IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL THURSDAY, THE 1ST DECEMBER 2011 / 10TH AGRAHAYANA 1933 LA.App..No. 330 of 2011() ------------------------------------- LAR.NO.117/2009 of SUB COURT, TIRUR .................... APPELLANT(S): CLAIMANT --------------------------------------- VALPARAMBIL MOHAMMED, S/O.MAMMED, VALPARAMBIL HOUSE, AMBADI NAGAR, P.O.NEDUVA, PARAPPANANGADI. BY ADV. SRI.K.RAMACHANDRAN SRI.K.MOHAMMED FAISAL NAHA RESPONDENT(S): ---------------------------- 1. THE SPECIAL TAHSILDAR, LA (G), TIRUR. 2. THE MANAGING DIRECTOR, ROADS AND BRIDGES DEVELOPMENT CORPORATION, KERALA LIMITED, PALARIVATTOM, KOCHI. R1 BY GOVERNMENT PLEADER SRI.A.C.VINCENT R2 BY ADV.SRI.SHYSON.P.MANGUZHA,SC,RBDC THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 01/12/2011, ALONG WITH LAA NO. 397 OF 2011 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts PIUS C.KURIAKOSE & K.HARILAL,JJ ----------------------------------------------------------- L.A.A Nos.330/2011, 397/2011, 401/2011, 402/2011, 422/2011, 441/2011 & 471/2011 -------------------------------------------------------- Dated this the 1st day of December, 2011 J U D G M E N T Pius C. Kuriakose, J Eventhough these appeals preferred by the claimants pertaining to different awards since the relevant rates etc. are same and since the properties were situated in the same village and acquired for the same purpose ie. for the purpose of establishing the railway over bridge at Parappanangi, we are disposing of all these appeals by a common judgment. 2. The relevant Section 4(1) notification in these cases were published on 26.8.2006. The lands were garden lands. For the lands which were the subject matter of L.A.A Nos.330/2011, 397/2011 and 471/2011 corresponding to L.A.R Nos. 117/2009, 115/2009 and 3/2010 respectively, the Land Acquisition Officer awarded land value at the rate of Rs.36,800/- per cent. For the lands which were the subject matter of L.A.A Nos.422/2011 and 441/2011 corresponding respectively to L.A.R Nos.1/2010 and 116/2009 the Land Acquisition Officer awarded land value at the rate of Rs.41,784/- per cent. Similarly for the lands covered by L.A.A Nos.330/2011, 397/2011, 401/2011, 402/2011, 422/2011, 441/2011 & 471/2011 : 2 : L.A.A.Nos. 401/2011 and 402/2011 corresponding respectively to L.A.R.Nos.2/2010 and 118/2009 the Land Acquisition Officer awarded land value at the rate of Rs.34,820/- per cent. Before the reference court the claimant relied mostly on a sale deed Ext.A1 as well as Ext.A3 judgment of this Court in L.A.A Nos.579/2009, 580/2009, 581/2009, 589/2009 and 596/2009 which was authored by one among us (PCK, J). The significance of Ext.A3 is that those judgments pertain to acquisition of land in the very same village for the same purpose but pursuant to Section 4(1) notification which had been published about 3 ½ years earlier ie. 30.7.2003. Under that judgment this Court had re-fixed the value of land for which the Land Acquisition Officer had awarded the land value at the rate of Rs.36,800/- per cent at Rs.65,000/-. Lesser rates were fixed for the lands for which the Land Acquisition Officer had awarded lesser value. The learned Subordinate Judge under the impugned judgment did not become inclined to place reliance on any of the documents, despite of the fact that Ext.A3 was in respect of the very same acquisition, of property in the same village acquired for the same purpose and had attained finality. The learned Subordinate L.A.A Nos.330/2011, 397/2011, 401/2011, 402/2011, 422/2011, 441/2011 & 471/2011 : 3 : Judge noticed that while Ext.A3 properties were abutting the Parappanangadi-Chemmad main road the properties which were the subject matter of the present appeals were situated at a distance of 300 meters from that road. According to the learned Subordinate Judge the properties of the appellants cannot be awarded the value as was awarded to the properties under Ext.A3 because of there are not having frontage of Calicut- Chemmaganad Main Road. The learned Subordinate Judge would ultimately do guess work and re-fix the value of the lands acquired in these cases while granting the enhancement of 50% over the rates awarded by the Land Acquisition Officer. The appellants had claims for compensation for injurious affection in respect of their unacquired properties in four cases namely, L.A.A Nos.401/2011, 441/2011, 330/2011 and 397/2011. The extent of the unacquired property in L.A.A No.401/2011 was 1.63 cents, that in L.A.A No.441/2011 was 7 cents, that in L.A.A No.330/2011 was 1.7 cents. The precise extent of the unacquired property in L.A.A No.397/2011 is not discernible from the materials. However it is seen that the unacquired property in that cases has been reduced to a tiny triangular L.A.A Nos.330/2011, 397/2011, 401/2011, 402/2011, 422/2011, 441/2011 & 471/2011 : 4 : property. The learned Sub Judge was convinced on the basis of the evidence which consisted of a Commissioner report's that the unacquired properties of the appellants in the above four appeals were injuriously affected due the acquisition. It had come out in evidence that it was due to the emergence of the new approach road that the unacquired properties became reduced to tiny bits. However, instead of fixing the compensation payable towards the head of injurious affection on the basis of the extents of the unacquired property and the percentage of diminishion suffered by such extent. What the learned subordinate judge did was to award a lumpsum compensation in those four cases at Rs.20,000/-. In these appeals grounds are raised challenging the correctness of the land value re-fixed by the reference court as well as the compensation fixed by the learned subordinate judge towards injurious affection. In L.A.A Nos.422/2011 and 441/2011 the claim is land value at the rate of Rs.75,000/- per cent. In L.A.A Nos.330/2011, 397/2011, 471/2011, 402/2011 and 401/2011 the land value is uniformly claimed at the rate of Rs.65,000/- 3. We have heard the submissions of L.A.A Nos.330/2011, 397/2011, 401/2011, 402/2011, 422/2011, 441/2011 & 471/2011 : 5 : Mr.K.Ramachandran, the learned counsel for the appellants in all these cases. It was Sri.Shysan P.Manguzha who addressed us on behalf of the requisitioning authority, the RBDC. Sri.A.C.Vincent, the learned Government Pleader argued on behalf of the State. Eventhough Sri.Ramachandran addressed submissions based on the various grounds raised in the memorandum of appeal, he would given more thrust in his submissions for enhanced land value, upon Ext.A3. According to him Ext.A3 has attained finality. Ext.A3 pertains to notification 3 ½ years earlier. If additions are to be given for the passage of time between Ext.A3 notification and the notification which was the subject matter of the present appeals, the land value as claimed in all these appeals will have to be granted. The learned counsel referred to the Commissioner's report and submitted that the learned Subordinate Judge's finding regarding the distance between the main road and the properties acquired in these case in comparison to the property which is the subject matter of Annexure A3, is wrong. Mr.Ramachandran also argued that the compensation awarded by the court below towards injurious affection in the four L.A.Rs is inadequate. According to L.A.A Nos.330/2011, 397/2011, 401/2011, 402/2011, 422/2011, 441/2011 & 471/2011 : 6 : him the compensation in each case will have to be enhanced by Rs.20,000/- more. 4. All the submissions of Mr.Ramachandran were very stiffly opposed by the learned counsel for the respondents especially Mr.Shysan P.Manguzha the learned counsel appearing for the requisitioning authority. Mr.Shysan P.Manguzha submitted that the properties which were subject matter of Ext.A3 judgment were definitely superior to the property which is the subject matter of the present case. Even 3 ½ years earlier the Land Acquisition Officer had fixed more land value for those properties than what is awarded for the properties in these cases. The finding of the learned Sub Judge that Ext.A3 properties were enjoying the frontage of main road and that properties in these cases were situated 300 meters away from the main road is a correct finding, according to Mr.Shysan P.Manguzha. Mr.Shysan P.Manguzha would oppose the claims for enhancement in compensation for injurious affection. With particular reference to L.A.A No.441/2011 he submitted that in that case no compensation should have been awarded towards injurious affection as even the reminder portion is a regular plot L.A.A Nos.330/2011, 397/2011, 401/2011, 402/2011, 422/2011, 441/2011 & 471/2011 : 7 : having an extent of 7 cents. That plot can be put to any use. Mr.Shysan P.Manguzha was supported in all his submissions of Sri.A.C.Vincent, the learned Government Pleader. 5. We have given our anxious consideration to the rival submissions addressed at the Bar. We have made a re-appraisal of the evidence. We shall first consider the issue of land value. While we are able to accept the finding of learned Subordinate Judge that the property which was acquired in Ext.A3 were superior to the property, which is subject matter of the present cases, because of the nearness to the main road, we are unable to justify the action in completely discarding Ext.A3. After all the properties in Ext.A3 and the present properties were in the same village acquired for the same purpose. Significantly, the notification under Section 4(1) pertaining to the present cases was promulgated 3 ½ years subsequently. It is clear to us that the learned subordinate judge has not kept in mind the natural increase in land value because of passage of time. The Commissioner's report in this case will show that the findings of the learned subordinate judge regarding the distance between the main road in the properties under acquisition is not fully L.A.A Nos.330/2011, 397/2011, 401/2011, 402/2011, 422/2011, 441/2011 & 471/2011 : 8 : correct. According to us placing reliance to a certain extent on Ext.A3 and keeping in mind the passage of 3 ½ years time, the market value of lands under acquisition in these cases can be fixed at a rate higher than presently fixed by the learned Subordinate Judge. Coming to the issue of correct compensation payable towards injurious affection in L.A.A Nos.401/2011, 441/2011, 330/2011 and 397/2011 we are of the view that on the facts which obtained in these case, the learned subordinate judge is justified in adopting the principle of granting lumpsum compensation. But even here we feel that the learned subordinate judge was a little miserly. According to us the compensation awarded to those four appellants towards injurious affection is to be increased reasonably. The result of the above discussions is as follows: 6. The market value of the lands acquired in L.A.A Nos.330/2011, 397/2011, 471/2011 corresponding to L.A.R Nos. 117/2009, 115/2009 and 3/2010 respectively will stand re-fixed at Rs.60,000/- per cent. Similarly the market value of the lands involved in L.A.A Nos.422/2011 corresponding to L.A.R Nos.1/2010 and in L.A.A No.441/2011 corresponding to L.A.R L.A.A Nos.330/2011, 397/2011, 401/2011, 402/2011, 422/2011, 441/2011 & 471/2011 : 9 : No.116/2009 will stand re-fixed at Rs.70,000/- per cent. The market value of the lands involved in L.A.A No.402/2011 and 401/2011 corresponding to L.A.R No.118/2009 and 2/2010 will stand re-fixed at Rs.50,000/- per cent. The total compensation payable for the appellants in L.A.A No.401/2011, 441/2011, 330/2011 and 397/2011 towards compensation for injurious affection will stand re-fixed at Rs.35,000/- inclusive of the compensation already awarded towards that count by the reference court. The appeals are allowed. The appellants will be entitled for all statutory benefits admissible under Section 23(2), 23(1)(A) and 28 on the enhanced land value which being awarded under this judgment. But as regards, the total compensation awarded to them towards injurious affection, they will be entitled for the benefits under Section 28 only. The parties are directed to suffer their respective costs. Sd/- PIUS C. KURIAKOSE JUDGE Sd/- K.HARILAL ab JUDGE The value of the land involved in L.A.A 401/2011 and 402/2011 shown as “re-fixed at Rs.50,000/- per cent” in the 4th line of page 9 of the common judgment in L.A.A Nos.330/2011, 397/2011, 401/2011, 402/2011, 422/2011, 441/2011 & 471/2011 dated 01/12/2011 is “re- fixed as Rs.52,500/- per cent” as per order dated 30/11/2012 in R.P. 683/2012 in L.A.A 401/2011 and R.P. 684/2012 in L.A.A 402/2011. Sd/- Registrar (Judicial) ab