IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL TUESDAY, THE 13TH DECEMBER 2011 / 22ND AGRAHAYANA 1933 LA.App..No. 942 of 2009(A) ------------------------------- LAR.70/2006 of SUB COURT, MUVATTUPUZHA .................... APPELLANT(S)/1ST CLAIMANT: ---------------------------------- K. J. KURIAN, AGED 46 YEARS, S/O JOHN, KULANGARA HOUSE, KADATHIKARA, MARKET P.O., MUVATTUPUZHA. BY ADV. SRI.P.FAZIL SRI.A.C.THOMAS ADHIKARAM RESPONDENT(S)/RESPONDENTS 1 & 2 AND 2ND CLAIMANT: ------------------------------------------------------------------- 1. STATE OF KERALA 2. THE EXECUTIVE ENGINEER, KSTP DIVISION, MUVATTUPUZHA 3. ADV. JOHNY NELLOOR, S/O VARKEY, NELLOOR HOUSE, KERALA CONGRESS (JACOB) OFFICE, MUVATTUPUZHA. SR. GOVERNMENT PLEADER SRI.C.R.SHYAMKUMAR THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 13/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & K. HARILAL, JJ. ------------------------------------------------ L. A. A. No.942 of 2009 ------------------------------------------------ Dated this the 13th day of December, 2011 JUDGMENT Pius C. Kuriakose The claimant is the appellant. His land extending to 22 Sq. M. with a building portion was acquired for the purpose of widening the Muvattupuzha - Thodupuzha Road. The property was situated in Marady village in a very important area of the Muvattupuzha Municipal Town. The Land Acquisition Officer awarded land value at the rate of ` 1 lac per Are. For the building, he awarded separate compensation. But in this appeal, we are not concerned with the correct compensation payable for the building portion which existed on the property. We are concerned only with the correct compensation payable for the land. Before the Reference Court, the appellant relied on Exts.A1, A2 and A3. Exts.A1 and A2 were documents in respect of similar L. A. A. No.942 of 2009 -2- properties - similar in the sense that they also took in land with building. The learned Subordinate Judge has discarded Exts.A1 and A2 from consideration giving reasons that the properties covered by Exts.A1 and A2 were ideally suited for the purpose of the purchaser under Exts.A1 and A2 and hence, those two documents cannot reflect the correct market rate. One of the arguments which were addressed before us by Sri.M.S.Unnikrishnan, the learned counsel for the appellant was that the approach of the learned Subordinate Judge towards the evidence adduced was not correct. The appellant's property was comparable to the properties covered by Exts.A1 and A2 in the sense that the appellant's property was also a small bit of land with a building situated in an equally important area of the Municipal town. The appellant's property could have been purchased by anybody else and utilised the same for any purpose of the purchaser's choice. We notice some force in L. A. A. No.942 of 2009 -3- the submission of the learned counsel for the appellant that the reasoning adopted by the learned Subordinate Judge for discarding Exts.A1 and A2 was not correct. But at the same time, we find that the learned Subordinate Judge had excellent other reasons for discarding Exts.A1 and A2 from consideration. Exts.A1 and A2 as already stated are in respect of land with building. No separate value is shown in either of the documents for the land. Hence, Exts.A1 and A2 could have been taken as a basis for fixing the market value of the land. The learned Subordinate Judge was thus left with Ext.A3 alone. She re-fixed the land value at ` 1,50,000/- per Are following Ext.A3. We feel that on the basis of the available evidence, the learned Subordinate Judge could not have awarded more than what is awarded. 2. Facing with the above situation, Sri.Unnikrishnan would very fervently appeal for a remand of the LAR case giving opportunity to the appellant to adduce further L. A. A. No.942 of 2009 -4- evidence in support of the appellant's claim for enhanced land value. 3. Sri.C.R.Shyamkumar, the learned Senior Government Pleader submitted that if this Court is inclined to remit the matter to the Reference Court, the interest of the Government should be protected by incorporating appropriate riders and safeguards. He has also submitted that it should be clarified that the question of compensation payable for the building which existed on the property has become final. 4. Having considered the rival submissions addressed at the Bar, we feel that by way of indulgence the appellant can be given opportunity to adduce further evidence in support of his claim for land value. Hence, we set aside the judgment and decree under appeal to the extent the same pertains to determination of the value of the land under acquisition and remand LAR.70/06 to the Sub Court, L. A. A. No.942 of 2009 -5- Muvattupuzha. The learned Subordinate Judge is directed to permit the appellant to adduce further evidence in support of his claim for land value. If the appellant adduces further evidence the Government also should be permitted to adduce further evidence. The learned Subordinate Judge will re-fix the land value on the basis of the evidence already on record (Ext.A3) and the further evidence which comes to be on record. It is however, made clear that this order of remand will be subject to the following conditions:- 1) If under the revised award to be passed by the Reference Court, the appellant becomes eligible for more land value than what is awarded under the impugned award, such enhanced compensation will not carry interest under Section 28 of the Land Acquisition Act during the period from 13/09/08 till date (13/12/11). The appellant will forfeit 25% of the court fee paid by him on the appeal memorandum to the Government. L. A. A. No.942 of 2009 -6- Registry will refund only 25% of the total court fee remitted. The parties will enter appearance before the learned Subordinate Judge on 02/01/12. The learned Subordinate Judge is directed to complete the enquiry within four months thereafter and pass revised award. Sd/- PIUS C. KURIAKOSE JUDGE Sd/- K. HARILAL JUDGE kns/- //True Copy// P. A. TO JUDGE L. A. A. No.942 of 2009 -7- PIUS C. KURIAKOSE & K. SURENDRA MOHAN, JJ. ------------------------------------------------ C. M. Application No.1226 of 2009 in L. A. A. No.942 of 2009 ------------------------------------------------ Dated this the 12th day of August, 2009 ORDER Pius C. Kuriakose, J Heard both sides. 2. The application will stand allowed and the delay will stand condoned subject to the following conditions:- a) The appellant pays a sum of Rs.300/- to the Kerala Mediation Centre within ten days from today and produces receipt before this Court. b) In the event of the appeal being allowed and the appellant becoming eligible for enhanced compensation such enhanced compensation will not L. A. A. No.942 of 2009 -8- carry interest otherwise admissible under Section 28 of the Land Acquisition Act during the period of 163 days condoned by this order. 3. Upon noticing receipt against payment of amount to the Kerala Mediation Centre, the Registry will send up the appeal for admission. 4. Annex a copy of this order to the judgment to be passed in this appeal. PIUS C. KURIAKOSE JUDGE K. SURENDRA MOHAN JUDGE kns/-