IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 4TH AUGUST 2009 / 13TH SRAVANA 1931 LA.App..No. 1687 of 2008() -------------------------- LAR.191/2003 of ADL.SUB COURT, THALASSERY .................... APPELLANT(S): CLAIMANTS ----------------------- 1. A.C.DAKSHAYANI, D/O.A.C.KALLYANI, KOLLANKUDI HOUSE, KOODALI AMSOM, MATTANNUR DESOM. 2. A.C.SREEDHARAN, KOLLANKUDI HOUSE, KOODALI AMSOM, MATTANNUR DESOM. 3. A.C.RAJEEVAN, KOLLANKUDI HOUSE, KOODALI AMSOM, MATTANNUR DESOM. 4. A.C.MALATHI, KOLLANKUDI HOUSE, KOODALI AMSOM, MATTANNUR DESOM. 5. A.C.SUMALINI, KOLLANKUDI HOUSE, KOODALI AMSOM, MATTANNUR DESOM. BY ADV. SRI.T.A.RAMADASAN SRI.CIBI THOMAS RESPONDENT(S): RESPONDENTS -------------------------- 1. THE SPECIAL TAHSILDAR L A, THALASSERY. 2. THE GENERAL MANAGER, B S N L, TALAP, KANNUR. ADV. SRI.MATHEWS K.PHILIP,SC, BSNL FOR R2 THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 04/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & P. Q. BARKATH ALI, JJ. ------------------------------------------------ L. A. A. No.1687 of 2008 ------------------------------------------------ Dated this the 4th day of August, 2009 JUDGMENT Pius C. Kuriakose, J The claimants are in appeal being aggrieved by the re-fixation of the market value of the acquired property by the Reference Court. The acquisition was pursuant to Section 4(1) notification published on 22/12/2000. The property was in Keezhallur village. The purpose of acquisition was construction of a telephone exchange for the second respondent/ Requisitioning Authority. The Land Acquisition Officer awarded land value at Rs.8,000/- per cent. The Reference Court would re-fix the same at Rs.10,000/- per cent. The appellants did not produce any documents revealing higher land value before the L. A. A. No.1687 of 2008 -2- Reference Court. The appellants' claim for enhanced value was based on recommendations of the Advocate Commissioner who had reported that the acquired property was situated at a distance of less than 100 metres from the Chalode bus stand. The appellants had a claim before the Reference Court for compensation towards injurious affection of the remainder properties. The above claim was supported to a certain extent by the report of the Advocate Commissioner and testimony of RW1 Government's witness. The Reference Court however, did not award any separate compensation towards injurious affection of the remainder property. What the court below did was to notice the complete absence of documents revealing higher land value, to take into account the L. A. A. No.1687 of 2008 -3- CR as well as the evidence which were to the effect that the remainder property has been affected injuriously and re-fixed the market value doing guess work at Rs.10,000/- per cent. In other words, the aspect of remainder properties being injuriously affected was also taken into account by the Reference Court while re-fixing the market value. 2. We have heard the submissions of Sri.Cibi Thomas, the learned counsel for the appellants and Mathew K. Philip, the learned Standing Counsel for the Requisitioning Authority. We have heard the submissions of Smt.Latha T. Thankappan, learned Government Pleader also. Sri.Cibi would urge before us that the remainder un-acquired property of 85 cents has been injuriously affected by the acquisition L. A. A. No.1687 of 2008 -4- and that extent has been completely deprived of. The learned counsel argued that the court below ought to have awarded some compensation towards injurious affection of the un-acquired property. We are not inclined to accept the argument. We find that in the memorandum of appeal the appellants' claim is towards enhancement in land value only. The appellant's claim is that Rs.30,000/- per cent should have been awarded as market value and the claim is limited to a total compensation of Rs.1 lakh. It is not possible for us to award compensation for injurious affection separately. But at the same time, we find that it is applying guess work that the learned Subordinate Judge fixed the market value at Rs.10,000/-. According to us, on a better guess, the L. A. A. No.1687 of 2008 -5- market value of the acquired property could be re- fixed at Rs.10,500/- per cent on the evidence available on record and the Commissioner's Report and the oral evidence of the parties. Accordingly, we allow the appeal and re-fix the market value of the land under acquisition at Rs.10,500/- per cent. Appeal allowed to the above extent. 3. It is made clear that the appellants will be entitled for all statutory benefits admissible under Section 23(2), 23(1A) and under Section 28 of the Land Acquisition Act on the total enhanced compensation to which they become eligible by virtue of the re-fixation of market value done under this judgment. 4. The appeal is allowed, but in the L. A. A. No.1687 of 2008 -6- circumstances, without any order as to costs. PIUS C. KURIAKOSE JUDGE P. Q. BARKATH ALI JUDGE kns/-