IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 5TH OCTOBER 2009 / 13TH ASWINA 1931 LA.App..No. 1173 of 2009 ----------------------------- LAR.1/2003 of SUB COURT, PAYYANNUR .................... APPELLANT(S): CLAIMANT ----------------------------- PIOUS THOMAS,S/O.ANNAMMA THOMAS, VELANMARKUDIYIL,KARTHIKAPUARAM, ALAKODE AMSOM,ALAKODE POST, THALIPARAMBA,KANNUR. BY ADV. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH SMT.LEELA.R. RESPONDENT(S): RESPONDENTS ------------------------------------- 1. STATE OF KERALA, REP.BY THE SPECIAL THASILDAR (LA), NH.KANNUR. 2. THE GENERAL MANAGER, TELECOM,BSNL,KANNUR. ADV. SRI.K.KESAVANKUTTY, SC, BSNL FOR R2 SRI.MATHEW PHILIP SR. GOVT. PLEADER SMT.LATHA T. THANKAPPAN THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 05/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & K. SURENDRA MOHAN, JJ. ------------------------------------------------ L. A. A. No.1173 of 2009 ------------------------------------------------ Dated this the 5th day of October, 2009 JUDGMENT Pius C. Kuriakose, J This is an appeal by the claimant who is aggrieved by the re-determination of compensation for his properties which were acquired for the purpose of establishing a telephone exchange for the BSNL. As directed by us, Sri.K.Kesavankutty, the Standing Counsel for the BSNL has taken notice and we have heard submissions of Sri.K.N.Abhilash, the learned counsel for the appellant and of Sri.K.Kesavankutty, the Standing Counsel for the BSNL and those of Smt.Latha T. Thankappan, the learned Senior Government Pleader. 2. Sri.Abhilash submitted that the court below ought to have relied on Ext.A1 which revealed a land L. A. A. No.1173 of 2009 -2- value of Rs.20,000/- per cent. He further submitted that the sum of Rs.50,000/- awarded by the court below towards injurious affection of the un-acquired land of the claimant's property extending to 1 acre and 20 cents is quite inadequate. 3. The above submissions were very strongly opposed by Sri.Kesavankutty and Sri.Kesavankutty's submissions were endorsed by Smt.Latha T. Thankappan, the learned Senior Government Pleader. 4. Ext.A1 document is a pre-notification document which reveals a land value of Rs.20,000/- per cent. Ext.A1 was rejected by the court below on the reason that Ext.A1 pertains to a small plot. Another reason stated by the learned Subordinate Judge is that Ext.A1 may be disclosing a fancy price. The court below did not become inclined to rely on the document produced by the Land Acquisition authority L. A. A. No.1173 of 2009 -3- either. What the court did was to do some guess work and re-fixed the land value at Rs.6,000/- per cent. Having recourse to guess work in Land Acquisition Proceedings for determining the market value of lands under acquisition is permissible. The only thing is that the guess should have some nexus to the evidence on record. Even though, the court below was justified in not relying on Ext.A1 fully, we feel that Ext.A1 was not totally irrelevant in the matter. Placing some reliance on Ext.A1, we make a guess of the market value of the property and on making such guess, according to us, the market value can be re-fixed at Rs.7,500/- per cent. The re-fixation of the market value of the land as done above will necessarily, have consequence on the total amount to which the appellant is eligible towards injurious affection. We find that it is a flat sum of Rs.50,000/- which is awarded. Compensation towards L. A. A. No.1173 of 2009 -4- injurious affection is to be decided by first fixing the percentage of diminution sustained by the remainder land. In the instant case, it is seen that the learned Subordinate Judge has not chosen to fix the percentage of diminution sustained by the remainder land. But the sum of Rs.50,000/- will come to roughly 7% if the market value is treated as Rs.6,000/-. We feel that the remainder extent of land has sustained diminution at least 10% diminution on account of acquisition. This means that every cent of un-acquired land in the possession of the appellant will have to be awarded Rs.750/-. This means, the appellant is entitled for a total amount of Rs.90,000/- towards compensation for injurious affection (inclusive of what is already awarded by the court below). We award Rs.90,000/- to the appellant as total compensation towards injurious affection. But this amount which is L. A. A. No.1173 of 2009 -5- being awarded as compensation for injurious affection will not be eligible for either solatium under Section 23 (2) or additional amount under Section 23(1A). But, for the enhancement which the appellant is getting by virtue of our re-fixation of land value, he will be entitled for all statutory benefits. 5. The appeal will stand allowed to the above extent, but in the circumstances, parties are directed to suffer their costs. PIUS C. KURIAKOSE JUDGE K. SURENDRA MOHAN JUDGE kns/-