IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 8TH JUNE 2009 / 18TH JYAISHTA 1931 LA.App..No. 1017 of 2003() -------------------------- LAR.139/1991 of PRINCIPAL SUB COURT,PARAVUR .................... APPELLANT(S): CLAIMANT ---------------------- PAULSON S/O. JOSEPH, VADAKKUMCHERRY HOUSE, KATTATHURUTH. BY ADV. SRI.S.K.BRAHMANANDAN SRI.S.B.PREMACHANDRA PRABHU RESPONDENT(S): RESPONDENT ------------------------- STATE OF KERALA. GOVT.PLEADER SRI. SRI.P.K.BABU THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 8 /6 /2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE & P.Q.BARKATH ALI, JJ. ------------------------ L.A.A.No.1017 OF 2003 ------------------------ Dated this the 8th day of June, 2009 JUDGMENT Pius C.Kuriakose, J. This is an appeal by the claimant and the case pertains to acquisition of land in Vadakkekara village, for the widening of N.H. 17. Relevant Section 4(1) notification was published on 12/4/1989. The land acquisition officer categorised the properties under acquisition into 3. For property in category No.1, having direct frontage of road, he awarded land value at the rate of Rs.7360/- per Are. The reference court in the first instant would grant an enhancement by Rs.3310/- per Are. For property in category 2, the land acquisition officer awarded land value at the rate of Rs.5350/- per Are. The reference court in the first instant would grant an enhancement by 3186/- per Are. The 3rd category was treated by the land acquisition officer as property lying as road open to the general public. For this reason, the land acquisition officer awarded only a nominal total compensation of Rs.100/- per Are. Thus 1.24 Ares of the acquired property was treated as falling within category 3. The L.A.A.No.1017/2003 2 reference court in the first instant treated this property as property belonging to the appellant and that too eligible for inclusion in category 1. Accordingly, the reference court awarded enhanced compensation to this portion of the property at Rs.10,670/- per Are and thus equated this property to properties in category 1. 2. The Government preferred an appeal against the judgment of the reference court as L.A.A. No.412/1994. This court by judgment dated 10th June 2002 set aside the judgment of the reference court holding that the evidence produced in the case was not sufficient to enable the court to determine the market value of the land under acquisition. Accordingly, the land acquisition reference case was remanded to the reference court with the following observations and directions; “The market value of the property was not properly assessed by the reference court. Since the LAR was referred in the year 1991 the reference court should decide the matter within six months from the date of receipt of a copy of this judgment. L.A.A.No.1017/2003 3 Registry to send the records forthwith. Since the matter is remanded as the reference court has not considered the evidence properly and appellant is not at fault, the court fee paid in the appeal shall be refunded to the appellant. “ 3. A careful reading of the judgment will show that this court did not interfere with the enhancement of Rs.40,298/- which had been awarded under the impugned judgment to the appellant towards further value of the building. This court had virtually confined the remand to the question of determination of land value only. After remand, Ext.A5 judgment of the same court in another land acquisition case pertaining to the same acquisition was produced in evidence. Relying on Ext.A5, which has admittedly attained finality, the reference court would refix the land value of the properties which were included in categories 1 and 2 by the land acquisition officer. We find that these values are slightly higher than the values, which were originally awarded by the reference court under its initial judgment. As already noticed, the appeal against the original judgment of the L.A.A.No.1017/2003 4 land acquisition court was preferred only by the Government. Therefore, the appellant in this appeal is not entitled to canvas for the proposition that they should be awarded more than what is presently awarded under the impugned judgment towards the value of land in the categories 1 and 2. 4. But, it appears to us that the appellant is voicing genuine grievance regarding the property which had been included by the land acquisition officer in category No.3. Under the impugned judgment, the reference court has taken the view that the land acquisition officer's stand that the property in category 3, having road open to the general public ,cannot be granted more than Rs.100/- per Are is correct. As already noticed, this court while passing the order of remand, did not interfere specifically with the findings of the reference court that the above portion of the acquired property extending to 1.24 Ares was eligible to be included in category 1. The question of market value was only remanded generally for determination on the basis of the evidence. According to us, it is not proper to award only the nominal value of Rs.100/- per Are to this portion of the acquired property. It is true and it is conceded also that L.A.A.No.1017/2003 5 this portion of the acquired property is lying as a public road open to the general public. But, at the same time, it cannot be denied that the appellant is having absolute title over this portion of the acquired property. The Government did not have a case that the acquired property stood vested with any department of the Government or with any local authority. The learned Subordinate Judge appears to have approved the initial award of the land acquisition officer with reference to this portion of the property following the principle of marketability of the property under acquisition. In terms of marketability, the learned Subordinate Judge is correct in his view that the said property was not as marketable as properties included in categories 1 and 2. At the same time, it cannot be gained that proprietary title over the property stood vested absolutely with the appellant. Had it not been so, it was absolutely unnecessary for the Government to acquire this portion of the property under the provisions of the Land Acquisition Act exercising powers of eminent domain. According to us, the appellant should be awarded atleast 50% of the market value of the properties in category 1 for these properties. L.A.A.No.1017/2003 6 5. We, therefore, refix the value of this portion of the property extending to 1.24 Ares at Rs.7976 per Are (50% of the rate presently fixed by the reference court for the properties in category 1.) Accordingly, we award additional compensation to the appellant at the rate of Rs.7976/- per Are for a total extent of 1.24 Ares. In the same way, we are of the view that the appellant's grievance that the court below ought to have granted him further compensation for the structures which existed on the acquired property is genuine. As already noticed this court did not interfere under its judgment in L.A.A. No.412/1994 with the award of the additional compensation by the reference court towards value of structures. What was awarded originally was Rs.40298/-. According to us, award of so much of amounts towards additional compensation for the structure is justified when we notice that the structures were valued by the land acquisition officer adopting the PWD schedule of rates which are not realistic. We therefore, award Rs.40298/- originally awarded by the reference court under its initial judgment to the appellant towards additional compensation for structures. The appeal will stnad allowed to the above extent. It is L.A.A.No.1017/2003 7 needless to mention that the appellant will be entitled for all statutory benefits admissible under Section 23(2), 23(1A) and Section 28 of the Land Acquisition Act for the total enhanced compensation awarded to him under this judgment. The parties are directed to suffer their costs in the appeal. PIUS.C.KURIAKOSE,JUDGE P.Q.BARKATH ALI, JUDGE dpk L.A.A.No.1017/2003 8 PIUS.C.KURIAKOSE & P.Q.BARKATH ALI, JJ. ------------------------ L.A.A.No.1017 OF 2003 ------------------------ JUDGMENT 8TH JUNE 2009