IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE MONDAY, THE 4TH AUGUST 2008 / 13TH SRAVANA 1930 LA.App..No. 859 of 2008(D) -------------------------- LAR.425/1997 of ADDL.SUB COURT,KOLLAM .................... APPELLANT: RESPONDENT: ---------------------- STATE OF KERALA BY GOVERNMENT PLEADER SRI.BASANT BALAJI RESPONDENTS: CLAIMANT: ---------------------- SUDHARMINI AMMA, POWER OF ATTORNEY HOLDER, SURENDRAN PILLAI, KOCHUVEETTIL, KOTTAPPURAM. THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 04/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A. NO.1932/2008 IN L.A.A. NO.859/2008 DISMISSED 4.8.2008 SD/- PIUS C.KURIAKOSE, JUDGE. /TRUE COPY/ P.A. TO JUDGE. PIUS C. KURIAKOSE, J. ---------------------------------- L.A.A.NO. 859 of 2008 ---------------------------------- Dated this the 4th day of August , 2008 JUDGMENT The notice which was sent by this court to the respondent claimant was returned with an endorsement 'not known'. Accordingly, I directed service of notice on the respondent through Adv.N.Suresh Babu, who appeared for the respondents before the reference court and in all probability is appearing for her before the execution court also. A copy of this appeal memorandum was accordingly served on Sri.Suresh Babu and memo is filed in this court. The appeal is taken up for final hearing on the basis that service on the respondent is completed. 2. This appeal pertains to the acquisition of 0.20 Ares of land in Paravur Kottappuram village in Kollam District for the purpose of widening of the road from Paravur Kambolam to Thoppil landing pursuant to Section 4 (1) notification dated 18.3.1995. The Acquisition officer relying on the basis document awarded land value at the rate of Rs.29,864/- per Are. Before L.A.A. No.859/2008 2 the reference court the evidence consisted of oral testimony of the claimant in this case as AW1 and also Ext.A1 copy of the sale deed. On the side of the respondent Government, there was absolutely no counter evidence. It is seen that the court below was impressed very much by the oral testimony of AW1. On the basis of that testimony, the court below concluded that the land value fixed by the land acquisition officer was far below the market value. Ext.A1 was copy of the sale deed executed by one Nizar in favour of one Prakash and Rajani. The land value revealed by Ext.A1 is Rs.88,339/- per Are. AW1 stated that Ext.A1 property was lying very close to the acquired property. The court did notice that Ext.A1 document was executed some eight months after the relevant Section 4 (1) notification date. However, the court relied on the judgment of the Supreme court in Metha Ravindra Rai Ajith Rai and others v. State of Gujarat ( AIR 1989 SC 2051) and held that even post acquisition sales can be relied on when there was no evidence indicating that there was rise of land value in the area after the relevant section 4 (1) notification. According to the court below, the burden for establishing that the post notification document L.A.A. No.859/2008 3 was not reliable on account of increase in the land value after the date of 4 (1) notification was on the objecting party, in this case the Government. Reliance was placed by the learned judge for the above proposition on the judgment of the Division Bench in Jacob v. State of Kerala (1997 (2) KLT 872) . 3. Sri.Basanth Balaji, the learned Government Pleader has addressed me extensively on all the grounds raised in the appeal memorandum. The learned Government Pleader submitted that the court below was not at all justified in relying on Ext.A1, which was a post notification document. Ext.A1 document had not been proved in this case by adducing independent evidence unlike in Jacob's case (supra) decided by this court. In the absence of independent evidence regarding Ext.A1, it was unsafe to have relied on Ext.A1 at all. The Government Pleader also pointed out that the court below despite having noticed the judgment of the Supreme Court in Metha Ravindra Rai.'s case (Supra), has not made any reduction on the value reflected by the document and has proceeded to grant the same value shown in the document executed eight months later to the respondent. Both the above submissions of the learned Government Pleader have L.A.A. No.859/2008 4 force. At the same time, I notice that the Government did not adduce any counter evidence at all in this case. The Government did not even produce the basis document in which case the learned subordinate judge would have become obliged to consider basis document and give reasons as to why the basis document is being rejected. Whatever that be, in view of the force noticed by me by the submissions of the learned Government Pleader regarding proof of Ext.A1 and non reduction of amounts in view of the passage of time between Section 4 (1) notification and the date of Ext.A1, I am inclined to remit back the case to the reference court. Accordingly, judgment under appeal is set aside and the L.A.R. No.425/1997 is remitted back to the reference court on condition that the appellant deposits 50% of the amount due under the impugned decree within two months from today. Once deposit is made, notwithstanding the order of remand, the respondent will be entitled to withdraw the amount, subject to liability to make necessary refund or adjustment on the basis of the ultimate decision. Once the deposit is made and the order of remand becomes operative, the court below will permit both sides to adduce further evidence in L.A.A. No.859/2008 5 the light of the observations contained herein above. It is made clear that the respondent can examine one of the parties to Ext.A1 and offer more responsible proof regarding ExtA1. The appellant also can adduce counter evidence. The court below will complete the trial and pass revised judgment as directed above within four months of the case being posted first after the order of remand becomes operative. Appeal is allowed by way of remand. No costs. PIUS C. KURIAKOSE JUDGE dpk