IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 18TH MARCH 2009 / 27TH PHALGUNA 1930 LA.App..No. 636 of 2006(D) -------------------------- LAR.25/2003 of ADL.SUB COURT, THALASSERY .................... APPELLANT(S): CLAIMANTS ------------------------ 1. K.C.LAKSHMI AMMA, W/O. LATE NARAYANAN NAMBIAR, AGED 70 YEARS, ANAND VIHAR, P.O.MUNDERI. 2. K.C.VANAJA, AGED 53 YEARS, D/O. LATE NARAYANAN NAMBIAR, PARVATHI SADAN, P.O.NIRMALAGIRI, KUTHUPARAMBA. 3. K.C.ANANDAVALLI, AGED 45 YEARS, D/O. LATE NARAYANAN NAMBIAR, MADHAVI SADAN, THODEEKALAM, P.O.KUNNOTH, KUTHUPARAMBA. 4. K.V.RAVEENDRAN, AGED 40 YEARS, S/O. LATE NARAYANAN NAMBIAR, ANAND VIHAR, P.O.MUNDERI. 5. K.C.VIMALAKUMARI, AGED 38 YEARS, D/O. LATE NARAYANAN NAMBIAR, MOLAYIL HOUSE, P.O.MUNDAYAD, KANNUR. 6. K.C.KOMALAVALLI, AGED 36,D/O. LATE NARAYANAN NAMBIAR,'VALIYA VEEDU', P.O.CHELORA, KANNUR DT. (APPLTS.1&2&4 TO 6 BY P/A. HOLDER APPELLANT-3 K.C.ANANDAVALLI, AGED 45, D/O. LATE NARAYANAN NAMBIAR,MADHAVI SADAN, THODEEKALAM, P.O.KUNNOTH, KUTHUPARAMBA.) BY ADV. SRI.P.M.PAREETH SMT.C.C.JANCY SRI.MOHAMMED SHAMEEL RESPONDENT(S): RESPONDENTS --------------------------- 1. SPECIAL TAHSILDAR, LA, (NH), KANNUR. 2. THE GENERAL MANAGER, TELECOM, KANNUR. ADV. SRI.MATHEWS K.PHILIP,SC, BSNL FOR R2 GOVERNMENT PLEADER SRI.P.K.BABU THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 18/03/2009, ALONG WITH LAA NO. 586 OF 2006 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ L.A.A.Nos.586 & 636 of 2006 ------------------------ Dated this the 18th day of March, 2009 JUDGMENT Pius C.Kuriakose, J. Heard Sri.P.M.Pareeth, learned counsel for the petitioners in L.A.A.636/2006, Sri.Mathews K.Philip, learned counsel for the petitioner in L.A.A.586/2006 and Sri.P.K.Babu, the learned Government Pleader for the respondents. 2. L.A.A. No.636/2006 is filed by the claimant and L.A.A No.586/2006 is filed by the BSNL, the requisitioning authority. The acquisition was in Munderi Village in Kannur District and the purpose of the acquisition was the construction of telephone exchange for BSNL. The relevant Section 4(1) notification was published on 14/9/2000. The awarding officer granted land value at the rate of Rs.4,042/- per cent. The evidence before the reference court consisted mainly of Ext.A2 document dated 11/12/1996, the oral testimony of AW1 to AW4 on the side of the claimants, Ext.X1 commission report, Ext.X1(a) plan submitted by the commissioner and RW-1 an officer attached to L.A.A..No.586/2006 & another 2 the Land Acquisition Authority. Ext.A2 revealed land value of Rs.29,000/- per cent. Apart from the claim for land value, the claimants had a claim for compensation towards injurious affection of their reminder properties. The report of the commissioner, to a certain extent, supported the above claim. However, the learned Subordinate Judge did not award any amount towards compensation for injurious affection of the remainder properties of the claimants. The learned Sub Judge did not rely on Ext.A2 document. On the contrary, what the learned Judge did was to notice the value revealed in Ext.A2, the commissioner's report recommending for award of compensation towards injurious affection and to fix Rs.50000/- per cent as market value of the property. According to us, approach of the learned Sub Judge was not proper. The learned Judge ought to have fixed the market value of the property and thereafter fixed the percentage of diminution affected of the remainder properties of the claimants and quantify the amount to be awarded towards diminution of the land value separately and award separate amounts on that count. 3. We are informed that the total compensation payable L.A.A..No.586/2006 & another 3 under the impugned decree has now been paid to the claimants. We are of the view that the matter is liable to be remanded to the reference court, so that the reference court can refix the market value of the acquired property, the percentage of diminution suffered by the remainder properties of the claimants and then quantify the total amount to be paid to the claimant towards injurious affection of the remainder properties. 4. The result is that, the impugned judgment and decree are set aside. The L.A.R. is remitted to the reference court. The reference court will afford an opportunity to both sides to adduce whatever further evidence they want to regarding the market value of the property and also regarding the percentage of diminution sustained by the remaining property and will pass revised judgment in the light of the observation contained herein above. The revised judgment , as directed above, shall be delivered by the learned Subordinate Judge within four months of receiving a copy of this judgment. 5. It is made clear that payment made to the claimants on the strength of the judgment and decree, which is now set aside, will be subject to the revised judgment and decree to be passed L.A.A..No.586/2006 & another 4 by the learned Judge. The parties will appear before the court below on 21/5/2009 the date on which the court reopens after summer holidays. Refund full court fee paid on the appeal memoranda to the counsel for the appellants in both cases. PIUS.C.KURIAKOSE,JUDGE C.K.ABDUL REHIM, JUDGE dpk Figure and words “Rs.29,000/- per cent” occurring in the 2nd line in page 2 of the common judgment dated 18/03/2009 in L.A.A. Nos.586/2006 and 636/2006 are corrected as “ Rs.26,000/- per cent” and the words and figure “Rs.50,000/- per cent” occurring in the 12th line in page 2 are corrected as Rs.15,000/- per cent” as per order dated 08/04/2009 in I.A. No.1384/2009. Sd/- Registrar (Judicial)