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 8TH FEBRUARY 2011 / 19TH MAGHA 1932 LA.App..No. 1198 of 2009(D) --------------------------- LAR.7/2008 of SUB COURT, KASARAGOD .................... APPELLANT(S): APPELLANT/CLAIMANT -------------------------------- SHASIKALA, W/O.ANAND SHETTY, KALLIEGAMLEKAR HOUSE,PAIVILAKE POST,KASARGODE. BY ADV. SRI.V.V.ASOKAN SRI.K.S.SAJEEV KUMAR RESPONDENT(S)/REFERRING OFFICER AND RESPONENT: --------------- 1. THE SPECIAL TAHSILDAR (LA) KASARGODE. 2. THE MANAGER KASARGODE PRIMARY CO-OPERATIVE AGRICULTURE AND RURAL DEVELOPMENT BANK LTD UPPALA BRANCH. 3. THE DISTRICT COLLECTOR KASARGODE. 4. THE EXECUTIVE ENGINEER PWD, ROADS DIVISION, KASARGODE. ADV. SRI.T.SETHUMADHAVAN FOR R2 SRI.PUSHPARAJAN KODOTH FOR R2 BY GOVT.PLEADER SMT.T.T.JOSEPHINA THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 08/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ------------------------ L.A.A.No. 1198 OF 2009 ------------------------ Dated this the 8th day of February, 2011 JUDGMENT Pius C.Kuriakose, J. The claimant is in appeal. Her property, part of an arecanut garden, extending to 15 cents was acquired for the purpose of construction of Kalliga Bridge and its approach road at Vidya Nagar – Mudipur Road. For seven and half cents, she was awarded land value at the rate of Rs.890/- per cent. Reminder portion was given value by adopting the method of capitalisation of income from the arecanut trees. Total amount of Rs.64,033/- was awarded to the reminder portion. 2. Before the Reference Court, no evidence was adduced by the appellant to support the claim for enhancement in the land value. But for enhanced value claimed towards improvements, the arecanut trees, reliance was placed mostly on Ext.C2 commission report. The commissioner had recommended a total sum of Rs.3,38,660/-. The court below was not impressed by the commissioner's report at all. What the court below did was to L.A.A.No.1198/2009 2 apply rule of thumb and enhance the total compensation in terms of the land value as well as in terms of improvements value by 10%. 3. We have considered the submissions addressed before us by Sri.P.P.Ramachandran, learned counsel for the appellant. In fact all the submissions of Mr.Ramachandran were opposed by the Smt.T.T.Josephina,learned senior Government Pleader. We have gone through the impugned order. One of Mr.Ramachandran's arguments was that the very same learned Subordinate Judge would completely accept the similar commission report submitted by another commissioner where as in the present case without assigning any cogent reason, the commissioner's report has been discarded. The learned counsel would take strong exception to an observation of the learned Subordinate Judge that the commissioner has not given details regarding the average yield from the arecanut trees. Reading over the report, the learned counsel argued that the commissioner has actually reported about the average yield. We do find some merits in the submission of Mr.Ramachandran that the commissioner has reported about the average yield. Even L.A.A.No.1198/2009 3 then we are not inclined to rely on the commissioner's report. We feel that in the facts and circumstances attending on this case, the appellant should have examined the commissioner so that the apparent ambiguities in the report could be clarified to the Court. Mr.Ramachandran at this juncture seeks opportunity for examining the advocate commissioner. We are inclined to grant such opportunity but only on conditions. 4. We feel that the learned Subordinate Judge was extremely miserly in fixing the market value of the land under acquisition. On a better assessment of the evidence available in the case, which is mostly on the side of the claimant only, the market value of the land under acquisition can be refixed at Rs.1068/- per cent. It is accordingly refixed finally. 5. The result therefore is as follows; i). The judgment and decree under appeal are set aside. ii). The market value of the land under acquisition is refixed at Rs.1068/- per cent. iii). The issue of correct compensation payable to the appellant towards the value of improvements (arecanut trees) is remanded to the Reference Court. L.A.A.No.1198/2009 4 iv). The appellant should be permitted to examine the advocate commissioner, who submitted Ext.C2 report. If the appellant is desirous of adducing any further evidence, opportunity should be afforded for that also. If the Government wants to adduce further evidence in rebuttal of the evidence adduced by the appellant, the Government also should be given opportunity to do so. v). The learned Subordinate Judge will pass revised award on the basis of the evidence already on record and evidence which comes to be on record further. However, as the appellant herself is responsible for not examining the advocate commissioner in the first round, it is ordered that in case the appellant becomes eligible for any enhancement in value of improvements over what is awarded under the impugned award, such enhancement will not carry interest otherwise admissible under Section 28 of the Act during the period from 9/1/2009 till the date of the revised award. vi). Balance court fee if any shall be remitted. The Registry will refund Rs.15,000/- out of the court fee remitted, to Sri.P.P.Ramachandran, learned counsel for the appellant. L.A.A.No.1198/2009 5 vii). The parties will enter appearance before the Reference Court on 28/2/2011. viii). The learned Subordinate Judge will expedite the matters and ensure that revised award is passed if possible before the court closes for summer holidays or at least within one month of court reopening after the mid summer holidays. Transmit the lower court records to the Reference Court forthwith. PIUS C.KURIAKOSE,JUDGE N.K.BALAKRISHNAN, JUDGE dpk