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2009 DIGILAW 513 (KER)

Biju P. Mathai v. State of Kerala

2009-06-19

P.Q.BARKATH ALI, PIUS C.KURIAKOSE

body2009
Judgment : Pius C. Kuriakose, J. 1. This is an appeal by the claimant and the property under acquisition was admittedly a tarred road open to the public also. The appellant produced several documents including basic tax receipt to support his case that he was having title over this property and that this property was exclusive pathway for accessing his other properties, which are subject matter of L.A.R. No. 691/1998. For the properties involved in L.A.R. No. 691/1998, the reference Court refixed the land value at the rate of Rs.37,000/- per Are and the contention of the appellant in this appeal is that the acquired property in this case should be awarded land value at that rate. 2. We have heard the submissions of Sri. Manzoor Ali K. A., learned counsel for the appellant and Smt. Thushara James, learned counsel for the requisitioning authority. 3. The learned counsel for the appellant submits that the documents will reveal that the property was under the ownership of the appellant only. He highlighted that the land acquisition proceedings were initiated against the appellant and not against anybody else. If the property was the Government's land or land vested in any public authority, it was unnecessary that land acquisition proceedings were initiated, according to the learned counsel. 4. Smt. Thushara submitted that mahazar will reveal that the acquired property was part and parcel of an existing tarred public road. Being a public road, the appellant had no title or possession over the property and hence the appellant is not entitled even for nominal value of Rs. 100/- awarded by the requisitioning authority and confirmed by the reference Court, so submits the learned counsel. 5. We have very anxiously considered the submissions addressed at the Bar. We find merit in the submissions of the learned counsel for the appellant that the proceedings under the Land Acquisition Act became necessary only in view of the situation that the Government did not have any ownership over the land in question. Though it is true that the property was lying as a road, the mahazar reveals that the property was taken over from the possession of the appellant. The mahazar will reveal that the property was symbolically taken over from the appellant. But as rightly pointed out by Smt. Thushara, the property lies as a public road. Though it is true that the property was lying as a road, the mahazar reveals that the property was taken over from the possession of the appellant. The mahazar will reveal that the property was symbolically taken over from the appellant. But as rightly pointed out by Smt. Thushara, the property lies as a public road. Ext.' A3 basic tax receipt is in respect of the entire extent of land covered by the title document, under which the appellant claims title to the property which was subject matter of L.A.R. No. 691/1998. In the absence of any counter evidence to Ext. A3, the learned Subordinate Judge should have accepted the appellant's case that though the property was lying as a public road, he was paying basic tax for the property in view of his ownership over the property. We, therefore unable to approve the view of the land acquisition officer and the reference Court that the appellant is entitled only for nominal value of Rs. 100/-. But, at the same time we are not inclined to accept the argument of the learned counsel for the appellant that the acquired property should be given same value as was given to the other properties in L.A.R. No. 691/1998. Unlike that property, this property was not under the exclusive possession of the tenant and it was lying as a public road. In other words, the appellant did not have exclusive possession over this property. Hence we feel that view of the learned Subordinate Judge that the acquired property was not fully marketable property in the hands of the appellant was a reasonable finding. However, the proprietary title which the appellant retains over the property is to be recognized. We feel that taking into account all the relevant circumstances, the market value of the acquired property can be fixed at Rs. 14,800/-per Are i.e. 40% of the market value fixed for the properties. We accordingly, refix the market value of the acquired lands in this case at Rs.14,800/-per Are. 6. The appeal is allowed to that extent. It is needless to mention that the appellant will be entitled for all statutory benefits admissible under Ss.23(2), 23(1A) and 28 of the Land acquisition Act for the total enhanced compensation awarded to him under this judgment. The parties will suffer their costs through out.