IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 18TH NOVEMBER 2009 / 27TH KARTHIKA 1931 LA.App..No. 1508 of 2005() -------------------------- LAR.150/2001 of ADL.SUB COURT, THALASSERY .................... APPELLANT(S): CLAIMANT ---------------------- ASWATHI PHILIP, PHIL BAGH, HIGH ROAD, ALWAYE-683 101. BY ADV. SRI.SATHISH NINAN SRI.SANTHOSH MATHEW RESPONDENT(S): --------------- SPECIAL TAHSILDAR, L.A., KANNUR. BY SR. GOVT. PLEADER SRI.BASANT BALAJI THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 18/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------------------------ LAA. No. 1508 of 2005 ------------------------------------------- Dated this the 18th day of November, 2009 J U D G M E N T Pius C. Kuriakose, J. The claimant is in appeal. 6.88 cents of land in Elayavoor Village belonging to him was acquired for Chovva- Nadal bye-pass road. The L.A. Officer awarded land value at the rate of Rs.2969/- per cent. The L.A. Officer also awarded compensation for the building which existed on the property under acquisition. Before the reference court the appellant/claimant claimed land value at the rate of Rs.28,343/- per cent. The claim for additional compensation towards the value of structures was also made. In respect of the claim for enhanced land value the appellant placed reliance on Ext.A1 document. Ext.A1 was executed nine months prior to the date of the section 4(1) notification. Ext.A1 was the very document by which the appellant purchased the property under acquisition. The LAA. No. 1508/05 - 2 - court below did not become inclined to place reliance on Ext.A1. According to the court below, the evidence adduced by AW1, son of the appellant regarding the purpose for which the appellant, a widowed lady belonging to Aluva, purchased the property situated in Kannur District is not convincing. Ultimately, what the court below did was to follow its common judgment in certain other reference cases pertaining to acquisition for the same purpose and award an enhanced land value of Rs.1000/- per cent. The appellant had taken out a commission and the commissioner had reported about the locational advantages of the properties under acquisition. Commissioner had recommended for enhanced value for the structures. The commissioner's report was not at all relied on by the learned Sub Judge. In this appeal, the appellant has raised grounds challenging the decision of the learned Subordinate Judge with regard to fixation of the market value of the land and also the correct LAA. No. 1508/05 - 3 - compensation to be paid for the structures which existed on the property. 2. We have heard the submissions of Mr. Sathish Ninan, learned counsel for the appellant and also those of Mr.Basant Balaji, learned senior Govt. Pleader. The copies of relevant items of evidence such as A1, the commissioner's report and also the oral evidence of AW1 was made available and we have gone through the same. Mr. Sathish Ninan submitted that the court below was not correct in observing that it was suggested to AW1 that the purchase of the property under acquisition was in anticipation of the proceedings for acquisition of land by the Government. He submitted that the learned Subordinate Judge himself elsewhere in the judgment has observed that the genuineness of A1 is not seriously challenged. According to him, the subsequent dealings of the appellant with the property purchased under Ext.A1, such as obtaining LAA. No. 1508/05 - 4 - of development permit from the Revenue Divisional Officer, putting up of a building, letting out of the building for commercial purpose will show that Ext.A1 document records a genuine transaction. The learned counsel requested that at least the land value which was paid by the appellant in Ext.A1 be awarded. No circumstances shroud A1 with suspicion. The appellant's only son is an Engineer of Government service, who at the relevant time was employed at Kannur. His evidence was that if the acquired property having frontage of national high way is purchased it may be possible for his mother to put the same to commercial user. 3. The submissions Mr. Sathish Ninan were resisted by the learned Govt. Pleader who supported the impugned judgment on the various reasons stated by the learned Subordinate Judge. Mr. Basant Balaji, however, confessed that the Government did not file any statement of objections LAA. No. 1508/05 - 5 - to the claim statement which was filed by the appellant before the reference court. 4. We have very anxiously considered the rival submissions and we have re-appreciated the evidence, particularly A1, AW1 and the commissioner's report. The observation of the learned Subordinate Judge in the impugned judgment that it is suggested by the learned Govt. Pleader to AW1 that acquisition of the property under Ext.A1 was in anticipation of land acquisition proceedings is absolutely incorrect. Having gone through AW1's testimony in full we don't find any such suggestion. On our reappraisal of the oral evidence given by AW1, we are of the view that the credit of AW1 was not shaken. We are surprised why the learned Subordinate Judge should observe that the evidence given by AW1 regarding the commercial potentialities of the property foreseen by the appellant is not convincing. In fact, what AW1 stated was that the property LAA. No. 1508/05 - 6 - under acquisition had direct frontage of national highway and that the purchase was made so that the property could be utilised for commercial purpose. His further evidence was that the property was filled up after obtaining reclamation permit, that a building was put up and that the building was let out on a monthly rental of Rs.5000/- and that because of the acquisition his mother has been deprived of that rental income . We don't find any cross- examination challenging the correctness of the above version of AW1. The suggestions in cross-examination are only to the effect that the property was paddy land at the time of purchase, and that the L.A. Officer before passing the award inspected the property and has awarded adequate compensation. There was also a suggestion that the basis property relied on by the L.A. Officer was comparable. It is not suggested at all by the Govt. Pleader in cross-examination of AW1 that Ext.A1 is an artificial LAA. No. 1508/05 - 7 - document in which an inflated value was shown for the purpose of staking a better compensation in land acquisition proceedings. We feel that Ext.A1 records a genuine transaction and that the appellant should be awarded land value at the rates seen paid under Ext.A1. Accordingly, in modification of the impugned judgment we re-fix value of the land under acquisition at Rs.28,343/- per cent. In all other respects such as compensation awarded towards building and structures the impugned judgment will stand confirmed. 5. Appeal is allowed to the extent of re-fixing land value as above. It is needless to mention that on the total enhanced compensation to which the appellant becomes eligible by virtue of this judgment he will be entitled for all statutory benefits. We make it clear that this decision is taken by us on the basis of the value reflected in A1 and in view of our finding that A1 is a genuine transaction. This LAA. No. 1508/05 - 8 - judgment will not be a precedent for any other case pertaining to acquisition for Chovva-Nadal bye-pass road or for that matter any other acquisition. The parties are directed to suffer their costs. PIUS C.KURIAKOSE, JUDGE K.SURENDRA MOHAN, JUDGE ksv/-