IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 LA.App..No.1700 of 2007(D) -------------------------------- LAR.30/2005 of SUB COURT, VADAKARA .................... APPELLANT(S): CLAIMANT ----------------------------- KUNIYIL VIJAYAN, RESIDING AT "ANJALI", KANHOLIPARAMBA, THALAKULATHUR, KOZHIKODE, KOZHIKODE TALUK. BY ADV. SRI.B.KRISHNAN RESPONDENT(S): RESPONDENTS ------------------------------------- 1. THE SPECIAL TAHSILDAR (L.A), N.H.1, KOZHIKODE. 2. THE EXECUTIVE ENGINEER, N.H. DIVISION, KOZHIKODE. SR.GOVT. PLEADER SRI.BASANT BALAJI THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 28/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & P. Q. BARKATH ALI, JJ. ------------------------------------------------ L. A. A. No.1700 of 2007 ------------------------------------------------ Dated this the 28th day of July, 2009 JUDGMENT Pius C. Kuriakose, J The claimant is in appeal and the main plank of challenge of the judgment of the Reference Court as well as the award of the Land Acquisition Officer is that both the Land Acquisition Officer as well as the Reference Court went wrong in not adopting the method of capitalisation of rental income from the buildings which existed on the property under acquisition for determining the market value. It is seen from the award of the Reference Court that the court below did not become inclined to rely on Exts.A1 and A2 lease deeds relied on by the appellant/claimant for proving that he was deriving a total monthly income of L. A. A. No.1700 of 2007 -2- Rs.2,100/- from the two buildings. According to the learned Sub Judge, Exts.A1 and A2 were not properly proved by the claimant by examining the tenants in question. But we find that Ext.A1 which reveals a monthly rental income of Rs.1,500/- for one of the buildings is a registered document executed in 1997, a point of time when this acquisition was not in contemplation. It is not even suggested to PW1 during cross examination that Ext.A1 is an artificial document brought into existence for the purpose of staking a higher compensation in the prospective land acquisition proceedings. We feel that the court below ought to have relied on Ext.A1 at least since the same was a registered document recording a genuine rental transaction. Going by Ext.A1, the rental income derived monthly is Rs.1,500/-. Deducting 1/3rd L. A. A. No.1700 of 2007 -3- towards maintenance and repairs, the appellant should be deemed to have received a net profit of Rs.1,000/- every month. The age of the building, going by the mahazar, was 27 years approximately. But as per the evidence of PW1, the age of the building was 40 years. We feel that the age of the building should have been 35 years. In that view of the matter, according to us, the building would have stood and derived rental income to the appellant at least seven more years. Determining the value of the building in question in that way, the total compensation payable for the building comes to Rs.84,000/-. We are ignoring the building covered by Ext.A2 since the same is brought into existence on a date very near to Section 4(1) notification and the same has not been proved in accordance with law by examining the tenant. Thus, L. A. A. No.1700 of 2007 -4- relying on Ext.A1 itself, we re-fix the total compensation payable to the appellant for the property under acquisition at Rs.84,000/-. We notice that he has been paid a total sum of Rs.44,000/- calculating the compensation under the land value method. Deducting that amount, the balance compensation payable to the appellant comes to Rs.40,000/-. We award that amount to the appellant as enhanced compensation. Appeal is allowed to that extent, but in the circumstances, parties are directed to suffer their costs. 2. Copy of the appellate decree need be issued to the appellant only upon his remitting the balance court fee of Rs.2,520/-. 3. It is needless to mention that the appellant will be entitled for all statutory benefits admissible L. A. A. No.1700 of 2007 -5- under Section 23(2), 23(1A) and under Section 28 of the Land Acquisition Act on the total enhanced compensation to which he becomes eligible by virtue of our re-fixation of the total compensation at Rs.84,000/-. PIUS C. KURIAKOSE JUDGE P. Q. BARKATH ALI JUDGE kns/-