IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 8TH MARCH 2010 / 17TH PHALGUNA 1931 LA.App..No. 1073 of 2005 ----------------------------- LAR.48/2004 of III ADDL.SUB COURT, ERNAKULAM .................... APPELLANT(S): CLAIMANTS ------------------------------- 1. GEORGE VARGHESE, AGED 46 YEARS, ERUMEDA HOUSE, CHENGAROOR.P.O., MALLAPPILLY, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SIJI K.VARGHESE, AGED 43 YEARS, W/O.GEORGE VARGHESE, -DO- -DO- 2. SIJI K.VARGHESE, AGED 43 YEARS, W/O.GEORGE VARGHESE, ERUMEDA HOUSE, CHANGARA.P.O., VIA.MALLAPPILLY. BY ADV. SRI.M.M.ABDUL AZIZ, SENIOR ADVOCATE SRI.M.A.ABDUL HAKHIM SRI.JYOTHISH.J.KALLINGAL RESPONDENT(S)/RESPONDENTS: ------------------------------------- 1. STATE OF KERALA, REPRESENTED BY SPECIAL TAHSILDAR, (LA) NH-3, VYTTILA, ERNAKULAM. 2. THE DIRECTOR, INLAND WATER AUTHORITY OF INDIA, PARAMARA SHOPPING COMPLEX, PARAMARA ROAD, KOCHI - 682 018. SR. GOVT. PLEADER SMT.LATHA T. THANKAPPAN SRI. V. SANTHARAM, SC IWAI THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 08/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ L. A. A. No.1073 of 2005 ------------------------------------------------ Dated this the 8th day of March, 2010 JUDGMENT Pius C. Kuriakose, J The claimants are in appeal. Their lands in Maradu village were acquired for the purpose of construction of cargo terminal for the Inland Waterways Authority of India. The Land Acquisition Officer included the properties in category-B and awarded land value at the rate of Rs.85,543/- per Are. The Reference Court under the impugned judgment on the basis of the evidence that came on record re-fixed the land value at Rs.1,26,000/- per Are. 2. We had occasion to deal with a large L. A. A. No.1073 of 2005 -2- number of cases pertaining to acquisition of identical lands in the same village acquired for the same purpose (see our judgment in L.A.A.637/05 etc.). Under that judgment we have re-fixed the value of land included in category-B by the L.A. authority at Rs.1,50,000/- per Are. For the reasons stated in that judgment, the value of lands under acquisition in this case is also liable to be re-fixed at Rs.1,50,000/- per Are. It is ordered accordingly. 3. We have heard the submissions of Sri.M.A.Abdul Hakhim, the learned counsel for the appellants and Sri.V.Santharam, the learned counsel for the Requisitioning Authority. 4. Sri.V.Santharam argued that there is L. A. A. No.1073 of 2005 -3- absolutely no justification for awarding any compensation to the appellants for the extent of 1.164 Ares which is not covered by the award. According to him, even though the claimant stated in his evidence that he is having documents which will prove that the above extent is also covered by his title document, he did not bother to produce documents. He only took the stand that all documents were produced before the High Court in connection with an earlier Writ Petition for compelling reference under section 18. Sri.Santharam would read over to us certain portions of the evidence given by the claimant in support of his submissions. According to him, in the teeth of such evidence, there is absolutely no L. A. A. No.1073 of 2005 -4- warrant for any re-consideration of the issue of the appellants eligibility for any compensation to the above extent of 1.164 Ares. 5. Sri.M.A.Abdul Hakhim, the learned counsel for the appellants would argue that the appellants have not been awarded land value for the entire extent of 21.162 cents belonging to the appellants and actually acquired from the possession of the appellants. He relied on the mahazar prepared by the L.A. authority themselves for this argument. He referred to our own judgment in L.A.A.315/06 and submitted that the case involved in that appeal is the very adjacent property. He pointed out that in that case this Court has awarded market value at the rate of 50% for 1.50 Ares of L. A. A. No.1073 of 2005 -5- land in the possession of the claimants therein, but over which the claimant did not have absolute title. The possession obtained in the present case is exactly identical. Mr.Hakhim requested that for the above extent of 1.164 Ares for which no compensation was awarded, the appellant be awarded value at the rate of 50% at least since compensation was declined for the reason that there is no reference under section 18. We are not very much impressed by the reasoning of the learned Subordinate Judge that she is unable to deal with the claim since the same is beyond the scope of the reference under section 18. True the reference letter sent to the learned Judge by the L.A. authority does not specifically request the L. A. A. No.1073 of 2005 -6- court to determine the dispute regarding the extent. But according to us, since claim regarding the extent has been specifically raised by the appellant in the claim statement filed before the L.A.O. and the reference is for determining the correct compensation payable, the question of extent also could have been considered by the learned Sub Judge as an incidental question. But unlike the case decided under LAA.315/06, in this particular case the claimant did not adduce specific evidence as to what was the actual extent possessed by him i.e. whether he was in possession of the entire extent covered by his title document. Of course, the Mahazar gives some support to the appellants' argument regarding L. A. A. No.1073 of 2005 -7- extent. But we feel that it will not be safe to rely on the observations in the Mahazar alone. The appellant will have to adduce more cogent evidence on the aspect, as was done by the party in L.A.A.315/06. 6. We make it clear that we have not expressed any opinion on the merits of the appellant's claim for any compensation for the extent of 1.164 Ares. The question whether the appellant is entitled for any compensation will be decided afresh by the learned Subordinate Judge on the basis of the evidence to be adduced by both sides and after considering the arguments to be addressed by the parties independently without being influenced in any manner either by any L. A. A. No.1073 of 2005 -8- observations of ours in this judgment or by the judgment which we have passed in L.A.A.315/06. 7. Therefore, the result of the appeal will be as follows:- The market value of the land under acquisition is re-fixed at Rs.1,50,000/- per Are. The question as to whether the appellant is entitled for any compensation for 1.164 Ares not covered by the award is remanded to the Reference Court. That court is directed to permit all parties to adduce whatever further evidence they want to in the context of the above point. The court will pass revised judgment with respect to the above point, at the earliest, and at any rate on or before 30th August, 2010. Since the appeal L. A. A. No.1073 of 2005 -9- has been allowed to a substantial extent, we are not inclined to order refund of any portion of the court fee remitted. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-