IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 12TH AUGUST 2009 / 21ST SRAVANA 1931 LA.App..No.220 of 2006(D) ------------------------------ LAR.201/1999 of PRINCIPAL SUB COURT,N. PARAVUR .................... APPELLANT(S): CLAIMANTS ------------------------------- 1. ABRAHAM, S/O.KOCHU VARKEY, PADAYATTY, THURAVUMKARA, PRESENTLY RESIDING AT PADAYATTY HOUSE, KIDANGOOR (PO), (VIA) ANGAMALY. 2. KOCHUTHRESSIA, W/O.KOCHU VARKEY (DIED), PADAYATTY, THURAVUMKARA. BY ADV. SRI.JOSEPH A.VADAKKEL SRI.GEORGE KARITHANAM VARGHESE SRI.V.J.JOHN SRI.C.I.ABRAHAM SRI.JOSE KURIAKOSE (VILANGATTIL) RESPONDENT(S)/RESPONDENTS: ------------------------------------- 1. STATE OF KERALA. 2. KOCHI INTERNATIONAL AIRPORT SOCIETY, REPRESENTED BY ITS MANAGING DIRECTOR. ADV. SRI.N.N. SUGUNAPALAN, SC, P.F. FOR R2 SMT.T.N.GIRIJA, SC,EPF ORGANISATION FOR R2 THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 12/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & K. SURENDRA MOHAN, JJ. ------------------------------------------------ L. A. A. No.220 of 2006 ------------------------------------------------ Dated this the 12th day of August, 2009 JUDGMENT Pius C. Kuriakose, J This is an appeal preferred by the claimants and we have heard the submissions of Mr.Jose Kuriakose, the learned counsel for the appellants and those of Smt.T.N.Girija, Standing Counsel for the Requisitioning Authority. We have heard the learned senior Government Pleader, Mr.Basant Balaji also. 2. The learned counsel for the appellants would give thrust to the following points:- 1) The award has been passed only in respect of 9.30 Ares though a further extent of 0.82 Ares was also taken over from the possession of the appellants. The appellants, therefore, should be awarded land L. A. A. No.220 of 2006 -2- value for the remainder extent of 0.82 Ares also. Alternatively, the appellants should be awarded compensation for injurious affection for the aforesaid 0.82 Ares calculated at 80%. 2) The Expert Commission's report should have been accepted in the matter of valuation of the building which existed in the property and a further amount of Rs.3,72,419/- should have been awarded towards the value of the building. 3) The court below went wrong in computing the additional amount payable under Section 23(1A) since possession was taken actually on 28/01/1999 and not on 28/01/98. 3. The learned Standing Counsel for the Requisitioning Authority would resist all the submissions of the learned counsel for the appellants. L. A. A. No.220 of 2006 -3- It was submitted that the Mahazar to which the appellant is a signatory will reveal that the actual extent taken over from the appellant is only 9.30 Ares. In the teeth of the Mahazar, the appellants are estopped from contending that more extent was taken over from them. No commission was taken out to prove the contention that a balance extent of 0.82 Ares is remaining under the ownership and possession of the appellant. It was submitted that though the title deed of the appellants disclosed more extent, they were actually having possession of only 9.30 Ares, the entirety of which was taken over. 4. The recommendation in the Expert Commission's Report was totally unacceptable. The court below has given good reasons for rejecting the Expert Commission's Report. There is no justification L. A. A. No.220 of 2006 -4- for awarding more amount towards value of building. As regards argument based on Section 23(1A), it was submitted that the relevant dates are the dates of Section 4(1) notification and the date of passage of award since in this case award was passed earlier than the date of taking over of possession. 5. Having considered the rival submissions addressed at the Bar, we are of the view that in the teeth of the Mahazar prepared at the time of taking over of the possession, it is not possible to accept the contention of the appellant that the actual extent taken over from him is more than 9.30 Ares. It is also difficult to accept the appellants' contention that the appellants are retaining ownership and possession of a further extent of 0.82 Ares and that they should be awarded compensation for injurious affection for such L. A. A. No.220 of 2006 -5- portion. Evidently, the entire surroundings of the property which was taken over from the appellants has also been taken over by the acquiring authority in other acquisition cases and compensation paid to others. If at all the appellants have a case that they have been dispossessed of their property otherwise than on the strength of an award, their remedy lies elsewhere. We permit the appellant to move to a competent court for redressal of any grievance which they may have in the context of the extent of 0.82 Ares covered by their title. For the purpose of moving the Civil Court, the time taken till now and a further period of one month will be excluded under Section 14 of the Indian Limitation Act. 6. We are not impressed by the argument of the learned counsel for the appellants that the Expert L. A. A. No.220 of 2006 -6- Commission's Report should have been accepted. The learned Subordinate Judge has given good reasons for not placing reliance on the Expert Commission's Report. But we find that the building was valued by the Requisitioning Authority relying on PWD schedule of rates. It is well known that even the Public Works Department tenders out its works at rates 20% or 30% above their own rates. Construction of building as per the PWD schedule of rates is not a practical proposition. We feel that there is justification for granting 20% enhancement over what was awarded by the Land Acquisition Officer towards the value of building. Calculating that way, the appellants become entitled for Rs.1,53,540/-. We award the above amount of Rs.1,53,540/- to the appellant as additional compensation. L. A. A. No.220 of 2006 -7- 7. The learned Standing Counsel for the Requisitioning Authority is correct when she submits that the relevant date for determining the market value under Section 23(1A) of the Act, is the date of publication of Section 4(1) notification, the date of passage of award or the date of taking over of possession, which ever is earlier. In the instant case, 23/11/98 is the date of passage of award. Therefore, the appellant will be entitled for the additional compensation from the date of Section 4(1) notification i.e. 28/06/96 to 23/11/98, the date of passage of award only. It is clarified accordingly. It is also clarified that the date of taking over of possession was 28/01/99. This means that calculation of interest under Section 28 will be made with effect from 28/01/99. L. A. A. No.220 of 2006 -8- 8. The appeal is allowed to the above extent. Parties are directed to suffer their costs. PIUS C. KURIAKOSE JUDGE K. SURENDRA MOHAN JUDGE kns/-