IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 24TH MARCH 2009 / 3RD CHAITHRA 1931 LA.App..No. 349 of 2004() ------------------------- ( LAR.NO.197/99 OF MUVATTUPUZHA SUB COURT ) APPELLANT(S): CLAIMANT ---------------------- P.P.THAMBI, S/O.POULOSE, PARENGETH HOUSE, KUSUMAGIRI ROAD, KAKKANAD. BY ADV. SRI.SOMAN P.PAUL RESPONDENT(S): RESPONDENT ------------------------- STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, ERNAKULAM. GOVERNMENT PLEADER SRI.P.K.BABU THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 24/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ L.A.A.No. 349 OF 2004 ------------------------ Dated this the 24th day of March, 2009 JUDGMENT Pius C.Kuriakose, J. The appellant, an advocate of this court, has addressed us as party in person. He is aggrieved by the decision of the land acquisition court, Muvattupuzha, redetermining the compensation for his acquired properties on the basis of a finding that the correct market value of the lands under acquisition as on the relevant date is 13500/- per Are. The appellant would submit that he wanted redetermination of the compensation by adopting the method of capitalisation of income from the yielding trees which stood on the acquired property and not by the land value method. The appellant also submitted that his claim for compensation on account of the injurious affection of the unacquired properties was not considered by the learned Sub Judge at all. He complains that the documents which had been referred to by him in the proof affidavit were not actually marked by the court. As a result of this, prejudice has been caused to L.A.A..No.349/2004 2 the appellant, especially as the court decided the issue of compensation payable to him towards injurious affection. 2. Sri.P.K.Babu, learned senior Government Pleader would support the judgment of the reference court. He submitted that the main item of evidence relied on by the appellant to have determination of the compensation by the capitalisation of income method, is the commissioner's report obtained based on the inspection conducted more than 5 years after the acquisition. He submitted that there was no evidence on record to hold that the remainder property has been injuriously affected. 3. Having considered the rival submissions, we are of the view that it is not necessary that we decide the issue finally . It is trite that when properties with yielding trees are acquired, it is for the party to opt for the method by which compensation should be redetermined - whether the method of granting land value + value of timber or the method of determining compensation by capitalisation of income. So also it is necessary that when a claim for injurious affection in respect of the unacquired properties is made, the court gives a decision on that claim on the basis of whatever evidence is available before L.A.A..No.349/2004 3 the court. Following the above view of the matter, we are inclined to direct a reconsideration of all the issues by the court below. 4. Accordingly, we set aside the judgment and decree under appeal and remand the LAR to the Subordinate Judge's Court, Muvattupuzha. That court will mark all the documents mentioned in the proof affidavit submitted by the appellant (already available amongst the records of the case) in evidence and will permit the appellant to examine the Advocate commissioner, who had submitted commission report in this case. The court will pass the revised judgment on the basis of the evidence already on record and the evidence which comes to be on record. The court, while taking decision will bear in mind that the claimant has option regarding the mode in which the compensation for his acquired property with yielding trees is to be determined and that the mode to be adopted shall be the mode which is favourable to the claimant in view of the ex expropriatory of the statute. The appeal will allowed by way of remand. Refund the full court fee paid on the appeal memorandum to the appellant. The L.A.A..No.349/2004 4 parties will appear before the reference court on 8/4/2009. Transmit the records forthwith. The reference court will complete the trial and pass revised judgment within four months of the reopening of the court after mid summer holidays. PIUS.C.KURIAKOSE,JUDGE C.K.ABDUL REHIM, JUDGE dpk