High Court Kerala High Court

State Of Kerala vs P. Hariharan on 22 February, 2010

Kerala High Court
State Of Kerala vs P. Hariharan on 22 February, 2010
       

  

  

 
 
  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.
            ------------------------------------------------
               LAA. NO. 136,253 of 2008 & 654/2009
            -------------------------------------------------
         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