IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 27TH MAY 2011 / 6TH JYAISHTA 1933 LA.App..No. 366 of 2009() ------------------------------- LAR.172/2005 of III ADDL. SUB COURT, ERNAKULAM .................... APPELLANT(S): (CLAIMANT IN THE L.A.R.) -------------------------------------------------- RABIYA BEEVI, D/O. AHAMMED, THARAKANDATHIL, PONEKKARA, EDAPPALLY (N) KOCHI - 26, ERNAKULAM. REPRESENTED BY POWER OF ATTORNEY AVDUL JALEEL, S/O.LATE MUHAMMED, OLLAPPILLI HOUSE, PONEVAZHY ROAD, ELAMAKKARA, POST, KOCHI - 26, ERNAKULAM. BY ADVS. SRI.S.ABDUL SALAM SMT.E.K.SAJNA RESPONDENT(S): (RESPONDENTS IN THE L.A.R.) --------------------------------------------------------- 1. THE STATE OF KERALA REPRESENTED BY THE SPOECIAL TAHSILDAR (LA), NH - NO.1, KAKKANAD, ERNAKULAM. 2. THE EXECUTIVE ENGINEER, NH (B) DIVISION, KODUNGALLOOR. BY GOVT.PLEADER SMT. T.T.JOSEPHINA THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 27/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs ORDER ON I.A. NO.1118/2009 IN L.A.A. NO.366/2009 CLOSED 27/05/2011 SD/- PIUS C. KURIAKOSE, JUDGE SD/- N.K.BALAKRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE. svs PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------------------------- L.A.A.No.366 of 2009 ---------------------------------------------------- Dated this the 27th day of May, 2011 Judgment Pius C.Kuriakose, J. The claimant is in appeal. Her properties in Edappally North Village were acquired pursuant to Section 4(1) notification dated 14.3.2002 for the purpose of development of National Highway 17. The Land Acquisition Officer included the property in category No.V and awarded land value at the rate of Rs.1,01,860/- per Are. The reference court, on evaluating the evidence, came to the conclusion that the property was eligible to be included in category No.IV, i.e., the properties abutting corporation road for which the Land Acquisition Officer had awarded land value at the rate of Rs.1,07,220/- per Are. On evaluating the entire evidence adduced by the parties, the court below would enhance the value by 45% and would refix the market value of the property at Rs.1,55,469/- per Are. In this appeal various grounds are raised challenging the judgment of the reference court. 2. Sri.S.Abdul Salam, learned counsel for the appellant LAA 366/09 2 submitted at the very outset that the properties under acquisition were eligible to be included in category No.I (properties abutting existing National Highway). He submitted that the adjoining properties belonging to his client's mother were included in category No.I by the Land Acquisition Officer. The Commissioner had reported that mother's properties and his client's properties were lying without any separating compound walls. There was oral evidence to the effect that the appellant was enjoying the National Highway road frontage through the mother's property. The above contention was urged before the reference court also, according to Mr.Salam. We invited Mr.Salam's attention to the finding of the court below that the mother and the son were enjoying their respective properties as separate holdings. The stand then taken by Mr.Abdul Salam is that, at any rate, the property should have been included in category No.III (properties having access to the National Highway and to the corporation road). Mr.Salam therefore requested that this court may proceed as if the acquired properties were in category No.III and not in category No.IV. We are unable to accept the above request of Mr.Salam also. The appellant's properties were admittedly LAA 366/09 3 enjoying direct frontage of corporation road. Properties enjoying direct frontage of corporation road were included in a separate category. The argument that the corporation road abutting the appellant's property was connected to the National Highway and in that way the appellant's property should be treated as a property having access to the National Highway as well as the corporation road, according to us, is too far fetched. As already stated, the appellant's property qualified fully for inclusion in category No.IV. 3. Having gone through the impugned judgment, we feel that the learned Subordinate Judge was a little miserly while fixing the market value of the property. After discarding the various documents, what the learned Judge did was to apply the rule of thumb and to enhance the market value by 45%. The learned Government Pleader would concede before us that in LAA No.28 of 2011 this court had refixed the market value of properties included in category No.IV by granting an enhancement of 70% above the rate awarded by the Land Acquisition Officer. We do not find any reason to deny that enhancement in this case. Relying on that judgment, we allow LAA 366/09 4 this appeal to the extent of refixing the market value of the properties at Rs.1,82,275/- per Are. The appellant will be entitled for all statutory benefits admissible under Sections 23(2), 23(1A) and Section 28 of the Land Acquisition Act. However, while calculating interest under Section 28, the Registry will have due regard to the conditions imposed by us in our order order dated 24.3.2009 in C.M.Appl.No.471 of 2009. Decree copy will be issued only after ensuring full court fee on the appeal memorandum is paid. The appeal is allowed as above, however, without any order as to costs. PIUS C.KURIAKOSE, JUDGE. N.K.BALAKRISHNAN, JUDGE. ksv/srd LAA 366/09 5 LAA 366/09 6