IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 8TH JANUARY 2010 / 18TH POUSHA 1931 LA.App..No. 1117 of 2009(D) --------------------------- LAR.258/2007 of III ADDL.SUB COURT, ERNAKULAM .................... APPELLANT(S): RESPONDENTS ------------------------- 1. STATE OF KERALA, THE SPECIAL TAHSILDAR (LA), NH(1), CIVIL STATION, KAKKANAD. 2. THE EXECUTIVE ENGINEER, N.H.BRIDGES DIVISION, KODUNGALLOOR. BY GOVT. PLEADER SMT. LATHA T. THANKAPPAN RESPONDENT(S): CLAIMANTS ------------------------ SRI.ABDULKHADAR, S/O.OUKAR, MALIYAMVEETTIL, PERINGATTU, CHUTTUPADUKARA, EDAPPALLY. ADV. SRI.ESM.KABEER THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 08/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ. ---------------------------------- L.A.A. No.1117 of 2009 ---------------------------------- Dated this the 8th day of January, 2010 J U D G M E N T ---------------- Pius C.Kuriakose,J. On this appeal coming up for admission Sri.E.S.M.Kabeer, learned counsel for the respondent/claimant took notice and we have accordingly heard the learned Senior Government Pleader Smt.Latha T.Thankappan and Mr. Kabeer on the appeal. The acquisition was for the construction of NH-17. The property was in Edappally North village. Relevant Section 4(1) notification was published on 14.3.2002. Land Acquisition Officer included the property in the category No.3. The property was having frontage of PWD Road(obviously very close to NH-17) and Land Acquisition Officer awarded the land value at Rs.1,59,000/- per Are. Before the Reference Court the evidence consisted of Exts.A1 to A8, R1 and R2 and the oral testimonies of AW1 and 2 L.A.A.1117/09 2 apart from commission report C1 and C1(a). There was no counter oral evidence on the side of the appellant Government. Reference court noticed that the property was situated very close to the junction wherefrom NH-17 and NH-47 meet. The court also noticed on the basis of the Advocate Commissioner's report that the property was having access to NH-47 through NH-17 and accordingly it was observed that the Land Acquisition Officer should have included the property in a superior category. Having scanned the materials available we are of the view that the learned Subordinate Judge was justified in taking the view that the property under acquisition was eligible for inclusion at least in category No.2. On evaluating the evidence the land value was re-fixed at Rs.3,33,790/-. When it is noticed that the land was eligible to be included in category No.2 for which the Land Acquisition Officer awarded the land value at Rs.1,99,000/- per Are, we are of the view that the rate of land value presently re-fixed under the impugned judgment is not unreasonable. 2. Another question which arises in this case L.A.A.1117/09 3 is whether the compensation awarded towards injurious affection for the remainder property is excessive. Mr. E.S.M.Kabeer, learned counsel for the appellant submitted that the remainder property of the appellant has been reduced to a valueless strip. According to him it will not be possible for the respondent to put up any construction on that strip. Smt. Latha T.Thankappan, Senior Government Pleader submitted that there is already a building existing on the remainder property which has been let out by the respondent for the conduct of fast food business. We have considered the submissions. We notice that the measurement of the remainder extent is 24 metres x 7.5 metres (average). Under the impugned judgment the learned Subordinate Judge had granted a lump sum of Rs.1,66,895/- towards compensation for injurious affection. We find that the learned Subordinate Judge has calculated the percentage of diminution at 27%. We feel that the percentage of diminution fixed by the Subordinate Judge is slightly excessive. On a better assessment according to us the percentage of diminution will be only 24%. L.A.A.1117/09 4 Calculating on that way the amount payable to the respondents towards compensation for injurious affection will come to Rs.1,44,887/- only which we round off to Rs.1,45,000/-. Thus in modification of the impugned judgment we re-fix the compensation payable to the respondent towards injurious affection of the remainder property at Rs.1,45,000/-. The impugned judgment will stand modified and the appeal will stand allowed to the above extent. Parties are directed to suffer their costs. We further clarify that for the amount awarded towards injurious affection, the respondent will not be entitled for additional amount under Section 23(1A). PIUS C. KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb