IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 23RD JUNE 2009 / 2ND ASHADHA 1931 LA.App..No. 204 of 2004() ------------------------- LAR.61/1991 of SUB COURT, PAYYANNUR .................... APPELLANT(S): PETITIONER ------------------------ K.V.KAMALKUTTY, S/O. MUHAMMAD, VAYALPATH HOUSE, SREEKANDAPURAM AMSOM DESOM.(died) ADDL. APPELLANTS 2 TO 8 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED APPELLANT AS PER ORDER DATED 26.9.2006 IN IA NOS.3551/06 AND 3552/06. ADDL. 2. C.K.MARIYUMMA, W/O. LATE K.V.KAMALKUTTY, 'ASHRAF MANZIL', SREEKANDAPURAM, KANNUR. 3. C.K.ASHRAF, S/O. LATE K.V.KAMALKUTTY, DO. DO. 4. C.K.AYISHA, D/O. LATE K.V.KAMALKUTTY, DO. DO. 5. C.K.RASHEED, S/O. LATE K.V.KAMALKUTTY, DO. DO. 6. C.K.KHADEEJA, D/O. LATE K.V.KAMALKUTTY, DO. DO. 7. C.K.BASHIYA, D/O. LATE K.V.KAMALKUTTY, DO. DO. 8. C.K.SUMAYYA, D/O. LATE K.V.KAMALKUTTY, DO. DO. BY ADV. SRI.S.EASWARAN RESPONDENT(S): RESPONDENTS -------------------------- 1. THE SUB COLLECTOR, THALASSERY. 2. THE SECRETARY, SREEKANDAPURAM GRAMA PANCHAYAT, POST SREEKANDAPURAM, KANNUR DISTRICT. ADV. SRI.PROMY KAPRAKKATT FOR R2 SRI.NICHOLAS JOSEPH FOR R2 R1 BY SR. GOVERNMENT PLEADER SRI BASANT BALAJI THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 23/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & P.Q. BARKATH ALI, JJ. --------------------------------------------- L.A.A. 204 of 2004 --------------------------------------------- Dated: JUNE 23, 2009 JUDGMENT Pius C. Kuriakose, J. The claimant is in appeal against the judgment of the Reference Court in LAR 61/1991. The acquisition was for the purpose of constructing a shopping complex for the 2nd respondent, Sreekandapuram Grama Panchayat. The notification under sec.3(1) was published on 17.12.1983. The land acquisition officer awarded land value at the rate of Rs.4955.66 per cent. Towards value of the building which existed on the acquired property, he awarded a total compensation of Rs.43778/-. The reference court under the impugned judgment, which is a judgment passed in revision of the earlier judgment passed by the same court, re-fixed the land value at Rs.24300/- per cent. The value of the building was re- fixed on the basis of the advocate commissioner's report which L.A.A. 204 of 2004 2 was report by a second commissioner recommending for value of Rs.61964.42. The value was re-fixed at Rs.58655.60. 2. We have heard the submissions of Mr. S.Easwaran, learned counsel for the appellant, and those of Mr. Basant Balaji, learned Sr. Government Pleader for the Government. We have gone through the evidence and the impugned judgment. 3. Having re-appreciated the evidence, we are of the view that the land value at Rs.24300/- per cent fixed by the reference court was the maximum which could have been granted on the basis of the legal evidence available. Of course, Ext.A7 was there revealing a higher land value. But Ext.A7 was a post notification document which could not have been made basis in view of the principles laid down by the Supreme Court in G.M.Oil & Natural Gas Cor. Ltd. v. R. Jivanbhai Patel & Anr. (2008 SAR (civil) 894). We, therefore, are obliged to turn down the appellant's claim for enhancement of land value. But it appears to us that there is an element of genuineness in the grievance of the appellant regarding the building value awarded to him. The second commissioner's report was an authorised one and that L.A.A. 204 of 2004 3 commissioner, who was assisted by an engineer, had reported that the correct market value of the building even according to the PWD schedule of rates was Rs.61964/-. We are of the view that construction of building at PWD schedule of rates is not practical. We notice that even the PWD is tendering out its work at a minimum of 20% above their own schedule of rates. We accordingly become inclined to re-fix the total compensation payable to the appellant towards building value at Rs.75000/-. In that way the appellant will be entitled roughly for Rs.17000/- towards enhanced compensation for the building. But we notice that there is evidence to hold that the appellant was deriving a rental income of Rs.2300/- p.m. even in the year 1981. Thus, if the method of capitalisation of rental income from the property acquired is adopted, it is likely that the appellant will become entitled for even slightly higher compensation. Taking both the above aspects into account, we re-fix the total enhanced compensation payable to the appellant towards value of the building at Rs.20,000/-. The appeal will stand allowed to that extent awarding a L.A.A. 204 of 2004 4 further enhanced compensation of Rs.20,000/- over and above what is awarded under the impugned judgment. The appellant will be entitled to all statutory benefits admissible to him under secs.23(2), 23(1A) and 28 of the Land Acquisition Act on the enhanced compensation to which the appellant becomes eligible on account of our re-fixation. The appeal is allowed to the above extent, in the circumstances without any order as to costs. PIUS C. KURIAKOSE, JUDGE P.Q. BARKATH ALI, JUDGE mt/- L.A.A. 204 of 2004 5