IN THE HIGH COURT OF KERALA AT ERNAKULAM
LA.App..No. 2379 of 2008(D)
1. STATE OF KERALA
... Petitioner
Vs
1. SHYAMALA KUMARI AMMA
... Respondent
For Petitioner :GOVERNMENT PLEADER
For Respondent :SRI.L.MOHANAN
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :20/07/2009
O R D E R
PIUS C.KURIAKOSE & P.Q.BARKATH ALI, JJ.
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L.A.A.No.2379 OF 2008
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Dated this the 20th day of July, 2009
JUDGMENT
Pius C.Kuriakose, J.
This appeal is directed against the judgment and decree of
the Thiruvananthapuram Sub Court in L.A.R. No. 327/2004. The
case pertains to acquisition of land in Venganoor Village for the
purpose widening of road from Kovalam Mukkola Reach 1
pursuant to Section 4(1) notification published on 25/3/2002.
The land acquisition officer awarded land value at the rate of
Rs.16407/- per Are including the acquired property in category-E.
i.e. properties without road frontage. But, the reference court
under the impugned judgment, would upgrade the property
under acquisition to category-D. Relying on the earlier
judgments and evidence which came on record, the reference
court refixed the value of the land at Rs.60,000/- per Are. The
ground, which is prominently raised in this memorandum of
appeal, is that the upgradation of the category allowed by the
learned Subordinate Judge was wrong.
2. We have heard the submissions of Smt.Latha
L.A.A..No.2379/2008 2
T.Thankappan, learned senior Government Pleader for the
appellant and those of Smt.Ligey Antony, learned counsel for the
respondent claimant.
3. The Government Pleader would submit that the only
material, on the basis of which the learned Subordinate Judge
upgraded the category of the land under acquisition, was the
oral evidence of AW1. The learned counsel submitted that no
commission was taken out and there was no report on the basis
of which it could be said that the acquired properties enjoyed the
frontage of the Panchayat road by name Chirayil road.
4. Smt. Ligey Antony would submit that interference with
the impugned judgment will result in dismissal of L.A.A. Nos.1723
& 1733/2008 preferred by the claimants in other cases which
were decided by the learned Subordinate Judge along with the
present LAR. The ground in those appeals is that the value given
to the claimant in this case should be given to them also.
5. We have considered the rival submissions. As rightly
submitted by the learned Government Pleader, it is relying on the
oral testimony of AW1 and on what is described by the learned
Subordinate Judge as perusal of records, that the learned
L.A.A..No.2379/2008 3
Subordinate Judge concluded that the property under acquisition
was fit to be included in category-D i.e. properties having
frontage of Panchayat road by name Chirayil Road. We have gone
through the records. Mahazar reveals that the properties under
acquisition did not enjoy the frontage of Chirayil road at all. If
that be so, the only evidence available was the self serving oral
evidence of AW1. Significantly, no commission report was
obtained by the claimant to support the contention that the
properties enjoy the frontage of Chirayil road.
6. Under the above circumstances, we are of the view that
the upgradation of the category allowed by the learned
Subordinate Judge was improper. Accordingly, we set aside the
judgment and decree under appeal and refix the value of the
properties under acquisition at Rs.42,000/- per Are, the value
uniformly adopted by the court for properties in category E. It
is needless to mention that the appellant claimant will be entitled
for all statutory benefits admissible under Section 23(1A), 23(2)
and Section 28 of the Land acquisition Act on the total enhanced
compensation to which she becomes eligible by virtue of our
refixation of the land value of the acquired properties at at the
L.A.A..No.2379/2008 4
rate of Rs.42,000/- per Are under this judgment.
The appeal will stand allowed to the above extent, but in
the circumstances without any order as to costs.
PIUS C.KURIAKOSE,JUDGE
P.Q.BARKATH ALI, JUDGE
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