IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 2ND FEBRUARY 2010 / 13TH MAGHA 1931 LA.App..No. 579 of 2009(D) ------------------------- LAR.21/2007 of SUB COURT, TIRUR .................... APPELLANT(S): CLAIMANTS: ----------------------- 1. KUZHIKATTIL MOIDEEN ,S/O.AHMEDKUTTY KUZHIKATTIL, PARAPPANAGADI, MALAPPURAM DISTRICT. 2. KUZHIKATTIL ABBASALI, S/O.KUN HEETHU HAJI, KUZHIKKATIL,OORAKAM AMSOM KUTTALOOR DESOM, MALAPPURAM DISTRICT. 3. ABDUL HAMEED, S/O.MUHAMMAD POLAKUNDAN (H) PARAPPANAGADI AMSOM,DESOM MALAPPURAM DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER, KUZHIKATTIL ABBASALI, S/O.KUNHEETHU HAJI, KUZHIKKATTIL, OORAKAM AMSOM KUTTALOOR DESOM,MALAPPURAM DISTRICT BY ADVS. MR.K.RAMACHANDRAN RESPONDENT(S)/DEFENDANTS: --------------- 1. THE SPECIAL TAHSILDAR LA (G) TIRUR. MALAPPURAM DISTRICT. 2. THE MANAGING DIRECTOR ROADS AND BRIDGES CORPORATION OF KERALA LTD KOCHI. SR. GOVT. PLEADERS MR. BASANT BALAJI FOR R1 MS. LATHA T. THANKAPPAN FOR R1 MR. M.VIJAYAKUMAR FOR R2 THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 02/02/2010, ALONG WITH LAA NO.596 OF 2009 AND CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------------------------------------------ L.A.A. Nos.579, 580, 581, 589 & 596 of 2009 ------------------------------------------------------------ Dated this the 2nd day of February, 2010 J U D G M E N T ---------------------- Pius C.Kuriakose,J. The claimants are in appeal being aggrieved by what they describe as the gross inadequacy of the compensation awarded by the Land Acquisition Court. LAA.579/2009 pertains to the judgment and decree in LAR.21/2007. LAA.580/2009 pertains to LAR.17/2007. LAA.581/2009 pertains to LAR.18/2007. LAA.589/2009 pertains to LAR.19/2007 and LAA.596/2009 pertains to LAR.20/2007. The Land Acquisition Officer relying on the basic document Ext.R1 would award land value of Rs.35,711/- per cent in LAR.Nos:17/2007, 18/2007 and 20/2007. In LAR.19/2007 he awarded land value at the rate of Rs.29,759/- per cent. In LAR.20/2007 he would award land value at the rate of Rs.32,729/- per cent. The reference court consolidated all these cases and tried them jointly. Evidence consisted of the oral evidence of two of the claimants AW1 and 2 and the valuation assistant, RW1 and documents. Ext.A1, a document executed some 9 months prior to the date of promulgation of L.A.A.579/09 & connected cases 2 Section 4(1) notification pertaining to an item of reclaimed wet land was the one document relied on by the claimants in support of their claim for enhancement of value of the property under acquisition. Ext.A1 revealed a land value of Rs.1,10,000/- per cent. It is on the basis of Ext.A1 that these appeals are filed and appellants are claiming land value at Rs.80,000/- per cent. Ext.B1 documentary evidence on the side of the Government is the basis document apart from Exts.C1 & C2, C3 & C4, C5 & C6 and C7 & C8 Commissioner's reports and sketch pertaining to the properties. Apart from claiming enhancement of land value before the reference court the claimants claimed compensation for their unacquired properties on the reason that because of the acquisition and the construction of the approach road through the middle of their holdings at least a portion of their remainder unacquired properties have been deprived of road frontage of their original holdings which they were enjoying previously. The learned Subordinate Judge did not become inclined to place reliance on Ext.A1. The learned Subordinate Judge noticed from the evidence that one of the parties to Ext.A1 was a close relative of the claimants in two of the reference cases. It was also noticed from the evidence of AW1 himself that Ext.A1 is executed after information regarding the L.A.A.579/09 & connected cases 3 proposed land acquisition was received by the parties. It appears that the learned Subordinate Judge has also taken into account evidence of AW1 that after execution of Ext.A1 no alterations were effected to the property covered by Ext.A1. On the basis of all these circumstances court below practically admitted the suggestion of the Government in cross- examination of AW1 that Ext.A1 document was an artificial document brought into existence to stake a higher claim for land value of the property under acquisition. Considering the claim for compensation for injurious affection, the learned Subordinate Judge did find on the basis of oral evidence and commission report that the eastern portions of the remainder properties belonging to the claimants had been affected injuriously in the sense that those portions were deprived of right to access completely. But according to the learned Subordinate Judge, since what has happened in this case is that the original tenement has been severed into two tenements and since the original tenement was having right of access to the main road on account of the severance which was happened, through the emerging approach road also the appellants claimants will be entitled for right of way as easement of necessity. The learned Subordinate Judge would observe that if L.A.A.579/09 & connected cases 4 there is obstruction to such right of way by anybody the appellants will have a genuine cause of action and on that reason the learned Subordinate Judge did not award any compensation towards injurious affection. 2. As already indicated the learned Subordinate Judge did not place any reliance on Ext.A1. At the same time, it was found on the basis of the commission report and oral evidence that the properties under acquisition were much superior to the basis land covered by Ext.A1. What the learned Subordinate Judge did was to rely on document No.471/2001 dated 26.2.2001 of Sub Registry, Parappanangadi, a document which was considered and discussed by the Land Acquisition Officer as serial No.1 in his notes to award. On the basis of the discussions in the notes to award the learned Subordinate Judge would come to the conclusion that the above document was more ideal than the basis document for fixing the land value. The above document will reflect land value of Rs.36,000/- per cent. The learned Subordinate Judge would add 30% of the above value for passage of 3 years time and 20% in all cases except LAR.19/2007 for the locational advantages and thus in all cases other than LAR.19/2007 would refix land value at Rs.56,000/- per cent. In LAR.19/2007 the learned Subordinate L.A.A.579/09 & connected cases 5 Judge did not add 20% as was done in the other cases. Accordingly the value of land in LAR.19/2007 is fixed at Rs.46,800/- per cent. 3. Sri.K. Ramachandran, learned counsel for the appellant addressed extensive arguments before us on the basis of all the grounds. He would submit that the court below was not justified in completely discarding Ext.A1. According to him, on the basis of the Exhibits and the Commissioner's report and the oral evidence given by RW1 himself it is clear that the property covered by Ext.A1 was far inferior to the properties under acquisition and even the basis property and the property covered by document No.471/2001. Learned counsel would submit that the oral evidence adduced by RW1 would clearly show that Ext.A1 was executed prior to the date of commencement of land acquisition. Apart from the suggestion in cross-examination that Ext.A1 document is executed in anticipation to land acquisition proceedings, there is no cogent legal evidence upon which it could be held that Ext.A1 is an artificial document. Learned counsel submitted that appellants are not claiming the full value reflected in Ext.A1. They have claimed only Rs.80,000/- per cent. Mr. Ramachandran would assail the decision of the learned Subordinate Judge to disallow L.A.A.579/09 & connected cases 6 any compensation towards injurious affection. According to Mr. Ramachandran, it is obligatory on the part of the reference court to have determined compensation towards injurious affection. Once it was found that unacquired property was injuriously affected. The issue was not to be relegated to the civil court to any prospective suit based on some anticipated cause of action. The LA reference court alone has jurisdiction to award compensation for injurious affection and no other court. 4. All the submissions were stiffly resisted by the learned Government Pleader Sri. Basant Balaji. He would support the impugned judgment on the various reasons stated therein. According to him, what was awarded by the reference court is in fact more than the market value of the property prevalent at the relevant time. Compensation cannot be awarded towards injurious affection since there is no proper data regarding the extent of remainder property. The learned Government Pleader also pointed out that the claim for injurious affection has not been separately valued in the appeal. 5. Learned senior Government Pleader was supported very vehemently in all his submissions by Sri. M.Vijayakumar, learned standing counsel for the requisitioning authority. According to him there is no warrant at all for granting any L.A.A.579/09 & connected cases 7 enhanced compensation over what was granted by the learned Subordinate Judge. 6. We have very anxiously considered the rival submissions addressed to us. We are in agreement with the judgment of the learned Subordinate Judge that the property covered by Ext.A1 was not comparable to the property under acquisition. But evidence reveals that the property covered by Ext.A1 was inferior to the land under acquisition. At the same time we are not blaming the learned Subordinate Judge for not having relied on Ext.A1. We notice that during cross- examination of AW1 it was specifically suggested that Ext.A1 is an artificial document brought into existence in anticipation of the land acquisition proceedings and that Ext.A1 is executed by or in favour of close relatives of the claimants in two of the reference cases. When specifically challenged, it was for the appellant to have examined one of the parties to Ext.A1 and brought evidence to the effect that Ext.A1 is a document executed in due course of business. It is true that the copy of document No.471/2001 was not placed before the court. However, since the notes to award was before the court and document No.471/2001 had been sufficiently discussed by the Land Acquisition Officer in the notes to award, action of the L.A.A.579/09 & connected cases 8 learned Subordinate Judge in not relying on that part of award can be approved. We also are of the view that document No.471/2001 was more comparable to the property covered by the basis document. At the same time, having taken into account the entirety of the evidence. i.e., oral evidence as well as Commissioner reports, we feel that the rates now fixed by the learned Subordinate Judge are much below the correct market value of the property under acquisition at the relevant time. On a better assessment based on a re-appreciation of the evidence we fix the market value of the lands involved in all cases other than LAA.589/2009 corresponding to LAR.19/2007 at Rs.65,000/- per cent. Even though Mr. Ramachandran argued that the property in LAR.19/2007 had all the advantages of the properties involved in other cases, we do not accept that argument. We are inclined to maintain the difference maintained by the Subordinate Judge and accordingly we refix the value of the property in LAR.19/2007 corresponding to LAA.589/2009 at Rs.52,250/-. Appellants will be entitled for enhancement in land value on the basis of the refixation as done above. 7. Argument of the learned Government Pleader is that the appellant's claim for compensation for injurious affection L.A.A.579/09 & connected cases 9 cannot be entertained since the above claims have not been specifically valued and since court fee is not separately paid. It is noticed that claims were raised through the claim statement. Parties adduced evidence in support of their claims. Learned Subordinate Judge also sufficiently discussed the claims. In the appeal memoranda also specific grounds have been raised on the basis of the above claim. We are therefore of the view that the claim should be considered. 8. It has been found by the learned Subordinate Judge himself that portions of the remainder properties belonging to the appellants have been injuriously affected because of the acquisition in the present manner. We notice that portions of appellant's property have been completely deprived of the frontage of the road which the original holdings of the appellant was enjoying previously. At the same time we find that it is an approach road that has come through the middle of the original holdings of the appellant. We have no reason to think that the appellants will not be permitted access to the approach roads. At the same time we find some merit in the submission of Mr. Ramachandran that the approach road which is now constructed is at a higher level than the remainder properties of the appellants. We take that aspect into account and award L.A.A.579/09 & connected cases 10 compensation of Rs.32,500/- each to the appellants in the appeals other than LAA.589/2009. To the appellant in LAA.589/2009 we award on the same account, a sum of Rs.30,000/- for injurious affection. 9. Appeals are allowed as above. The appellants will be entitled for all statutory benefits admissible under Section 23 (1A), 23(2) and 28 of the Land Acquisition Act on the enhanced compensation which they are getting towards the land value. But towards compensation that is awarded to them under the present judgment they will get only statutory interest under Section 28 and not the amounts under Sections 23(2) and 23 (1A). It is seen that the court below has awarded Section 28 interest at 9% from the date of the award. We clarify that the interest under Section 28 will become admissible only from the date of taking over of possession. Appeal is allowed as above. Parties are directed to suffer their respective costs. PIUS C.KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb