IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 4TH JANUARY 2011 / 14TH POUSHA 1932 LA.App..No. 11 of 2009() ------------------------ LAR.32/2006 of SUB COURT, PALA .................... APPELLANT(S): CLAIMANT ---------------------- BENOY PHILIP, PUTHUMANA HOUSE, THABORE POST, ALUVA-683 577. BY ADV. SRI.MATHEW JOHN (K) RESPONDENT(S): RESPONDENT ------------------------- STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, KOTTAYAM. SR. GOVT. PLEADER SMT. LATHA T.THANKAPPAN THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 04/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ. ----------------------------------------------- LAA. No. 11 of 2009 ----------------------------------------------- Dated this the 4th day of January, 2011 J U D G M E N T Pius C.Kuriakose, J. The claimant is in appeal. His land situated in Elamkulam Village on Pala - Ponkunnam Road was acquired by the Government for the purpose of Punalur - Thodupuzha State Highway. The acquisition was pursuant to Section 4(1) notification published on 14-10-2004. The land acquisition officer awarded land value at the rate of Rs.11,000/- per cent. Before the reference court the appellant claimant relied mainly on Exts.A1, A2 and X-1 proceedings in support of his claim for enhancement in land value. Ext.A1 was a pre-notification document pertaining to a similar plot of 5 cents. A1 reflected land value of Rs.1.2 lakhs per cent. The learned Subordinate Judge discarded Ext.A1 from consideration on the reason that the value reflected in A1 does not reveal the correct market value of the property at LAA. 11/09 -2- the relevant time, but reveals a fancy price paid by the purchaser due to circumstances which were special to him. Having considered the impugned judgment we are of the view that the learned Subordinate Judge was justified in discarding A1 from consideration. 2. A2 was a sale document executed on 27-2-1989, more than 5 ½ years prior to relevant section 4(1) notification. The purchaser in Ext.A2 was a Co-operative Bank, viz., Elamkulam Service Co-operative Bank which had purchased the property for the purpose of establishing its office. A2 revealed a land value of Rs.39,660/- per cent. It became evident that the property covered by A2 and the acquired property were identical. The learned Subordinate Judge discarded A2 for the reason that there is justification for presuming that the purchaser bank became inclined to pay a fancy price. Having considered the impugned judgment and having heard the submissions addressed LAA. 11/09 -3- before us by Mr.Mathew John, learned counsel for the appellant and Smt. Latha T.Thankappan, learned senior Govt. Pleader, we are of the view that the learned Subordinate Judge was not justified in completely discarding A2 from consideration. A2 ought to have been taken into account as a document reflecting the value of comparable lands. 3. Ext.X-1 is the one document on which maximum reliance is placed before this court by the appellant. X-1 proceedings pertained to negotiated purchase by the requisitioning authority for the same purpose. X-1 will show that for identical land Rs.23,000/- per cent was paid by the requisitioning authority. The learned Subordinate Judge refused to place reliance on Ext.X-1 stating reason that it was probably an “attractive price” paid by the requisitioning authority and the further reason that the plot covered by Ext.X-1 was a commercial plot. We are of the view that the LAA. 11/09 -4- learned Subordinate Judge was not justified in completely discarding X-1 from consideration. Commercial potentiality, the acquired property also had. The requisitioning authorities go in for outright purchase of the properties to avoid the delay resulting from land acquisition proceedings. What we notice is that the requisitioning authorities pay value higher than the prevalent market value at the relevant time taking into account the statutory benefits which is inevitable if land acquisition proceedings are resorted to. Having made a reappraisal of the evidence particularly Ext. A2 and X-1, we are of the view that the correct market value of the land under acquisition at the relevant time was atleast Rs.22,000/- per cent. Accordingly allowing the appeal we refix the correct market value of the land under acquisition at Rs.22,000/- per cent and award further enhanced land value of Rs.5000/- per cent on that basis. 4. The appellant has raised another claim which is LAA. 11/09 -5- claim for further amount towards cost of construction of protective kayyala which has become necessary on account of the acquisition. The one material on which reliance is placed by the appellant before the reference court and before this Court is Ext. X-1 commission report. C-1 will show that after conducting a local inspection with notice to the Government and the requisitioning authority the commissioner had recommended that a precise amount of Rs.1,82,000/- will be required for construction of kayyalas. The learned Subordinate Judge under the impugned judgment accepted the claimant's case that construction of protective kayyalas is absolutely necessary. But the learned Subordinate Judge was not at all impressed by the recommendations of the Advocate Commissioner. We also are not much impressed by the recommendations of the Advocate Commissioner which interestingly is exactly in tune with the precise amount claimed by the claimant on LAA. 11/09 -6- this count. The learned Subordinate Judge on the basis of his finding that construction of protective kayyala is absolutely necessary for protecting the remainder property of the appellant would award a lump sum of Rs.42,000/- obviously by applying the rule of thumb. According to us, the learned Subordinate Judge was very miserly in awarding compensation on this count. On a better assessment based on the available materials including the data submitted by the Advocate Commissioner, we are of the view that the appellant is entitled to a total amount of Rs.85,000/- on this count. This means that over and above what is awarded by the reference court, he will be entitled for a further amount of Rs.43,000/-. We award that amount to the appellant towards cost of construction of the protective kayyalas. 5. The appeal is allowed to the above extent. Appellant will be entitled for all statutory benefits admissible under Section 23(1A), 23(2) and Section 28 of the Land LAA. 11/09 -7- Acquisition Act. Parties are directed to suffer their respective costs. The registry will take note of the conditions imposed by us for condoning the delay while drafting the decree. In other words, the appellant will not be eligible for interest under section 28 during the period of delay condoned by this vide order in C.M. Application No. 13 of 2009. (PIUS C.KURIAKOSE, JUDGE) (N.K. BALAKRISHNAN, JUDGE) ksv/-