IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 19TH AUGUST 2009 / 28TH SRAVANA 1931 LA.App..No. 364 of 2004(A) ------------------------- LAR.460/1997 of PRL.SUB COURT, KOZHIKODE .................... APPELLANT(S): CLAIMANT. ------------------------------ 1. M.C.NALINI, PRAKASH BHAVAN, KARUVISSERY P.O. KOZHIKODE TALUK. [DEAD] * ADDL. APPELLANTS 2 TO 5 2. M.C.BHARATHAN, S/O LATE-CHATHUKUTTY, AGED 96 YEARS, “PRAKASH BHAVAN”, KARUVASSERY P.O., KOZHIKODE DIST. 3. NAYANA THARA. M.C., D/O M.C.BHARATHAN, AGED 50 YEARS, 37/75A, KRISHNA LEELA, KARUVASSERY P.O., KOZHIKODE DIST. 4. ANITHA THARA, D/O M.C.BHARATHAN, S/O LATE CHATHUKUTTY, AGED 48 YEARS, “PRAKASH BHAVAN”, KARUVASSERY P.O., KOZHIKODE DIST. 5. DHANYA, D/O M.C.BHARATHAN, AGED 42 YEARS, VADAKKANTHURUTHI HOUSE, P.O., PALAYAD NADA, VADAKARA. KOZHIKODE DIST. *[SOLE APPELLANT DIED AND ADDL. APPELLANTS 2 TO 5 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED SOLE APPELLANT AS PER ORDER ON I.A.1530/08 DT.19/08/09] BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): RESPONDENTS. -------------------------------------- SPECIAL TAHSILDAR, L.A. NH.NO.1, KOZHIKODE. SR. GOVERNMENT PLEADER SRI.BASANT BALAJI SRI.P.V.KUNHIKRISHNAN THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 19/08/2009 ALONG WITH LAA.1040/05 & CON. CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & K. SURENDRA MOHAN, JJ. ------------------------------------------------ L. A. A. Nos.364 of 2004, 1064 & 1040 of 2005 ------------------------------------------------ Dated this the 19th day of August, 2009 JUDGMENT Pius C. Kuriakose, J These are appeals preferred by the claimants and are directed against the award of the Land Acquisition Reference Court. L.A.A.1064/05 pertains to L.A.R.459/97. In this case, the properties under acquisition were in Vengeri village and acquisition of land was for the purposes of construction of Calicut bye pass. The relevant Section 4(1) notification was published on 13/07/1993. For the garden lands in this L.A.R. the Land Acquisition Officer awarded land value at the rate of Rs.7107/- per cent while for the wetlands, the value awarded by the Land Acquisition L. A. A. Nos.364 of 2004 & con. cases -2- Officer was Rs.3260/- per cent. L.A.A.1040/05 and L.A.A.364/04 respectively pertains to L.A.R. Nos.176/98 and 460/97. Both these cases are in respect of acquisition of the land for the same purpose pursuant to the same notification. In these cases, the Land Acquisition Officer awarded land value at the rate of Rs.5338/- per Cent for garden lands and at the rate of Rs.2963/- per cent for wet lands. Under the impugned judgments, the learned Subordinate Judge has awarded land value at the rate of Rs.15000/- per cent for the garden lands under acquisition uniformly and for wet lands under acquisition uniform rate of Rs.6,000/- per cent has been awarded. 2. We have heard the submissions of Sri.P.V.Kunhikrishnan, the learned counsel for the appellants and those of Sri.Basant Balaji, the learned L. A. A. Nos.364 of 2004 & con. cases -3- senior Government Pleader. Our attention was drawn by Mr.Kunhikrishnan to the judgment of this Court in L.A.A.162/07 which was an appeal preferred by the claimants in respect of very same acquisition and regarding the property in the very same village. We notice that under that judgment, this Court has re- fixed the value of garden lands from Rs.5331/- per cent awarded by the Land Acquisition Officer to Rs.25,000/- per cent. Sri.Kunhikrishnan would argue that there is justification for re-fixing the value of the property in all these cases at Rs.25,000/- per cent. According to him, maintaining the ratio maintained by the Land Acquisition Officer between the value of garden lands and wet lands, there is justification for awarding at least Rs.13,000/- per cent for the wet lands since it is 55% of the value of the garden lands L. A. A. Nos.364 of 2004 & con. cases -4- which was awarded by the Land Acquisition Officer for the wet lands. 3. The submissions of Sri.Kunhikrishnan were resisted by Sri.Basant Balaji, the learned senior Government Pleader. Sri.Basant submitted that it is not a uniform rate which has been awarded by this Court by various judgments for properties in Vengeri village. Though it is true that value at the rate of Rs.25,000/- per cent has been awarded for the properties involved in L.A.A.162/07, this Court has awarded rates ranging between Rs.20,000/- and Rs.25,000/- per cent and in certain cases even lesser amount alone has been awarded. 4. We have anxiously considered the rival submissions addressed at the Bar. We have made a re-appraisal of the evidence which was available L. A. A. Nos.364 of 2004 & con. cases -5- before the court below. We have taken into account the decision of this Court in L.A.A.162/07. We are of the view that there is justification for allowing these appeals. The question to be decided is as to what is the correct market value to be determined for the garden lands and wetlands under acquisition. We are of the view that there is justification for treating the garden lands involved in L.A.A. No.1040/05 as different from the garden lands involved in the other cases. This is because we find that even according to the Awarding Officer, the garden lands as well as the wet lands in that case was slightly higher in value than the garden lands and wet lands in other cases. On a better and more correct assessment of the market value of the properties under acquisition based on the same evidence and also relying on the judgment in L. A. A. Nos.364 of 2004 & con. cases -6- L.A.A.162/07, we are of the view that the value of the garden lands involved in L.A.A.1040/05 can be re- fixed at Rs.25,000/- per cent and the value of the wet lands involved in that case can be re-fixed at Rs.12,000/- per cent. But the same value cannot be awarded for the properties involved in the other two appeals. In the other two appeals on a better assessment based on the same evidence, we are of the view that the value of garden lands can be re-fixed at Rs.23,000/- per cent and the value of wet lands can be re-fixed at Rs.10,000/- per cent. 5. All these appeals are allowed to the above extent, but in the circumstances, without any order as to costs. It is needless to mention that the appellants will be entitled for all statutory benefits admissible under Section 23(2), 23(1A) and under Section 28 of L. A. A. Nos.364 of 2004 & con. cases -7- the Land Acquisition Act on the total enhanced compensation to which they become eligible by virtue of the re-fixation of land value done under this judgment. 6. It is made clear that while drafting the decree and computing the interest, order passed by this Court in the delay petitions in L.A.A.364/04 will also be taken into account and interest under Section 28 will not be calculated during the period of delay condoned by that order. PIUS C. KURIAKOSE JUDGE K. SURENDRA MOHAN JUDGE kns/- The judgment in L.A.A.1040/2005 dated 19/08/2009 is reopened (recalled) vide order dated 14/01/2011 in I.A.4286/2010. Sd/- Registrar (Judicial)