IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 7TH DECEMBER 2009 / 16TH AGRAHAYANA 1931 LA.App..No. 76 of 2006(D) ------------------------- LAR.184/1996 of ADDL.SUB COURT, N.PARAVUR .................... APPELLANT(S): CLAIMANTS: ------------------------ 1. VARKEY VARGHESE, PADAYATTIL, THURAVUMKARA DESOM, VADAKKUMBHAGAM VILLAGE, ALUVA TALUK. 2. VARGHESE LISA, -DO- -DO-. 3. VARGHESE BABYCHAN, -DO- -DO-. BY SRI.K.P.DANDAPANI, SENIOR ADVOCATE SMT.SUMATHY DANDAPANI, SENIOR ADVOCATE RESPONDENT(S): RESPONDENT: -------------------------- 1. THE STATE OF KERALA. 2. KOCHI INTERNATIONAL AIRPORT SOCIETY, REPRESENTED BY ITS MANAGING DIRECTOR, SRI. V.J. KURIAN. GOVERNMENT PLEADER SRI.BASANT BALAJI FOR R1 SRI.N.N.SUGUNAPALAN, SC, KIAS LTD. FOR R2 SMT.T.N.GIRIJA, SC, FOR R2 THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 07/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ. ``````````````````````````````````````````````````````` L.A.A. No. 76 of 2006 ``````````````````````````````````````````````````````` Dated this the 7th day of December, 2009 J U D G M E N T Pius C. Kuriakose, J. The claimants are the appellants. Land extending to 121.20 Ares in Chovvara village was acquired for the purpose of construction of the runway for Kochi International Airport. 27.36 Ares from out of the above property was treated by the Land Acquisition Officer as dry land and the remaining extent was treated as wet land. For the portion treated as dry land, the Land Acquisition Officer awarded land value at the rate of Rs.9,350/- per Are and for the portion treated as wet land, the Land Acquisition Officer awarded land value at the rate of Rs.3,160/- per Are. This award was against the appellants' claim for Rs.30,000/- per cent for the entire land. The evidence before the reference court consisted of the oral evidence of AWs 1 to 3, RW1, documents of Exts.A1 to A3 and Exts.R1 to R6. In the first instance, the reference court upheld the contention of the claimants that the entire property under acquisition was dry land. But, the second LAA.76/06 : 2 : respondent requisitioning authority preferred an appeal against the judgment of the reference court. This Court set aside the judgment of the reference court and remanded the matter to the reference court for fresh consideration, allowing both sides to adduce further evidence regarding categorisation of the land and also regarding the correct market value to be awarded. After remand, the impugned judgment and decree were passed by the reference court, upholding the contention of the requisitioning authority and the Land Acquisition Officer regarding categorisation of the lands under acquisition. Under the impugned judgment, the value of the portion treated as dry land by the Land Acquisition Officer was granted enhancement by 45% i.e., at the rate of Rs.4,208/- per Are for 27.36 Ares. Similarly, for the portion treated as wet land also, the same rate of enhancement was granted. Thus, for 93.8 Ares, enhancement was granted at the rate of Rs.1,422/- per Are. In this appeal, the ground prominently raised by the claimants is that the court below went wrong in not relying on Ext.A2 Commission report and the evidence of AW2 Commissioner and AW3 independent witness. It is urged that the court below should have accepted the contention of the claimants LAA.76/06 : 3 : that the entire property was dry land and market value should have been re-fixed for the extent of 93.84 Ares at the same rate of Rs.13,558/- per Are. 2. We have heard the submissions of Smt.Sumathy Dandapani, learned senior counsel for the appellants and also those of Sri.N.N.Sugunapalan, learned senior counsel for the second respondent requisitioning authority. The learned senior counsel for the requisitioning authority was supported in all his submissions by the learned senior Government Pleader Mr.Basant Balaji. Smt.Sumathy Dandapani argued that Ext.A2 Commission report clubbed with evidence of AW2 Commissioner and AW3 independent witness was sufficient to prove that the categorisation made by the Land Acquisition Officer is incorrect. She submitted that there was no effective cross-examination on the testimony of AW1, which was of the effect that the entire property under acquisition was lying as one contiguous block of dry land. Learned senior counsel submitted that this Court passed the order of remand for enabling the requisitioning authority to adduce evidence for proving that the portion of the property extending to 93.84 Ares was wet land. But, the requisitioning authority did not LAA.76/06 : 4 : adduce any reliable evidence in that context. Learned senior counsel submitted that the court below was not justified in relying on Ext.A6 land acquisition file in the absence of any witness to prove the same. Smt.Sumathy Dandapani drew our attention to the Commissioner's report, the testimonies of AW2 and AW3. 3. Sri.N.N.Sugunapalan, learned senior counsel for the requisitioning authority, would resist all the submissions of Smt.Sumathy Dandapani. According to the learned senior counsel, Ext.A2 commission report was not at all convincing and the learned Sub Judge was perfectly justified in not placing reliance on the same. The Commissioner did not even identify the property under acquisition properly. Inspection by the Commissioner was in the absence of any representative of the requisitioning authority. Learned senior counsel highlighted that in a Power of Attorney executed by the claimants even after the initiation of the land acquisition proceedings in respect of 1 acre and 10 cents of land forming part of the land under acquisition, the property was described as wet land. 4. We have very anxiously considered the rival submissions addressed at the bar. We have gone through the LAA.76/06 : 5 : relevant materials, particularly Ext.A2 Commission report, the testimonies of AWs 1, 2, 3 and RW1. We have also gone through the note to award at the mahazar. 5. Having re-appreciated the evidence, we are of the view that the court below was not justified in completely rejecting the report submitted by AW2 Commissioner. According to us, AW2, the Commissioner, identified the properties correctly. A perusal of the boundary description in the mahazar and the boundaries shown in the suit in which the Commissioner was appointed will show that it was suit A schedule properties, ie, the properties under acquisition themselves which were inspected by her. But, the learned Sub Judge was correct in observing that the Commissioner has not reported specifically that the entire properties described in Schedule A plaint was dry land. The impression that we gather on scanning all the materials is that the subject matter of the present appeal ie, 93.84 Ares treated by the Land Acquisition Officer and by the court below to be wet lands were inferior to dry lands, however, superior to wet lands. We are of the view that the correct market value of the above portion of the lands under acquisition can be re-fixed at Rs.7,500/- per Are. LAA.76/06 : 6 : This means that for the aforesaid extent of 93.84 Ares, the appellants will be entitled for enhanced compensation over and above what is awarded by the reference court at Rs.2,918/- per Are. 6. The result of this appeal accordingly will be as follows:- The appeal is allowed. Market value of 93.84 Ares treated by the Land Acquisition Officer and by the court below as wet lands is re-fixed at Rs.7,500/- per Are. The appellants are awarded enhanced land value over and above what is awarded by the reference court at Rs.2,918/- per Are. The appellants will be entitled for all statutory benefits on the above enhanced compensation admissible under Sections 23(2), 23(1A) and 28 of the Land Acquisition Act. The parties are directed to suffer their respective costs. (PIUS C. KURIAKOSE, JUDGE) (K.SURENDRA MOHAN, JUDGE) aks