State of Kerala v. P. Hariharan & Others (LAA 136/2008)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE** **&** **THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM** **MONDAY, THE 22ND FEBRUARY 2010 / 3RD PHALGUNA 1931** **LA.App..No. 136 of 2008()** **-----------------------------------LAR.36/2004 of II ADDL.SUB COURT,TRIVANDRUM** **....................** ## **APPELLANT(S): APPELLANT/RESPONDENT NO.1:** **-------------------------** **STATE OF KERALA, REP. BY THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM** ## **BY SR. GOVERNMENT PLEADER SMT.LATHA T.THANKAPPAN** ## **RESPONDENT(S): CLAIMANT AND RESPONDENT NO.2:** **--------------------------** *** 1. P. HARIHARAN, GANGA, ANJALI NAGAR, HOUSE NO.44, PETTAH, THIRUVANANTHAPURAM. (DIED)** ## **2. THE SECRETARY, THIRUVANANTHAPURAM DEVELOPMENT AUTHORITY.** ## *** ADDL. RESPONDENTS IMPLEADED.** **3. KAMALA HARIHARAN, W/O. LATE HARIHARAN GANGA'S ANJALI NAGAR, HOUSE NO.44,** **PETTAH, TRIVANDRUM.** **4. GOVIND HARIHARAN, DO. DO.** **5. H.BALAKRISHNAN, DO. DO.** **ADDL. RESPONDENTS 3 TO 5 ARE IMPLEADED AS LEGAL HEIRS OF THE DECEASED IST RESPONDENT VIDE ORDER DTD. 20.8.08 IN IA. 3383/08.** **R1, R3 TO R5 BY ADVS. MR.SUBHASH CYRIAC, MR .KALLARA J.MONY, SMT.P.JALAJADEVI .** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 22/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ORDER ON IA. NO.IA. NO.312/2008 IN LAA. NO.136/2008** **DISMISSED 22/02/2010 SD/- PIUS C.KURIAKOSE, JUDGE SD/- C.K.ABDUL RAHIM, JUDGE TRUE COPY** **P.S. TO JUDGE** ## **tss** 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 ½ 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