IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 21ST MAY 2010 / 31ST VAISAKHA 1932 LA.App..No. 1252 of 2009(C) -------------------------------- LAR.435/1996 of II ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT(S): CLAIMANTS ------------------------------- 1. AYYAPPAN, S/O. ISAKKIMUTHU T.C.39/1276, KOTHUVAL THERUVUL CHALAI, THIRUVANANTHAPURAM. 2. NAGAMMAL W/O. ISAKKIMUTHU,(DIED) T.C. 39/1276, KOTHUVAL THERUVU, CHALAI, THIRUVANATHAPURAM. 3. SUBHAMMA, D/O. ISAKKIMUTHU, T.C.39/1276, KOTHUVAL THERUVU CHALAI, THIRUVANANTHAPURAM. 4. PADMANABHAN S/O.ISAKKIMUTHU T.C.39/1276 KOTHUVAL THERUVU, CHALAI, THIRUVANANTHAPURAM. 5. VASANTHA, D/O. ISAKKIMUTHU T.C.39/1276, KOTHUVAL THERUVU CHALAI, THIRUVANANTHAPURAM. 6. CHANDRA, D/O. ISAKKIMUTHU T.C.39/1276 KOTHUVAL THERUVU, CHALAI, THIRUVANANTHAPURAM. 7. RAJAPPAN, S/O. ISSKKIMUTHU, T.C.39/1276, KOTHUVAL THERUVU, CHALAI, THIRUVANANTHAPURAM. BY ADV. SMT.M.HEMALATHA LAA.1252/09 -2- RESPONDENT(S)/RESPONDENT: ------------------------------------ STATE OF KERALA, REP. BY THE SPECIAL TAHSILDAR, L.A.PWD (SC) THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.V.T.K.MOHANAN THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 21/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ L. A. A. No.1252 of 2009 ------------------------------------------------ Dated this the 21st day of May, 2010 JUDGMENT Pius C. Kuriakose, J This is an appeal by the claimant who is aggrieved by the award of the Land Acquisition Reference Court. The acquisition was for the construction of Chalai Bye-Pass. The property was in Manacaud village. The date of relevant Section 4(1) notification was published on 14/08/92. The Land acquisition Officer awarded land value at the rate of Rs.69,342/- per Are. Ext.A1 was the only item of evidence adduced by the appellant. Ext.A1 was in respect of identical property (the property for which the Land Acquisition Officer had awarded the same rate as the acquired property) L. A. A. No.1252 of 2009 -2- and the Reference Court had re-fixed the value at Rs.95,218/- per Are. The court below accepted Ext.A1 and awarded Rs.95,218/- per Are. 2. Various grounds have been raised in the appeal assailing the impugned judgment. But it is not urged as a ground that the court below did not afford sufficient opportunity for the appellant to adduce fresh evidence, nor is it specifically urged that the property under acquisition should have been included in a superior category. Smt.Hemalatha, the learned counsel for the appellant submitted at the very outset that the property under acquisition should have been included in category-1 rather than in category-2. We notice that the difference between category-1 and category-2 is that category-1 is property abutting the road and category-2 is property L. A. A. No.1252 of 2009 -3- which does not directly abut the road but abuts the 'puramboke' area situated adjacent to the road. The learned counsel referred to the Mahazar prepared by the Land Acquisition Officer and submitted that it is clear from the Mahazar that the property under acquisition was situated on Attakkulangara - Killippalam road. We find some force in the above submission of the learned counsel. Hence, even in the absence of a specific ground we are accepting the argument that the property should have been treated as coming under category-1. It is seen that for properties under category-1, the Land Acquisition Officer awarded Rs.95,218/- per Are as against the properties in category-2 for which the Land Acquisition Officer awarded Rs.69,342/- per Are. We feel that based on Ext.A1 itself the appellant L. A. A. No.1252 of 2009 -4- can be granted proportionate increase. Relying of Ext.A1, we re-fix the value of the property under acquisition at Rs.1,07,000/- per Are. The appeal is allowed as above. Parties are directed to suffer their respective costs in the appeal. 3. It is needless to mention that the appellant will be entitled for all statutory benefits on the total enhanced compensation and also on the original compensation awarded by the Land Acquisition Officer (if not already granted). PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/- L. A. A. No.1252 of 2009 -5- PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ I. A. No.174 of 2010 in L. A. A. No.1252 of 2009 ------------------------------------------------ Dated this the 21st day of May, 2010 ORDER Pius C. Kuriakose, J This is an application under Order 41 Rule 27 of the CPC seeking admission of additional evidence in the appeal. The appellant/petitioner has not made out any case as envisaged by Order 41 Rule 27 CPC for admission of further evidence in this appeal. It is seen from the impugned judgment that Ext.A1 produced by the appellant was the only item of tangible evidence to substantiate the appellant's claim for enhancement which was limited to Rs.2 lakhs per L. A. A. No.1252 of 2009 -6- cent. Ext.A1 was in respect of acquisition of an identical property and was a court judgment having probative value. The court below accepted the above contention and relied on Ext.A1 and awarded enhancement to Rs.95,220/- per Are. The appellant has raised grounds 'A' to 'F' in the memorandum of appeal. Significantly it is not urged that the court below did not afford opportunity to the appellant for producing suitable documents. The ground raised is only that the Land Acquisition Officer did not consider any suitable document for determining the value of the properties acquired and that the potentiality of the acquired property was not considered by the court below while determining the market value. The Land Acquisition Officer's award is only an L. A. A. No.1252 of 2009 -7- offer and when the party does not accept that offer, the matter reaches the Reference Court. Once the matter reaches the Reference Court, the claimant is in the position of plaintiff in the regular suit and the Government is in the position of defendant. It is for the claimant/plaintiff to adduce proper evidence before the Reference Court and substantiate his claim that the correct market value of the property is much more than the value awarded by the Land Acquisition Officer. In the instant case, as already stated, Ext.A1 was the only document produced and it is relying on Ext.A1 that the court below re-fixed the value. The document now sought to be produced is Annexure-1 judgment of this Court in LAA.1794/07. It is seen that under that judgment L. A. A. No.1252 of 2009 -8- this Court has re-fixed the value of the property involved in that case at Rs.7 lakhs per Are. That judgment obviously has been rendered in a case where the Reference Court, on evaluating the evidence which was adduced by the claimant which included two sale documents Exts.A1 and A2 which are referred to in Annexure-A1, had fixed the value at Rs.15 lakhs per Are. Considering the Government's appeal, this Court found that the complete reliance placed on Exts.A1 and A2 were not justified and accordingly, reduced the value roughly to Rs.2,85,000/- per cent. In the instant case, even the claim of the appellant was only for Rs.2 lakhs per cent and the appellant had not relied on Exts.A1 and A2 referred to in Annexure-1. In the absence of any L. A. A. No.1252 of 2009 -9- grounds in the memorandum of appeal that the court below shut out evidence and that the court below did not afford opportunity to have adduced further evidence, we do not find any justification for invoking the powers of this Court under Order 41 Rule 27 of the CPC. The I.A. will stand dismissed. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-