Dismissed

State of Kerala v. Parol Sherly

Kerala HC9 Sept 2013LA.App./465/2013

Case brief

AI extract

What is this about?

This appeal challenged the Sub Court's fixation of land acquisition value. The High Court held that the reference court acted within jurisdiction by fixing a value lower than the Commissioner's suggestion. The court ruled that the Commissioner's report is admissible without exam and dismissed the appeal.

What did the court decide?

The appeal was dismissed, upholding the reference court's judgment and decree fixing the compensation at Rs.35,000 per cent.

State of Kerala Vs Parol Sherly — Land Acquisition | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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MONDAY, THE 9TH DAY OF SEPTEMBER 2013/18TH BHADRA, 1935

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LA.App..No. 465 of 2013 ()

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AGAINST THE JUDGMENT IN LAR 455/2009 of ADDL.SUB COURT, THALASSERY DATED 31-03-2011

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APPELLANT(S)/RESPONDENTS:

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STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, KANNUR.

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THE EXECUTIVE ENGINEER PUBLIC WORKS DEPARTMENT KERALA STATE TRANSPORT PROJECT, KANNUR.

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THE SPECIAL TAHSILDAR

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LAND ACQUISITION N.H, THALASSERY.

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BY GOVERNMENT PLEADER SRI. A.J. JOSE

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RESPONDENT/CLAIMANT:

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PAROL SHERLY PAROL HOUSE, MADATHIL, P.O IRITTY, PIN - 670 703.

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BY ADV. SRI. V. V. ASOKAN BY ADV. SRI. P. P. RAMACHANDRAN

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THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 09-09-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sou.

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THOMAS P.JOSEPH, J.

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========================= L.A.A. No.465 of 2013

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============================ Dated this the 9^th day of September, 2013

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J U D G M E N T

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Respondents appears through counsel.

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This appeal arises from the judgment and decree dated 31.03.2011 in LAR No. 455 of 2009 of the Sub Court, Thalassery. The State and others are aggrieved and have preferred the appeal.

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0.0367 Ares of garden land in survey No. 37/2 of Payam village of Thalassery taluk was acquired for widening of Thalassery - Valavupara road pursuant to the Sec.4(1) notification published on 28.09.2005. The Land Acquisition Officer (for short, “the LAO”) has fixed land value at Rs.17,771/- per cent. On a reference, learned Sub Judge has re-fixed land value at Rs.35,000/- per cent. That judgment and decree are under challenge.

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Learned Government Pleader has contended that it is based on Ext.A1 that the reference court has enhanced

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L.A.A. No.465 of 2013

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the land value. It is argued that the Advocate Commissioner was not examined. It is also argued that in a subsequent case arising from a notification for the same purpose, the reference court has re-fixed land value only at Rs.24,000/- per cent.

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Learned counsel for the respondent has contended that there is no reason to interfere since enhancement is based on the evidence of AW.1 and Exts. C1 and C2, the report and plan submitted by the Advocate Commissioner.

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That the reference court, in another case has, subsequent to the judgment and decree in this case awarded land value at a lower rate is not by itself is a ground to interfere with the land value fixed in this case. Whether, the affected party in the subsequent case is satisfied with the award in that case or not is a different matter.

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Ext.B1 is a copy of document No.478 of 2004 relied

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L.A.A. No.465 of 2013

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on by the LAO for fixation of land value. The notification was published on 28.09.2005 while Ext.B1 is dated 09.02.2004. The appreciation in land value from 09.02.2004 till 28.09.2005 has to be taken into account.

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The reference court appointed an Advocate Commissioner who submitted Ext.C2, report and plan. True that the Advocate Commissioner is not examined. But in view of Rule 10(2) of Order 26 of the Code of Civil Procedure, report of the Advocate Commissioner will form part of record and evidence. Hence even if the Advocate Commissioner was not examined, the report could be admitted in evidence. If the appellants were aggrieved by the report, they should have summoned the Advocate Commissioner and challenged the report.

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The Advocate Commissioner in Ext.C1 states that acquired land is situated in a residential area and that it is just 2 Kms. away from Iritti town which is a commercial

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L.A.A. No.465 of 2013

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important area. Based on that and the result of local enquiry, the Advocate Commissioner assessed land value at Rs.45,000/- per cent.

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Though the Advocate Commissioner has stated land value at Rs.45,000/- per cent, the reference court fixed the land value at Rs.35,000/- per cent.

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Having regard to the local importance of the property as revealed from Ext.C1 and taking into account appreciation of land value from what is shown in Ext.B1. I do not find reason to interfere with the judgment and decree of the reference court.

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The appeal fails. It is dismissed.

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Sd/- THOMAS P.JOSEPH, JUDGE

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Smv

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//true copy//

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P.A. to Judge

State of Kerala v. Parol Sherly

Case brief

What is this about?

What did the court decide?

State of Kerala v. Parol Sherly

Case brief

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What did the court decide?

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