IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 LA.App.No.918 of 2005 -------------------------- LAR.129/2002 of SUB COURT, CHERTHALA .................... APPELLANT/CLAIMANT: -------------------------- REGHUNATHAN NAIR, KANNANTHARA MALIKA, THEVARVATTOM, THYCATTUSSERY. BY MR.G.GOPAKUMAR (CHERTHALA), ADVOCATE. RESPONDENTS/RESPONDENTS: ----------------------------------- 1. KERALA STATE REP. BY THE SPECIAL TAHSILDAR (LA) GENERAL, ALAPPUZHA. 2. THE PROJECT OFFICER No.III, OECF PROJECT, K.W.A. VELLAYAMBALAM, THIRUVANANTHAPURAM. BY MR. BASANT BALAJI, SR.GOVERNMENT PLEADER FOR R1. THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 27/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE & M.C.HARI RANI, JJ. - - - - - - - - - - - - - - - - - - - - - L.A.A.No.918 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of March, 2009 JUDGMENT Pius.C.Kuriakose, J. The claimant is in appeal against the judgment and decree of the Subordinate Judge's Court, Cherthala in L.A.R.No.129/02. The case was in respect of acquisition of land in Thykkattussery village for the purposes of the second respondent. The land acquisition officer awarded land value at the rate of Rs. 2784/- per Are treating the entire land under acquisition as wet land. The reference court on evaluating the evidence which consisted of Exts.A1 to A3, X1, X1(a) , R1,R2 and the oral testimony of AW1 would refix the land value at Rs. 9,777/- per Are. Though notice was served on the second respondent requisitioning authority of this appeal, they have not entered appearance before this court. 2. We have heard the submissions of Sri.G.Gopakumar, learned counsel for the appellant and those of Sri.Basant Balaji, learned senior Government Pleader for the first respondent. Sri.Gopakumar LAA.No.918/05 2 drew our attention to Ext.X1 Commissioner report, Ext.X1(a) plan and submitted that Ext.X1 and X1(a) had clearly reported that actual extent of the property which was acquired from the appellant's possession was 32.05 Ares and not 31.05 Ares disclosed by the Mahazer. He pointed out that the objections raised by the requisitioning authority to the above report was only that “ it is not known with which plan the measurement has been conducted”. Further it is submitted that it had been clearly reported by the Commissioner that 4.42 Ares from out of the acquired property was lying as original chira planted with coconut trees and that 3.40 Ares from out of the acquired property had been partially reclaimed. Learned counsel submitted that in the objections filed to the Commissioner's report, the requisitioning authority had not challenged the above part of the Commissioner's report. Learned Government Pleader would submit that it was placing reliance on Exts.A1 and A2 judgments that the learned Subordinate Judge refixed the land value. According to him, it is to be verified whether Exts.A1 and A2 have become final. As regards the argument regarding the actual extent of the property acquired, Sri.Basant Balaji submitted that LAA.No.918/05 3 the mahazer should clinch the issue especially when the appellant himself is the signatory to the mahazer. Regarding the nature of the property also, learned counsel submitted that the Commissioner's inspection was some five years after the acquisition and therefore the Commissioner will not be able to report as to what was the nature of the property at the time of the acquisition. 3. We have anxiously considered the rival submissions addressed at the Bar. We have gone through the records including the mahazer. We notice that no serious objection is raised by the requisitioning authority regarding the report of the Commissioner that the correct extent of the property acquired is 32.05 Area. We find that no objections are reported by that authority regarding the report of the Commissioner, regarding the nature of the properties acquired. At the same time, we are not inclined to rely completely on the Commissioner's report to enter findings regarding the nature of the property actually acquired. We will go rather by the Mahazer. Mahazer reveals that a chira did exist even at the time of taking over of possession and that a few old coconut trees were standing on the chira. LAA.No.918/05 4 According to us it can be safely concluded that atleast 2.25 Ares of land under acquisition was not pakka wet land, but was chira planted with coconut trees. So also we do not find any good reason to reject the appellant's claim for market value for additional extent of 1 Are reported by the Commissioner. Learned Subordinate Judge has rejected the said claim on the reason that Sri.Subramanya Pillai who conducted the measurement is not in the service of Survey Department. In fact, the learned Subordinate Judge herself had permitted the Advocate Commissioner to seek the services of a private surveyor and it was pursuant to such permission that the services of Sri.Subramanya Pillai was solicited. On going through the plan submitted by the Sri.Subramanya Pillai, we are of the view that he has conducted a correct measurement. Therefore we accept the report - Ext.X1 and X1(a) and hold that the actual extent of the property acquired is 32.05 Ares. Now the question to be decided as to what is the additional land value to be granted for 2.25 Ares which is found by us to be chira. According to us, an increase of 20% over the land value determined by the court for wet lands can be granted. Computing that way, the total LAA.No.918/05 5 enhanced compensation to which the appellant will become entitled both towards value of the additional extent of 1 Are which was acquired and the additional value to be granted for the chira portion found by us is Rs. 14,300/- ( Rupees fourteen thousand three hundred only). We therefore allow the appeal and award a further amount of Rs. 14,300/- over and above what has been awarded under the impugned judgment to the appellant/claimant. We are not impressed by the submission of the learned Government Pleader that it is to be verified whether Exts.A1 and A2 have become final. After all this is an appeal filed by the claimant and there is no appeal by the state or the requisitioning authority regarding the land value. The appeal is allowed to the above extent. But in the circumstances, parties will suffer their costs. PIUS.C.KURIAKOSE JUDGE M.C.HARI RANI JUDGE sv. LAA.No.918/05 6