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 17TH MAY 2010 / 27TH VAISAKHA 1932 LA.App..No. 2196 of 2008(D) -------------------------- LAR.300/2004 of ADDL.SUB COURT,KOTTAYAM .................... APPELLANT(S): CLAIMANT ---------------------- V.J.ISSAC, S/O.JOSEPH, VALIYAMALA, KURUMULLOOR, ATHIRAMPUZHA VILLAGE. BY ADV. SRI.ABRAHAM MATHEW (VETTOOR) SMT.A.A.GEETHA RESPONDENT(S): RESPONDENT ------------------------- STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, KOTTAYAM. GOVERNMENT PLEADER SMT. R.BINDU THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 17/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ---------------------------------- L.A.A. No.2196 of 2008 ---------------------------------- Dated this the 17th day of May, 2010 J U D G M E N T ---------------------- Pius C.Kuriakose,J. The claimant is in appeal. His property in Athirampuzha Village was acquired for the purposes of a branch canal of the MVI Project. The relevant Section 4(1) notification was published on 26.7.2003. The Land Acquisition Officer relying on the basis document awarded a land value of Rs.17,151/- per Are. Before the reference court the appellant/claimant produced Exts.A1 to A4. While Ext.A1 to A3 were documents of sale reflecting higher land value, Ext.A4 was copy of the judgment of the same court in LAR.No.306/2004. LAR.No.306/2004 significantly was in respect of acquisition of identical property for the same purpose. Ext.A1 document, though was executed prior to the relevant Section 4(1) notification, was not relied on by the court below for the reason that there is a residential building situated in that property which was not separately valued. Ext.A2 property was situated about 4½ Kms away L.A.A.2196/2008-D 2 and is presently being used as parking ground of an ongoing hospital. Ext.A3 was also not taken into consideration for the reason that the same was a post-notification document. We are of the view that the learned Subordinate Judge was justified in not relying on Ext.A1 to A3. Ext.A4, as already stated, was in respect of acquisition of identical property (property included in category-C) acquired pursuant to the very same notification. The Land Acquisition Officer had awarded same value as has been awarded to the property in the present case. Under Ext.A2 the reference court had re- fixed value of land at Rs.27,442/- per Are. The reference court awarded the same value. 2. Eventhough Sri. Abraham Mathew, learned counsel for the appellant addressed strenuous arguments before us, we are not persuaded to hold that the market value of the land under acquisition could have been fixed at a higher rate than the value fixed under Ext.A4 which significantly has attained finality. The further claim of the appellant was compensation for the injurious affection. This compensation was claimed on two reasons. First reason was that on account of the construction of the canal through the L.A.A.2196/2008-D 3 middle of the appellant's property the property has become divided into two plots and unacquired portion has been deprived of road frontage and for that reason the value of the unacquired portion has become reduced. The other reason was that on account of the emergence of the canal at a level far below the level of the existing plot it has become necessary for the appellant to construct a retaining wall and as reported by the Advocate Commissioner a sum of Rs.72,760/- will be necessary for construction of the retaining wall. The learned Subordinate Judge did not become impressed by the argument that the value of the unacquired portion has become reduced due to loss of road frontage. On the basis of Advocate Commissioner's report itself it was found that even after the acquisition the unacquired portion will continue to enjoy the frontage of road upto a length of 23.30 Metres. We are in agreement with the above finding of the learned Subordinate Judge. But the learned Subordinate Judge found that there was some subsistence in the grievance of the petitioner that it will be necessary to construct a retaining wall so as to prevent the earth in the remainder property from sliding. At the same L.A.A.2196/2008-D 4 time the court below did not become inclined to award the full amount recommended towards compensation but awarded only Rs.25,000/-. Having considered the entire materials we feel that the court below could have awarded a little more than what is presently awarded. Having gone through the facts and circumstances of the case we award a further amount of Rs.15,000/- to the appellant towards the amount necessary for construction of retaining wall for preventing the remainder properties from sliding. To that extent only the appeal will stand allowed. Needless to say that for the additional amount of Rs.15,000/- which is being awarded by virtue of this judgment he will be entitled for statutory benefits admissible under Sections 23(2) and 28 of the Land Acquisition Act. Parties are directed to suffer their respective costs. PIUS C.KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb