IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 LA.App.No.1000 of 2008 ---------------------------- LAR.88/2002 of SUB COURT, CHERTHALA .................... APPELLANT/CLAIMANT: -------------------------- PRABHAKARAN NAIR, AGED 75, PLAKKIYIL, PALLIPURAM, CHERTHALA. BY MR.J.OMPRAKASH, ADVOCATE. RESPONDENTS/RESPONDENTS: ----------------------------------- 1. THE KERALA STATE REPRESENTED BY THE SPECIAL TAHSILDAR (L.A), INDUSTRIAL GROWTH CENTRE, CHERTHALA. 2. THE MANAGING DIRECTOR, K.S.I.D.C, THIRUVANANTHAPURAM. BY MR.JOBY CYRIAC, SC, KSIDC FOR R2. MR. BASANT BALAJI, SR. GOVERNMENT PLEADER FOR R1. THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 27/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE & M.C.HARI RANI, JJ. - - - - - - - - - - - - - - - - - - - - - LA.A.No.1000 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of March, 2009 JUDGMENT Pius.C.Kuriakose, J. The claimants are in appeal against the judgment and decree of the land acquisition reference court. The land acquisition officer treated almost the entire property under acquisition as dry land without direct frontage of gravel road and awarded land value at the rate of Rs. 7876/- per Are. Towards value of structures , the land acquisition officer awarded a total amount of Rs. 258171/- . In the reference under Section 18, the appellant contended that his properties should have been included in category 2 namely properties having direct frontage of gravelled road and not in category 3 i.e. properties which do not have such frontage. The appellant/claimant placed reliance on two Commissioner's reports for supporting his claim for enhanced compensation towards value of structures. The first commissioner had reported that the correct value of the structures will be Rs. 6,20,000/-. While the second Commissioner on the basis of a subsequent LAA.No.1000/08 2 inspection deducted certain amount towards depreciation and reported that the value of structures is Rs. 505,603/-. The reference court did not become inclined to accept the appellant's case that his property was enjoying road frontage. However, that court would refix the land value on the basis of the evidence which was available at Rs. 17290/- per Are as was done in the case of all properties which had been included in category No.3. But that court did not accept the appellant's claim for enhanced compensation towards value of structures and confirmed the award of the land acquisition officer regarding the value to be given for structures. In this appeal, the finding of the reference court regarding the land value and the value of structures are assailed. 2. We have heard the submissions of Sri. J.Omprakash, learned counsel for the appellant, Sri.Joby Cyriac, learned counsel for the requisitioning authority and those of Sri. Basant Balaji, learned senior Government Pleader for the State. Sri.Omprakash would draw our attention to the Commissioner's reports and also to the sketches prepared by the Commissioners and submitted along with the Commissioner's report. He submitted that it had been clearly reported LAA.No.1000/08 3 that the acquired property was having road access. Both the Commissioners had clearly reported that the acquired property was directly connected to the Kuvappuzha to Vazhathara road, admittedly a 3 meter wide private road. Learned counsel submitted that the Advocate Commissioner had been assisted in the matter of valuing the structures by a very skilled and experienced carpenter and the inspection took place in the presence of the requisitioning authority also and therefore the court below was not justified in insisting that the report will be accepted only if the second commissioner and the expert are examined. He also argued that the reliance placed by the court below on the valuation certificate issued by the PWD kept in the LA file was not justified since it was the PWD schedule of rates which had been adopted for arriving at the said valuation. According to the counsel, it is a matter of common knowledge that it will not be possible to construct buildings profitably at PWD rates. PWD tenders out its work at rates higher than the PWD schedule of rates, it was submitted. 3. Sri.Joby Cyriac, learned counsel for the requisitioning authority would resist all the submissions of Sri.J.Om Prakash and LAA.No.1000/08 4 would support the impugned judgment on the various reasons stated in that judgment. As regards the land value, he submitted that the report will show that the petitioner's property is not eligible to be included in category 2. He relied on Ext.X3 report also to show that the acquired property did not enjoy the direct frontage of the gravel road. He pointed out that the rate fixed by the reference court for category 3 had been approved even by the Supreme Court of India. As regards the claim for enhanced value towards structures, he submitted that the only evidence available before the court was the oral evidence of the claimant and on that evidence, enhancement could not be granted. 4. We have anxiously considered the rival submissions addressed at the Bar. We have gone through the Commissioner's report as well as the sketches. We are unable to accept the submission of Sri.Omprakash that the acquired property was eligible to be included in category 2. The acquired property, we are convinced did not have direct frontage of any public road or the gravelled road. Of course, it was having access to the gravelled road through a 3 meter wide private road. Such access will not confer eligibility on the acquired property to LAA.No.1000/08 5 be included in category 2. Categorisation of the acquired property according to us was done correctly by the land acquisition officer as well as by the court. We do not find any warrant for interfering with the land acquisition court's findings regarding the land value to be given to the claimant. At the same time, we feel that the correct compensation which could have been given to the appellant towards value of structures which existed on the acquired land has not been determined by the learned Subordinate Judge. Valuation Certificate issued by the PWD is admittedly prepared by adopting the PWD schedule of rates. It is a matter of common knowledge that PWD tenders out its work at rates higher than their own schedule of rates. Opportunity, we feel should be granted to the appellant for substantiating his claim for enhanced amount towards structure value. Availing that opportunity, if he so chooses, the appellant can examine the carpenter who assisted the Advocate Commissioner and he can let in other independent evidence regarding the value of structures at the time of acquisition. The result is that the judgment and decree are set aside to the LAA.No.1000/08 6 extent they pertain to determination of compensation towards value of structures and remand the LAR to the Subordinate Judge's Court, Cherthala. That court will permit the claimant and the respondents to adduce further evidence in the context of the claimant's claim for enhanced amount towards compensation for the structures. Further enquiry will be completed and fresh judgment will be passed by that court within four months of the court re-opening after mid-summer recess. Refund full court fee paid on the appeal memo to the learned counsel for the appellant. PIUS.C.KURIAKOSE JUDGE M.C. HARI RANI JUDGE sv. LAA.No.1000/08 7