IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 16TH FEBRUARY 2011 / 27TH MAGHA 1932 LA.App..No. 1104 of 2008(A) -------------------------------- LAR.82/2005 of SUB COURT,NEYYATTINKARA .................... APPELLANT(S): CLAIMANT. ------------------------------- SHAM-OON SAHIB, TOWNSHIP COLONY, HOUSE NO.337, VIZHINJAM P.O., THIRUVANANTHAPURAM. BY ADV. SRI.LATHEESH SEBASTIAN RESPONDENT(S): RESPONDENT. ------------------------------------- STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, THRIUVANANTHAPURAM DISTRICT. R1 BY GOVERNMENT PLEADER SMT.T.T.JOSEPHINA. THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 16/02/2011, ALONG WITH LAA 260/09 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & N.K. BALAKRISHNAN, JJ. = = = = = = = = = = = = = = = = L.A.A. NO. 1104 OF 2008 & L.A.A. NO. 260 OF 2009 = = = = = = = = = = = = = = = = Dated this the 16th day of February, 2011. J U D G M E N T Pius C. Kuriakose, J. L.A.A. 1104/08 is preferred by the claimant and L.A.A.260/09 is preferred by the Government. The case pertains to acquisition of land in Vizhinjam village pursuant to S.4(1) notification published on 20.12.2001. The acquisition was for construction of a road to Pulloorkonam Township colony for the Fisheries Department. The Land Acquisition Officer awarded the land value at the rate of Rs.12,367/- per Are. Before the Reference Court Exts.A2 to A4 were the documents on which the claimants relied mostly in support of their claim for enhanced L.A.A. NO. 1104 OF 2008 & L.A.A. NO. 260 OF 2009 -:2:- land value. Ext.A2 reflects a land value of Rs.32,608/- per cent. Ext.A3 reflects a land value of Rs.88,888/- per cent. Ext.A4 a document of 1994 reflects a land value of Rs.1 lakh per cent. The Court below did not place specific reliance on the three documents. The reasons stated by the Court below is that the property covered by the three documents are situated in different survey numbers. Ultimately the Court below would refix the value at Rs.75,000/- per Are(interestingly the rate reflected in Ext.A2). 2. In this appeal various grounds are raised by the appellant challenging the inadequacy of compensation fixed under the impugned award. Sri.Latheesh Sebastian, learned counsel for the appellant addressed us on the basis of the various grounds. All the L.A.A. NO. 1104 OF 2008 & L.A.A. NO. 260 OF 2009 -:3:- submissions of Sri.Latheesh Sebastian were resisted by Smt.T.T. Josephina, the Government Pleader. We have very anxiously considered the rival submissions and we have also gone through the impugned judgment. It was through the claimant himself that all the three documents Exts.A2 to A4 were marked in evidence. The appellant did not have any acquaintance with these documents for proving the transactions recorded therein. More importantly the appellant did not take out a Commission so that report can be obtained regarding the comparability of the properties covered by Exts.A2 to A4 and the property under acquisition. 3. We are not very much impressed by the reasonings of the learned Subordinate Judge that Exts.A2 to A4 are liable to be discarded as they pertain to property in some other survey number. L.A.A. NO. 1104 OF 2008 & L.A.A. NO. 260 OF 2009 -:4:- The distance between the property under acquisition and the property covered by the documents relied upon and the comparability between the two properties are also relevant. In the absence of evidence regarding the comparability, the learned Subordinate Judge could not have relied upon Exts.A2 to A4. 4. We feel that this is a case where an opportunity can be afforded to the appellant for taking out a Commission and proving the comparability of the properties covered by Exts.A2 to A4 with the property under acquisition. It is open to the appellant to prove the transactions recorded in Exts.A2 to A4 by examining someone else who is acquainted with the documents or the properties. 5. Therefore the result of the above discussion is as follows. L.A.A. NO. 1104 OF 2008 & L.A.A. NO. 260 OF 2009 -:5:- 6. The judgment and decree under appeal are set aside and LAR 82/05 is remanded to the Subordinate Judge, Neyyattinkara. The Court below is directed to permit the claimant to adduce fresh evidence including by getting a report of the Commissioner after verifying the properties covered by Exts.A2 to A4 and the property under acquisition. After the appellant adduces further evidence the learned Subordinate Judge shall permit the Government also to adduce counter evidence. The learned Subordinate Judge shall expedite matters and ensure that the enquiry is completed and a revised award is passed early at any rate within a period of one month of the reopening of the court after mid summer holidays. The parties will enter appearance before the Court below on 1.3.2011. L.A.A. NO. 1104 OF 2008 & L.A.A. NO. 260 OF 2009 -:6:- 7. We, however, make it clear that the judgment will operate only subject to the following conditions. (1) The Registry will refund only two third of the Court fee remitted(i.e. Rs.20,600/- to the appellant). (2) In case the appellant becomes eligible for enhanced compensation by virtue of the revised judgment to be passed by the Rent Control Court the enhancement over and above the present rate of Rs.75,000/- per Are will not be eligible for interest u/s 28 during the period from 3rd October 2007 till the date of the revised award. (3) The appellant pays a sum of Rs.1,500/- to the Kerala High Court Legal Services Committee within seven days from today. L.A.A. NO. 1104 OF 2008 & L.A.A. NO. 260 OF 2009 -:7:- (4) The amount deposited before the Court below will be permitted to be withdrawn by the appellant. Both the appeals are allowed by way of remand. Sd/- PIUS C. KURIAKOSE,JUDGE. Sd/-N.K. BALAKRISHNAN,JUDGE. ul/- [ True copy ] P.S. to Judge.