IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 17TH FEBRUARY 2009 / 28TH MAGHA 1930 LA.App..No. 874 of 2007() ------------------------- LAR.80/2003 of ADDL.SUB COURT,PARAVUR .................... APPELLANT(S): CLAIMANT: ----------------------- PARAVUR MAHILA CO-OPERATIVE SOCIETY REPRESENTED BY ITS SECRETARY, T.K.RADHAMANI. BY ADV. SRI.C.CHANDRASEKHARAN SRI.P.VISWANATHA MENON RESPONDENT(S): RESPONDENT: -------------------------- STATE OF KERALA. REPRESENTED BY THE THASILDAR (LA) N.PARUR. GOVERNMENT PLEADER SRI.BASANT BALAJI THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 17/2 /2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ L.A.A.No.874 of 2007 ------------------------ Dated this the 17th day of February, 2009 JUDGMENT Pius C.Kuriakose, J. The claimant is the appellant in this appeal, which is directed against the judgment and decree of the land acquisition reference court viz. Subordinate Judge's Court, N.Parur in L.A.R. No.80/2003. It is a short question which arises for decision in this appeal. The question is whether the appellant – Paravur Mahila Co-operative Society is entitled for full market value for the extent of 1.62 Ares of land covered by the award but, treated by the awarding officer as 'way' for which only nominal value at the rate of Rs.100/- per Are is granted. 2. We have heard the submissions of Sri.C.Chandrasekharan, learned counsel for the petitioner and those of Sri.Basant Balaji, learned senior Government Pleader for the respondent. We have gone through the evidence adduced by the claimant before the court below, which consists of Exts.A1 and A2, Ext.C1 and the oral testimonies of AWs1 to 3. Sri.Chandrasekharan argued that there was no justification for L.A.A..No.874/2007 2 not awarding the market value refixed by the land acquisition court in respect of that portion of the acquired property having extent of 1.62 Ares. The learned counsel submitted that even before the land acquisition officer it has been specifically claimed by the appellant that the above portion of the acquired property belongs to the appellant and was left outside the compound wall constructed by the appellant in obedience to the Kerala Municipalities Building Rules, which insisted on a set back of 1.5 metres from the margin of the public roads. The learned counsel further submitted that the Government did not have a case that the above portion of the acquired property belonged to the Government by vesting or by dedication or by any other mode. In as much as acquisition proceedings were initiated for acquisition of the above portion of 1.62 Ares, it was conceded by the Government that the appellant have title and hence the appellant should have been granted full compensation. 3. Sri.Basant Balaji, learned Government Pleader resisting the submissions of Sri.C.Chandrasekharan would draw our attention to the mahazar which was prepared at the time of acquisition and to which the President of the appellant society is L.A.A..No.874/2007 3 an attester. The learned Government Pleader submitted that the version of the appellant that 1.62 Ares of land was left outside the compound wall in view of the Municipalities Building Rules was highly improbable since the Rules will permit the construction of the compound wall on the boundaries themselves. The learned Government Pleader submitted that absolutely no evidence was adduced by the appellant before the Court below to substantiate their claim for compensation for the disputed portion of the property. 4. We have considered the rival submissions. As rightly pointed out by Sri.C.Chandrasekharan, the Government did not have any case at any point of time that 1.62 Ares covered by the award belong to the Government either by vesting or by dedication. It is also obvious that acquisition proceedings were initiated in respect of the above portion also or else it was absolutely unnecessary to have issued a claim notice to the appellant including the above portion of 1.62 Ares also. Having conceded that the appellant was having interest in the compensation determinable in respect of the above portion of 1.62 Ares of land, the Government cannot contend that the L.A.A..No.874/2007 4 appellant can be given only faulty and nominal compensation of Rs.100/-. Absolutely no counter evidence has been adduced in this case to the evidence which was adduced by the appellant before the court below. What we notice on the award of the land acquisition officer and the award of the court is that the market value of the acquired property is now finally refixed at Rs.44088/- per Are. What the awarding officer has done under his award is to determine the market value of the disputed portion of the acquired property at Rs.100/- per Are on the reason that, that portion of the acquired property is lying as 'way'. True, the disputed portion may be lying contiguous to the NH -17, but as already indicated the respondent never had any case that the acquired disputed portion is part of NH-17. We are of the view that the appellant should have been given reasonable compensation for the disputed portion also. Sri.Chandrasekharan's argument is that the appellant should be given market value for the disputed portion also at the rates fixed by the court in its judgment. We are not inclined to accept the above argument. After all, the disputed portion was lying outside the compound wall of the appellant and despite the L.A.A..No.874/2007 5 mahazar, the disputed portion was practically lying as part of the public way NH-17. We feel that interests of justice demand that the appellant is paid 50% of the market value determined by the reference court in its judgment, which is not appealed against the Government for the disputed portion also. The result is that after giving credit to the amount already paid to the appellant towards compensation for the disputed portion, the appellant will be entitled to a sum of Rs.35,550/- as further compensation over and above what is awarded to the appellant under the impugned judgment. It is decreed accordingly. It is needless to mention that the above amount will also carry all statutory benefits admissible under Sections 23(2), 23(1A) & 28A of the Land Acquisition Act. In the circumstances, the parties will suffer their cost in the appeal. PIUS.C.KURIAKOSE,JUDGE C.K.ABDUL REHIM, JUDGE dpk