IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 24TH SEPTEMBER 2009 / 2ND ASWINA 1931 LA.App..No. 1695 of 2002() -------------------------- LAR.269/1998 of SUB COURT, MUVATTUPUZHA .................... APPELLANT(S): 1ST AND 2ND CLAIMANTS ----------------------------------- 1. PAILY THOMAS, VENGASSERIL, NJAYAPILLY, REPRESENTED BY POWER OF ATTORNEY MR.PAILY JOSE. 2. PAILY JOSE, VENGASSERIL, NJAYAPPILLY. BY ADV. SRI.T.O.XAVIER RESPONDENT(S): 3RD CLAIMANT AND STATE ------------------------------------- 1. MARY THOMAS, VENGASSERIL, NJAYAPPILLY. 2. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, ERNAKULAM. BY SR. GOVERNMENT PLEADER SRI.P.K.BABU FOR R2. SMT.P.K.RADHIKA FOR R1 THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 24/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------ LAA. No. 1695 of 2002 ----------------------------------------------- Dated this the 24th day of September, 2009 J U D G M E N T Pius C. Kuriakose, J. Heard counsel for the appellant and Sri. P.K. Babu, learned Government Pleader for the State. 2. The claimant is aggrieved by the confirmation of the award of the L.A. Officer and has come up in appeal. The property of the claimant was valued by the L. A. Officer adopting the method of capitalization of income. The claimant also adopted the same method in the LAR case. Ext.A1 report submitted by the Advocate Commissioner appointed by the Munsiff's Court in a suit filed by the claimant was relied on. Ext.A2 judgment in another case in respect of a property in the neighbourhood was also relied on. The learned Subordinate Judge did not place reliance on Ext.A1 on the reason that Ext.A1 was not a part of the record in the LAR case and that without examining the author of A1, A1 cannot be legal evidence in the case. The learned Subordinate Judge relied on judgment of this Court in LAA. No. 1695/02 - 2- State of Kerala v. Gee Varghese Kathanar, 1980 KLT 880 and held that A2 cannot be relied on since the nature of improvements in a given plot can never be identical to the nature of the improvements existing on another plot. The reasoning of the learned Subordinate Judge for not relying on A1 and A2 in our opinion cannot be said to be unsound. Mr.T.O.Xavier, learned counsel for the appellant submits that the appellant does not feel that by examining the author of A1 now any useful purpose will be served from the appellant's point of view. He further submitted that issuing a fresh commission also will not serve any purpose since several years have passed and the improvements no longer exist. As his last submission he requested that an opportunity be given for production of sale documents revealing higher land value so that the appellant can seek re-determination of the market value of the land on the basis of land value method rather than the method of LAA. No. 1695/02 - 3- capitalization of income from the fruit bearing trees. We feel that in this case where the reference court did not grant any enhancement to the appellant an opportunity can be given to the appellant. At the same time we are of the view that since the appellant himself is responsible for not producing any documents earlier the Government cannot be mulcted with the liability of paying statutory interest during all these years. 3. The result of the above discussion is that the judgment and decree under appeal are set aside and LAR. No. 269 of 1998 is remanded to the Subordinate Judge's Court, Muvattupuzha. That Court will grant at least one month's time to the appellant from the date of his appearance before that to produce documents which will reflect a higher market value of the lands in the locality. If documents are produced opportunity will be given to the Government also to adduce counter evidence. That court LAA. No. 1695/02 - 4- will pass revised judgment on the basis of the entire evidence which comes on record following the method of determination of market value by adopting values reflected in comparable sales. Since the appellant is responsible for this order of remand the learned Subordinate Judge will not grant interest otherwise admissible under section 28 on the total enhanced compensation to which the appellant may become eligible during the period from 21-3-2002 till the date of the revised judgment to be passed. Appeal is allowed by way of remand without any order as to costs. Refund the full court fee remitted on the appeal memorandum to Mr.T.O.Xavier, counsel for the appellant. PIUS C.KURIAKOSE, JUDGE K.SURENDRA MOHAN, JUDGE ksv/- LAA. No. 1695/02 - 5- PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ. LAA. No. 1695 of 2002 JUDGMENT 24th September, 2009