IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 23RD MARCH 2009 / 2ND CHAITHRA 1931 LA.App..No. 945 of 2005() ------------------------- LAR.125/2003 of III ADDL.SUB COURT, ERNAKULAM .................... APPELLANT(S): CLAIMANT. ----------------------- THE PROCURATOR, THE ACRCHIDIOCESE OF VERAPOLY, LATIN ARCHIBISHOPS HOUSE, COCHIN 682 031 BY ADV. SRI.T.P.SAJAN SRI.L.ALOYSIUS THOMAS SRI.M.MOHAMED NAVAZ RESPONDENT(S): RESPONDENTS. --------------------------- 1. STATE OF KERALA. 2. THE MANAGING DIRECTOR, ROADS AND BRIDGES DEVELOPMENT CORPORATION OF KERALA LTD., PALARIVATTOM. GOVERNMENT PLEADER SRI.P.K.BABU THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 23/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ L.A.A.No. 945 of 2005 ------------------------ Dated this the 23rd day of March, 2009 JUDGMENT Pius C.Kuriakose, J. Under challenge in this appeal filed by the claimant is the judgment and decree of the land acquisition reference court, Ernakulam in L.A.R.No.125/2003. The acquisition was for the purpose of construction of railway over bridge at Ponnurunni in Poonithura Village on the Palarivattom - Vyttila road. Relevant Section 4(1) notification was published on 2/4/2002. As against the claim for a much higher amount, the land acquisition officer awarded land value at the rate of Rs.1,85,850/- per Are, for the acquired property in this case which was included in category 1 viz. properties having direct frontage of the Palarivattom – Vyttila road. The reference court on evaluating the evidence, which consisted of Exts.A1 and A2, oral testimony of AWs1 to 3, Ext.B1 to B3 and Ext.C1 Commission report and C1(a) sketch submitted by the Commissioner, would refix the land value of the acquired properties at Rs.3,61,260/- . Apart from the claim for land value, the appellant had claimed compensation towards L.A.A..No.945/2005 2 diminution in the land value of the appellant's property which remained unacquired. The claim was that on account of the acquisition, the remainder property of the appellant has been rendered unfit for the purpose for which it was intended. According to the appellant, the acquired property was the play ground of St.Ritha's High school, and since a portion of the same has been acquired, remaining area could no longer be used as a play ground in accordance with the requirements of the Kerala Education Rules and thus from the point of the view of the appellant for managing the school the property has become worthless. The learned Subordinate Judge did not accept the appellant's claim that the remainder properties had become completely useless. According to that court, it may be true that the remainder properties cannot any longer be used as a football groundL it can yet be used as a volleyball ground. The compensation for injurious affection was claimed by the appellant also for the reason that on account of coming up of the proposed over bridge the remainder properties which were otherwise enjoying direct frontage of the main road, will be deprived of such frontage. The learned Subordinate Judge did not adopt any L.A.A..No.945/2005 3 clear formula for determining the compensation payable to the appellant towards injurious affection of the unacquired properties. However, noticing that there will be some injurious affection, what the learned Judge did was to award a lump sum amount of Rs.2 Lakhs to the appellant towards injurious affection. 2. We have heard the submissions of Sri.L.Aloysius Thomas learned counsel for the appellant and those of Sri.P.K.Babu, learned senior Government Pleader. It was brought to our notice that another Division Bench of this court in L.A.A. Nos. 644 and 793/2005, considering the appeals by the reference court in identical cases pertaining to the very same acquisition, refixed the value of land at Rs.1,85,000/- per cent. Even though Sri. Aloysius Thomas argued that there is justification for awarding higher value for the acquired properties belonging to the claimant, we are not much impressed and in our view uniform rate of land value has to be given for the properties treated by the land acquisition officer as having same value on the basis of categorization adopted by him. We therefore, follow the judgment of this court in L.A.A.No.644 and 793/2005 and refix L.A.A..No.945/2005 4 the market value of the acquired land in this case at Rs.185,000/- per cent. It is needles to mention that the appellant will be entitled for all the statutory benefits admissible under Sections 23(2), 23(1A) and 28 of the Land acquisition Act on the enhancement to which he becomes eligible on account of such refixation. 3. It is necessary to consider the appellant's claim for compensation towards diminution of land value of the unacquired properties. It has to be found on the basis of the advocate Commissioner's report that the correct extent of the remainder properties belonging to the appellant is 34.643 cents. We are unable to approve the action of the court below in awarding a lump sum amount towards compensation for injurious affection. It is by now trite that whenever the reference court under Section 18 of the Land acquisition Act proceeds to award substantial amounts towards compensation for injurious affection of the unacquired property of the claimant, the court shall determine the percentage of the diminution first and then compute the compensation amount on the basis of the extent of the unacquired property. L.A.A..No.945/2005 5 4. According to Sri.Aloysius Thomas, there has been atleast 40% diminution in the value of the unacquired property of the claimant. We are not prepared to agree with Sri.Aloysius Thomas straight away. However, on re appreciation of the evidence in this case including the advocate commissioner's report and on considering the submissions addressed before us, we are of the view that the percentage of diminution in the land value of the unacquired property of the claimant will be atleast 20%. But, we do not propose to decide that question finally. We would rather leave this question to be determined by the reference court. Accordingly, we are inclined to dispose of this appeal issuing the following orders and directions;- i). Judgment and decree under appeal are set aside. The value of the acquired lands is redetermined at Rs.1,85,000/- per cent. ii). The award of lump sum of Rs. 2,00,000/- towards compensation for injurious affection is set aside and the question of determining the correct L.A.A..No.945/2005 6 compensation payable towards the appellant's claim towards injurious affection of the unacquired properties is relegated to the reference court. The land acquisition reference case is therefore remanded to the Subordinate Judge's Court, Ernakulam for determining the correct percentage of the diminution suffered by the unacquired properties of the claimant on account of the acquisition. Iiii). The reference court will give both sides to adduce fresh evidence regarding the correct percentage of diminution. Once the correct percentage is arrived at, total compensation payable towards the diminution of the land value will be determined by the court. The reference court will complete further trial and pass revised judgment within four months of the court re- opening after mid summer holidays. L.A.A..No.945/2005 7 Refund full court fee paid on the appeal memorandum to the counsel for the appellant. PIUS.C.KURIAKOSE,JUDGE C.K.ABDUL REHIM, JUDGE dpk