IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 LA.App..No. 505 of 2009 (A) -------------------------------- LAR.50/2004 of SUB COURT,ATTINGAL .................... APPELLANT(S):/1ST RESPONDENT. --------------------------------------- STATE OF KERALA. BY GOVERNMENT PLEADER SMT.LATHA T. THANKAPPAN RESPONDENT(S): RESPONDENT/CLAIMANTS & 2ND RESPONDENT. ----------------------------------------------------- 1. PADMINI, 55 YEARS, D/O.KESAVAN, P.R.B. GRACEA TC.NO.20/1689,F-II, NEW PANDIT COLONY, KOWDIAR,THIRUVANANTHAPURAM. 2. RAJESH, 21 YEARS,S/O.JAYAN, RESISIDING AT TC.NO.20/1689,F-II, NEW PANDIT COLONY,KOWDIAR,THIRUVANANTHAPURAM. 3. THE SECRETARY, VARKALA MUNCIPALITY. ADV. SRI.J.S.AJITHKUMAR FOR R3 THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 25/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & K. SURENDRA MOHAN, JJ. ------------------------------------------------ L. A. A. No.505 of 2009 ------------------------------------------------ Dated this the 25th day of August, 2009 JUDGMENT Pius C. Kuriakose, J This is an appeal by the Government and the case pertains to acquisition of land in Varkala village for the purpose of construction of private Bus Stand for the Varkala Municipality. The relevant Section 4(1) notification was published on 13/10/97. The Land Acquisition Officer included the lands under acquisition into as many as four categories 'A', 'B', 'C', and 'D'. Properties enjoying the direct frontage of Varkala Edava main road were included in category-A. Properties enjoying the frontage of Varkala-Mundayil Papanasam Beach road were included in category-B. Properties in 'C' and 'D' categories were properties which did not enjoy the frontage of any road. In fact, L. A. A. No.505 of 2009 -2- properties in 'D' category were lying inferior even on comparison to properties in category 'C'. Before the Reference Court, the documentary evidence consisted of Ext.A1 sale deed which was a post notification document executed one year after the relevant Section 4(1) notification. The same pertains to sale of property in another village. Apart from Ext.A1, the only evidence adduced on the side of the claimant was his own oral testimony as AW1 to which the counter oral evidence was adduced by RW1. Under the impugned judgment, the learned Subordinate Judge has concluded that the property under acquisition is eligible to be included in category 'B' i.e the properties having frontage of Varkala-Mundayil Papanasam Beach Road. Relying on Ext.A1 and treating the property as property under category 'B', the learned Subordinate Judge has re-fixed the value of the land from L. A. A. No.505 of 2009 -3- Rs.44,786/- per Are to Rs.2,77,875/- per Are. What has been done by the learned Subordinate Judge is to deduct the 25% of the value revealed in Ext.A1. 2. Even though notice was served on the claimants/respondents, they have not entered appearance before this Court. We have heard the submissions of Smt.Latha T. Thankappan, the senior Government Pleader for the appellant and those of Sri.J.S.Ajith Kumar, the learned Standing Counsel for the Requisitioning Authority. We have gone through the impugned judgment. 3. Having considered the submissions addressed at the Bar, we are in agreement with Smt.Latha T. Thankappan and Sri.J.S.Ajith Kumar that the learned Subordinate Judge was not justified in treating the properties under acquisition as eligible for inclusion in category 'B'. We are also in agreement with them that L. A. A. No.505 of 2009 -4- the reliance placed by the learned Judge was not justified. After all, Ext.A1 judgment was a post notification document executed one year after the relevant Section 4(1) notification. The only evidence on the basis of which the learned Subordinate Judge could have justified inclusion of the property under acquisition in category 'B' is the oral evidence of AW1. Significantly, no Commission Report based on legal inspection of the property was available. Under the above circumstances, we are inclined to set aside the impugned award. It is accordingly set aside. L.A.R is remanded to the Subordinate Judge's Court, Attingal. If the claimant is so desirous, it is open to her to move for deputation of a Commissioner so that the Commissioner will be able to submit a report based on inspection on the issue as to whether the property under acquisition did enjoy the frontage of Varkala- L. A. A. No.505 of 2009 -5- Mundayil Papanasam beach road. It is open to the claimants to seek time for production of relevant pre- notification document reflecting higher value of lands for the same village. Needful in compliance with the above directions shall be made by the claimants and the revised judgment shall be passed by the learned Subordinate Judge at the earliest and at any rate, within four months of receiving a copy of the judgment. 4. This appeal is thus allowed by way of remand. PIUS C. KURIAKOSE JUDGE K. SURENDRA MOHAN JUDGE kns/-