IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL TUESDAY, THE 13TH DECEMBER 2011 / 22ND AGRAHAYANA 1933 LA.App..No. 764 of 2010 (A) -------------------------------- LAR.26/2006 of PRL.SUB COURT,KOTTAYAM .................... APPELLANT(S): CLAIMANTS ------------------------------ P.S.PEER MOHAMMED, AKBAR MANZIL, PARAKKAVETTY, PERUNNA, CHANGANACHERRY, REP. BY HIS POWER OF ATTORNEY AND SON AKBAR SHERIEF, ABKAR MANZIL, PARAKKAVETTY, PERUNNA, CHANGANACHERRY. [DIED; LRs impleaded] * ADDL. APPELLANTS 2 TO 10 2. NABEEZA PEER MOHAMMED, WIFE OF LATE PEER MOHAMMED, AGED 80 YEARS, PARAKKAVETTI HOUSE, PERUNNA, CHANGANACHERRY. 3. AKBAR SHERIEF P.O., S/O OF LATE PEER MUHAMMED, AGED 56 YEARS, AKBAR MANZIL, PARAKKAVETTY, PERUNNA, CHANGANACHERRY. 4. HUMAYOON P.P., S/O LATE PEER MOHAMMED, GED 48 YEARS, PARAKKAVETTY HOUSE, PERUNNA, CHANGANACHERRY. 5. ZAKIR HUSSAIN, S/O LATE PEER MOHAMMED, AGED 48 YEARS, PARAKKAVETTY HOUSE, PERUNNA, CHANGANACHERRY. 6. HARIFFA BASHEER, DAUGHTER OF LATE PEER MOHAMMED, AGED 64 YEARS, R/A PUTHENPARAMBIL, MUTHOOR P.O., THIRUVALLA. 7. SABOORA VAHID, D/O LATE PEER MOHAMMED, AGED 62 YEARS, R/A T.C.12/1056, KUNNUKUZHY, THIRUVANANTHAPURAM. 8. FAZEELA, D/O LATE PEER MOHAMMED, AGED 50 YEARS, KATTICARAN TOWER, OFF PROVINDENCE ROAD, COCHIN - 18. LA.App..No. 764 of 2010 (A) -2- 9. SHASHIDA ALI, D/O LATE PEER MOHAMMED, AGED 59 YEARS, R/A VAZHUTHACAUD, THIRUVANANTHAPURAM. 10. MUMTAZ, D/O LATE PEER MOHAMMED, AGED 44 YEARS, R/A MANGALATH HOUSE, MEVELLOOR P.O., VAIKOM. [ADDL. APPELLANTS 2 AND 4 TO 10 ARE REPRESENTED BY THE POWER OF ATTORNEY AND 3RD PETITIONER AKBAR SHERIEF P.P., SON OF LATE PEER MOHAMMED, AGED 56 YEARS, AKBAR MANZIL, PARAKKAVETTY, PERUNNA, CHANGANACHERRY] *[LEGAL HEIRS OF THE DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDL. APPELLANTS 2 TO 10 AS PER ORDER ON I.A.3985/11 DATED 13/12/11] BY ADV. SRI.A.A.MOHAMMED NAZIR RESPONDENT(S)/RESPONDENTS: ------------------------------------- 1. STATE OF KERALA, REP. BY THE DISTRICT COLLECTOR, KOTTAYAM. 2. EXECUTIVE ENGINEER, PWD ROAD DIVISION, KOTTAYAM. SR. GOVERNMENT PLEADER SRI.C.R.SHYAM KUMAR THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 13/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & K. HARILAL, JJ. ------------------------------------------------ L. A. A. No.764 of 2010 ------------------------------------------------ Dated this the 13th day of December, 2011 JUDGMENT Pius C. Kuriakose The claimant is in appeal. His property in Changanacherry village was acquired for the construction of Changanacherry Bye-pass 3rd Reach Part-I pursuant to Section 4(1) notification published on 20/01/05. The Land Acquisition Officer included his property in A3 category and awarded him land value at the rate of ` 20,646/- per Are. Before the Reference Court he placed reliance on Ext.A4 document as well as on Ext.C1 Commission Report. The Commissioner in Ext.C1 had reported that when compared to the basis property, the acquired property is situated in a much more important area and did not suffer from any disadvantages or minus factors. Though the Commissioner did not make any specific re-commendations with the value of the property it was indicated that the value of the L. A. A. No.764 of 2010 -2- property will be much more than that of the basis land. The learned Subordinate Judge did not place reliance on Ext.A4 for the reason that Ext.A4 is a post notification document. The learned Subordinate Judge perhaps kept in mind the recommendations of the Advocate Commissioner and would apply rule of thumb and re-fix the land value at ` 28,904/- per Are. The appellant had a claim for compensation for injurious affection for a total extent of 7.75 Ares of land which was reduced to a triangular bit on account of the emergence of the road through the middle of the petitioner's property. The Commissioner had recommended that the un- acquired portion which had been reduced to a triangular bit was injuriously affected to the tune of 55%. The learned Subordinate Judge, however, fixed the percentage of diminution suffered by the un-acquired portion at 10%. 2. In this appeal various grounds are raised assailing what is described as the gross inadequacy of the market value of the land re-fixed by the Reference Court. The L. A. A. No.764 of 2010 -3- grounds are raised challenging the insufficiency of the compensation awarded towards injurious affection of the un- acquired property. Sri.A.A.Mohammed Nazir, the learned counsel for the appellant addressed very strenuous submissions before us based on all the grounds. He drew our attention to the evidence on record, particularly to Ext.C1. According to him, Ext.A4 could have been relied on as there was no evidence to show that there was any increase in the land value between the period from the date of Section 4(1) notification and the date of Ext.A4 on account of the emergence of the bye-pass. 3. Sri.C.R.Shyamkumar, the learned senior Government Pleader, however, submitted that the learned Subordinate Judge cannot be blamed for having discarded Ext.A4. The learned Subordinate Judge has given reasonable enhancement taking into account the recommendations of the Commissioner that the acquired property was more important and valuable than the basis land. L. A. A. No.764 of 2010 -4- 4. We have considered the submissions addressed at the Bar. We notice the judgment of this Court in L.A.A.29/11 and in L.A.A Nos.857/10 and 859/10. LAA.29/11 was in respect of the same acquisition. The property was in the same village but included in a slightly higher category for which the Land Acquisition Officer awarded land value at the rate of ` 21,793/- per Are. L.A.A Nos.857 and 859 of 2010 also pertain to the same acquisition, but the properties here were included by the Land Acquisition Officer in a still higher category and awarded land value at the rte of ` 23,222/- per Are. For the properties covered by L.A.A.29/11 this Court re- fixed the value of the land at ` 1,62,692/- per Are. For the properties covered by L.A.A Nos.857 and 859 of 2010 this Court re-fixed the land value at ` 1,71,255/- per Are. In the present appeal, the land value claimed is limited to ` 80,000/- per Are. It is very clear to our mind that the appellant is liable for re-fixation of the market value of the land under acquisition at ` 80,000/- per Are. We re-fix the L. A. A. No.764 of 2010 -5- value of the land under acquisition at ` 80,000/- per Are. 5. We now come to the question of correct compensation to be paid to the appellant's un-acquired property extending to 7.75 Ares. Having considered the submissions addressed at the Bar and the evidence particularly the Commission Report, we feel that the value of the above un-acquired property extending to 7.75 Ares has been injuriously affected by at least 30%. We therefore, award to the appellant a total amount of ` 1,86,000/- (inclusive of what is already awarded towards compensation for injurious affection). The appeal is allowed as above. The appellant will be entitled for all statutory benefits on the re- fixed compensation. However, it is clarified that on the compensation which is awarded towards injurious affection, he will be liable only for interest under Section 28. Parties are directed to suffer their respective costs in this appeal. Decree copy will be issued to the appellant only after ensuring that the full court fee payable on the appeal L. A. A. No.764 of 2010 -6- memorandum is remitted. Sd/- PIUS C. KURIAKOSE JUDGE Sd/- K. HARILAL JUDGE kns/- //True Copy// P. A. TO JUDGE