was not examined as a witness at all. The court below did not rely on Ext. A3 despite the opinion of the commissioner that the properties are comparable. According to the court below Ext. A3 property and Ext. A6 property are not comparable.

In this appeal various grounds are raised challenging the inadequacy of the compensation re-determined by the Reference Court. Sri. Jose J. Matheikel, the learned Counsel for the Appellant would argue that the court below erred in not relying on Ext. A3. He submitted that in another judgment in LAR No. 8/07 passed by the very same Judge produced as Annexure-1 in the appeal, the learned Judge had relied on Ext. A3 and re-fixed the market value of the land at Rs. 3,30,033/-. According to Sri. Matheikel what the learned Sub Judge did in the other case was to deduct 10% per year for the passage of time between the Section 4(1) notification and the date of Ext. A3. He requested that we also adopt the same course and re-fix the market value of land at the rates fixed under LAR.8/07. As regards the claim for building value, Sri. Matheikel requested that though Engineer is not examined Ext. A6 be relied on and the building value be re-fixed on the basis of Ext.A6.

All the submissions of Sri. Matheikel were forcefully resisted by Smt. T.T. Josephina, the learned Government Pleader. According to her Ext. A3 could not have been relied on as it is a post notification document. She pointed out that Ext. A3 is in a different locality as correctly found by the court below. Regarding LAR.8/07 she submitted that the Government intends to prefer an appeal if appeal is not yet filed. As regards the claim for enhanced value for the building Smt. Josephina submitted that as the Engineer is not examined it cannot be said that Ext. A6 was properly proved.

We have very anxiously considered the rival submissions addressed at the Bar. The first question that arises is as to what is the correct value to be fixed for the land which was acquired. We are not at all impressed by the submission of the learned Counsel for the Appellant that Ext. A3 should be relied on. Ext. A3 is a post notification document and when admittedly there are pre-notification document executed during three year period prior to the date of relevant Section 4(1) notification, the Reference Court and this Court will not be justified in placing reliance on post notification document. The Advocate Commissioner has reported that the property in question was situated in an important area of Kanhangad. It is reported that obviously the property abutting the main road has commercial potentiality also. We feel that the court below could have to a certain extent relied on the oral evidence of A.W. 1 to which there is absolutely no counter evidence and enhanced the value to a certain extent. Determination of land value in land acquisition cases will involve a little bit of guess work and evaluation of imponderables. According to us, the market value of the land under acquisition can be re-fixed at Rs. 39,500/- reasonably. Accordingly, land value is re-fixed at Rs. 39,500/-.

The next question to be considered is whether the Appellant is eligible for any enhancement in building value. As Ext.A6 has not been properly proved, the request for placing reliance on Ext.A6 cannot be accepted. The learned Government Pleader is certainly correct in submitting that there is no evidence on the basis of which enhancement can be granted. But, we notice one aspect of the matter. Land Acquisition Authority valued the building adopting PWD schedule of rates. It is a matter of common knowledge that construction of building as per the schedule of rates published by the PWD is not pragmatic. Even the PWD is tendering out its civil works at 30 to 35% more than their published rates. Keeping that principle in mind, we award to the Appellant a further amount of Rs. 60,546/- which we round off to Rs. 60,550/- towards building value. The appeal is allowed to the above extent only. The Appellant will be entitled for all statutory benefits admissible under Sections 23(2), 23(1A) and u/s 28 of the Land Acquisition Act. Parties are directed to suffer their respective costs.