KESAVA PILLAI RAJASEKHARAN PILLAI KUTTIPLAVILAYIL THEKKATHIL v. STATE OF KERALA BY GOVERNMENT PLEADER SRI..R.LAKSHMI NARAYAN. THIS APPEAL FROM FIRST

P.R.RAMAN & P.BHAVADASAN, JJ.-------------------------------A.F.A.No.36 of 1998-------------------------------Dated this the 28th August, 2009J U D G M E N TRaman, J.This appeal is against the judgment of the learnedSingle Judge in L.A.A.No.471 of 1992, under Section 5 of theHigh Court Act. The matter arises under the Land Acquisition Act.The property of an extent of 6.24 Ares situated in SurveyNo.505/1-8 and 505/1-70 of Pallickal Village was acquired by theGovernment for a public purpose, viz., Kallada Irrigation Project.Notification under Section 3(1) of the Kerala Land Acquisition Actwas issued on 26.7.1981. The award was passed on 22.3.1982and possession taken. The Land Acquisition Officer awarded landvalue at the rate of Rs.1611/= per Are. 2. Dissatisfied with the compensation so awarded,appellant sought a reference under Section 20 of the LandAcquisition Act. The matter was referred to Land Acquisition AFA.No.36 of 19982Court. Before the Land Acquisition Court, there was hardly anymaterial relevant for fixing the land value. The only documentproduced by the claimant was Ext.A1 which is a sale deedexecuted by Usman Rawther and others in favour of JameelaBeevi. On the other hand, Exts.R1 to R8 were marked on theside of the respondent. The appellant took out a Commission andthe Commission report is marked as Ext.C2 and the mahazarprepared thereto is marked as Ext.C1. Pws.1 to 3 were examinedon the side of the claimant and RW.1 was examined on the sideof the respondent. The Land Acquisition Court found that theCommissioner who was examined in the case as PW.3 was notcross examined. The Revenue Inspector stated in hisexamination that the acquired property has no road frontage.But the Commission report shows otherwise. The Commissionerhas also prepared a plan. The various important establishmentsnear the acquired property were made mention of in theCommission report to which reference was also made by the LandAcquisition Court. The Land Acquisition Court, in suchcircumstances, after referring to the evidence in the case, found AFA.No.36 of 19983that the land acquired from the appellant is situated in apotential area fetching more value than fixed by the LandAcquisition Officer. Further, it was also found that the basicdocument relied on by the Land Acquisition Officer was situatedin an unimportant place and it is uncomparable in all respects.Therefore, it was found that the appellant is entitled forenhancement of the compensation based on re-fixation of theland value at an enhanced rate. But then the question is what isbasis on which the enhanced value is to be fixed. This willdepend on the evidence that is adduced. On this question, therewas, however, no evidence adduced. But the court below fixedthe land value at the rate of Rs.4940/= per Are (Rs.2000/= percent), against which the State preferred an appeal before thisCourt, as L.A.A.No.471 of 1992. 3. The learned Single Judge agreed with thefinding of the Land Acquisition Court that the land is in apotential area and the claimant is entitled for enhancement of thecompensation, but held that in the light of the decision of the AFA.No.36 of 19984Apex Court in State of Kerala v. Betty (1995 (Suppl) (2) SCC706), the burden is on the claimant to support his claim. In thiscase, though the claim made by the appellant herein was forRs.2500/= per cent, no evidence what so ever was adduced byhim to show that the land acquired from him will fetch such anamount. As already pointed out, the only way to fix the landvalue is to see from the comparable document as to what is themarket value of the land in question. Merely because the land issituated in a potential area, that only supports a claim forenhancement, but the quantum has to be fixed based on suchdatas and evidence made available to the Court by the claimant,on which he failed. In such a situation, the learned Single Judgethought it fit instead of remanding the matter to the trial courtand to avoid delay, re-fixed the amount by reducing thecompensation from the one fixed by the Land Acquisition Court.Accordingly, the learned Single Judge re-fixed the land value atthe rte of Rs.3250/= per Are. Hence, this appeal. AFA.No.36 of 199854. The learned counsel, Sri.B.Krishnamani,appearing for the appellant would contend that the LandAcquisition Court fixed the land value, after consideration of theimportance of the locality and potentiality of the property and itdiscussed the evidence to that extent. The Commissioner wasalso examined by the claimant, not cross examined by the Stateand the land value fixed by the court below, in no way could besaid to be on the higher side. 5. The learned Government Pleader, on the otherhand, would support the judgment. 6. We have heard the parties. We have alreadypointed out that if there was any material placed on record topress the claim for higher rate of land value than that is fixed bythe learned Single Judge, certainly this Court would have beenable to appreciate the contention raised by the appellant. Whenit is the burden of the appellant-claimant to establish as to whatis the market value of the land, all that could be done to fix theland value in question, after finding that land value as fixed by AFA.No.36 of 19986the Land Acquisition Officer has to make an assessment, whichassessment necessarily, in the absence of evidence will bearbitrary. 7. True, in the matter of fixation for land acquired,the element of arbitrariness may be there which is justifiablebecause a mathematical precision in the matter of fixation ofcompensation for the land is not possible. When a question hasbeen considered by the learned Single Judge and re-fixed theland value, it is for the appellant to show that fixed as done bythe learned Single Judge is too low, for which there areabsolutely no materials. In such circumstances, we find no merit in theappeal. Accordingly, it is dismissed. P.R.RAMAN, JUDGEP.BHAVADASAN , JUDGE.nj. P.R.RAMAN & P.BHAVADASAN, JJ.-------------------------------A.F.A.No.36 of 1998 J U D G M E N TDated: 28th August, 2009. -------------------------------