IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE WEDNESDAY, THE 30TH JULY 2008 / 8TH SRAVANA 1930 LA.App..No. 300 of 2008(D) -------------------------- LAR.146/2005 of SUB COURT, MUVATTUPUZHA .................... APPELLANT:CLAIMANT: ----------------------- JOSE JOSEPH, S/O.PAULOSE, AGED 57 YEARS, ELANJICKAL HOUSE, ANGADIKARA, KOTHAMANGALAM, ERNAKULAM DISTRICT. BY ADV. SRI.ALEXANDER JOSEPH SRI.M.V.SABU RESPONDENTS: RESPONDENTS: -------------------------------- 1. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, ERNAKULAM. 2. THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA. BY GOVERNMENT PLEADER SMT.LATHA T.THANKAPPAN THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 30/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE,J. - - - - - - - - - - - - - - - - - - - - - - - - - L.A.A.No.300 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 30th July, 2008 JUDGMENT This appeal relates to acquisition of 13.30 ares of land in survey No.1068/1 B3 of Kothamangalam Village for the purpose of construction of Kothamangalam bye-pass. The acquisition was pursuant to a notification under Section 4(1) dated 7.11.2000. The awarding officer treated the property as wetland without road frontage and accordingly awarded the land value at Rs.2960/-. Before the reference court the appellant relied on Ext.A1 judgment of the court in LAR Nos.163/95, 154/95 and 191/95. Ext.A1 pertains to acquisition for construction of another reach of the very same bye- pass road. Ext.A1 acquisition was pursuant to a Section 4(1) notification dated 13.12.1989. The properties in Ext.A1 also did not have road frontage and were wetlands. The Land Acquisition Officer had awarded land value at the rate of Rs.1605/- per Are for Ext.A1 property. The reference court under Ext.A1 had refixed the land value at Rs.6605/- per Are. Apart from producing Ext.A1, the appellant was directed to produce Ext.A2 also. Ext.A2 was in respect of acquisition under the present Section 4(1) notification dated 7.11.2000 for the very same purpose. Under Ext.A2 the reference court had awarded LAA No.300/08 - 2 - 40% enhancement over the land value which had been given at the same rate as in the present case by the land acquisition officer. Apart from producing Exts.A1 and A2, the appellant got himself examined as A.W.1. The party in Ext.A1 was examined as A.W.2. The court below on an evaluation of the evidence came to the conclusion that the appellant had not adduced evidence to show that the acquired property and Ext.A1 properties were comparable and therefore discarded Ext.A1 from consideration. However the court followed Ext.A2 and granted the same rate of enhancement to the appellant. 2. I have heard the submissions of Mr.Alexander Joseph, counsel for the appellant and those of Smt.Latha T.Thankappan, learned Government Pleader on behalf of the respondents. 3. Mr.Alexander Joseph submitted that the court below was not at all justified in discarding Ext.A1 on the ground that Ext.A1 property and the acquired properties were in two different villages. Though it is true that Ext.A1 property was in Thrikkariyoor Village, the reference court should not have lost sight of the situation that both Ext.A1 property and the acquired properties are within the limits of the Kothamangalam municipal town and were situated at a distance of just one and half K.M. from each other. The purpose of the LAA No.300/08 - 3 - acquisition should have been noticed to be the same. The evidence of A.W.2 should not have been discarded. A.W.2 clearly stated that Ext.A1 property and the acquired properties were similar in all respects. A.W.2 also stated that during the period from 1989 till the date of Section 4(1) notification there had been steady escalation of land value in Kothamangalam town and therefore there is every justification for refixing the land value in this case at least a few times the rate fixed under Ext.A1. 4. The learned Government Pleader submitted that apart from oral evidence of A.Ws.1 and 2, the appellant had not bothered to produce any cogent evidence. The appellant could have taken out a commission and in that manner proved that Ext.A1 property and the acquired properties were similarly situated and similar, as the appellant claims. The appellant's version regarding escalation of the land value is also not founded on any documentary materials. The reference court cannot be faulted for having followed Ext.A2. The Government Pleader submitted that having regard to the principles underlying under Section 28A of the Land Acquisition Act, the court below was bound to treat the parties covered by the very same Section 4(1) notification in a similar manner. LAA No.300/08 - 4 - 5. Having considered the rival submissions addressed at the Bar, I am of the view that the court below was not justified in completely discarding Ext.A1 for the purpose of determination of the market value of the acquired properties. It is a matter of common knowledge that there is some correlation between the values of land within a given local area, in a municipal town or Panchayat. In that view of the matter, the court below should have noticed that there is some correlation between the value of land in Thrikkariyoor Village and the Kothamangalam Village. After all the acquisition under Ext.A1 and the present acquisition was very same purpose and the distance between the properties was only one and half K.M. Ext.A1 was pursuant to a notification some 11 years prior to the notification in this case. Though the appellant's version regarding the rate of escalation per year is exaggeration, it is well known that during the relevant period the land value was on the increase. At the same time, the court below was justified in insisting that the appellant should have adduced better quality evidence regarding the comparability of the acquired properties and the properties covered by Ext.A1. Under these circumstances, I am inclined to remand the matter back to the reference court so that the appellant can, if so advised, take out a LAA No.300/08 - 5 - commission or produce other evidence which will go to show that as stated by A.W.2 acquired property and the property in Ext.A1 were comparable in all respects. 6. The result of the above discussion is that the judgment and decree under appeal are set aside and LAR No.146 of 2005 is remitted back to the reference court. The parties will appear before the reference court on 5th September, 2008. The appeal is allowed by way of remand. Refund the full court fees paid on the appeal memorandum to the counsel for the appellant. srd PIUS C.KURIAKOSE, JUDGE After I delivered the above judgment, it was brought to my notice by the counsel for the appellant that pursuant to execution proceedings the amount due under the decree now set aside was deposited by the Government before the execution court. Since there was no appeal by the Government against the decree and the present appeal was only for further enhancement, there will be a direction to the execution court to allow the appellant to withdraw the amount under deposit subject to liability to make adjustment/refund, if LAA No.300/08 - 6 - necessary on the basis of the prospective revised decree. 30.07.2008 PIUS C.KURIAKOSE, JUDGE. srd