IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL THURSDAY, THE 8TH DECEMBER 2011 / 17TH AGRAHAYANA 1933 LA.App..No. 584 of 2011() ------------------------- LAR.47/2005 of SUB COURT,THODUPUZHA .................... APPELLANT(S): 'A'CLAIMANT ------------------------- SMT.MARY GEORGE, W/O.GEORGE, AGED 48 YEARS, PUTHIYAPARAMBU PUTHENPURAYIL, PUTHUPARIYARAM, MANAKKAD, THODUPUZHA, NOW RESIDING AT TMC 23/428, THODUPUZHA.P.O., OLAMATTOM. BY ADV. SRI.K.S.HARIHARAPUTHRAN RESPONDENT(S): RESPONDENT & ADDL.CLAIMANTS B & C ------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, IDUKKI. 2. THE SECRETARY, THODUPUZHA TOWN SERVICE CO-OPERATIVE BANK, THODUPUZHA. 3. RAZAK, S/O.HAMSA, ERATTAPLACKAL HOUSE, KARIKODE KARA, THODUPUZHA EAST.P.O. GOVERNMENT PLEADER SRI.C.R.SHYAM KUMAR T.J.MICHEAL (r2) THIS LAND ACQUISITION APPEAL HAVING COME UP FOR ADMISSION ON 08/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE & K.HARILAL, JJ. ------------------------ L.A.A.NO.584 OF 2011 ------------------------ Dated this the 8th day of December, 2011 JUDGMENT Pius C.Kuriakose, J. The "A" claimant, the owner of the property, is the appellant. B claimant is the 2nd respondent and they were the mortgagee of the property under acquisition. "C" claimant does not contest. The reference in question was one for enhancement under Section 18 and also for apportionment of the amount under deposit. Under the impugned award, the Reference Court settled the apportionment dispute by upholding the claim of the 2nd respondent mortgagee in full. It is ordered that the B claimant can withdraw the amount of Rs.1,30,425/- deposited by the Land Acquisition Officer before the reference court and the entire balance amount due towards loan No.PL.789/04 and loan No.P.L.790/04 from out of the enhanced compensation which is allowed under the award to the claimant A. The property was in Manakkadu village within the limits of Thodupuzha Municipality. The LAO awarded land value at the L.A.A. No.584/2011.No. 2 rate of Rs.19512/- per Are. The Reference Court on evaluating the evidence consisting of Exts.A1 to A10, B1 to B18, R1 to R3 Ext.X1 commission report ad AWs1 and 2 and BWs1 and 2 would refix the land value at Rs. 23,375/- per cent. 2. In this appeal various grounds are raised challenging the award passed by the Reference Court both under Section 18 and Section 31(2) of the Act. We have heard Sri. George Mathew learned counsel for the appellant and Sri. T.J.Micheal learned counsel for the 2nd respondent bank and also Sri.C.R.Shyamkumar learned senior government pleader. 3. We shall first deal with the correctness of the award passed by the learned Subordinate Judge directing release of the amount under deposit and the balance amount necessary for discharging the mortgage loans to the 2nd respondent bank. Even though Sri.George Mathew addressed very fervent submissions, in view of the admitted position that at the time of acquisition there was subsisting mortgage in favour of the 2nd respondent bank, the view taken by the learned Sub Judge cannot be faulted. We do not find any warrant for interference in the award passed by the learned Sub Judge to the extent it L.A.A. No.584/2011.No. 3 pertains to Section 31(2) of the L.A.Act. 4. The question which survives to be considered is as to the correct market value to be fixed for properties under acquisition. Here again we find that the appellant has claimed the market value of land only at the rate of Rs.50,000/- per cent. The learned Government Pleader would very fairly bring to our notice various judgments of this court including the judgment in L.A.A. No.1355/2009. We find that for identical properties under that judgment, this court refixed the value at Rs.50,000/- per cent. 5. Even though Sri. George Mathew argued that a portion of the unacquired property belonging to the appellant has been reduced to a worthless bit, we are unable to entertain the above claim as we find that the above claim has not been valued for the purpose of this appeal. 6. The appeal will stand allowed only to the extent of refixing the market value of the land under acquisition at Rs.50,000/- per cent. We allow the appeal and refix the market value at Rs.50,000/- per cent. The appellant will be entitled for all statutory benefits. However, while providing interest under Section 28 the section will have due regard to the L.A.A. No.584/2011.No. 4 conditions that we have imposed in our order in C.M. Appln. No. 164/2010 dated 1/12/2011. The appeal will stand allowed, however without any order as to costs. The court fee payable on the appeal memorandum will be first charge on the compensation amount to be deposited pursuant to this order. The Government need to deposit only the total amount due under the decree less the court fee. PIUS C.KURIAKOSE,JUDGE K.HARILAL, JUDGE. dpk L.A.A. No.584/2011.No. 5 L.A.A. No.584/2011.No. 6 PIUS C.KURIAKOSE & K. HARILAL, JJ. ------------------------ C.M.Appln. No.164/2010 in L.A.A.No.584 OF 2011 ------------------------ Dated this the 1st day of December, 2011 O R D E R Pius C.Kuriakose, J. This is an application seeking condonation of the delay of 85 days caused in the matter of filing the appeal, which is directed against the award of the Reference Court passed both L.A.A. No.584/2011.No. 7 under Section 18 as well as under Section 31(2). Under the impugned award, the entire amount under deposit ordered to be paid to the 2nd respondent. The 2nd respondent is served with notice through Advocate Sri.T.J.Michael who was appearing for them. No counter is seen filed by the 2nd respondent. 2. We condone the delay subject to the condition that in case this appeal is allowed and the enhanced compensation, to which the appellant becomes eligible, will not carry interest otherwise admissible under Section 28 of the Act during the period of 85 days condoned by this order. Annex a copy of this order to the judgment to be passed in the appeal. Post tomorrow (2/12/2011) for admission. PIUS C.KURIAKOSE,JUDGE K. HARILAL, JUDGE. dpk L.A.A. No.584/2011.No. 8