IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THURSDAY, THE 30TH OCTOBER 2008 / 8TH KARTHIKA 1930 LA.App..No. 692 of 2008() ------------------------- LAR.65/2004 of SUB COURT, OTTAPPALAM .................... APPELLANTS: CLAIMANTS. ------------------------ 1. NANIKUTTY AMMA, D/O. KUNCHUKUTTY AMMA. 2. SANTHAKUMARI, D/O. NANIKUTTY AMMA. 3. PADMINI, D/O. NANIKUTTY AMMA. 4. PRABHAKARAN, S/O. NANIKUTTY AMMA. 5. KALLIANIKUTTY, D/O. NANIKUTTY AMMA. 6. MUKUNDAN, S/O. NANIKUTTY AMMA. ALL ARE RESIDING AT CHAKKUMPURAYATH HOUSE,PERUMUDIYUR AMSOM,KODUMUNDA DESOM, AND 1 TO 3,5 & 6 ARE REP. BY THE POWER OF ATTORRNEY HOLDER PRABHAKARAN, S/O. NANIKUTTY AMMA, CHAKKUMPURAYATH HOUSE, PERUMUDIYUR AMSOM, KODUMUNDA DESOM. BY ADV.SRI.R.SREEHARI RESPONDENT: RESPONDENT. -------------------------- THE STATE OF KERALA, REPRESENTED BY THE SPECIAL TAHSILDAR, LAND ACQUISITION (GENERAL) NO. II, PALAKKAD. BY GOVT. PLEADER SMT.LATHA T.THANKAPPAN THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 30/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE,J. - - - - - - - - - - - - - - - - - - - - - - - - - L.A.A.No.692 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 30th October, 2008 JUDGMENT This is an appeal by the claimants who are aggrieved by the inadequacy of the compensation refixed by the reference court for their acquired properties. The acquired property is 0.1247 hectares of nilam and the acquisition was for the construction of the flood bank on the side of Velliamkallu Regulator-cum-Bridge at Thrithala (over Bharathapuzha river) pursuant to a notification under Section 4(1) dated 27.8.2002. The Land Acquisition Officer relying on Ext.B1 document dated 6.9.2001 fixed the land value at Rs.767/- per cent. The reference court would refix the land value at Rs.1000/- per cent. The evidence before the reference court consisted of the oral testimony of A.W.1, appellant No.4 and also that of A.W.2 who was an attestor to Ext.A1 document which was relied on by the appellants in support of their claim for enhanced land value. On the side of the respondent, there was no oral evidence. The documentary evidence consisted of Exts.B1 basis document and also Ext.B2, the location sketch showing the acquired property as well as the basis property. Apart from that, there was Ext.C1 Commissioner's report and also Ext.C2 plan prepared by the Commissioner. The first question which LAA No.692/08 - 2 - was considered by the learned Subordinate Judge was whether the reliance placed by the Land Acquisition Officer on Ext.B1 for determining the land value of the acquired properties was justified. The learned Subordinate Judge noticed that the version of the respondent that the property covered by Ext.B1 and the acquired properties are similar and similarly situated cannot be correct. In this context, the learned Judge relied on Ext.C1 Commissioner's report.; It was found on the basis of Ext.C1 Commissioner's report to which significantly the respondent had not filed any objections there there is no comparison between the basis property and the acquired property. It was noticed that though both the properties are wet lands, that lies are different. The acquired property was having direct frontage of Bharathapuzha river with direct access for irrigation facilities and on the other side the acquired properties were enjoying frontage of coastal road. But the basis property which was situated about 3 K.M. away from the acquired property in an interior area did not have any road access or river access. Learned Judge also noticed that there was a difference of about one year between Ext.B1 transaction and the relevant notification under Section 4(1). Accordingly, it was found that determining land value relying on Ext.B1 alone was not fair. LAA No.692/08 - 3 - 2. Ext.A1 document was dated 28.3.2001. That document related to wet land which was also situated at a distance of about 3 K.M. from the acquired property. The execution of Ext.A1 and the payment of the consideration recited in Ext.A1 was spoken to by A.W.2. In cross examination he denied the suggestion that he did not witness payment of consideration and he stated that Ext.A1 is the only document in which he has figured as attesting witness. The learned Judge has declined to rely on Ext.A1 apparently for the reason that Ext.A1 property is situated at a distance of 3 K.M. away from the acquired property. The Commissioner had reported that even the basis property is situated 2 ½ K.M. away from the acquired property, an aspect which was not noticed by the learned Subordinate Judge. According to the Commissioner, the property covered by Ext.A1 is also wet land and that property was at least slightly inferior to the acquired property. But what the learned Subordinate Judge has done is to ignore Ext.A1 altogether and follow his own awards in other reference cases and refixed the land value at Rs.1000/- per cent. It is this decision of the learned Subordinate Judge which is under challenge. 3. Learned counsel for the appellants and the Government LAA No.692/08 - 4 - Pleader have addressed me in detail. Learned counsel for the appellants would argue that the reference court was not justified in not answering the reference case on the basis of the evidence adduced by the parties. When parties have adduced evidence, it is obligatory on the part of the court to answer the reference after appreciating such evidence. The acquired property was superior to Ext.A1. Considering that and considering the passage of one year's time between the date of Ext.A1 and the date of Section 4(1) notification, there was justification for refixing the land value at the rate of Rs.2500/- per cent, according to the learned counsel. The Government Pleader submitted that Ext.A1 property and the acquired property are situated in two different villages and the distance, according to the Commissioner's report, is 3 K.M. According to the Government Pleader, it is probable that Ext.A1 property is situated in a more important locality than the acquired property and the basis property. I would have accepted the above submission of the learned Government Pleader if the Government had submitted objections to the Commissioner's report. Therefore, I am of the view that the learned Subordinate Judge ought to have taken into account Ext.A1 rather than relying on his own earlier award in a connected matter LAA No.692/08 - 5 - which was not on record. Having permitted the parties to adduce evidence and the parties having adduced evidence, the learned Subordinate Judge was bound to appreciate that evidence and come to conclusions. Had that been done by the learned Subordinate Judge, it would have become necessary to take into account Ext.A1, the Commissioner's report and the testimonies of A.W.1 and A.W.2. 4. The reference court was not right in ignoring Ext.A1 on the reason that Ext.A1 property is situated at a distance of 3 K.Ms. from the acquired property. The Land Acquisition Manual which binds the Land Acquisition Officer itself directs consideration of documents relating to properties situated within a radius of 5 K.M. As indicated already, Ext.A1 is executed some 17 months prior to the promulgation of the notification under Section 4(1). It is a matter of common knowledge that the value of the land was on the increase during the relevant period. Some addition has to be given to the value revealed in Ext.A1 for the passage of time. Taking all the circumstances into account, I feel that the correct market value to be fixed in respect of the acquired property was Rs.1900/- per cent. It is fixed accordingly. 5. The result of the above discussion is that the appeal will LAA No.692/08 - 6 - stand allowed. The land value of the acquired property is refixed at Rs.1900/- per cent. It is needless to mention that the appellants will be entitled for all statutory benefits payable under Section 23(2), 23 (1A) and interest under Section 28 on the enhanced compensation which will become payable on account of the refixation of the land value made under this judgment. The parties will suffer their costs through out. srd PIUS C.KURIAKOSE, JUDGE