IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 23RD FEBRUARY 2010 / 4TH PHALGUNA 1931 LA.App..No. 388 of 2008() ------------------------- LAR.139/2006 of III ADDL.SUB COURT, ERNAKULAM .................... APPELLANT(S): (CLAIMANT IN THE L.A.R) ------------------------------------- ABDUL JALEEL, S/O.LATE MUHAMMED, CHETTIPARAMBIL OLAPPILLY, PONEKKARA, EDAPPALLY NORTH, KOCHI-26, ERNAKULAM. BY ADV. MR. S.ABDUL SALAM RESPONDENT(S): (RESPONDENTS IN THE LAR) --------------------------------------- 1. THE STATE OF KERALA, REP. BY THE SPECIAL TAHSILDAR, (LA) NH-NO.1, KAKKANAD, ERNAKULAM. 2. THE EXECUTIVE ENGINEER, NH (B) DIVISION, KODUNGALLOOR. SR.GOVT. PLEADER MR.BASANT BALAJI THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 23/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ---------------------------------- L.A.A. No.388 of 2008 ---------------------------------- Dated this the 23rd day of February, 2010 J U D G M E N T ---------------------- Pius C.Kuriakose,J. The claimant is in appeal. He is aggrieved by what is described as the gross inadequacy in the compensation awarded by the LA reference court. The properties were in Edappally north village. The acquisition was for the purpose of NH-17. Section 4(1) notification was published on 14.3.2002. the Land Acquisition Officer awarded land value at the rate of Rs.1,32,000/- per Are. Towards value of the building which existed on the property the LA Officer awarded a total amount of Rs.2,88,640/-. Before the reference court the claimant produced Ext.A1 to A5 documents. Learned Subordinate Judge did not become inclined to place reliance on any of these documents giving reasons all these documents were refused to be relied on. Ultimately, by doing guess work, learned Subordinate Judge enhanced the value of the property by 27% and awarded land value of Rs.1,68,000/- per Are. No enhancement was granted L.A.A.388/08 2 towards the value of the building which existed on the property eventhough Ext.A6 plan and A7 valuation statement prepared by an Engineer was relied on. The learned Subordinate Judge did not become inclined to place any reliance on Ext.A6 or A7 because while the claimant conceded that the building is 35 years old, report of the Engineer was to the effect that the building was only 12 years old. The court below, according to us, was justified in not placing reliance on Ext.A6 and A7. In this appeal, various grounds are raised challenging the determination of market value of the land as well as determination of the compensation for the building. Mr. Abdul Salam, learned counsel for appellant addressed arguments on the basis of all those grounds in the appeal memo. He referred to the commission report submitted by Sri.Jose P. Joseph appointed for a local inspection. According to the learned counsel, the same should have been relied on and enhancement should have been granted relying on the importance of the locality as reported by the commissioner. The counsel submitted that Ext.A1 to 5 were relevant documents and the court ought not have ignored them. Lastly, learned counsel drew L.A.A.388/08 3 our attention to Annexure-A1 and A2 judgment of reference court authored by another Subordinate Judge in respect of refixation for the same property. According to him, under Annexures A1 and A2 much higher enhancement has been granted for identical properties by the court. Learned counsel requested that the enhancement granted under A1 and A2 be granted. 2. All the submissions were resisted by Sri.Basant Balaji, learned Government Pleader. Mr. Balaji drew our attention to the judgment of this court pertaining to acquisition for the same properties in the same village and submitted that the maximum enhancement that has been granted by this court for acquisition of identical property is Rs.1,96,000/- per Are. In the present case there is no justification for granting anything more than that. As regards enhancement towards value of the building learned Government Pleader submitted that Ext.A6 and A7 were rightly rejected by the court below and hence there is no justification for granting any enhancement towards the building. 3. We have anxiously considered the rival L.A.A.388/08 4 submissions. We have surveyed the evidence on record. We will first deal with the appellant's claim for enhancement towards value of the building which existed on the property under acquisition. According to us, the only material produced by the appellant for substantiating his claim for additional compensation for the building was Ext.A6 and A7. These two documents were rightly rejected by the court below. The Engineer seems to have been more royal than the king. While the appellant conceded that the building is 35 years old, the Engineer would report that the building is only 12 years old. At the same time we notice that value of Rs.2,88,640/- was determined by the Land Acquisition Appellate Authority based on the valuation in accordance with the PWD schedule. It is a matter of common knowledge that construction of building in accordance with PWD schedule of rates is not a pragmatic proposition. PWD itself is tendering at 30-35% above their offers. Keeping this aspect in mind we are of the view that enhancement has to be granted towards value of the building. We therefore award a sum of Rs.87,000/- towards value of the building which existed on the property. L.A.A.388/08 5 4. Coming to the question of land value payable to the appellant we do notice our judgments in other cases whereby the maximum rate that we have granted for identical properties is only Rs.1,95,400/-. But all these cases were decided on evidence which were not available in this case. As far as this case is concerned Ext.A1 and A2 were produced. We are not inclined to rely on Annexures A1 and A2. Mr. Abdul Salam sought leave to produce those documents before the reference court and requested that an opportunity be given by passing an order. Eventhough the request is opposed by Mr.Balaji, we feel having regard to the importance of the locality and as reported by the commissioner Sri.Jose P.Joseph that an opportunity can be given to the appellant subject to the following conditions:- The judgment under appeal to the extent it pertains to market value for the land is set aside. LAR .139/2006 will go back to the IInd Additional Sub Court, Ernakulam. That court is directed to afford opportunity to appellant and also to other parties in the reference case to adduce whatever further evidence they want to for substantiating their contentions regarding correct market value of land under L.A.A.388/08 6 acquisition. Since we hold that the appellant himself is responsible for not producing proper documents earlier we order that during the period from 29.9.2007 till the date of the revised judgment to be passed by the reference court enhanced compensation over and above what is awarded under the impugned judgment will not carry interest otherwise admissible under Section 28 of the Land Acquisition Act. For the same reason we refuse to order refund of the court fee remitted on the appeal memo to the appellant. Parties are directed to appear before the reference court on 15.3.2010. Reference court will complete further enquiry and pass revised judgment within four months thereafter. PIUS C.KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb