IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 LA.App..No. 955 of 2005() ------------------------- LAR.154/2000 of SUB COURT, MUVATTUPUZHA .................... APPELLANT : CLAIMANT ------------------------- KURIEN JOSE, S/O.JOSEPH, MAMPRA, OORAMANA, REP. BY POWER OF ATTORNEY HOLDER JOSEPH, MAMBRA, OORAMANA. BY ADV. SRI.P.P.THAMBI RESPONDENT : RESPONDENT --------------- STATE OF KERALA, REP. BY THE DISTRICT COLLECTOR, ERNAKULAM. BY GOVT. PLEADER SMT.LATHA T. THANKAPPAN THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 02/07/2009 ALONG WITH LAA NO.656/2006 & 366 OF 2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & P.Q. BARKATH ALI, JJ. --------------------------------------------- L.A.A. 955/2005, 366 & 656 of 2006 --------------------------------------------- Dated: JULY 2, 2009 JUDGMENT Pius C. Kuriakose, J. These are appeals preferred by the claimants who are not satisfied by the re-determination of compensation for their properties acquired for the purpose of the Muvattupuzha Valley Irrigation Project. The properties are in Ooramana village and the relevant sec.4(1) notification was published on 15.10.1996. The land acquisition officer awarded two different rates for the properties under acquisition i.e. at the rate of Rs.8000/- per Are for properties having direct frontage of road and Rs.7600/- per Are for properties which do not have frontage of the road. 2. The evidence on the side of the claimants before the reference court mainly consists of Exts.A1 and A2. Ext.A1 was a copy of the judgment in LAR 315/1999 in respect of an acquisition in 1993. Under Ext.A1 the awarding officer has L.A.A. 955/2005, 366 & 656 of 2006 2 granted land value at the rate of Rs.11180/- per Are which was enhanced under Ext.A1 to Rs.20,000/- per Are. The reference court did not become incline to rely on Ext.A2 which reveals a higher land value. According to us, the reasons stated by the reference court for rejecting Ext.A2 that the properties are situated far away and in a different village are good reasons. The learned Judge did not place reliance on Ext.A1 either, seeing that the properties are situated 1½ Kms. away and that there was no reliable evidence to find any comparability between Ext.A1 property and the acquired properties. Nevertheless, ultimately what the learned Judge did was to take into account the enhancement granted by the court under Ext.A1 and award an enhancement of 30% over the compensation awarded by the land acquisition officer. There was a claim for compensation for injurious affection in the LARs. which are the subject matter of LAA Nos.955/2005 and 366/2006. These claims were turned down by the learned Sub Judge on the reason that the parties had not facilitated the obtainment of a commission report so that the court could take a decision as to what is the extent of L.A.A. 955/2005, 366 & 656 of 2006 3 diminution suffered by the remainder properties. 3. We have heard the submissions of Sri P.P.Thambi, learned counsel for the appellants, and of Smt.Latha T. Thankappan, learned senior Government Pleader. 4. Mr. Thampi would assail the impugned judgments and decrees on the various grounds raised in the memoranda of appeals. He submitted that Ext.A1 property was in the same village and that the properties were comparable. Under Ext.A1, Rs.20,000/- has been fixed in 1993 and hence there was every justification for granting a higher amount for these properties which were acquired some three years thereafter. He also submitted that Ext.A2 has been rejected by the learned Sub Judge without any valid reason. Learned counsel would submit that the court below ought to have granted compensation towards injurious affection of the remainder properties since the property of the petitioner has been divided as two plots by virtue of the acquisition and the construction of the canal. The total denial of any compensation towards injurious affection is not justified. Learned counsel submitted that the court below went L.A.A. 955/2005, 366 & 656 of 2006 4 wrong in calculating the components like the amounts under sec.23(1)(A) payable to the appellants/claimants on the total enhanced compensation. The correct date of publication of the notification under sec.4(1), according to him, was 25.7.1996. He also submitted that the court has committed a mistake in noting the date of taking over of possession wrongly as in 1996, while possession was actually taken over as on 20.3.1999. 5. All the submissions of Mr. Thambi were resisted by Smt.Latha T. Thankappan who, however, conceded that the actual date of taking over possession was 18.3.1999. 6. We have made a reappraisal of the evidence which had come on record. We are of the view that the learned Subordinate Judge was not justified in completely discarding Ext.A1 document for the purpose of determining market value of the land under acquisition. Of course, Ext.A1 property was much superior to the property under acquisition. Nevertheless, it should not have been forgotten that Ext.A1 being in respect of property in the same village had some relevance and could have been relied on by the learned Subordinate Judge to find that the market value of L.A.A. 955/2005, 366 & 656 of 2006 5 the acquired property was much more than the rate presently awarded under the impugned judgment. Determination of market value in land acquisition cases can involve guess work. While guess work is resorted to, what is necessary is only that the guess made by the court is referable to some evidence actually available on record. Making a better guess of the value of the property at the relevant time based on the available evidence in the case the market value of the acquired property at the relevant time will come to Rs.12,100/- per Are and Rs.11,476/- per Are respectively for the properties for which the LA officer awarded value at the rate of Rs.8000/- per Are and Rs.7600/- per Are. 7. We are not interested by the arguments of Mr.Thambi regarding the appellants' claim for compensation towards injurious affection. We are in agreement with the learned Subordinate Judge who has taken the view that the evidence in this case is not sufficient to award compensation on that count. After all, the extent of the remainder property is considerable and it cannot be said that the value of the remainder property has L.A.A. 955/2005, 366 & 656 of 2006 6 been reduced in any manner because of the acquisition. We are unable to accept the argument of Mr.Thambi regarding the date of publication of the notification under section 4(1) of the L.A. Act. 8. The result is that the market value of the lands under acquisition which the land acquisition officer awarded at the rate of Rs.8000/- per Are is re-fixed at Rs.12100/- per Are and the market value of the land awarded by the land acquisition officer at the rate of Rs.7600/- per Are will stand re-fixed at Rs.11476/- per Are. It is clarified that the correct date of taking over of the lands was 20.3.1999. The argument of the learned counsel for the claimants regarding the actual date of publication of sec.4(1) notification is turned down and the finding of the court below regarding the date of publication of sec.4(1) notification is approved. The appeals are allowed as above. The claim for compensation for injurious affection is repelled and the judgment of the learned Subordinate Judge will stand modified and allowed to the above extent, but in the circumstances, without any order L.A.A. 955/2005, 366 & 656 of 2006 7 as to costs. It is needless to mention that the appellants will be entitled to all statutory benefits admissible to them under secs.23 (2), 23(1A) and 28 of the Land Acquisition Act on the total enhanced compensation to which the appellants become eligible on account of our re-fixation. PIUS C. KURIAKOSE, JUDGE P.Q. BARKATH ALI, JUDGE mt/-