IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 AFA.No. 36 of 1998() -------------------- AGAINST THE JUDGEMENT IN LAA.471/1992 OF THIS COURT LAR.NO.58/1986 OF ADDL.SUB COURT, KOLLAM. .................... APPELLANT/RESPONDENT: -------------- KESAVA PILLAI RAJASEKHARAN PILLAI KUTTIPLAVILAYIL THEKKATHIL, PAYYANALLOOR, PALAMEL. BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S): --------------- STATE OF KERALA BY GOVERNMENT PLEADER SRI..R.LAKSHMI NARAYAN. THIS APPEAL FROM FIRST APPEAL HAVING BEEN FINALLY HEARD ON 28/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. ------------------------------- A.F.A.No.36 of 1998 ------------------------------- Dated this the 28th August, 2009 J U D G M E N T Raman, J. This appeal is against the judgment of the learned Single Judge in L.A.A.No.471 of 1992, under Section 5 of the High Court Act. The matter arises under the Land Acquisition Act. The property of an extent of 6.24 Ares situated in Survey No.505/1-8 and 505/1-70 of Pallickal Village was acquired by the Government for a public purpose, viz., Kallada Irrigation Project. Notification under Section 3(1) of the Kerala Land Acquisition Act was issued on 26.7.1981. The award was passed on 22.3.1982 and possession taken. The Land Acquisition Officer awarded land value at the rate of Rs.1611/= per Are. 2. Dissatisfied with the compensation so awarded, appellant sought a reference under Section 20 of the Land Acquisition Act. The matter was referred to Land Acquisition AFA.No.36 of 1998 2 Court. Before the Land Acquisition Court, there was hardly any material relevant for fixing the land value. The only document produced by the claimant was Ext.A1 which is a sale deed executed by Usman Rawther and others in favour of Jameela Beevi. On the other hand, Exts.R1 to R8 were marked on the side of the respondent. The appellant took out a Commission and the Commission report is marked as Ext.C2 and the mahazar prepared thereto is marked as Ext.C1. Pws.1 to 3 were examined on the side of the claimant and RW.1 was examined on the side of the respondent. The Land Acquisition Court found that the Commissioner who was examined in the case as PW.3 was not cross examined. The Revenue Inspector stated in his examination that the acquired property has no road frontage. But the Commission report shows otherwise. The Commissioner has also prepared a plan. The various important establishments near the acquired property were made mention of in the Commission report to which reference was also made by the Land Acquisition Court. The Land Acquisition Court, in such circumstances, after referring to the evidence in the case, found AFA.No.36 of 1998 3 that the land acquired from the appellant is situated in a potential area fetching more value than fixed by the Land Acquisition Officer. Further, it was also found that the basic document relied on by the Land Acquisition Officer was situated in an unimportant place and it is uncomparable in all respects. Therefore, it was found that the appellant is entitled for enhancement of the compensation based on re-fixation of the land value at an enhanced rate. But then the question is what is basis on which the enhanced value is to be fixed. This will depend on the evidence that is adduced. On this question, there was, however, no evidence adduced. But the court below fixed the land value at the rate of Rs.4940/= per Are (Rs.2000/= per cent), against which the State preferred an appeal before this Court, as L.A.A.No.471 of 1992. 3. The learned Single Judge agreed with the finding of the Land Acquisition Court that the land is in a potential area and the claimant is entitled for enhancement of the compensation, but held that in the light of the decision of the AFA.No.36 of 1998 4 Apex Court in State of Kerala v. Betty (1995 (Suppl) (2) SCC 706), the burden is on the claimant to support his claim. In this case, though the claim made by the appellant herein was for Rs.2500/= per cent, no evidence what so ever was adduced by him to show that the land acquired from him will fetch such an amount. As already pointed out, the only way to fix the land value is to see from the comparable document as to what is the market value of the land in question. Merely because the land is situated in a potential area, that only supports a claim for enhancement, but the quantum has to be fixed based on such datas and evidence made available to the Court by the claimant, on which he failed. In such a situation, the learned Single Judge thought it fit instead of remanding the matter to the trial court and to avoid delay, re-fixed the amount by reducing the compensation from the one fixed by the Land Acquisition Court. Accordingly, the learned Single Judge re-fixed the land value at the rte of Rs.3250/= per Are. Hence, this appeal. AFA.No.36 of 1998 5 4. The learned counsel, Sri.B.Krishnamani, appearing for the appellant would contend that the Land Acquisition Court fixed the land value, after consideration of the importance of the locality and potentiality of the property and it discussed the evidence to that extent. The Commissioner was also examined by the claimant, not cross examined by the State and the land value fixed by the court below, in no way could be said to be on the higher side. 5. The learned Government Pleader, on the other hand, would support the judgment. 6. We have heard the parties. We have already pointed out that if there was any material placed on record to press the claim for higher rate of land value than that is fixed by the learned Single Judge, certainly this Court would have been able to appreciate the contention raised by the appellant. When it is the burden of the appellant-claimant to establish as to what is the market value of the land, all that could be done to fix the land value in question, after finding that land value as fixed by AFA.No.36 of 1998 6 the Land Acquisition Officer has to make an assessment, which assessment necessarily, in the absence of evidence will be arbitrary. 7. True, in the matter of fixation for land acquired, the element of arbitrariness may be there which is justifiable because a mathematical precision in the matter of fixation of compensation for the land is not possible. When a question has been considered by the learned Single Judge and re-fixed the land value, it is for the appellant to show that fixed as done by the learned Single Judge is too low, for which there are absolutely no materials. In such circumstances, we find no merit in the appeal. Accordingly, it is dismissed. P.R.RAMAN, JUDGE P.BHAVADASAN , JUDGE. nj. P.R.RAMAN & P.BHAVADASAN, JJ. ------------------------------- A.F.A.No.36 of 1998 J U D G M E N T Dated: 28th August, 2009. -------------------------------