IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 7TH JUNE 2010 / 17TH JYAISTHA 1932 LA.App..No. 1045 of 2007(A) -------------------------- LAR.133/2003 of 1ST ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT(S): -------------- 1. STATE OF KERALA (SPECIAL TAHSILDAR, LA, P.W.D.(SC), THIRUVANANTHAPURAM) REP. BY THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 2. THE EXECUTIVE ENGINEER, P.W.D.(ROAD) DIVISION, THIRUVANANTHAPURAM. BY SR.GOVT.PLEADER SMT.LATHA T.THANKAPPAN RESPONDENT(S): --------------- DR. THOMAS JOSEPH THOONKUZHY, T.C. 21/77 KARAMANA, THYCAUD VILLAGE, THIRUVANANTHAPURAM. ADV. SRI.R.MANOJ SRI.N.J. MATHEWS THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 07/06/2010, ALONG WITH C.O. NO. 64 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.2631/2007 IN LAA1045/2007 DISMISSED. SD/- PIUS C. KURIAKOSE, JUDGE. SD/- C.K. ABDUL REHIM, JUDGE. 7.6.2010 okb /True copy/ P.A. to Judge PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ---------------------------------- L.A.A. No.1045 of 2007 And Cross Objection No.64 of 2009 ---------------------------------- Dated this the 7th day of June, 2010 J U D G M E N T ---------------------- Pius C.Kuriakose,J. The Government is the appellant in LAA.1045/2007 and Cross Objection No.64/2009 is preferred by the claimant. The property was in Thycaud village. Section 4(1) notification was published on 6.11.2000 and the acquisition was for the purpose of construction of additional bridge on Killy river. The land under acquisition was included in the category of dry lands situated by the side of the road. The LA Officer awarded land value at the rate of Rs.2,96,400/-. Apart from land value he awarded Rs.2,43,327/- as value for a building which existed on the property. Before the reference court the claimant claimed enhancement in land value for the property covered by the award, the award of full land value for an extent of 1.175 cents which was allegedly encroached upon by the Government under the guise of the land acquisition L.A.A.1045/07 &C.O.64/09 2 proceedings either immediately before the acquisition or thereafter and compensation for injurious affection for the unacquired portion of the property extending to 2.175 cents on the reason that the same was reduced by the acquisition to an irregular Trapezium which is not fit for putting up any building. The reference court, on the basis of the various documents produced in the case would re-fix the value of the land at Rs.6 lakhs per Are. Additional compensation of Rs.94,673/- was awarded by the court relying on the evidence which consisted also of Ext.A4 final commission report prepared on the basis of the valuation conducted by a chartered Engineer. The court concluded that the remainder property was injuriously affected to a certain extent, however, would limit the compensation in that context to the extent of Rs.50,000/-. The court not at all impressed by the claim for full land value in respect of 1.175 cents of land allegedly encroached upon by the Government. In the appeal preferred by the Government, the Government assails the impugned judgment stating that the compensation awarded by the reference court is excessive. The Cross Objections preferred L.A.A.1045/07 &C.O.64/09 3 by the claimant pertains mostly to the claim for full land value for 1.175 cents of land allegedly encroached upon, additional compensation of Rs.50,000/- towards injurious affection of the remainder property and additional compensation for the structures, i.e. for the building to the extent of Rs.2,71,000/-. 2. Sri.N.J. Mathews, learned counsel for the cross objector/claimant and Smt. Latha T. Thankappan, Senior Government Pleader addressed us extensively on the basis of the various grounds raised in the memorandum of cross objections and the appeal. Our attention was drawn by Mr.Mathews to the relevant dates, to the order of the Munsiff Court, Thiruvananthapuram in the application for prosecution for violation of the injunction order in O.S.390/01, to Exts.A3, A3(a), A4 reports and plans submitted by the Advocate Commissioner appointed in O.S.390/01 and to the oral evidence adduced by AW2, Executive Engineer, AW3 Taluk Surveyor, and AW4 Advocate Commissioner. Mr.Mathews would submit that the learned Subordinate Judge was pedantic in his view regarding the appellant's claim for compensation for 1.175 cents of land which is actually found L.A.A.1045/07 &C.O.64/09 4 by the court also to be under the possession of the Government. Drawing our attention to the sketches prepared by the Advocate Commissioner the correctness of which is not much in dispute, Mr.Mathews submitted that it is apparent that 2.175 cents which is the unacquired portion of the claimant's property, has been reduced to an irregular valueless bit not capable of being used for any useful purpose. He submitted that having regard to the importance of the area where property is situated there is no warrant at all for making any reduction in the market value of the land fixed by the court. 3. Smt.Latha T. Thankappan, Senior Government Pleader would oppose all the submissions of Mr.Mathews. She submitted that it is transparently clear that the extent of 1.175 cents land value of which is claimed in the Cross Objection, was not acquired under the provision of the Land Acquisition Act. Therefore, according to her, the proper remedy available to the claimant is to approach a competent civil court for redressal of his grievance. As regards the claim for enhanced value for the building the learned Senior L.A.A.1045/07 &C.O.64/09 5 Government Pleader submitted that the court below has actually accepted the commissioner's report regarding the value of the building at the time of acquisition. What was declined was only restatement value. Restatement value is not a concept which is applicable to the land acquisition law as it obtains in this State. Smt. Latha T. Thankappan, Senior Government Pleader would oppose the plea for enhancement of the compensation for injurious affection. She submitted that court below committed the mistake of awarding benefit under Sections 23(2) and 23(1A) on the compensation for injurious affection also. This is not lawful. 4. We have very anxiously considered rival submissions addressed at the bar. We have gone through the impugned judgment and we have scanned these items of evidence to which our attention was drawn by either sides. We are convinced from Ext.A3, A3(a), A4, A5 and A5(a) and also the testimonies of AW2, 3 and 4 that roughly 1.175 cents of land which belong to the claimant has been taken over and converted as a road by the Government. We are also convinced that this is done either during the course of land L.A.A.1045/07 &C.O.64/09 6 acquisition proceedings or immediately prior to or subsequent to the same. We notice that even the learned Sub Judge has practically found that land belonging to the claimant extending to roughly 1.175 cents has been converted as road. The view of the learned Sub Judge is that since the taking over of that much portion of land is not under the land acquisition proceedings, the claimant will have to seek redressal of his grievance in separate civil proceedings. The above view of the learned Subordinate Judge, in our opinion, is too technical and pedantic to receive acceptance at our hands. After all, Ext.A3, A3(a), A4, A5 and A5(a) have been submitted on the basis of inspection conducted with notice to the Government also and in the presence of officials of the Government. The Taluk Surveyor, who prepared the sketch was examined. So was the Advocate Commissioner. We find from their testimonies that their veracity was not shaken despite cross-examination. We are convinced on our reappraisal of the evidence that the appellant has been deprived of roughly 1.175 cents of land not covered by the award in connection with the road formation/development. At L.A.A.1045/07 &C.O.64/09 7 the same time we are not inclined to award full land value for the extent of 1.175 cents. The measurement has been conducted by the Taluk Surveyor by using tapes where errors are inevitable. We feel, having regard to the totality of the evidence available in the case in the above context, that the appellant is to be awarded land value for 1 cent of land not covered by the award. 5. We shall now deal with the correct market value to be fixed for the land under acquisition. Despite the persuasive submissions of Mr.Mathews we find merit in the submissions of the learned Senior Government Pleader that the decision taken by this court in LAA.222/2008 re-fixing the value of the land at Rs.5,55,976/- has to be applied in this case also. To that extent the appeal preferred by the Government has to be allowed. 6. We shall now deal with the claim for compensation for injurious affection. We are convinced on appreciation of the relevant materials including the sketches prepared by the Surveyor that the unacquired portion of the claimant's property extending to 2.175 cents has been affected L.A.A.1045/07 &C.O.64/09 8 injuriously at least to the extent of 30%. When compensation for injurious affection is calculated that way, it will be seen that the amount to be paid to the claimant towards that compensation will be more than Rs.1,00,000/-. As the claim of the claimant/cross objectors is only for addition of Rs.50,000/- we uphold that claim in full. 7. Another submission which was made before us by Smt. Latha T. Thankappan was that at any rate the court below committed the mistake of awarding benefit under Sections 23 and 23(1A) (solatium and additional amount at 12%) on the compensation awarded for injurious affection. On going through the records we find merit in the above submissions. Necessary clarifications are being issued in that regard. Result of the above discussion is as follows:- The appeal as well as cross objections stand allowed. Land value is re-fixed at Rs.5,55,976/-. It is found that the appellant will have to be awarded land value at that rate for a total extent of 3.275 cents (corresponding to 1.325 Ares). It is so awarded. The claimant is awarded additional L.A.A.1045/07 &C.O.64/09 9 compensation, over and above what is awarded by the reference court, of Rs.50,000/- towards compensation for injurious affection. The award of the reference court towards value of the building is confirmed. It is clarified that on the compensation which is awarded to the appellant, under the judgment of the reference court and under present judgment towards injurious affection the amounts under Sections 23(2) and 23(1A) is not admissible. Appeal and cross objections stand allowed as above. But in the circumstances parties are directed to suffer their respective costs. PIUS C.KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb The words and figures “3.275 cents (corresponding to 1.325 Ares)” occurring in penultimate line in page 8 of the judgment in L.A.A.1045/2007 dated 07/06/2010 are corrected and substituted as “3.717 cents (corresponding to 1.505 Ares)”, vide order dated 14/02/2011 in I.A.4490/2010. Sd/- Registrar (Judicial)