IN THE HIGH COURT OF KERALA AT ERNAKULAM
LA.App..No. 136 of 2008()
1. STATE OF KERALA,
... Petitioner
Vs
1. P. HARIHARAN,
... Respondent
2. THE SECRETARY,
For Petitioner :GOVERNMENT PLEADER
For Respondent :SRI.SUBHASH CYRIAC
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :22/02/2010
O R D E R
PIUS C.KURIAKOSE & C.K.ABDUL REHIM,JJ.
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LAA. NO. 136,253 of 2008 & 654/2009
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Dated this the 22nd day of February, 2010
JUDGMENT
Pius C.Kuriakose,J.
LAA.No.136/2008
Government is in appeal. The property was situated in
Vanchiyoor Village very close to the Connemara market at
Palayam. The acquisition was for the purpose of DTP Scheme
Sub Center at Palayam for TRIDA. The relevant section 4(1)
notification was published on 19.12.2000. The Land Acquisition
Officer relied on basis documents and fixed the market value of
the land at Rs.2,22,300/- per cent. Before the Reference Court
the evidence consisted of Ext.A1 sale deed and Ext.A2 judgment
apart from the oral evidence of AW1 the claimant. On the side
of the Government and the requisitioning authority the same
consisted only of papers pertaining to the award file. Ext. R1 was
the mahazar. Ext.R2 was the plan pertaining to the acquired
property. Importantly there was no counter oral evidence at all
to the evidence adduced by AW1 from the side of the
LAA. 136/2008 & conn.cases. 2
Government or the requisitioning authority. Ext.A1 sale deed
was in respect of property in the same village. But according to
the finding of the learned Subordinate Judge the property is
situated in an area of much lessor importance. Ext.A1 property
did not have direct frontage of any main road. This is clear from
not only the judgment impugned but also from a perusal of
Ext.A1. Ext.A1 reflected a land value of Rs.7,15,000/- per cent
as on 11.4.1997. Ext.A2 was the judgment of the same court
pertaining to acquisition of land in Thycaud Village but situated
at a distance of 1 = k.m. away from the property under
acquisition and the same was acquired pursuant to a notification
dated 14.5.1997. Ext.A2 reflected refixed land value of
Rs.17,31,306/- per Are. AW1 gave evidence to the effect that
the property under acquisition was superior to the properties
under Exts.A1 and A2. AW1 was cross examined by the
Government Pleader. On going through the cross examination of
AW1 what we notice is that his version regarding comparability of
Ext.A2 property with the property under acquisition is not
seriously challenged. In fact the specific challenge is only that
Ext.A2 is acquired pursuant to a different publication under
LAA. 136/2008 & conn.cases. 3
section 4(1) notification. But in the case of Ext.A1 there is a
specific suggestion that the claimant is not entitled for getting the
value in Ext.A1. The learned Subordinate Judge has discussed
Ext.A1 as well as the judgments of this court in Hindustan O.C.
Ltd., vs. Damodaran Namboothiri and others (1986 KLT 1013)
and State of Kerala vs. Dr.Susheela Varghese and others (1999
(3) ILR 585) which were cited by the claimant to support their
claim based on Ext.A1. Ext.A2 is also similar discussion and it is
observed that the commercial importance of the property covered
by Ext.A2 and the property under acquisition is similar. There is
a specific finding that Ext.A2 judgment is relevant. A careful
reading of the impugned judgment will show that the learned
Subordinate Judge has kept in mind both Exts.A1 and A2 and
refixed the market value of the land at Rs.22,50,698/- per Are by
adding 30% over the value reflected in Exts.A1 and A2 for the
passage of time which is more than three years.
2. We have heard Sri.A.V.Ramanand, senior counsel
who was assisted by Smt.Latha T.Thankappan in all the
submissions. According to Mr.Ramamnath, under Ext.A2 the
percentage of enhancement given by the court below is 30%
LAA. 136/2008 & conn.cases. 4
whereas the percentage of enhancement in this case is much
higher than the percentage given under Ext.A2. The claimant
did not take out a commission so that there is a convincing
report regarding the comparability of Ext.A2 and the acquired
property. The matter may be remitted to the court below if
necessary giving opportunity to the claimant for taking out a
commission. All the submissions of the learned Government
Pleader were resisted by the Sri.Subhash Syriac, learned counsel
for the claimant as well as the counsel Sri.J.Harikumar who
appears for the claimant in LAA.No.253/2008 and LAA. 654/2009
which are decided separately. According to them, the relevant
considerations are kept in mind while deciding the correct market
value. In the instant case it was a low price that was awarded by
the Land Acquisition Officer and that is why in refixation the
claimants got much higher percentage than the percentage of
enhancement received by the parties in Ext.A2. Our attention
was drawn by the learned counsel for the respondents to the
findings entered by the learned Subordinate Judge under the
impugned judgment as well as to the mahazar prepared by the
Land Acquisition Officer. Learned counsel submitted that the
LAA. 136/2008 & conn.cases. 5
property under acquisition was situated in an area which can be
described as the commercial heart area. The acquisition was
towards the end of 2000 and the actual market value of the
property at that time was much more than the rate which is now
fixed. There was no counter oral evidence on the side of the
Government or the requisitioning authority. There is no warrant
for interference.
3. We have gone through the entire records
particularly the mahazar. It is true that the claimant did not take
out a commission. But then the comparability between the two
properties were spoken to by AW1 whose evidence inspired the
mind of the learned Subordinate Judge. We are also convinced on
going through the mahazar and the recitals in Ext.A1 and the
details given in Ext.A2 that the property under acquisition was
superior to the property covered by Ext.A1 and atleast compared
equally with the property under Ext.A2. The suggestion of the
Government Pleader in cross examination of AW1 was only that
the party claimant is not entitled for getting the value paid under
Ext.A1. No similar suggestion is not made in respect of Ext.A2 in
the cross examination of AW1. We are not impressed with the
LAA. 136/2008 & conn.cases. 6
argument of the learned Government Pleader based on the
percentage of enhancement. We do not find any warrant for
interference . The appeal is dismissed. No costs.
LAA.Nos.253/2008 & 654/2009
We are of the view that in view of the decision taken in
LAA.No.136/2008 these appeals are also to be dismissed. We
dismiss these appeals but without any order as to costs.
PIUS C. KURIAKOSE ,JUDGE
C.K.ABDUL REHIM,JUDGE
pmn/
LAA. 136/2008 & conn.cases. 7