IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 22ND JANUARY 2010 / 2ND MAGHA 1931 LA.App..No. 981 of 2008(A) -------------------------------- LAR.141/2006 of III ADDL.SUB COURT, ERNAKULAM .................... APPELLANT(S): CLAIMANTS:- -------------------------------- 1. P.S.STANLY, PUTHENVEETIL HOUSE, MEENCHIRA ROAD,PONEKKARA, ELAMAKKARA P.O., EDAPPALLY, COCHIN -26. 2. ROSY STANLY, W/O STANLY, PUTHENVEETTIL HOUSE, MEENCHIRA ROAD, PONEKKARA, ELAMAKKARA P.O.,EDAPPALLY COCHIN -26. BY ADV. SRI.K.JANARDHANAN SRI.MANURAJ. K.J RESPONDENT(S)/RESPONDENTS: ------------------------------------- 1. THE SPECIAL TAHSILDAR, N.H. NO.1, KAKKANAD, 2. THE EXECUTIVE ENGINEER, N.H.BRIDGE DIVISION, KODUNGALLUR. SR. GOVT. PLEADER SMT.LATHA T. THANKAPPAN THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 22/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ L. A. A. No.981 of 2008 ------------------------------------------------ Dated this the 22nd day of January, 2010 JUDGMENT Pius C. Kuriakose, J This is an appeal by the claimants. Their property is in Edappally (North) Village and were acquired for the purpose of widening of National Highway 17 pursuant to notification under Section 4(1) published on 14/03/02. The Land Acquisition Officer included the property in category-3 and awarded land value at the rate of Rs.1,19,150/- per Are. For the residential building which existed on the property including the compound wall, the Land Acquisition Officer awarded total compensation of Rs.4,06,100/-. Before the Reference Court, the evidence on the side of the L. A. A. No.981 of 2008 -2- appellants/claimants consisted of Exts.A1 to A3 and the testimonies of AW1, the appellant and AW2 the Advocate Commissioner. Ext.A3 was the report submitted by the Advocate Commissioner together with an estimate prepared by the Engineer who assisted the Commissioner for the purpose of valuation in the building. On the side of the Government, the only items of evidence were Ext.R1 notes to award and Ext.R2 Mahazar. No counter oral evidence at all was adduced by the Government. The learned Subordinate Judge did not become inclined to rely on Exts.A1 and A2 which were produced by the appellants to support their claim for enhancement in land value. However, the learned Subordinate Judge would keep in mind her own decisions in other cases and re-fix the land value at Rs.1,56,000/- per Are. L. A. A. No.981 of 2008 -3- Thus, granting an enhancement of 30% over what was awarded by the Land Acquisition Officer. Even though the Advocate Commissioner was examined, the court below did not place reliance on the estimate prepared by the Engineer or the recommendations of the Commissioner regarding the building valuation. The reasons stated by the court below is that depreciation constant was not deducted for this building which was ten years old to grant 20% increase on the building value awarded by the Land Acquisition Officer, thus, awarding Rs.81,220/- as additional compensation for the building. 2. In this appeal, the claimants have raised various grounds challenging what is described as the gross inadequacy of the compensation re-determined by the court. Sri.K.Janardhanan, the learned counsel L. A. A. No.981 of 2008 -4- for the appellants addressed us on the basis of all those grounds. All the submissions of Sri.Janardhanan were stiffly resisted by Smt.Latha T. Thankappan, the learned Senior Government Pleader. We have very anxiously considered the rival submissions. We have considered those items of evidence to which our attention was drawn during the submissions. We are not in a position to blame the learned Subordinate Judge for not having relied on Exts.A1 and A2 documents. Even though, there is no convincing evidence before the learned Subordinate Judge regarding the comparability of the properties covered by those documents and the properties under acquisition, none of the parties to those documents were also examined. But, at the same time, we feel that the learned Subordinate Judge was a little miserly L. A. A. No.981 of 2008 -5- when it came to fixing the market value of the land. It is by applying the rule of the thumb that she re-fixed the market value at Rs.1,56,000/- per Are. On a better assessment and based on the oral evidence of AW1 to which significantly there was no counter oral evidence at all from the side of the Government, we are of the view that the market value of the property can be re-fixed at Rs.1,75,767/- per Are. We keep in mind various judgments of this Court re-fixing market value of the identical land acquired for the same purpose pursuant to the same notification at the above rate. We re-fix the market value of the properties under acquisition at Rs.1,75,767/- per Are. This means, over and above the enhancement granted by the Reference Court, the appellant will be entitled for additional land value at the rate of Rs.19,767/- per L. A. A. No.981 of 2008 -6- Are. We award the same to the appellants. 3. It appears to us that there are elements of genuineness in the grievance voiced by the appellants regarding the adequacy of the compensation fixed by the court below for the building which existed on the property. Evidently, the building was a good residential building only ten years old. The building was valued by the Advocate Commissioner with the assistance of a recognized engineer. The learned Subordinate Judge does not doubt the credibility and credentials of the Engineer who prepared the valuation report. The learned Judge did not become prepared to place reliance on the Engineer on the reason that the depreciation constant has not been deducted for the building which was ten years old. The issue is covered by the judgment of this Court in State of Kerala v. L. A. A. No.981 of 2008 -7- Kuruvila (2005(3) KLT, 580). The building was definitely not below 'B' class. This Court has held in the above decision that for 'B' class building the depreciation shall be 5/6% from year one onwards. Deducting depreciation in that manner, it will be seen that over and above the enhancement of Rs.81,220/- awarded by the court below to the building which existed on the property, the appellant will be entitled for a sum of Rs.1,36,150/- more. We award the above sum of Rs.1,36,150/- to the appellants over and above the sum of Rs.81,220/- awarded by the Reference Court towards compensation for the building which existed on the property. 4. The appeal is allowed as above. It is made clear that on the total enhanced compensation to which the appellants become eligible by virtue of this L. A. A. No.981 of 2008 -8- judgment, the appellants will be entitled for all statutory benefits admissible under Sections 23(2), 23 (1A) and 28 of the Land Acquisition Act. The parties, however, will suffer their respective costs in this appeal. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-