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 27TH JULY 2011 / 5TH SRAVANA 1933 LA.App..No. 393 of 2011() ------------------------- LAR.101/2009 of II ADDL.SUB COURT,ERNAKULAM .................... APPELLANT(S): CLAIMANT ---------------------- LILLY THOMAS, AGED 72, W/O.P.M.THOMAS, PUDUKATTUKARAN, KOCHI-18, REPRESENTED BY HER POWER OF ATTORNEY HOLDER, MATTO THOMAS, AGED 50, S/O.P.M.THOMAS, THOMAS TOWERS, 36/304-B, LISSIE HOSPITAL, COCHIN-18. BY ADV. SRI.P.VISWANATHAN RESPONDENT(S)/RESPONDENTS: --------------- 1. STATE OF KERALA REPRESENTED BY SPECIAL TAHSILDAR (LA), KOCHI CORPORATION, VYTTILA, PIN CODE-682019. 2. THE SECRETARY, KOCHI CORPORATION, ERNAKULAM, PIN CODE-682031. GOVERNMENT PLEADER SRI.V.T.K.MOHANAN THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 27/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ L.A.A.No. 393 OF 2011 ------------------------ Dated this the 27th day of July, 2011 JUDGMENT Pius C.Kuriakose, J. The claimant is in appeal. Her property in Ernakulam Village was acquired pursuant to Section 4(1) notification published on 21/7/2003 for the purpose of construction of Pullepady over bridge. The Land Acquisition Officer fixed the land value at the rate of Rs.3,20,818/-. There was a small structure on the property for which the Land Acquisition Officer awarded Rs.10,731/- as compensation. Before the Reference Court the evidence consisted of Ext.A3 sale deed and the report of the commissioner who conducted the local inspection. The commissioner reported that the property was very valuable situated only at a distance of 200 metres from the margin of Chittoor road, Ext.A3 though executed in 1995 reflected a land value of Rs.5,05,982.41 per cent. There was a building on Ext.A3 property and for that building separate value of Rs.5 Lakhs is seen paid. The learned Subordinate Judge did not place LAA.No.393/2011 2 reliance on Ext.A3. Apart from the claim for land value, the appellant had a claim for compensation for injurious affection on the reason that the balance property remaining under the ownership of the claimant had been reduced practically to a valueless irregular plot. The commissioner's report was to the effect that the newly constructed over bridge was to a considerable extent over the remainder property of the appellant. 2. The learned Subordinate Judge did not rely on Ext.A3 stating that Ext.A3 property took in a double storeyed building also and no separate value for the building was shown in Ext.A3. However, relying on the commissioner's report, the learned Subordinate Judge found that remainder property of the appellant was injuriously affected and fixed the percentage of diminution at 50%. After discarding Ext.A3, what the learned Subordinate Judge did was to apply the rule of thumb and to enhance the land value by 75% over what was awarded by the Land Acquisition Officer. Accordingly, the land value was refixed at Rs.5,61,246/- per Are. At that rate 50% value was given for the unacquired property extending to 1.4 Ares. Thus, Rs.4,04,098/- was awarded towards injurious affection. LAA.No.393/2011 3 3. In this appeal, claims are raised for enhancement in land value as well as for enhancement in compensation for injurious affection. We have heard the submissions of the learned counsel for the appellant Sri.P.Viswanathan and the learned Government Pleader Sri.V.T.K.Mohanan. As requested by the learned counsel, we have made a quick reappraisal of the evidence on record. One of the arguments, which was seriously addressed before us by Sri.Viswanathan, was that the court below was in error in ignoring Ext.A3. We find merit in the above submission. As already indicated, Ext.A3 was discarded on the reason that it took in a double storeyed building and no separate value is shown in Ext.A3 for the building. The finding of the learned Subordinate Judge that Ext.A3 property took in a double storeyed building and the further finding that no separate value has been shown for the land is incorrect. We scanned the document and we have found that it is not a double storeyed building that existed on the property and more significantly that separate land value at Rs.5,05,952/- per cent was shown in Ext.A3. 4. The learned Subordinate Judge has found rightly on the LAA.No.393/2011 4 basis of the commissioner's report that the unacquired property of the appellant is injuriously affected. On going through the advocate commissioner's report, we are also convinced that the remainder property has been injuriously affected and its value has been reduced considerably on account of acquisition in the present manner. In short, we are convinced that the compensation refixed by the learned Subordinate Judge is inadequate. 5. The learned Government Pleader requested that this court may not fix the compensation finally and the LAR case be remanded to the Reference Court so that both sides can adduce further evidence enabling the Reference Court to pass revised award on the basis of the entirety of the evidence which comes on record. In view of the request of the learned senior Government Pleader, we are inclined to pass an order of remand. 6. The result of the above discussion is that the judgment and decree under appeal are set aside. L.A.R. No.101/2009 is remanded to the Subordinate Court, Ernakulam. The learned Subordinate Judge is directed to permit both sides to adduce LAA.No.393/2011 5 whatever further evidence they want to and to pass revised judgment refixing the total compensation payable to the appellant for her acquired property keeping in mind the observations made herein regarding the relevance and probative value of Ext.A3. The parties will enter appearance before the Reference Court on 9/8/2011. The learned Subordinate Judge will give intimation to the Government Pleader of the court regarding the posting of the LAR on that date. The learned Subordinate Judge will complete the enquiry and pass revised award at his earliest. Refund full court fee on the appeal memorandum to the counsel for the appellant. PIUS C.KURIAKOSE,JUDGE C.K.ABDUL REHIM, JUDGE dpk