IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 1ST OCTOBER 2009 / 9TH ASWINA 1931 LA.App..No. 433 of 2004(C) ------------------------------ LAR.2/1993 of ADDL.SUB COURT,KOTTAYAM .................... APPELLANT(S): RESPONDENT -------------------------------- STATE OF KERALA BY SR. GOVERNMENT PLEADER SMT.LATHA T. THANKAPPAN RESPONDENT(S): CLAIMANT & ADDL.RESPONDENT ------------------------------------------------------- 1. RAMAN NAIR, NEPHEW OF NEELAKANDAN NAIR, VATTAPARAMBIL, VIJAYAPURAM KARA, MANARCAUD VILLAGE [DIED] 2. ADDL.RESPONDENT: SENIOR SUPERINTENDENT OF POST OFFICE, DEPARTMENT OF POSTS, KOTTAYAM DISTRICT. * ADDL. RES. 3 TO 9 3. M.KAMALAKSHIAMMA, W/O RAMAN NAIR, VATTAPPARAMBIL, VIJAYAPURAM KARA, MANARCAUD VILLAGE. 4. K.VALSALAKUMARI, D/O RAMAN NAIR, PADMA NIVAS, MANARCAUD. 5. R. PADMASENAN, S/O RAMAN NAIR, VATTAPPARAMBILAYA, VETTIPPARAMBIL, MANARCAUD. 6. RAVIMENON, S/O RAMAN NAIR, SANKARASSERIL, MANARCAUD. 7. RAMMANOHAR, S/O RAMAN NAIR, VATTAPPARAMPILAYA, VETTIPPARAMBIL, MANARCAUD. 8. GOPIMANOHAR, S/O RAMAN NAIR, VATTAPPARAMBILAYA, VETTIPPARAMBIL, MANARCAUD. 9. SIVAMANOHAR, S/O RAMAN NAIR, VATTAPARAMBILAYA, VETTIPPARAMBIL, MANARCAUD. *[ADDL. RESPONDENTS 3 TO 9 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED FIRST RESPONDENT VIDE ORDER ON I.A.3791/05 DT.01/10/09] ADV. SRI.M.NARENDRA KUMAR FOR R1 SMT.LEENA KRISHNAN FOR R1 SRI.S.KRISHNAMOORTHY FOR R2 SMT,O.H.NAZEEBA FOR R2 THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 01/10/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ L.A.A.No.433 OF 2004 ------------------------ Dated this the 1st day of October, 2009 JUDGMENT Pius C.Kuriakose, J. The Government is in appeal. The properties were in Manarakadu of Kottayam District. The acquisition was for the purpose of construction of post office for the second respondent. The notification under Section 4(1) was published on 3/7/1990. In the first instance, the Land Acquisition Officer awarded land value at the rate of Rs.5,000/- per Are and Rs.1950/- per Are respectively for properties in categories 1 and 2. The Reference Court under the impugned Judgment noticed that the difference between the properties in categories 1 and 2 was only one and half feet and accordingly, refixed the land value at Rs.15,000/- per cent and 11250/- per cent respectively. The evidence before the Reference Court consisted of Exts.A1 to A6, R1 to R4, oral testimonies of AW1 to AW4, RW1 and also the commission report C1 and plan C1(a). It was relying on Exts.A2 and A3 post notification documents, enhancement was granted by the Reference Court. The Reference Court also awarded severance LAA.No. 433/2004 2 compensation for the remainder extent of land extending to 11 ½ cents at the rate of Rs.5000/- per cent. Thus the percentage of enhancement granted towards injurious affection of the remainder extent was more than 40% . 2. We have heard the submissions of Smt.Latha T.Thankappan, learned senior Government Pleader and Sri.S. Krishna Moorthi, the learned counsel for 2nd respondent requisitioning authority. We have also heard the submissions of Sri.M.Narendra Kumar learned counsel for the respondent/claimant. 3. Sri.Krishnamoorthi and Smt.Latha T.Thankappan would assail the decision of the learned Sub Judge. According to them, the court below was not justified in placing reliance on Exts.A2 and A3 post notification documents. They argued that there is no comparison between land under acquisition and properties covered by Exts.A2 and A3. They would also submit that, at any rate ,deduction made on the value reflected in A2 and A3 for passage of time between the date of promulgation of Section4(1) notification and the dates of the documents is not sufficient. The award of compensation for injurious affection of the remainder LAA.No. 433/2004 3 property came up for sharp criticism at the hands of Sri. Krishnamoorthi. According to him, remainder property of the claimant has not been seriously affected at all, since the second respondent did not acquire 6 metres wide strip of land belonging to the respondent, so that the remainder land is not completely deprived of road access. Percentage of diminution if at all is not more than 10%. In this connection Sri. Krishnamoorthi referred to the judgment of the Full Bench of this Court in Kumba Amma v. KSEB ( 2000 (1) KLT 542) . 4. All the submissions of Sri.Krishnamoorthi and Smt.Latha T.Thankappan were very stiffly resisted by Sri.Narendra Kumar. Referring to the Advocate Commissioner's report and the evidence on record, Sri.Narendra Kumar submitted that the properties were situated by the side of the old K.K.Road and at a distance of just one and half fur long away from the main junction of Manarkadu. According to him, acquired properties were superior to the properties covered by Exts.A2 and A3. He submitted that the entire property of the claimant was being enjoyed by the claimant as a single holding which was enjoying direct frontage of the main road. Now because of the LAA.No. 433/2004 4 acquisition, the remainder property has been deprived of the frontage of the main road and there has been diminution and percentage of diminution found by the court below is correct. 5. We have considered the rival submissions addressed at the Bar. According to us, the court below cannot be found fault with for having placed reliance on Ext.A2, since there is comparison between the properties under acquisition and properties covered by Exts.A2 and A3. But, at the same time, we feel that the court below has not deducted the proper percentage for passage of time between the date of promulgation of Section 4(1) notification and date of execution of the documents. When a proper percentage is deducted, the correct market value of the land to be refixed on the basis of Exts. A2 and A3 will come to Rs.14,500/-. Maintaining the ratio maintained by the Reference Court, we refix the value of lands under acquisition included in category 2 at Rs.11,000/-, which means that the value of lands under acquisition in this case will stand refixed at Rs.11,000/-, in modification of the sum of Rs.11250/- fixed under the impugned judgment. We find some genuineness in the grievance voiced by the requisitioning LAA.No. 433/2004 5 authority regarding the percentage of diminution allowed by the court below. Taking into account, the entirety of the evidence on record, we feel that the proper value to be allowed by way of compensation for injurious affection of the remainder extent extending 11.5 cent is Rs.3,300/-. Thus in modification of the decision of the learned Sub Judge that sum of Rs.5,000/- should be awarded for remainder properties, we order that the claimant will be entitled for award of Rs.3,300/-per cent only for the remainder property extending to 11.5 cents. The appeal will stand allowed to the above extent. It is made clear the respondent/claimant will be entitled for all statutory benefits on the total enhanced compensation to which he becomes eligible by virtue of this judgment. The parties will suffer their costs. PIUS C.KURIAKOSE,JUDGE K.SURENDRA MOHAN, JUDGE dpk