IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 22ND SEPTEMBER 2009 / 31ST BHADRA 1931 LA.App..No. 62 of 2008() ------------------------ LAR.109/1999 of II ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT(S): CLAIMANTS 1 TO 5 ------------------------------ 1. HELEN FERNANDEZ,PUTHUVAL BUNGLOW KAMUKARA MURI, THUMBA, MENAMKULAM KAZHAKUTTOM (DIED CLS 2-5 ARE RECORDED AS LEGAL HERIS) 2. JOHN FERNANDEZ,PUTHUVAL BUNGLOW KAMUKARA MURI, THUMBA, MENAMKULAM KAZHAKUTTOM. 3. HENRY FERNANDEZ,PUTHUVAL BUNGLOW KAMUKARA MURI, THUMBA, MENAMKULAM KAZHAKUTTOM. 4. HERITHA FERNANDEZ,PUTHUVAL BUNGLOW KAMUKARA MURI, THUMBA, MENAMKULAM KAZHAKUTTOM. 5. ANTONY FERNANDEZ,PUTHUVAL BUNGLOW KAMUKARA MURI, THUMBA, MENAMKULAM KAZHAKUTTOM. BY ADV. SRI.D.SAJEEV RESPONDENT(S): RESPONDENTS -------------------------- 1. THE STATE OF KERALA REP.BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM. 2. THE KERALA INDUSTRIAL INFRASTRUCTURAL DEVELOPMENT CORPORATION (KINFRA), REPRESENTED BY ITS MANAGING DIRECTOR. ADV. SRI.G.S.REGHUNATH FOR R2 SR. GOVERNMENT PLEADER SRI.P.K.BABU FOR R THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 22/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------ LAA. No. 62 of 2008 ----------------------------------------------- Dated this the 22nd day of September, 2009 J U D G M E N T Pius C. Kuriakose, J. The claimant is in appeal. The case pertains to acquisition of land in Kazhakoottam Village pursuant to section 4(1) notification published on 1-11-1994 for the purpose of KINFRA. The Land Acquisition Officer awarded land value at the rate of Rs.3735/- per Are, which under the impugned judgment was enhanced to Rs.5000/- per Are. Even though documents Exts. A1 to A10 were produced by the claimant, the learned Subordinate Judge did not become inclined to place reliance on any of those documents except A5 and A7. Relying to a certain extent on A5 and A7 the learned Judge re-fixed land value at Rs.5000/-. In this appeal along with a separate interlocutory application the appellant has produced Annexure- 6 judgment in LAR. No. 443 of 2005. LAA. N0. 62/08 -2- 2. We have heard the submissions of Mr.D.Sajeev, learned counsel for the appellant and those of Mr.G.S.Reghunath, learned standing counsel for the requisitioning authority. We have heard the submissions of learned senior Govt. Pleader also. Drawing our attention to Annexure- 6 Mr.Sajeev submitted that under Annexure – 6 the land value originally awarded at the rate of Rs.3750/- for an acquisition some four months prior to the present acquisition for the same purpose the reference court re- fixed land value at the rate of Rs.24,700/- per Are. The counsel submitted that Annexure-6 may be relied on and the appeal be allowed re-fixing the land value at Rs.24,700/- per Are. 3. All the submissions of Mr. Sajeev were very strongly opposed by Mr.G.S.Reghunath. Mr.Reghunath submits that the properties under acquisition were in the possession of of strangers and therefore the land acquisition authority and LAA. N0. 62/08 -3- the court were not justified in awarding even the rate presently fixed. To support his argument, the learned counsel relied on the judgment of the Supreme Court in M.B. Gopala Krishna v. Spl. Deputy Collector, Land Acquisition(1996)3 SCC 594. Mr. Reghunath further submitted that at any rate there is no comparison between the properties covered by Annexure – 6 judgment and the properties under acquisition. Annexure – 6 properties were having direct frontage of a road while the properties under acquisition were situated by the side of Parvathy Puthunnar and only a pathway. Therefore, Annexure – 6 cannot, according to the learned counsel, be a relevant document for determining the market value in this case. 4. We have very anxiously considered the rival submissions addressed at the Bar. May be, Mr.Reghunath is right when he submits that there is no comparability between the properties under acquisition and the property LAA. N0. 62/08 -4- covered by Annexure – 6. But at the same time we notice that the properties were in the same village and were acquired for the same purpose, though pursuant to different notifications. We notice that the time gap between the two notifications is not much. We feel that Annexure – 6 can have some relevance in the matter of determining the value of the land under acquisition though the lands under acquisition may not be eligible to get the value awarded under Annexure -6. We are therefore inclined to afford an opportunity to the appellant for producing Annexure – 6 as another item of evidence on his side imposing suitable conditions which will protect the interest of the State and the requisitioning authority. Since the matter is going back, the court below is directed to afford opportunity to the requisitioning authority also to adduce additional counter evidence and also to raise the contentions raised before this Court. A revised judgment determining the market value of LAA. N0. 62/08 -5- the land under acquisition will be passed by the learned Subordinate Judge on the basis of the entirety of the evidence which comes on record and appreciating the rival arguments that are addressed before him by the counsel for the parties. 5. The result of the above discussion is that the judgment and decree under appeal are set aside. LAR. No. 109 of 1999 is remanded to the reference court. The reference court is directed to permit the appellant to produce Annexure – 6 and to adduce evidence for proving the comparability of the property covered by Annexure – 6 with the lands under acquisition. The requisition authority will be permitted to adduce counter evidence. Once additional evidence is recorded the court below will hear all the parties on all the contentions available to them and will pass a revised judgment determining the market value of the land. However, since we are of the view that the LAA. N0. 62/08 -6- appellants themselves are responsible for the delay caused in the matter of producing Annexure – 6 we order that in case under the revised judgment the appellant claimant becomes eligible for land value in excess of what is awarded to them under the impugned judgment, such enhanced land value will not carry interest otherwise admissible under section 28 of the Land Acquisition Act during the period from 8-6-2007 till the date of the revised judgment. Since the appellant is responsible for the delay in producing Annexure – 6 leading to this order of remand the registry will not refund the court fee so far remitted on the appeal memorandum. PIUS C.KURIAKOSE, JUDGE K.SURENDRA MOHAN, JUDGE ksv/- LAA. N0. 62/08 -7-