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 30TH MAY 2011 / 9TH JYAISHTA 1933 LA.App..No. 292 of 2008() ------------------------- LAR.228/2005 of SUB COURT, MUVATTUPUZHA .................... APPELLANT(S): CLAIMANT ---------------------- K.K.RAJ, KOCHERIL, PERUMBADAVOM BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENT(S): RESPONDENT ------------------------- STATE OF KERALA. GOVERNMENT PLEADER SMT. T.T.JOSEPHINA THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 30/05/2011, ALONG WITH LAA NO. 645 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ. ----------------------------------------------- LAA. Nos. 292 & 645 of 2008 ----------------------------------------------- Dated this the 30th day of May, 2011 J U D G M E N T Pius C.Kuriakose, J. The claimants are in appeal. Their properties in Elanji Village of Muvattupuzha Taluk were acquired for the purpose of Kakkad Distributory of Muvattupuzha Valley Irrigation Project. The acquisition in LAA.292/08, corresponding to LAR. No. 228/05, was pursuant to Section 4(1) Notification published on 20-6-1996 whereas the acquisition in LAA. No. 645 of 2008, corresponding to LAR. No. 185/05 was pursuant to Section 4(1) Notification published on 29-7- 1996. The land acquisition officer awarded land value of Rs.9200/- per Are. The Reference Court would enhance the same to Rs.12,267/- per Are. The main items of evidence produced by the claimants was Exts.A1 and A2 judgments. The learned Subordinate Judge to a great extent placed reliance on Ext.A2 and would re-fix the land value at LAA. 292 & 645 of 2008 -2- Rs.12,000/- per Are purporting to award proportionate increase based on Exts.A1 and A2. 2. Having considered the submissions of Mr. Mathew John, learned counsel for the appellants and Smt. T.T. Josephina, learned Govt. Pleader and having taken into account the probative value of Ext.A2 we feel that the market value of the lands involved in these two cases can be re-fixed at Rs.13,200/- per Are. Hence, we re-fix the market value of the land involved in both these appeals at Rs.13,200/- per Are. 3. In both these cases appellants had claim for compensation on account of injurious affection of the remainder property. They had claimed additional value for improvements also. In order to substantiate their claim for compensation for injurious affection they had taken out a commission who filed Ext.X-1 report. In X-1 the commissioner reported that due to the construction of the LAA. 292 & 645 of 2008 -3- canal the remainder unacquired properties of both the appellants were reduced to two halves and the canal passes through the middle of their properties. The learned Subordinate Judge did not place any reliance on X-1 commissioner's report on the reason that the Advocate Commissioner was not examined as a witness. One of the arguments addressed before us by Mr.Mathew John was that the court below was not justified in insisting on examination of the commissioner as the commissioner's report which was part of the record in the case was marked without any objection from either side. We find some force in the above submission of Mr. Mathew John. At the same time we do not find way for awarding compensation to the appellants towards injurious affection of the remainder properties on the basis of Ext.X-1. Interestingly, in Ext. X-1 it is not reported as to what is the extent of the remainder properties and as to what extent the remainder properties LAA. 292 & 645 of 2008 -4- have been affected injuriously. When this aspect of the matter was brought to the notice of Mr. Mathew John, he would earnestly request that an order of remand be passed, so that the issue can be reconsidered by the Reference Court. The request for remand is very stiffly opposed by Smt. T.T.Josephina, Government Pleader. However, we feel that considerations of justice demand that an opportunity should be given to both the appellants for substantiate their claim for compensation for injurious affection of the remainder properties. We are inclined to remand the issue of correct compensation if any payable towards injurious affection to the Reference Court imposing proper conditions. 4. The result of the above discussion therefore is as follows: The market value of the land under acquisition is re- fixed finally at Rs.13,200/- per Are. The claim of both the appellants for compensation for injurious affection of their LAA. 292 & 645 of 2008 -5- unacquired properties is remanded to the Reference Court subject to the following conditions: 1) The appellants in each case will pay a sum of Rs.5000/- to the Government through the Office of the Advocate General within three weeks from today and produce receipt before the Sub Court. 2) In case the Reference Court ultimately upholds the appellants' claim for injurious affection and awards them compensation for injurious affection, the compensation so awarded will not carry interest otherwise admissible under Section 28 of the Land Acquisition Act during the period from 30th July 2007 till the date of the revised judgment to be passed by the Reference Court. As this order of remand has been necessitated due to the appellants' own fault we are not inclined to order refund of the court fee remitted on the appeal memo. Once the reference court notice receipts against payment of costs to LAA. 292 & 645 of 2008 -6- the Government as ordered above that court will post LAR. Nos. 228 and 185 of 2005 for enquiry, enquire into the claims of both the claimants for compensation for injurious affection. The claimants should be permitted to adduce evidence for substantiating the above claim. The parties will appear before the Reference Court on 24th June, 2011. The learned Subordinate Judge will complete the enquiry and pass revised awards at the earliest and at any rate, within six months of parties entering appearance pursuant to this remand order. (PIUS C.KURIAKOSE, JUDGE) (N.K. BALAKRISHNAN, JUDGE) ksv/-