IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 5TH JUNE 2009 / 15TH JYAISHTA 1931 LA.App..No. 344 of 1999(A) -------------------------- LAR.62/1994 of III ADDL.SUB COURT, ERNAKULAM .................... APPELLANT(S)/CLAIMANTS: --------------------------------- 1. E.M.SHAMSU, ILLICKAL HOUSE, KALAMASSERRY. 2. E.M.NAZEER, ILLICKAL HOUSE, KALAMASSERRY BY ADV. SRI.T.I.ABDUL SALAM RESPONDENT(S)/RESPONDENT: ------------------------------------- STATE OF KERALA, REP. BY THE DISTRICT COLLECTOR, ERNAKULAM. SR. GOVERNMENT PLEADER SRI.P.K.BABU SRI.RAJAN JOSEPH, ADDL.A.G. THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 05/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & P. Q. BARKATH ALI, JJ. ------------------------------------------------ L. A. A. No.344 of 1999 ------------------------------------------------ Dated this the 5th day of June, 2009 JUDGMENT Pius C. Kuriakose, J This appeal preferred by the claimants pertains to enhancement of the value of the land which was acquired and also enhancement of the compensation given towards the buildings and trees existed already in the property. The appellants relied on Ext.A1 document in respect of properties situated at Palarivattom some 4.5 kilometres to the north of the acquired property. Ext.A1 revealed a much higher land value. The learned Sub Judge, however, did not become inclined to rely on Ext.A1 for the reasons that Ext.A1 property being much nearer to the city L. A. A. No.344 of 1999 -2- heartland is not comparable to the acquired property. The Reference Court granted an enhancement of Rs.2,65,107/- towards value of building and Rs.4,680/- towards the value of other improvements. 2. Sri.T.I.Abdul Salam, learned counsel for the appellants addressed us very persuasively and extensively. He submitted that Ext.A1 document could have been relied on by the learned Sub Judge making some deductions towards the locational advantages of that property. As per the claim for value of building and other improvements, he submitted that evidence was adduced regarding the rental value which was being derived from the building and according to him, the court below could have awarded the amounts L. A. A. No.344 of 1999 -3- claimed by the appellant towards value of the building. All the submissions of Sri.T.I.Abdul Salam were stiffly resisted by Sri.P.K.Babu, Senior Government Pleader. 3. According to us, the learned Sub Judge cannot be blamed for not having relied on Ext.A1. After all Ext.A1 property was situated some 4.5 kilometres away from the acquired property and as stated by the learned Sub Judge near to the city heartland rather on the gateway to the heartland of the city. The learned Sub Judge granted enhancement to the appellant relying on the judgment of the same court in L.A.R.120/93. The property in that case was situated relatively nearer to the acquired property. It is brought to our notice that the judgment in L. A. A. No.344 of 1999 -4- L.A.R.120/93 has attained finality by the judgment of this Court in L.A.A.1392/97. When compared to Ext.A1, the judgment in L.A.R.120/93 was much more reliable and therefore, in the absence of better evidence reflecting market value of comparable properties, the court below was justified in relying on the judgment in L.A.R.120/93. 4. Sri.T.I.Abdul Salam, counsel for the appellant would submit that there are other documents situated in between Palarivattom and the acquired properties and also between the acquired property and Kalamassery town revealing much higher value other than the value allowed under judgment in L.A.R.120/93. According to him, the appellants were L. A. A. No.344 of 1999 -5- unable to produce those documents since sufficient opportunity was not given and the learned Sub Judge was keen on disposing of the matter based on the judgment in L.A.R.120/93. 5. Having regard to the above submission, we feel that the appellant can be granted an opportunity to produce further documents to support his claim for enhanced land value. But coming to the appellants' claim for enhanced land value of the building, we find from the evidence that the court below has on the available evidence granted adequate compensation to the appellants. The report of the Advocate Commissioner and the report of the Engineer who assisted him has been practically accepted by the L. A. A. No.344 of 1999 -6- learned Sub Judge. The grievance of the appellants seems to be regarding the deduction of 7% towards depreciation. In the absence of cogent evidence as to when the building was constructed, the learned Sub Judge cannot be blamed for having made so much deductions. We therefore, confirm the award of the Reference Court in the context of value of building and other improvements. 6. The result is that the judgment and decree under appeal stands set aside and the same pertains to the award of compensation towards land value. L.A.R.62/1994 will go back to the Reference Court. The Reference Court will grant at least three months' time from the date of appearance of the appellants L. A. A. No.344 of 1999 -7- pursuant to this remand for production of documents and other evidence regarding market value including oral evidence. The further enquiry will be completed and the revised judgment will be passed by the learned Sub Judge at the earliest and at any rate, within seven months from today. 7. Considering the assertion of Sri.T.I.Abdul Salam, learned counsel for the appellants that the acquired property in this case was more superior and lying at a higher level than the acquired property in L.A.R.120/93 and that the said fact can be seen if a Commissioner is deputed even now, the learned Sub Judge is directed to favourably consider any application of issuance of a commission which may be L. A. A. No.344 of 1999 -8- filed by the appellant. 8. First point urged by Sri.Abdul Salam was that the court below has not granted statutory benefit admissible under Section 23(2), 23(1A) and Section 28 of the Act. He submitted that interest has not been specifically granted on the total compensation which will give him the statutory benefit like solatium and the component under Section 23(1A). The issue is covered by the judgment of the Constitution Bench of the Supreme Court in Sunder v. Union of India (2001 (3)KLT 489). We clarify that for all the entire enhanced compensation, the appellant will be entitled for all statutory benefits including interest on solatium and Section 23(1A) component of the total L. A. A. No.344 of 1999 -9- compensation. 9. This appeal is allowed by way of remand. Refund the full court fee paid on the appeal memo to the counsel for the appellants. PIUS C. KURIAKOSE JUDGE P. Q. BARKATH ALI JUDGE kns/-