The Special Tahsildar (LA) GCDA, Ernakulam and State of Kerala represented by the District Collector, Ernakulam v. G. Prakashini, P.S. Shibu, P.S. Sheeba, Secretary, GIDA, Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN** **WEDNESDAY, THE 22ND JUNE 2011 / 1ST ASHADHA 1933** **LA.App..No. 1315 of 2009()** **---------------------------------------** **LAR.25/2003 of SUB COURT,KOCHI** **.................... APPELLANT(S): APPELLANT/RESPONDENT.** **-----------------------------------** **1. THE SPECIAL TAHSILDAR (LA) GCDA, ERNAKULAM.** **2. STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, ERNAKULAM.** **BY GOVERNMENT PLEADER SRI.G.GOPAKUMAR** **RESPONDENT(S): /CLAIMANTS (1 - 3 ADDL.) & IIND RESPONDENT** **---------------------------------------------------------------------------------------------** **1. G.PRAKASHINI, W/O.NARAYANAN, SWATHANTHRAN, PUTHENPURACKAL LIGH HOUSE ROAD, ATHIRA BUS STOP, PUTHUVYPU,ERNAKULAM** **2. P.S. SHIBU, S/O.NARAYANAN, SWATHANTHRAN, PUTHENPURACKAL, LIGH HOUSE ROAD, ATHIRA BUS STOP,PUTHUVYPU,ERNAKULAM** **3. P.S.SHEEBA, D/O.NARAYANAN, SWATHANTHRAN, PUTHENPURACKAL, LIGH HOUSE ROAD, ATHIRA BUS STOP, PUTHUVYPU, ERNAKULAM.** **4. THE SECRETARY, GIDA , ERNAKULAM.** **R1 – R3 BY ADVS. SRI.SREELAL N.WARRIER, SRI.B.RAGHUNANDANAN, SMT.BEENA JOSEPH ,SRI.REJI K.G., SRI.ARUN PRAKASH.** **R4 BY ADV. SRI.VARGHESE K.PAUL** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 22/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** ## **ORDER ON IA. NO.3860/2009 IN LAA. NO.1315/2009** ## **DISMISSED** **22/06/2011** **SD/- PIUS C.KURIAKOSE, JUDGE SD/- N.K.BALAKRISHNAN, JUDGE** **TRUE COPY** **P.S. TO JUDGE** **tss** ## **PIUS C. KURIAKOSE & N.K. BALAKRISHNAN, JJ. = = = = = = = = = = = = = = = = L.A.A. NO. 1315 OF 2009 = = = = = = = = = = = = = = = = Dated this the 22[nd] day of June, 2011.** ## **J U D G M E N T** ## **Pius C. Kuriakose, J.** Under challenge in this appeal preferred by the Government is the award of the Land Acquisition Reference Court refixing the value of the building which existed on the land under acquisition from Rs.4,47,989/- awarded by the Land Acquisition Officer to Rs.10,84,352/-. The evidence before the Reference Court concerning the building value was Ext.A1 valuation report prepared by AW2, an Engineer who had retired from K.S.E.B. The further evidence was the oral evidence of AW2, the author of Ext.A1 and Ext.R1 **L.A.A. NO. 1315 OF 2009** -:2:- valuation report prepared by the Principal Consultant of KITCO and the oral evidence of RW1. 2. Under the impugned judgment the learned Sub Judge has observed that “It has been settled by authorities that what is relevant for the purpose of valuing the building is not the schedule of rates of Public Works Department”. According to the learned Judge it is the principle of fixing the value by ascertaining the cost of reproducing the building at the relevant time and then allowing for depreciation in consideration of the age of the building and for the costs of repairs which might be required, apart from depreciation that is to be taken into account. The learned Sub Judge referred to the judgment of this court reported in **Bhavani Ramalashmy v. State of Kerala (1990** ## **L.A.A. NO. 1315 OF 2009** -:3:- **(2) KLT 581)** and has found that under Ext.A1 it is the correct depreciation constant that is applied. In short the learned Judge was very much impressed by Ext.A1 and proceeded to accept Ext.A1 in full. 3. One of the submissions which was addressed before us by the learned counsel for the requisitioning authority was that Ext.A1 report was obtained behind the back of authority and it was obtained in a suit in which the requisitioning authority was not a party at all. We notice some merit in the above submissions. Having read the impugned judgment we feel that the learned Sub Judge was a little hasty in coming to the conclusion regarding the acceptability of Ext.A1. 4. It is not settled law that valuation taken by the P.W.D should be discarded. What is ## **L.A.A. NO. 1315 OF 2009** -:4:- settled by decision is only that the schedule of rates published by the P.W.D may not reflect the actual cost incurred while construction work is taken up. We feel that the building value presently fixed under the impugned judgment is on the higher side. According to us the issue requires a second look at the hands of the Rent Control Court by giving opportunity to the requisitioning authority to adduce further evidence. At the same time we are inclined to remand the matter back to the Rent Control Court only by imposing conditions which will provide the claimant with some relief. 5. The result of the above discussion is therefore as follows. The judgment and decree to the extent which pertains to the determination of market value of the building are set aside. The LAR is remanded ## **L.A.A. NO. 1315 OF 2009** -:5:- to the Sub Judge for taking a fresh decision regarding the correct market value of the building which existed on the property. The learned Sub Judge will afford opportunity to all the parties to adduce further evidence regarding the correct market value of the building. Further, we order that this order of remand will become operative only if the appellant and the requisitioning authority facilitates deposit of 50% of the enhanced compensation allowed under the impugned decree within a period of three months from today. Once the deposit is made the claimant/respondent should be allowed to withdraw the same without offering any security. Once the remand order becomes operative the learned Sub Judge will try the LAR and take a fresh decision on the issue referred on the basis of the evidence already on record and the ## **L.A.A. NO. 1315 OF 2009** -:6:- further evidence which comes to be on record. Parties will enter appearance before the Reference Court on 16.8.2011. **PIUS C. KURIAKOSE, JUDGE.** **N.K. BALAKRISHNAN, JUDGE.** ul/-