IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL TUESDAY, THE 22ND NOVEMBER 2011 / 1ST AGRAHAYANA 1933 LA.App..No. 443 of 2011() ------------------------------------ LAR.2/2007 of SUB COURT, PATHANAMTHITTA .................... APPELLANT/RESPONDENTS IN LAR: ----------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, PATHANAMTHITTA. 2. THE EXECUTIVE ENGINEER, K.S.T.P., KOTTARAKKARA DIVISION. BY SRI.K.A.JALEEL, ADDL. ADVOCATE GENERAL, SR. GOVT. PLEADER SRI.C.R. SHYAM KUMAR. RESPONDENTS/CLAIMANT & ADDL. CLAIMANTS 2 TO 8 IN LAR: ---------------------------------------------------------------------------------------------- 1. P.S. HANEEFA RAWTHER, THENGINA MUKADIYIL, KADAKKADU, PANDALAM P.O., 689 501 (DIED). 2. LYLA HANEEFA, W/O.HANEEFA RAWTHER, THENGINA MUKADIYIL HOUSE, THONNALLOOR , PANDALAM-689 501. 3. SHAKEELA KHAN, D/O.HANEEFA RAWTHER EDAYILE MODIYIL HOUSE, THONNALLOOR, PANDALAM-689 501. 4. SHAMLA SHAJAHAN, D/O.HANEEFA RAWTHER SHAJI MANZIL, KADAKKADU, PANDALAM-689 501, NOW RESIDING AT DUBAI. 5. SHYLA NIZAR, D/O.HANEEFA RAWTHER T.M. PEEDIKA, KONNI-689 691. 6. SHANILA NOUSHAD, D/O.HANEEFA RAWTHER AISHA COTTAGE, KANNAMKODE, ADOOR-691 523. LA.App..No. 443 of 2011 7. SUFIA SAJU, D/O.HANEEFA RAWTHER NANDANGATTU, ERAMALLOOR, CHERTHALA-688 524. 8. AKBAR SHANU, S/O.HANEEFA RAWTHER THENGINA MUKADIYIL HOUSE, KURAMPALA, PANDALAM-689 501. R2 TO R6 BY SRI.K.RAMAKUMAR, SENIOR ADVOCATE, ADV. SRI.RAMPRASAD UNNI T., ADV. SMT.ASHA BABU, ADV. SMT.SARITHA DAVID CHUNKATH. R7 & R8 BY ADV. SMT.SMITHA GEORGE. THIS LAND ACQUISITION APPEAL HAVING COME UP FOR ADMISSION ON 22/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs PIUS C. KURIAKOSE & K. HARILAL,JJ. .................................................................... L.A.A.NO. 443 OF 2011 ................................................................... Dated this the 22nd day of November, 2011. JUDGMENT Pius C. Kuriakose, J. The Government is in appeal. Their property situated in Pandalam village together with the structures which existed thereupon was acquired for the widening of MC Road under the KAC scheme. The acquisition was pursuant to Section 4(1) notification published on 21.5.2004. The LA Officer awarded land value at the rate of Rs.74,883/- per Are. Apart from that, he awarded a total amount of Rs.1,10,103/- for the structures which existed on the acquired property. Before the reference court the appellants claimed enhanced value for the land and enhanced value for the building which was actually acquired at Rs.10 lakhs and severance compensation of Rs.20 lakhs including cost of construction for pillars, walls, shutters etc which will be necessary for putting the unacquired building to proper use. The evidence before the reference court consisted of Exts.A1 and A2. Exts.R1 and R2 series, C1 to C3 series apart from the oral evidence of AW1, AW2 and CWs1 to 3.The Advocate Commissioner in Exts.C1 to C3 series L.A.A.NO. 443 OF 2011 : 2 : reports reported interalia that (a) Rs.2.50 lakhs will be necessary for making the unacquired portion of the building inhabitable (2) that the claimant will have to incur a total loss of Rs. 6 lakhs during the coming 10 years on account of the diminution in the plinth area of the existing building due to acquisition. (c) that elsewhere in Annexure-A2 calculation statement the Commissioner reported that severance compensation is estimated at Rs.42 lakhs. The learned Subordinate Judge on evaluating the evidence would practically accept all the recommendations of the Advocate Commissioner. As regards land value, what was done was to rely on Ext.A2 judgment of the same court in another LAR case and refix the land value at Rs.2 lakhs per Are. Relying on the Commissioner's recommendation, severance compensation was awarded at Rs. 42 lakhs. Then the sum of Rs.2,50,000/- was awarded as the amounts necessary for renovating the unacquired building to a inhabitable condition and a further amount of Rs.3,25,000/- as cost of reconstruction for the dismantled portion of the building. L.A.A.NO. 443 OF 2011 : 3 : 2. In the appeal preferred by the Government, various grounds are raised and we have heard the submissions of Sri.C.R. Shyam Kumar – learned senior Government Pleader and smt. Saritha David, learned counsel for the claimants/respondents. Sri. Shyam Kumar pointed out that the total claim of the claimant towards compensation for injurious affection was only Rs.20 lakhs. In the instant case, the learned Subordinate Judge has awarded Rs.42 lakhs. This award is on the basis of an irrational Commissioner’s report. The Commissioner’s report will show that the sum of Rs. 42 lakhs recommended by him as severance compensation has been arrived at with reference to the building which was actually acquired and several from the unacquired portion. As regards the sum of Rs.3,50,000/- awarded towards cost of construction of the dismantled portion, the learned Senior Government Pleader submitted that Rs.3.20 lakhs is the total amount arrived at by the Commissioner as recommended by the Assistant Executive Engineer who asserted that from that amount what was awarded by the L.A. Officer is to be deducted. The learned L.A.A.NO. 443 OF 2011 : 4 : senior Government Pleader submitted that having decided to award compensation for injurious affection, awarding further amount towards charges for renovating the unacquired building will amount to duplication. The counsel concluded by saying that Ext.A2 has to be interfered with by this Court and the case be remanded to the reference court. 3. All the submissions of the learned senior Government Pleader were opposed by Smt. Saritha David. According to her, the findings entered by the learned Subordinate Judge are reasonable findings having foundation in the evidence which was available on record. As regards the value of the land which was situated abutting MC road on Pandalam junction, there is no room for any justifiable dispute. The recommendations of the Commissioner in as much they were supported by the data furnished by the Assistant Executive Engineer were rightly accepted by the learned Subordinate Judge. 4. We have given our anxious consideration to the rival submissions addressed at the bar. Coming to the correctness of the land value determined by the Subordinate Judge, we L.A.A.NO. 443 OF 2011 : 5 : notice from the impugned judgment that it was relying on Ext.A2 decree of the same court in another case that the land value was refixed by the learned Subordinate judge. This court interfered with Ext.A2 and remanded the LAR to the reference court. In view of the order of remanded, question of land value will have to be redetermined by the learned Subordinate Judge. The award of the learned Subordinate Judge on all counts like severance compensation, for renovation of the acquired building and compensation for the cost of construction of the dismantled building etc, we must say are quite unsatisfactory. It appears that the learned Subordinate Judge was having incorrect ideas as to the concept of severance compensation or compensation for injurious affection which comes under Clauses fourthly and fifthly of Section 23. Compensation for injurious affection is compensation for the unacquired property. In other wards it was compensation for the building which remained under the ownership of the claimant even after the acquisition. The sum of Rs.42 lakhs which is awarded under the impugned award is an amount L.A.A.NO. 443 OF 2011 : 6 : which was recommended by the Commissioner on the basis of the Assistant Engineer’s report in respect of the acquired building. Moreover we notice that even the total claim of the claimant was only Rs.20 lakhs. The award of Rs.42 lakhs is exorbitant and we are unable to sustain the same. 5. As rightly argued by the learned senior Government Pleader even if the sum of Rs.3,50,000/- found by the Advocate Commissioner in his report was the correct compensation to be paid for the building which existed on the property which was actually acquired then also the learned Subordinate Judge bound to deduct the amount actually awarded by the L.A. Officer on that count. Awarding of Rs.2,50,000/- by the court below as cost of making unacquried building inhabitable, towards value for renovation of the acquired building actually comes under the compensation for injurious affection of the unacquired building. Such award we are sure is duplication. In short, the award of the learned Subordinate Judge to the extent it pertains to compensation other than the land value is quite unsatisfactory. Fixation of land value has to be interfered L.A.A.NO. 443 OF 2011 : 7 : with the reasons already indebted. We set aside the judgment and decree under appeal and remand LAR.No.2/2007 to the court below for a fresh decision. The learned Subordinate Judge is directed to pass fresh award after affording opportunity to both sides to adduce whatever further evidence they want to. The learned Subordinate Judge should keep in mind that compensation for injurious affection is a compensation to be awarded for the unacquired property which in this case is the building that remains under the ownership of the claimant and not for the acquired property. At any rate, the learned Subordinate Judge should remember that awarding more than what the party had claimed will not be proper. We direct the learned Subordinate Judge to pass a fresh award after affording opportunities to both sides keeping in mind observations contained in this judgment. PIUS C. KURIAKOSE, JUDGE. K. HARILAL, JUDGE. cl