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 4TH NOVEMBER 2011 / 13TH KARTHIKA 1933 LA.App..No. 232 of 2011() ------------------------- LAR.4/2009 of III ADDL.SUB COURT, ERNAKULAM .................... APPELLANT(S): CLAIMANT ---------------------- P.A.DAVID S/O. ABRAHAM, NADAKKAVUNKAL, PALATHINKAL HOUSE, THIRUVANKULAM. BY ADV. SRI.P.P.THAMPI SRI.SOMAN P.PAUL RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY SPECIAL TAHSILDAR (LA) ERNAKULAM. 2. ASSISTANT EXECUTIVE ENGINEER,(NH) SUB DIVISION, EDAPPALLY, ERNAKULAM. GOVERNMENT PLEADER SMT.ROSE MICHAEL FOR R1 & 2 THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 04/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ L.A.A.No. 232 OF 2011 ------------------------ Dated this the 4th day of November, 2011 JUDGMENT Pius C.Kuriakose, J. The claimant is in appeal. His property situated in Thiruvankulam Village was included in category 6 and acquired by the Government for the purpose of construction of NH49 Thripunithura Bye pass. This acquisition was pursuant to Section 4 (1) notification published on 31/8/2005. Including the property in category 6, the LAO awarded land value at the rate of Rs.5,050/- per Are. Going by the award of the Land Acquisition Officer, the properties in category 6 are described as lands having Panchayat Road frontage valued at Rs.5,050/- per Are. It is necessary now to notice that as per this award, properties included in category No.5 are dry lands at a depth of 2 meters having frontage of Panchayat road. For properties in category 5, the LAO has awarded land value at the rate of Rs.56400/ per Are. LAA.No.232/2011 2 2. Before the Reference Court, the evidence adduced by the parties consisted of Exts.A1 to A4, AWs 1 to 3 and R1 and R2 and Exts. C1 commission report submitted by the advocate commissioner and Ext.C2 report submitted by an expert. Ext.A1 sale deed is a deed in respect of the property situated just opposite to the property under acquisition i.e. on the other side of the very same Panchayat Road. The learned Sub Judge on appreciating the evidence did not become inclined to rely on A1 completely. According to the learned Judge the value of the acquired property must be at least 50% of the value of A1. In that view, the market value was refixed at Rs.33,252/- per Are. 3. In this appeal, the appellant has produced as Annexure A1, the judgment of the Reference Court in respect of the case relating to the property covered by Ext.A1 document - L.A.R. No.390/2008. Under Annexure A1 judgment the value of Ext.A1 property, which had been included by the LAO in category 5, stands refixed at Rs.73210/- per Are. 4. In this appeal various grounds are raised challenging what is described as the inadequacy of the compensation redetermined by the Reference Court. Sri.P.P.Thambi learned LAA.No.232/2011 3 counsel for the appellant would address submissions based on the grounds raised in the appeal. Mr.Thambi highlighted before us Annexure A1 judgment and submitted that Exts.C1 and C2 commission reports will enable this court to have a fair comparison of the property under acquisition and the property covered by Annexure A1 (the same as Ext.A1 document). The difference between the two properties, it was submitted, is that the property under Annexure A1 is dry land and the property under acquisition is wet land. But the level difference between the two is just one feet. They were situated on the opposite sides of the very same Panchayat road by name Kavaleswaram Road. The distance from Thiruvankulam junction to this property is just 250 meters. There was no justification for the LAO keeping so much of disparity in the value of the properties included in categories 5 and 6. Even assuming that the property in category 5 like the acquired property was wet land, it is in evident that the same was capable of easy reclamation. Ext.C2 expert report will show that reclamation charges necessary for reclaiming one cent of land is only Rs. 4687.44 which means that for raising one Are of land LAA.No.232/2011 4 30 feet above the level of road, the cost to be incurred will be only Rs.11582/-. The correct compensation to be awarded for the acquired property is 73210 - 11582, so submitted the learned counsel. 5. All the submissions of Mr.Thambi were very forcefully resisted by Smt.Rose Michael learned Government Pleader. She submitted that the crucial difference between the lands under acquisition and the land covered by Annexure A1 is that the lands under acquisition is wet land while land covered by Annexure A1 is dry land. The market value of the wet land is to be determined with reference to the value reflected in sale transactions pertaining to wet lands. The method of deducting the reclamation charges from the value of the corresponding dry land is not a scientific method. The said method may not be followed. What has been awarded by the Learned Subordinate Judge is actually excessive. The learned Subordinate Judge has awarded value of 560% increase over what was awarded by the LAO. Whereas, under Annexure A1, the percentage of increase given is below 30%. The court was bound to maintain ratio, which was maintained by the LAO in his award, as there is LAA.No.232/2011 5 no contention for the claimant that the ratio maintained by the LAO in his award between the values of various categories is wrong. It is the Government which should be aggrieved. 6. We have given our anxious consideration to the rival submissions addressed at the Bar. We have made a reappraisal of the entire evidence adduced by the parties in this case. We notice from the evidence that the property in question was situated very near to Thiruvankulam junction which is a very important road junction in Tripunithura Municipality in Ernakulam District. We also notice that the properties under acquisition included by the LAO in category 6 was situated on the opposite side of the very same Panchayat Road by the side of which properties in category 5 including Annexure A1 properties were situated. It is evident that the only difference between the properties is that one is wet land while the other is dry land. Level difference from the road level between these two properties was at the most two feet. We are convinced that the ratio maintained by the LAO between the value of properties in categories 5 and 6 is not the correct ratio. We do agree that method of deducting reclamation charges from the value of LAA.No.232/2011 6 corresponding dry lands for arriving at the value of wet lands can be followed only with extreme caution. But we are of the view that there must be some co-relation between the values of dry lands and wet lands situated within the same local area. As far as this case is concerned, the acquired property and the property covered by Annexure A1 were situated just opposite to each other by the side of the very same road. We feel that the value awarded by the LAO for properties under acquisition, which is at Rs.5050/- per Are only as against 56400/- awarded for the properties under Annexure A1, is ridiculously low. The correct value which could have been awarded by the LAO for the properties in this case was at lest 39480/-. According to us, even that amount does not reflect the correct market value of the property. We are of the opinion that the correct ratio to be maintained between the two value of the properties in categories 5 and 6 is Rs.56,400 : Rs.39,480/-. We are of the view that there is every justification for adding 30% more to the value of 39480/- noticing Annexure A. Making addition that way we refixe the value of the lands under acquisition in this appeal at Rs.51341/- per Are which we round off Rs.51350/- per Are . LAA.No.232/2011 7 The appeal is allowed as above. The appellant will be entitled for all statutory benefits admissible under Section 23 (2), 23(1A) and Section 28 of the Act. The parties are directed, in the circumstances, to suffer their respective costs in this appeal. PIUS C.KURIAKOSE,JUDGE C.K.ABDUL REHIM,JUDGE. dpk