IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 3RD JANUARY 2011 / 13TH POUSHA 1932 LA.App..No. 1320 of 2010(D) --------------------------- LAR.8/2008 of ADDL.SUB COURT,KOLLAM .................... APPELLANT(S): CLAIMANT ---------------------- SAJEEV KUMAR, S/O.CHAKRAPANI PANICKER, SARGAM, ALUMKADAVU.P.O, KARUNAGAPPALLY. BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL SMT.P.SHYAMA RESPONDENT: RESPONDENT --------------- STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, KOLLAM. BY SR. GOVT. PLEADER SMT. JOSEPHINA THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 03/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ. ----------------------------------------------- LAA. No. 1320 of 2010 ----------------------------------------------- Dated this the 3rd day of January, 2011 J U D G M E N T Pius C.Kuriakose, J. The claimant is in appeal. The property under acquisition was situated in Karunagapally Village. The acquisition was for the purpose of construction of bridge across T.S.Canal. The property under acquisition as 1.25 Ares of land together with a residential building thereon. The acquisition was pursuant to Section 4(1) notification published on 31-8-2006. The L.A. Officer awarded land value at the rate of Rs.27,719/- per Are. For the building, relying on the valuation made by the Public Works Department, a total amount of Rs.6,93,000/- was awarded. Before the reference court the evidence consisted of Exts.A1 to A32 and commission report C-1 and mahazar C-2, apart from the oral evidence of AWs. 1 to 3 on the side of the claimant. On the side of the Government the same LAA. 1320/10 -2- consisted of R1 to R9. There was no counter oral evidence on the side of the Government. The learned Subordinate Judge rightly found that none of the documents produced by the claimant in support of the claim for enhanced land value were relevant. However, applying rule of thumb the learned Sub Judge granted an enhancement of Rs.18,017/- per are towards land value. According to us, there is no justification for any further enhancement over the land value awarded bay the reference court. 2. Coming to the question of building value, the learned Subordinate Judge noticed that there was absolutely no evidence on the basis of which enhancement could be granted to the claimant towards building value. The explanation offered by the claimant for not taking out a commission for proving the correct value of the building was that even before a breathing time was obtained by the claimant for taking out commission, the building was LAA. 1320/10 -3- demolished by the acquiring authority. The explanation did not find favour with the learned Subordinate Judge. According to us also, the explanation offered by the claimant for not taking out a commission in anticipation of dispossession is not convincing. 3. Another head under which the claimant had claimed additional compensation was the head of of compensation for injurious affection. The claim was that originally the property under acquisition as well as the unacquired remainder properties of the claimant were lying at a level with the road and that because of the acquisition and the emergence of the new bridge the level of the remainder property had come to be far below the present road level. The learned Subordinate Judge noticed that there was no evidence before the Court to support the claim of the claimant that his property originally was lying at the level of the road. However, noticing that access to the remainder LAA. 1320/10 -4- property from the road has been disrupted and that the new bridge which has been constructed by the Government for the benefit of the claimant was at a much higher level, the court below would apply the rule of thumb and award compensation for injurious affection at 20% of the land value awarded. 4. In this appeal various grounds are raised assailing the decision of the learned Subordinate Judge. Sri.Vinoy Varghese Kallummoottil, learned counsel for the appellant addressed arguments on the basis of those grounds. All the submissions of Sri.Vinoy Varghese were resisted by Smt. Josephine, senior Govt. Pleader. We have considered the submissions addressed. We have gone through the impugned judgment. 5. As already indicated, we do not find infirmity about the decision of the learned Subordinate Judge in fixing land value as is done under the impugned judgment. In the LAA. 1320/10 -5- absence of evidence the appellant could not have aspired for more than what is awarded towards land value. 6. Coming to the claim for more compensation for the building, we notice that the building was valued by the Land Acquisition Authority through the Public Works Department. The Public Works Department has obviously valued the building on the basis of their published schedule of rates. It is a matter of common knowledge that the schedule of rates published by the PWD and relied on by them for building valuation is not a realistic one. Even the PWD is tendering out its civil works at rates 30 to 40% above their own published rates. Keeping that aspect in mind, we feel that there is justification for awarding a further amount of Rs.2,07,900/- as additional compensation for the building to the appellant. We award so much of amount as additional compensation towards building value. 7. Coming to the claim for enhanced compensation LAA. 1320/10 -6- towards injurious affection, we notice that a fundamental error has been committed by the learned Subordinate Judge in the matter of fixing the compensation presently granted. Compensation for injurious affection is a compensation to be fixed not for the acquired property, but for the unacquired property. In this case, what the learned Subordinate Judge has done is to award 20% of the acquired property. At the same time we are in agreement with the learned Subordinate Judge that there is no satisfactory evidence on the basis of which compensation for injurious affection could be awarded at the rates claimed. However, we feel that there is justification for awarding a further amount of Rs.20,000/- more to the appellant towards compensation for injurious affection. We award Rs.20,000/- more as compensation for injurious affection over and above what is awarded by the learned Subordinate Judge. The appeal stands allowed to the above extent. The LAA. 1320/10 -7- amounts awarded under this judgment will not carry statutory benefits. But it is clarified that the appellant will not be entitled for benefits under Section 23(2) and 23(1A) for the amounts which are being awarded to him towards compensation for injurious affection. It is also clarified that during the period of 94 days condoned by us vide order on C.M. Application No. 2179 of 2010 no statutory benefits will be admissible at all. Registry will issue decree copy only after ensuring that the full court fee is remitted by the appellant and that the conditions imposed by us while allowing the delay petition have been complied with on time. (PIUS C.KURIAKOSE, JUDGE) (N.K. BALAKRISHNAN, JUDGE) ksv/-