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 10TH AUGUST 2010 / 19TH SRAVANA 1932 LA.App..No. 592 of 2009 ---------------------------- LAR.122/2007 of III ADDL.SUB COURT, ERNAKULAM .................... APPELLANT(S): 2ND RESPONDENT -------------------------------------- THE SECRETARY, KALAMASSERY MUNICIPALITY. BY ADV. SRI.M.K.ABOOBACKER RESPONDENT(S): CLAIMANTS/IST RESPONDENT ------------------------------------------------------ 1. MARIYAMMA THOMAS, W/O.LATE THOMAS, KURISSUMOOTTIL, KARITHALA DESOM, VARIYAM ROAD. 2. MARIYAMMA ABRAHAM, W/O.GEORGE, PULPARAYIL, THYKKATTUSSERY KARA. 3. THE STATE OF KERALA, REPRESENTED BY THE SPECIAL TAHSILDAR (LA) GENERAL, ERNAKULAM. ADV. SRI.V.M.KURIAN FOR R1 SRI.MATHEW B. KURIAN FOR R1 SRI.K.T.THOMAS FOR R1 GOVT. PLEADER SMT.R.BINDU THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 10/08/2010, ALONG WITH LAA NO.1456 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ L. A. A. Nos.592 & 1456 of 2009 ------------------------------------------------ Dated this the 10th day of August, 2010 JUDGMENT Pius C. Kuriakose, J L.A.A. No.1456/09 is preferred by the claimants and L.A.A. No.592/09 is preferred by the Requisitioning Authority. The properties were situated in Thrikkakara North Village and the acquisition was for the purpose of the dumping yard construction for the Requisitioning Authority namely, the Kalamassery Municipality. The relevant Section 4(1) notification was published on 28/11/05. The Land Acquisition Officer included the properties acquired for the purpose into four categories as follows:- L. A. A. Nos.592 & 1456 of 2009 -2- Category-A :- Reclaimed wetlands with N.H. frontage. Category-B:- Reclaimed wetlands about seven metre depth from N.H. level. Category-C:- Wetlands having N.H. frontage about seven metres depth from the road level. Category-D:- Interior wetland without any road access. 2. The basis document relied on by the Land Acquisition Officer was document in respect of property includable in category-C. It reflected a value of Rs.2,03,950/-. What the Land Acquisition Officer did was to enhance that rate by 10% and fix the value of properties in category-B. The value of properties in category-A was fixed by L. A. A. Nos.592 & 1456 of 2009 -3- giving a further enhancement of 5% above the value given to category-B. For properties in category-D, the Land Acquisition Officer deducted 30% from the properties given for category-C. Before the Reference Court, the evidence consisted of Exts.A1 to A9, R1 to R5, C1 and C1 (a) apart from oral evidence adduced by the parties as AW1 and RW1. The Advocate Commissioner who prepared Ext.C1 reported that the acquired properties during her inspection was found situated by the side of a road. This road according to her started from the new National Highway-47 and reached up to the acquired property crossing through the old National Highway. The document which was relied on by L. A. A. Nos.592 & 1456 of 2009 -4- the claimants before the Reference Court in support of their claim for enhancement in land value was the basis document itself. The contentions which was prominently raised was that the Land Acquisition Officer was not justified in treating their property as wetland. According to them, their property was reclaimed land. They relied on Ext.A9 title document which describes the property under acquisition even in 1980 as reclaimed land. The learned Subordinate Judge relied on Ext.A9 and also on Ext.C1 report and concluded that the properties under acquisition was not wetland but was reclaimed land. According to the learned Subordinate Judge, the action of the Land Acquisition Officer in including L. A. A. Nos.592 & 1456 of 2009 -5- the property in category-D was not justified. The Subordinate Judge would hold that the property was actually eligible to be included in category which was in between category-D and category-C. What the learned Subordinate Judge ultimately did was to award the value awarded for properties in category-B on the reason that he did not file any suitable document for awarding value for the acquired property. Thus, the court re-fixed the value of the land under acquisition at Rs.2,14,147/- per Are. In the appeal preferred by the claimants they urge that the enhancement granted by the Requisitioning Authority is inadequate. In the appeal preferred by the Municipality, the Municipality urges that the value L. A. A. Nos.592 & 1456 of 2009 -6- awarded by the court is excessive. According to the Municipality, the court below missed the crucial point that the properties under acquisition did not have any road access or frontage. Sri.K.T.Thomas, the learned counsel for the claimants and Sri.M.K.Aboobacker, the learned Standing Counsel for the Municipality addressed us in detail on the basis of the grounds raised in the respective memoranda of appeal. They took us through the evidence in this case, particularly through Ext.A9, the basis document and the Commission Report Ext.C1. 3. Having considered the submissions addressed at the Bar and having re-appraised the evidence particularly the three items Ext.A9, C1 L. A. A. Nos.592 & 1456 of 2009 -7- and the basis document, we are convinced that the properties under acquisition in these cases were lying as reclaimed land at the time of acquisition. Therefore, these properties were not liable to be included in category-D which is a category consisting of wet lands only. At the same time, we are unable to approve the action of the learned Subordinate Judge in having awarded the value of properties in category-B to these properties. Category-B is the category consisting of properties situated adjacent to the National Highway though at a level which is seven metres below the National Highway. The argument of Sri.K.T.Thomas based on Ext.C1 that the acquired property also was enjoying road access did not L. A. A. Nos.592 & 1456 of 2009 -8- impress us much. The Commissioner's Report can only be with reference to the state of affairs noticed by the Commissioner at the time of her inspection. Ext.A9 title document will not show the availability of any road frontage or access to the properties in question. The mahazar prepared by the Land Acquisition Officer at the time of acquisition does not support the claim of the claimants that the properties were having road access or road frontage. Therefore, in our opinion, the claimants could not have been awarded the same value as properties included in category-B. We are sure that the properties under acquisition were inferior in value to properties in category-B. Perhaps the value of the properties under L. A. A. Nos.592 & 1456 of 2009 -9- acquisition is something in between the values of properties in categories “B” and “C”. Sri.K.T.Thomas submitted that as the claimants were more concerned before the Reference Court on the issue of upgradation of the properties, they were unable to produce proper documents reflecting higher land value. He requested that the matter be remanded. The above request is opposed by Sri.Aboobacker who highlighted the minus factors of the properties under acquisition such as proximity to burial land, the Railway godown etc. etc. According to him, a remand is likely to delay matters which will result in further financial burden to the Requisitioning Authority on account of the statutory interest under Section 28. L. A. A. Nos.592 & 1456 of 2009 -10- 4. Having anxiously considered the rival submissions addressed by the learned counsel in this behalf, we are of the view that opportunity can be afforded to the claimants for adducing documentary evidence regarding the higher value of comparable properties in the locality. Hence, we allow both these appeals by way of remand. The judgment and decree under appeal are set aside and LAR.122/07 is remanded to the Third Additional Subordinate Judge's Court, Ernakulam. That court is directed to afford opportunity to the claimants to adduce further documentary evidence. If further documentary evidence is adduced by the claimants, the court will permit the Requisitioning Authority also to adduce L. A. A. Nos.592 & 1456 of 2009 -11- counter documentary evidence. The court will pass revised judgment on the basis of the evidence already on record and the evidence which comes to be on record. However, while passing the revised judgment, the court below will ensure that during the period from 25/09/08 till the date of the revised judgment, the statutory interest under Section 28 which is otherwise due to the claimants will not be awarded to them. In other words as a condition for passing an order of remand at the instance of the claimants, we are ordering that the claimants will not be entitled for the benefit under Section 28 during the aforementioned period. Parties are directed to appear before the Reference Court on 07/09/10. L. A. A. Nos.592 & 1456 of 2009 -12- The learned Subordinate Judge is directed to expedite matters and pass revised judgment at the earliest. Transmit all the records forthwith. The Reference Court will also have due regard to the conditions imposed by this Court in its order in C.M. Application No.1824/09 for payment of interest under Section 28. The Registry will refund the full court fee remitted on the respective appeal memoranda to the respective counsel. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-