IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 6TH SEPTEMBER 2011 / 15TH BHADRA 1933 LA.App..No. 1121 of 2005(A) --------------------------- LAR.52/2003 of SUB COURT, PALA .................... APPELLANT(S)/CLAIMANTS -------------- 1. KUNJELIAMMA JOSEPH, W/O.LATE JOSEPH, VELUTHEDATH PARAMBIL, KIZHAKKEKARA, LALAM, PALAI P.O., KOTTAYAM DISTRICT (DIED). 2. K.J.CHERIAN, S/O.LATE JOSEPH, AGED 61 OF DO. DO. 3. K.J.JOSE, OF DO. DO. BY ADV. SRI.JOHNSON MANAYANI RESPONDENT(S): --------------- STATE OF KERALA, REP. BY ITS DISTRICT COLLECTOR, KOTTAYAM. GOVERNMENT PLEADER SRI.V.T.K.MOHANAN THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 06/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM,JJ. ------------------------------- LAA.NO. 1121 of 2005 --------------------------------- Dated this the 6th day of September, 2011 JUDGMENT Pius C.Kuriakose ,J. The claimants are in appeal. Their property in Lalam village situated on an important point at Palai -Erattupetta road, very near to KSRTC bus stand, Palai was acquired pursuant to section 4(1) notification actually published on 17.9.1999 for the purpose of widening of Palai-Erattupetta road which is part of Ettumanoor-Poonjar highway. The Land Acquisition Officer awarded land value at the rate of Rs.80233/- per Are. Before the Reference Court the appellants relied mainly on Exts.A1 and A2 documents which were sale deeds in favour of Palai Municipal council. As we have found that the correct date of publication of the section 4(1) notification is 17.9.1999, it has to be noticed that both Exts.A1 and A2 were post notification documents. Exts.A1 document reflected a land value of Rs.1,67,938/- per cent while Ext.A2 reflected a land value of Rs.1,51,751/- per cent. The learned Subordinate Judge did not place complete LAA.1121/2005 2 reliance on Exts.A1 and A2. However, assuming the documents to be relevant on the premise that these documents were executed prior to section 4(1) notification what the learned Subordinate Judge did was to refix the land value at Rs.60480/- per cent corresponding to Rs.1,49,446/- per Are . 2. In this appeal grounds are raised urging that the rate fixed by the learned Subordinate Judge is inadequate. The appellants had a claim for compensation for injurious affection in respect of the unacquired property. The learned Subordinate Judge fixed and awarded a lumpsum amount of Rs.20,000/- towards this count. No ground is specifically raised urging that the compensation awarded towards injurious affection deminition in the value of unacquired property is inadequate. 3. We have heard the submissions of Sri.Johnson Manayani, learned counsel for the appellants and Sri.V.T.K.Mohanan, learned senior Government Pleader. Making submissions on the basis of various grounds raised in the memorandum Sri. Manayani submitted that the court below should have placed complete reliance on Exts.A1 and A2. Both those documents were genuine documents as the purchaser was LAA.1121/2005 3 the Municipal council itself. Learned counsel argued that the propeprty was situated in an area which was commercially most important in Palai Municipal town and was superior to the property covered by Exts.A1 and A2. Government Pleader submitted that as it is now clear that Exts.A1 and A2 are post notification documents basing that documents will not be justified. It is in evidence that the Municipality became inclined to pay more than the market value in view of the extreme necessity to purchase the propeprties covered by Exts.A1 and A2. We have very anxiously considered the submissions addressed at the bar. As already noticed Exts.A1 and A2 are post notification documents which cannot be relied on in this case. Several pre notification documents were available in the area. At the same time we feel having regard to the decision taken by this court in various other LAR cases pertaining to acquisition of land within the limits of Palai Municipality for the same purpose (for the purpose of upgradation of Ettumanoor- Poonjar highway including the judgment in LAA.No.177/10 which we had stated in the judgment itself was not to be treated as precedent in other cases) that the correct market value of the properpties under LAA.1121/2005 4 acquisition was atleast slightly more than what is awarded by the learned Subordinate Judge. In other words, we feel the rate presently fixed is less than the correct market value. 4. We are however, not inclined to decide the issue finally. As we have discarded Exts.A1 and A2 completely the evidence available is only oral. We feel an opportunity can be given to the appellants for adducing fresh evidence and for placing reliance on the judgments passed by this court in respect of acquisition of property situated within the Municipal town for the same purpose. We are however not inclined to grant such opportunity without imposing conditions. We notice that there was lethargy on the part of the appellants in facilitating an earlier disposal of this appeal which was filed way back in 2005. Conditions are being imposed noticing the above aspect of the matter. The result of the above discussion is as follows:- 5. The judgment and decree of the court below are set aside. LAR No.52/2003 is remanded to the Sub Court, Palai. The learned Subordinate Judge is directed to take a fresh decision refixing the market value of the land under acquisition after giving opportunity to the appellants to adduce further evidence. LAA.1121/2005 5 The appellants are permitted to place reliance on the judgment of this court fixing land value within the limits of Palai Municipal Town more or less at the relevant period. If the appellants adduce evidence, the Government is at liberty to adduce rebuttal evidence. The learned Subordinate Judge will pass revised award on the basis of the documentary and oral evidence which causes on record and on the oral evidence which is already on record. This judgment will be subject to the following conditions. 6. If under the revised award the appellants become eligible for enhanced compensation over and above what is awarded in the impugned judgment and decree, such enhanced compensation will not carry interest otherwise admissible under section 28 of the Land Acquisition Act during the period from 30.8.2004 till date. Refund full court fee paid on the appeal memorandum to the counsel for the appellants. Parties will enter appearance before the court below on 19.10.2011. The learned LAA.1121/2005 6 Subordinate Judge will dispose of the LAR.No.52/2003 within four months thereafter. The learned Subordinate Judge will issue notice to the additional Government Pleader of the court concerned regaring the posting of the LAR. PIUS C. KURIAKOSE,JUDGE C.K.ABDUL REHIM,JUDGE pmn/ LAA.1121/2005 7