IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THURSDAY, THE 17TH JULY 2008 / 26TH ASHADHA 1930 LA.App..No. 1320 of 2007(D) --------------------------- LAR.33/1999 of SUB COURT, SULTHAN BATHERY .................... APPELLANT: CLAIMANT -------------------- K.MATHEW, S/O. VARKEY, KOLAMPURATH VEEDU, PURAKKADI. BY ADV. SRI.WILSON URMESE RESPONDENTS: RESPONDENT ------------------------ STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, WAYANAD, (SPECIAL TAHSILDAR (L.A.) NO.1, KRP-BSIP, KALPETTA. BY GOVERNMENT PLEADER SMT.BASANTH BALAJI THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 17/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE, J. ---------------------------------- L.A.A.NO. 1320 of 2007 ---------------------------------- Dated this the 21st day of July , 2008 JUDGMENT This appeal is filed by the claimant who is aggrieved by the award of the reference court in L.A.R. No.33/1999. The grievance raised by him prominently is that the reference court went wrong in not re fixing the land value on the basis of Ext.A1 and A2 sale deeds. Ext.A1 was in respect of a property situated at a distance of just 50 meters away from the acquired property and Ext.A2 property was situated at a distance of 120 meters from the acquired property. The appellant relied on Ext.C1 report of the Advocate Commissioner as well as the oral testimony which had been given by the Advocate Commissioner as Ext.AW2. Ext.A1 was a document executed in favour of the Electricity Board and Ext.A1 was ignored, rightly in my opinion, by the learned subordinate judge on the reason that Ext.A1 is a post notification event. Ext.A2, the learned subordinate judge did notice, was a document executed some one and half years prior to the crucial 4(1) notification date. The advocate L.A.A.No.1320/2007 2 commissioner had inspected Ext.A2 property as well as the acquired property and had reported in Ext.C1, on the basis of such inspection, that the acquired property was more fertile than the property covered by Ext.A2. She stuck to her report while giving evidence as AW2. 2. Having gone through the judgment of the reference court, I am of the view that Sri.Wilson Urmese, the learned counsel for the appellant is right in submitting that the learned subordinate judge has gone wrong in the matter of appreciating Ext.A2 sale deed. For one thing it is clear that the learned subordinate judge has not carefully gone through the recitals in Ext.A2. Ext.A2 reveals that the land value paid under Ext.A2 is Rs.15,000/- per cent. According to the learned subordinate judge, the land value paid under Ext.A2 is only Rs.5,000/- per cent. The learned subordinate judge notices the report of the Advocate Commissioner that Ext.A2 property is more fertile than the acquired land. According to the learned judge, the commissioner has not stated in his report that the land covered by Ext.A1 and A2 documents are similarly situated as of the acquired land. Even if it is a barren land if the land is situated in L.A.A.No.1320/2007 3 a commercially important place, it would fetch more price than the garden land, according to the judge. So the claimant was failed to prove that the acquired land is similarly situated as that of the land covered under Ext.A2 document. It is seen that the Commissioner conducted the inspection after giving notice to all the parties including the Government Pleader. To the commission report, the Government Pleader has filed a statement of objections. It is seen that no objection whatsoever has been raised regarding the report submitted by the commissioner on the basis of her comparison of Exts.A1 and A2 properties with the acquired properties. Objection, if at all has been raised regarding the commissioner's report in respect of the improvements in the acquired property alone. The Commissioner was cross examined thoroughly by the learned Government Pleader. Despite searching cross examination, the commissioner stood firm on her report that Exts.A1 and A2 properties when compared to the acquired property are inferior. Thus, in my view, the learned subordinate judge was not justified in completely ignoring Ext.A2 document. 3. Though Ext.A2 document reveals that the land value of L.A.A.No.1320/2007 4 Rs.15,000/- per cent, I am not inclined to find that the correct market value of the lands in the locality at the relevant time is 15,000/- per cent. Importantly nobody connected with the execution of Ext.A2 has been examined on the side of the claimant appellant. At the same time having regard to Exts.A1 and A2, the commission report and the testimony of AW2, I have no difficulty to find that the correct market value of the property on the relevant date will be at least Rs.5,000/- per cent. I refix the land value of the acquired lands at the rate of Rs.5,000/- per cent. In the light of such refixation, I set aside the judgment and decree under appeal to the extent they pertain to the fixation of the land value by the reference court and remand the matter back to the reference court. The parties will appear before the court on 18.8.2008. It is open to the appellant to exercise option as to which mode should be adopted for determining the compensation for his acquired property- whether the land value method based on sale documents or the method based on capitalization of income. The learned subordinate judge should remember that the method which is more advantageous to the appellant should be adopted and if L.A.A.No.1320/2007 5 needful further enhancement should be granted to the appellant on the basis of his option. The appeal is allowed by way of remand. Refund the full court fee paid on the appeal memorandum to Sri.Wilson Urmese, the learned counsel for the appellant. Transmit the records back. PIUS C. KURIAKOSE JUDGE dpk