IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 31ST JULY 2009 / 9TH SRAVANA 1931 LA.App..No.79 of 2005(D) ----------------------------- LAR.277/1998 of II ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT(S): CLAIMANT ----------------------------- K.SANDHYA RANI, FOREST QTS NO.618, VATTIYOORKAVU, THIRUVANANTHAPURAM. BY ADV. SRI.M.RAJAGOPALAN NAIR SRI.G.BIJU RESPONDENT(S): RESPONDENTS ------------------------------------- 1. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 2. ELECTRONICS TECHNOLOGY PARK (KERALA), KARIVATTOM P.O., THIRUVANANTHAPURAM, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER/ REGISTRAR. GOVERNMENT PLEADER SMT.P.N.SUMANGALA THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 31/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & P. Q. BARKATH ALI, JJ. ------------------------------------------------ L. A. A. No.79 of 2005 ------------------------------------------------ Dated this the 31st day of July, 2009 JUDGMENT Pius C. Kuriakose, J The claimant is in appeal. The property was acquired for the purpose of Electronic Technopark at Kazhakkoottam pursuant to Section 4(1) notification published on 05/04/1994. The Land Acquisition Officer included the property under acquisition in category No.4 i.e. lands situated near to N.H.47 but without access to N.H.47 and awarded land value at the rate of Rs.37,208/- per Are. The contention which was prominently raised by the appellant before the Reference Court was that the Land Acquisition Officer should have awarded land value for the total extent of 36 cents taken over from the appellant's possession L. A. A. No.79 of 2005 -2- and not for 24 cents for which only the Land Acquisition Officer awarded land value. The above contention was accepted. Another contention which was urged was the acquired properties should have been categorised in category 3. Ext.A2 Commissioner's Report and the oral evidence of PW2/the Commissioner who submitted Ext.A2 was strongly relied on. The report and the evidence of the Commissioner is to the effect that the appellant was having access to the N.H.47 through a pathway having a width of 1.5 meters. The learned Sub Judge, however, did not become inclined to treat the appellant's property as having access to N.H.47 for the reason that the appellant was not enjoying the above pathway as of right. According to the learned Sub Judge, the appellant was passing through the pathway L. A. A. No.79 of 2005 -3- only as permitted by the owner of the pathway. There is nothing in the award of the Land Acquisition Officer to indicate that access envisaged by the award for inclusion in category 3 is access as of right. At the same time, we are not inclined to include the appellant's property in category 3 straight away because as has come evident, it was not a regular pathway which was providing access to the appellant's property through N.H.47, but a pathway having width of just 1.5 metres. Therefore, we are of the view that though the appellant's property is slightly superior to category 4, it is not eligible to be included in category 3. The correct market value of the acquired property can be fixed at Rs.38,208/- per Are. We re-fix the value of the acquired property under acquisition at Rs.38,208/-. This means that for the entire 36 cents of L. A. A. No.79 of 2005 -4- land acquired from the possession of the appellant as found by the Reference Court, he will be entitled for enhanced compensation at Rs.1,000/- per Are. Appeal will stand allowed to the above extent. Appellant will be entitled for all the statutory benefits admissible under Section 23(2), 23(1A) and 28 of the Land Acquisition Act on the total enhanced compensation to which he becomes eligible by virtue of the re-fixation done under this judgment. In the circumstances, parties are directed to suffer their costs in the appeal. PIUS C. KURIAKOSE JUDGE P. Q. BARKATH ALI JUDGE kns/-