IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE WEDNESDAY, THE 25TH JUNE 2008 / 4TH ASHADHA 1930 LA.App..No. 77 of 2007(D) ------------------------- LAR.158/2004 of SUB COURT, MUVATTUPUZHA .................... APPELLANT: APPELLANT. --------------------- MANI XAVIER, MARAPPILLIL HOUSE, POTHANIKAD KARA, KOTHAMANGALAM TALUK. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN SRI.T.R.SADEESAN SMT.DHANYA CHANDRAN RESPONDENTS: ------------- STATE OF KERALA, REPRESENTED BY THE SPECIAL TAHSILDAR, (LA), MUVATTUPUZHA VALLEY IRRIGATION PROJECT, KOOTHATTUKULAM, ERNAKULAM DISTRICT. BY G.P. SMT.LATHA T.THANKAPPAN THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 25.6.2008 ALONG WITH LAA NO. 138 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE, J. ---------------------------------- L.A.A. Nos.77 & 138 of 2007 ---------------------------------- Dated this the 25th day of June , 2008 JUDGMENT The appellants in both these cases are aggrieved by the common award passed by the Land Acquisition Reference Court, Muvattupuzha in three references under Section 28A (3) of the Land Acquisition Act. The appellants relied on Ext.A1 court judgment in their application under Section 28 A before the Land Acquisition Officer. The learned Subordinate Judge under the impugned judgment has found that Ext.A1, which is judgment in L.A.R. No.159/1994 was also in a case covered by the very same Section 4 (1) notification and for the very same purpose. The learned subordinate Judge noticed that in Ext.A1 case the Land Acquisition Officer had awarded land value at the rate of Rs.5,000/- per are and the court had enhanced the land value to Rs.9,500/- per Are. Thus the court granted enhancement of Rs.4,500/- per Are for the acquired properties in that case. The learned Subordinate Judge further noticed that in the present cases, the Land Acquisition Officer had granted only land value at the rate of Rs.4,238/- per Are. The learned Subordinate Judge on that basis L.A.A.No.77 & 138/2007 2 observed that even according to the Land Acquisition Officer the properties covered by Ext.A1 and the properties, which are subject matter of these appeals were dissimilar. The learned Subordinate Judge was not prepared to place any reliance on Ext.A1. However, the learned judge answered the reference granting enhancement of Rs.1,480/- per Are in these cases relying on the Mahazar prepared by the Land Acquisition Officer at the time of taking possession. The Mahazars revealed that the property was near to certain industrial establishments. 2. The prominent ground raised in these appeals is that the court below erred in not relying on Ext.A1 at all and in not awarding at least proportionate increase based on the increase given under Ext.A1. 3. I find that before the reference court the evidence on the side of the appellants consisted of oral evidence of AW 1 and AW 2 apart from Ext.A1. AW 1 is the claimant in L.A.R. No.157/2004 and AW2 is the claimant in Ext.A1. The counter evidence on the side of the Government consisted Ext.R1 to R3 which are copies of Mahazar prepared while taking possession of the properties in the three reference cases which were being decided by the learned Subordinate Judge. There was absolutely no counter oral evidence on the side of L.A.A.No.77 & 138/2007 3 the Government to the evidence adduced by the claimants. AW2 the claimant in Ext.A1 case has given evidence to the effect that his property covered by Ext.A1 was situated very close to the properties which are subject matter of these appeals and that the properties were comparable in all respects including the market value. He denied the the suggestion of the learned Government Pleader that he was perjuring for helping the claimants. 4. I have scanned the entire evidence on record. I am of the view that, having found that there was justification for redetermining the land value invoking Section 28A and having also found that Ext.A1 judgment was a relevant judgment in the context of Section 28A, the learned Subordinate Judge was not justified in ignoring Ext.A1 altogether. Section 28A mandates that the land value awarded by the Land Acquisition Officer should be redetermined on the basis of the court judgment pertaining to other cases covered by the very same Section 4 (1) notification. In the instant case, the relevance of Ext.A1 for making redetermination under Section 28A has been overlooked by the learned Subordinate Judge. The learned Subordinate Judge, without placing any reliance on Ext.A1, has proceeded to decide the case as though he was deciding an original reference under Section 18 relying on Exts.R1 to R3. That approach of the learned Subordinate L.A.A.No.77 & 138/2007 4 Judge was improper. At the same time, it has to be agreed that there was no justification for granting enhancement, which had been granted by the court under Ext.A1, to the parties therein in these appellants. Even according to the Land Acquisition Officer, the properties in these cases and the properties covered by Ext.A1 belonged to two different categories. It is seen from the records that Ext.A1 property was included in a higher category noticing that those properties were having direct frontage of the main road. It has been held in Raghava Poduval v. Special Tahsildar (2004 (3) KLT 261) that in proceedings under Section 28A the Land Acquisition Officer can award reasonable proportionate enhancement upon or reduction from the land value given to the parties in the judgment relied on through the re-determination which is directed to be done under Section 28A . Thus, in my view, what the learned Subordinate Judge should have done was to rely on Ext.A1 itself and redetermine the land value, after enquiring into the comparative values of the properties which were subject matter of references and the properties covered by Ext.A1. According to the Land Acquisition Officer, the ratio between the values of the properties which are subject matter of these appeals and the properties which are subject matter of Ext.A1 was 4,230 : 5,000, which means that according to the Land Acquisition L.A.A.No.77 & 138/2007 5 Officer, the properties which are subject matter of these cases had 84.6% of the values of the properties covered by Ext.A1. It is seen that under Ext.A1, the court has granted enhancement of 90% over the value which had been given to those properties by the Land Acquisition Officer. Having reappreciated the entire evidences, adduced by the parties in this case, I am of the view that, relying on Ext.A1judgment itself ,there was justification for granting 70% increase on the values awarded to these parties by the Land Acquisition Officer. Thus allowing the appeals, the land value of the properties acquired in these cases is re-fixed as 7,191/- per are which means that the enhancement, which the appellants will be entitled, is Rs.2,961/- per are. It is needless to mention that these enhanced amounts will carry all statutory benefits including interest under Section 34. The appeals are allowed as above, but in the circumstances, the parties are directed to suffer their respective costs. PIUS C. KURIAKOSE JUDGE dpk L.A.A.No.77 & 138/2007 6