IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 26TH MARCH 2009 / 5TH CHAITHRA 1931 LA.App.No.818 of 2005 --------------------------- LAR.92/2003 of III ADDL.SUB COURT, ERNAKULAM .................... APPELLANTS/CLAIMANTS: ----------------------------- 1. BHARGAVI AMMA, W/O. M.N.RAGHAVAN PILLA, AGED 80, KAROLLIL HOUSE, PONNURUNNI, POONITHURA VILLAGE, KANAYANNOOR TALUK. 2. K.R. BALAKRISHNAN, S/O. M.N.RAGHAVAN PILLA, AGED 55, KAROLLIL HOUSE, RESIDING AT KIZHAKKEKUTTAMATH HOUSE, PONNURUNNI, POONITHURA VILLAGE, KANAYANNOOR TALUK. BY MR.C.K.PAVITHRAN, ADVOCATE. MS.JIJI N.VARGHESE, ADVOCATE. RESPONDENTS/RESPONDENTS: ----------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, ERNAKULAM. 2. THE MANAGING DIRECTOR, ROADS AND BRIDGES DEVELOPMENT CORPORATION OF KERALA LTD., PALARIVATTOM. BY MR.KURIAN GEORGE KANNANTHANAM,SC,RBDCK FOR R2. MR.M.VIJAYA KUMAR, SC, RBDCK FOR R2. MR. BASANT BALAJI, SR. GOVERNMENT PLEADER FOR R1. THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 26/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE & C.K.ABDUL REHIM, JJ. - - - - - - - - - - - - - - - - - - - - - L.A.A.No.818 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of March, 2009 JUDGMENT Pius.C.Kuriakose, J. In this appeal the claimants impugn the judgment and decree of the land acquisition reference court. Under the impugned judgment, the land value which had been fixed by the land acquisition officer at Rs. 1,85,850/- per Are was refixed by the court at Rs. 2,00,000/- per Are. Similarly, the value of structures which had been fixed by the land acquisition officer at Rs. 60,342/- was enhanced by the court by Rs. 27,154/-. The acquired property is in Poonithura village and was enjoying the direct frontage of Palarivattom-Vyttila road. The acquisition was pursuant to section 4(1) notification published on 28/05/2002. It is brought to our notice that another Bench of this court in L.A.A.No.793/2005 wherein Ponnurunni NSS Karayogam was the claimant refixed the land value of identical properties covered by the very same notification at Rs. 1,85,000/- per cent. In view of such refixation there is every justification for refixing the value of the land LAA.No.818/05 2 which was acquired in this case also at Rs. 1,85,000/- per cent. 2. The appellants have filed an application for amendment of the appeal memo and we have allowed that application. As per the amended appeal memo, two grounds have been specifically raised by the appellants. The first ground is that the reference court did not award any amount to the appellants towards their claim for compensation for injurious affection. The court awarded only a lumpsum amount of Rs. 1,00,000/- towards their claims for injurious affection of their remainder properties on account of the acquisition. The other ground raised is that the reference court went wrong in determining the correct compensation payable for the building which existed on the acquired property. It is contended in this context that the value of the entire remainder property belonging to the appellant has been diminished considerably and also that the reference court went wrong in not placing reliance on Exts. A4 , A5 and A12 to determine that the building which stood on the acquired property was constructed in 1998. 3. Having heard the submissions of Sri.C.K.Pavithran, learned LAA.No.818/05 3 counsel for the appellant and those of Sri.Basant Balaji, learned senior Government Pleader, we feel that it is necessary to direct the reference court to reconsider the appellant's claim for compensation towards injurious affection of the remainder properties and towards compensation for the building which stood on the acquired property. It is trite that compensation for injurious affection is a compensation to be given with respect to the unacquired properties and the same will have to be computed on the basis of the market value of the acquired property and also the percentage of diminution suffered. It also cannot be in doubt that while determining compensation for any building, which is acquired, the age of the building is a relevant factor. We have gone through Exts.A4, A5 and A12 and we find much merit in the argument of the learned counsel for the appellant that the building was constructed only in 1998. In the instant case, what we find is that the formula to be followed for determining the compensation for injurious affection has not been followed. But the land acquisition officer has awarded only a lump sum amount. The judgment and decree will stand set aside to the extent it pertains to award of compensation for LAA.No.818/05 4 injurious affection and award of compensation for the building. The judgment to the extent of land value will set aside as already indicated by refixing the land value at Rs. 1,85,000/- per cent. The LAR will go back to the reference court for deciding the question of compensation to be paid towards injurious affection and towards value of building afresh. The reference court will afford opportunity to both sides to adduce whatever evidence which have at their command to substantiate their claim. The parties will appear before the reference court on the re-opening date. The reference court will take fresh decision on the basis of the evidence already on record and the evidence which comes to be on record at that court's earliest. Refund one half of the court fee paid on the appeal memo to the counsel for the appellant. PIUS.C.KURIAKOSE JUDGE C.K.ABDUL REHIM JUDGE sv. LAA.No.818/05 5