IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 19TH MAY 2010 / 29TH VAISAKHA 1932 LA.App..No. 549 of 2006() ------------------------- LAR.237/2001 of ADL.SUB COURT, THALASSERY .................... APPELLANT(S): CLAIMANT ----------------------- PADINHAREKANDY SUNIL, S/O. DAMODARAN, HARI NIVAS, THANKAIKUNNU P.O., ATTADAPPA, KANNUR. BY ADV. SRI.M.V.AMARESAN RESPONDENT(S): RESPONDENT -------------------------- THE SPECIAL TAHSILDAR, LAND ACQUISITION, KANNUR. GOVERNMENT PLEADER SMT. R.BINDU THIS LAND ACQUISITION APPEAL HAVING COME UP FOR ADMISSION ON 19/05/2010, ALONG WITH LAA.NO.1040 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ---------------------------------------------------- L.A.A. Nos.549 of 2006 & 1040 of 2007 ----------------------------------------------------- Dated this the 19th day of May, 2010 J U D G M E N T ---------------------- Pius C.Kuriakose,J. Both the Government and the claimants are in appeal against the award of the Land Acquisition Reference Court. Acquisition was for the construction of Chovva Nadal byepass pursuant to Section 4(1) notification published on 4.11.1997. The Land Acquisition Officer treated the property as wet land and awarded land value at the rate of Rs.993/- per cent. Before the reference court the main item of evidence produced by the claimants was Ext.A1 document. Apart from that in Ext.X1 Commissioner's report, the Commissioner recommended for land value of Rs.35,000/- per cent. The court below did not accept the recommendations of the Commissioner nor did the court below become inclined to award the value reflected in Ext.A1 (that is, Rs.28,343/- per cent). The court below, however, found that as reported by the Commissioner the property was situated very near to the main Bazar in Chovva Town. Thus L.A.A.549/06 & 1040/07 2 virtually doing guess work on the basis of the oral evidence adduced by the claimants the court refixed land value at Rs.7,500/- per cent. In the appeal preferred by the claimants (LAA.549/06) it is contended that the market value refixed by the court below is grossly inadequate. In LAA.No.1040/2007 filed by the Government it is contended that the rate fixed by the court is exorbitant. 2. We have heard Sri.M.V.Amaresan, learned counsel for the appellant/claimant as well as Smt.R.Bindu, learned Government Pleader. Smt.R.Bindu drew our attention to the judgment of this court in LAA.No.667/2007 and submitted that the above case was also in respect of acquisition for the same purpose pursuant to the same notification. She pointed out that under that case we have approved refixation of value of land for which Land Acquisition Officer had awarded at the rate of Rs.4,977/- per cent, at Rs.7,500/- per cent. In the instant case, going by the award of the Land Acquisition Officer the property under acquisition was much inferior. Therefore the learned Government Pleader's request was that proportionate reduction may be made and market value L.A.A.549/06 & 1040/07 3 be refixed accordingly. Mr.Amaresan, per contra, drew our attention to Ext.A1. He submitted that A1 property was also wet land as will be seen from the recitals in the document. He submitted that A1 as well as the acquired property were situated very near to each other and that both these properties are not far away from the main commercial centres of Chovva town. According to him, Ext.A1 should be relied on and the market value should be refixed at Rs.28,343/-. Learned Government Pleader would submit that Ext.A1 property is not comparable with the property under acquisition. Ext.A1 property has commercial potentialities since it enjoys direct frontage. According to her, it is significant that the Commissioner was not asked to compare A1 and the acquired properties. Claimant produced judgment in LAR.No.266/2001 under which market value had been fixed by the court at Rs.10,200/- per cent. But it is clear from the judgment itself that the above property was dry land, unlike present property, which is wet land. 3. Another point which was seriously urged by the Government was that the court below erred in awarding L.A.A.549/06 & 1040/07 4 compensation for a total extent of 4.74 cents while going by the award the extent of the property awarded is 3.88 cents. On going through the impugned judgment we find that the court has not actually raised a issue regarding that claim even though such a claim has been raised by the claimants. We are, however, not inclined to uphold this ground urged by the Government since we find that the court below became inclined to award compensation for 4.74 cents on the basis of plan prepared by the Commissioner with the assistance of the serving Taluk Surveyor to which no objection whatsoever was filed by the Government. 4. Having anxiously considered the rival submissions addressed at Bar we are of the view that the court below was justified in not relying on Ext.A1. Even though a commission was taken out, the claimant did not want the Commissioner to inspect the property covered by Ext.A1 so that report regarding comparability of A1 whould be made available to the court. Going through the recitals in A1 it is seen that A1 was enjoying road frontage though the same was also wet land. It is difficult to accept the argument that a property L.A.A.549/06 & 1040/07 5 without any road frontage will have commercial potentialities like property enjoying road frontage. Of course, Mr. Amaresan would submit that property under acquisition was also having road access. But unfortunately no mahazar has been prepared by the officer while taking possession. Hence the above aspect cannot be verified. 5. The last plea of the learned counsel for appellant was that the matter be remanded to the court below so that further evidence can be adduced and the claimant will be able to substantiate before the court below that property under acquisition was having access to road and had commercial potentialities. We feel that in the circumstances of this case that the plea for remand can be upheld on condition that during the period between the impugned judgment and the revised judgment to be passed by the court below the revised compensation to be awarded by the court below will not carry interest under Section 28 of the Land Acquisition Act. 6. There is merit in the submission of the learned Government Pleader that the judgment in LAA.667/2007 has L.A.A.549/06 & 1040/07 6 attained finality. It is open to the Government to bring that judgment to the notice of the court below so that court below can pass revised judgment fixing market value taking into account the entirety of the evidence that comes on record. The result of the above discussion is as follows:- Both appeals are allowed by way of remand. The judgment under appeal is set aside. LAR.No.237/2001 is remanded to Sub Court, Thalassery. That court is directed to afford opportunities to both sides to adduce whatever evidence they want to. Further evidence will be completed and revised judgment will be passed by the court below as early as possible, at any rate, within a period of five months of the parties entering appearance before that court. Parties are directed to enter appearance before the court below on 10.6.2010. Since this remand is necessitated mainly due to the fault of the appellant/claimant we are not inclined to order refund of court fee. It is also ordered that for the total enhanced compensation to which the appellant may become eligible by virtue of the revised judgment interest otherwise admissible under Section 28 of the Act will not be admissible L.A.A.549/06 & 1040/07 7 during the period from 12.12.2005 till the date of revised judgment. Parties are directed to suffer their respective costs in both these appeals. PIUS C.KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb