IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 3RD JANUARY 2008 / 13TH POUSHA 1929 LA.App..No. 638 of 2005() ------------------------- LAR.203/2000 of PRL.SUB COURT, KOZHIKODE .................... APPELLANTS/CLAIMANTS: ----------- 1. K.L.JEROM NARONA, S/O.LAWRENCE D.NERONA. 2. K.L.JOHNY NARONA, S/O.LAWRENCE D.NERONA. 3. K.L.LILLY PHILOMINA, S/O.LAWRENCE D.NERONA. 4. K.L.AUGUSTINE POULOSE, S/O.LAWRENCE D.NERONA. 5. K.L.JOSEPH NARONA, S/O.LAWRENCE D.NERONA. 6. K.L.ROBERT NARONA, S/O.LAWRENCE D.NERONA. ALL THE ABOVE APPELLANTS ARE RESIDING AT LIJINI VIKAS, PONNAMKODUKUNNU P.O., CHEVAYUR, CALICUT-673 017. BY ADV. SRI.THOMAS ANTONY RESPONDENT/RESPONDENT: ------------- THE SPECIAL THAHASILDAR, L.A., N.H.II, KOZHIKODE. BY GOVT.PLEADER SRI. K.V.MONOJ KUMAR THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 13..12.2007, THE COURT ON 3...12008 DELIVERED THE FOLLOWING: KURIAN JOSEPH & HARUN-UL-RASHID,JJ. ---------------------------------------------------------------- L.A.A. NO. 638 OF 2005 ---------------------------------------------------------------- Dated this the 3rd day of January, 2008. JUDGMENT Harun-Ul-Rashid, J. This appeal is filed by the claimants against the judgment and decree dated 24.9.2004 in L.A.R. No.203 of 2000 on the file of the Principal Sub Court, Kozhikode. The property having an extent of 12.35 cents was acquired for the purpose of formation of Calicut Bye Pass to National Highway No.17. Section 4(1) notification was published on 18.3.1998. The Land Acquisition Officer awarded land value at Rs.13,616/- per cent as against a claim of Rs.60,000/- per cent. 2. The claimants, in support of their claim for enhanced compensation examined AWs.1 and 2 and produced Exts.A1 and A2 on their side. Exts.X1 to X5 were marked as court exhibits. Exts.X1 and X2 are respectively the first report and plan submitted by the Advocate Commissioner. Exts.X4 and X5 are the second report and plan and Ext.X3 is the report of the value of the building. 3. On appreciation of the oral and documentary evidence, the court below came to the conclusion that the properties covered by Exts.A1 and L.A.A.NO.638/2005 2 A2 were not similar and comparable and, therefore, cannot be relied upon for fixing the market value of the land involved in the reference. Hence, no enhancement was granted on the basis of the evidence let in by the claimants. But, considering the fact that the acquired property is situated in a developing area in Calicut town and its proximity to Malaparamba junction which is one of the important junctions in Calicut city, the court below granted enhancement and refixed the land value at the rate of Rs.19,000/- per cent. 4. Learned counsel appearing for the appellants/claimants submitted before us that for the property covered by A2 (L.A.R. Nos.201 and 202 of 2000), which was acquired for the very same purpose and which is lying nearer to the acquired land, the reference court refixed land value at the rate of Rs.1,25,000/- per cent which was modified by this Court at Rs.95,000/- per cent in the appeal filed by the State. According to the claimants, the property covered by Ext.A2 is lying near to the acquired land and, therefore, the fixation of land value at Rs.19,000/- is too low and liable to be enhanced. 5. In Ext.X4 commission report, the Commissioner reported about the location of the acquired land and the properties covered by Ext.A2 L.A.A.NO.638/2005 3 judgment. The Commissioner reported that the property covered by Ext.A2 is more important than the acquired land. It is also reported that the acquired land is situated 200 metres north of Malaparamba junction which is a very busy commercial area and also very near to many institutions. At page 2 of the report, under the head “Location of the acquired land', the Commissioner had stated the names of very many commercial and other institutions in the locality. The Commissioner also reported that the basic land has no kuzhikoors whereas the acquired land has improvements. The Commissioner further reported that the basic land is accessible via Florican Hill Road whereas the acquired land is accessible via old mud road through which heavy vehicles such as lorry could pass. The Commissioner concluded that the acquired land has more potentiality than the basis land. 6. We are not in a position to assess the subsequent development in the locality. The Commissioner visited the property in July, 2003 whereas Section 4(1) notification is dated 18.3.1998. The Commissioner inspected the property after five years of the date of notification. Whether the acquired property has access through a motorable road or whether it is connected only by a pathway are questions which require reconsideration. L.A.A.NO.638/2005 4 7. Learned counsel for the appellants submitted that the basis land has no similarity with the acquired land, that the basis land is a laterite quarry and has no kuzhikoors whereas the acquired land is a developed land. Hence, according to him, the court below should not have concluded that the basis land and the acquired land are similar and similarly placed. 8. The learned Government Pleader submitted that in Ext.X1 commission report it is reported that access to the acquired land is only through a footpath and that there was no motorable road leading to the acquired land. He also submitted that the motorable road referred to in the second report is one which came into existence only after the publication of Section 4(1) notification. He further submitted that the developments and majority of the institutions noted by the Commissioner in Ext.X4 report came into existence between 1998 and 2005. The respondent had neither produced the basic document nor adduced evidence in support of their stand that the value fixed by Land Acquisition Officer is just and reasonable. 9. On a consideration of the entire facts on record , we are of the view that the importance of the acquired land has not been properly examined in the light of Exts.X4 and X5 commission report and plan. We have also noticed that the acquired land is lying near to Malaparamba junction which is one of the most important localities in Calicut city. L.A.A.NO.638/2005 5 Though the property covered by Ext.A2 is not comparable with the acquired land due to its locational importance, it is a fact that the acquired land is lying nearer to Ext.A2 land. The fact that for the property covered by Ext.A2, land value was fixed at Rs.95,000/- per cent shall also be taken into consideration while fixing the land value of the acquired land. The finding that the acquired land and the basis land are similar and similarly placed also requires reconsideration in the light of Exts.X4 and X5 report and plan. We have also noticed the fact that the acquired land and the land covered by Ext.A2 are situated in the same survey number and that the distance between these two properties is approximately 200 metres. Hence, we are of the view that the matter requires reconsideration. In the result, the judgment and decree under appeal are set aside. The case is remanded for fresh consideration in accordance with law. The parties are at liberty to adduce additional evidence, if any. Since the matter is remanded, the appellants - claimants are entitled to refund of court fee. The court below shall dispose of the case within six months from the date of receipt of a copy of this judgment. (KURIAN JOSEPH, JUDGE) (HARUN-UL-RASHID, JUDGE) sp/ L.A.A.NO.638/2005 6 KURIAN JOSEPH & HAURN-UL-RASHID, JJ. L.A.A.NO JUDGMENT 4TH DECEMBER, 2007