IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 13TH JULY 2011 / 22ND ASHADHA 1933 LA.App..No. 1001 of 2009() -------------------------------- LAR.12/2006 of SUB COURT, KASARAGOD .................... APPELLANT(S): 1ST RESPONDENT --------------------------------------- STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, KASARAGOD. BY GOVT. PLEADER SRI.V.T.K. MOHANAN ADDL.ADVOCATE GENERAL RESPONDENT(S): CLAIMANT & 2ND RESPONDENT ---------------------------------------------------------- 1. EBRAHIM KHALEEL, S/O. T.ABDULLA KUNHI, THALANGARA BUNGALOW, THALANGARA VILLAGE. 2. THE DEPUTY CHIEF ENGINEER, SOUTHERN RAILWAY, (CONSTRUCTION), KANNUR. R1 BY ADVS. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SMT.THUSHARA JAMES R2 BY ADV. SRI.B.JAYASANKAR, SC, RAILWAYS THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 13/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs PIUS.C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------------- L.A.A.No.1001 of 2009 ------------------------------- Dated this the 13th day of July, 2011. J U D G M E N T PIUS.C.KURIAKOSE, J. Service is complete. It is brought to our notice that this Court in judgment in L.A.A.No.1124/09 had not interfered with the market value refixed at rates nearer to the rates awarded under the impugned award in identical cases. But we notice that dispute involved here is with regard to the correctness to the compensation awarded by the learned Sub Judge as damages for the cracks etc. which were caused to the unacquired portion of the building. According to Sri.V.T.K.Mohanan, senior Government Pleader, award of compensation for the damages caused to the unacquired portion of the building will not fall within Section 23 of the Land Acquisition Act. Smt.Thushara James, learned counsel for the claimant drew our attention to third and fourth Clauses of Section 23 of the Land Acquisition Act 1984. 2 L.A.A.No.1001 of 2009 According to her, under both those clauses, the compensation presently awarded is justifiable. 2. We do not propose to decide in this appeal the question whether compensation can be awarded for the damages sustained by the unacquired portions of the building belonging to the claimant. We notice merit in the submissions of Smt.Thushara founded they are upon Section 23 (clause fourthly) of the Land Acquisition Act. At any rate we feel that the amount presently awarded which is in acceptance of the recommendations of the commissioner in full, is excessive. Under the above circumstances, we set aside the judgment and decree and remand L.A.R.12 of 2006 to the learned Sub Judge, Kasaragod. The learned judge is directed to pass a revised award refixing the land value and refixing compensation if any payable towards damages for the unacquired portion of the building. The learned Sub Judge will permit both sides to adduce whatever evidence they want to. Revised award will be passed on the basis of evidence already available on record 3 L.A.A.No.1001 of 2009 and further evidence which may be adduced by parties. Parties will appear before the learned Sub Judge on 16.8.2011. PIUS.C.KURIAKOSE, JUDGE C.K.ABDUL REHIM, JUDGE ami/