IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 21ST DECEMBER 2009 / 30TH AGRAHAYANA 1931 LA.App..No. 1479 of 2009(D) --------------------------- AGAINST LAR.7/2008 OF III ADDL. SUB COURT, ERNAKULAM APPELLANT(S): -------------- 1. SAINABA, W/O. ABDUL RAOOF , AGED 65, CHENNAMPILLIL HOUSE, CHERANALLORE, REP. BY HER POWER OF ATTORNEY HOLDER ABDUL RASAK, S/O. ABDUL RAOOF , AGED 28, CHENNAMPILLIL HOUSE, CHERANALLORE. 2. KADEEJA, D/O. ABDUL RAOOF, AGED 43, CHENNAMPILLIL HOUSE,CHERANALLORE, REP. BY HER POWER OF ATTORNEY HOLDER ABDUL RASAK, S/O. ABDUL RAOOF , AGED 28, CHENNAMPILLIL HOUSE, CHERANALLORE. 3. ABDUL RAHIM, S/O.ABDUL RAOOF, AGED 40 CHENNAMPILLIL HOUSE,CHERANALLORE, REP. BY HER POWER OF ATTORNEY HOLDER ABDUL RASAK, S/O. ABDUL RAOOF , AGED 28, CHENNAMPILLIL HOUSE CHERANALLORE. 4. ABDUL SAMAD, S/O.ABDUL RAOOF, AGED 38, CHENNAMPILLIL HOUSE,CHERANALLORE, REP. BY HER POWER OF ATTORNEY HOLDER ABDUL RASAK, S/O. ABDUL RAOOF , AGED 28, CHENNAMPILLIL HOUSE CHERANALLORE. 5. PATHUKUTTY, D/O. .ABDUL RAOOF, AGED 36 CHENNAMPILLIL HOUSE,CHERANALLORE, REP. BY HER POWER OF ATTORNEY HOLDER ABDUL RASAK, S/O. ABDUL RAOOF , AGED 28, CHENNAMPILLIL HOUSE CHERANALLORE. 6. MUHAMMED, S/O .ABDUL RAOOF, AGED 35 CHENNAMPILLIL HOUSE,CHERANALLORE, REP. BY HER POWER OF ATTORNEY HOLDER ABDUL RASAK, S/O. ABDUL RAOOF , AGED 28, CHENNAMPILLIL HOUSE CHERANALLORE. LAA.1479/09 2 7. SHAJAHAN, S/O. ABDUL RAOOF AGED 32, CHENNMPILLIL HOUSE, CHERANALLOOE (DIED),. 8. ABDUL RASAK, S/O. ABDUL RAOOF, AGED 28, CHENNAMPILLIL HOUSE, CHERANALLORE. 9. JASMI,D/O. ABDUL RAFOOF,AGED 25 CHENNAMPILLIL HOUSE,CHERANALLORE, REP. BY HER POWER OF ATTORNEY HOLDER ABDUL RASAK, S/O. ABDUL RAOOF , AGED 28, CHENNAMPILLIL HOUSE CHERANALLORE. BY ADV. SRI.P.A.ABDUL JABBAR SRI.C.K.RAFEEK SRI.A.S.ANILKUMAR RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY SP. TAHSILDAR, (LA) N.H. NO.1, KAKKANAD. 2. THE EXECUTIVE ENGINEER, N.H. BRIDGES DIVISION, KODUNGALLOR. GOVERNMENT PLEADER SMT.LATHA T.THANKAPPAN FOR R1,2 THIS LAND ACQUISITION APPEAL HAVING COME UP FOR ADMISSION ON 21/12/2009, ALONG WITH LAA.1498 AND 1497 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ. ``````````````````````````````````````````````````````` L.A.A. Nos.1479, 1497 and 1498 of 2009 D ``````````````````````````````````````````````````````` Dated this the 21st day of December, 2009 J U D G M E N T Pius C. Kuriakose, J. The claimants are the appellants. Their properties were acquired for the purposes of the construction of National Highway 17. The properties were in Cheranelloor village. The acquisition was pursuant to Section 4(1) notification published on 14-03-2002. The Land Acquisition Officer awarded land value at the rate of Rs.1,08,800/- per Are. L.A.A.No.1497/2009 corresponds to LAR No.322/2006 and in that case, the Land Acquisition Officer awarded compensation of Rs.88,636/- towards value of the building which existed on the property. L.A.A.No.1498/2009 corresponds to LAR No.1/2007 and in that case, the Land Acquisition Officer awarded compensation of Rs.1,64,421/- towards value of the building which existed on the property. L.A.A.No.1479/2009 corresponds to LAR No.7/2008 and in that case, the Land Acquisition Officer awarded compensation of Rs.1,01,734/- towards value of the building which existed on LAA.1479/09 & connected cases : 2 : the property. In order to substantiate their claims for enhancement in land value and enhancement in the value of the buildings which existed on the properties and also for substantiating a special claim which the appellant in L.A.A.No.1498/2009 had for injurious affection of the unacquired portion of her properties, the parties took out Commission in each of the LAR cases. They relied on documents Exts.A1 to A4 apart from their own oral evidences and the evidence adduced by the Commissioner. In two cases, even the Engineers, who assisted the Commissioner in valuing the buildings, were examined. The learned Sub Judge, on evaluating the evidence, did not become inclined to place reliance on any of the documents put in evidence by the claimants. However, on the basis of the oral evidence and the general impression gathered regarding the market value of the land in the area on the basis of the document, the learned Sub Judge re-fixed the value of the land under acquisition in all the three cases at Rs.1,41,440/-, which is 30% over the land value which was awarded by the Land Acquisition Officer. The learned Sub Judge did not become inclined to place any reliance on the LAA.1479/09 & connected cases : 3 : Commissioner's report or the evidence adduced by the Commissioner or the Engineers in any of the three cases. However, in reference case relating to LAA.No.1498/2009, the learned Sub Judge awarded a sum of Rs.32,884/- towards additional compensation for the building which existed in that property. This amount was arrived at calculating the additional compensation at 20% of the value which was awarded by the Land Acquisition Officer. In other cases, not even nominal increase was given towards the value of the building. 2. Sri.P.A.Abdul Jabbar, learned counsel for the appellants, addressed us on the basis of the various grounds raised in the memorandum of appeal and his submissions were resisted by Sri.Basant Balaji and Smt.Latha T.Thankappan, learned senior Government Pleaders, who appeared for the government. Strong reliance was placed by Mr.P.A.Abdul Jabbar on our own judgment in LAA.No.981/2009. The learned counsel for the appellants placed before us a copy of that judgment. We notice from that judgment that for lands treated to be equal in value, as the lands under acquisition in these cases, this Court re- LAA.1479/09 & connected cases : 4 : fixed the land value at Rs.1,57,760/-, thus granting enhancement at Rs.60,320/- per Are over and above what was awarded by the Land Acquisition Officer in these cases. Having regard to that judgment, we are of the view that there is justification for re-fixing the value of the land under acquisition in these three cases also, at the same rate of Rs.1,57,760/- and can award enhanced land value at Rs.60,320/- per Are. We, accordingly, award enhanced land value in these three cases at Rs.60,320/- per Are. 3. We notice from the impugned judgments that despite the Commission reports recommending for higher amounts towards compensation for the buildings, the learned Sub Judge did not become inclined to place reliance on the Commissioner’s report on account of certain discrepancies regarding the door numbers. We are convinced that the report of the Commissioner, which is prepared on the basis of the inspection conducted with notice to the requisitioning authority, was certainly in respect of the properties under acquisition. At the same time, we are not inclined to accept the recommendation of the Advocate Commissioner regarding the proper compensation to be awarded LAA.1479/09 & connected cases : 5 : for the buildings. We, however, notice that the buildings which existed on the properties were valued by the requisitioning authority as per the PWD schedule of rates. It is common knowledge that construction of buildings in accordance with the PWD rates is not a pragmatic proposition. Keeping that aspect in mind, we are of the view that for the structures which existed on the properties under acquisition in these cases, the claimants should be awarded 35% over the amounts which were awarded by the Land Acquisition Officer. Accordingly, for the appellant in LAA No.1497/2009, we award a further amount of Rs.31,023/- as additional compensation for the structure. Similarly, we award a further amount of Rs.24,663/- as additional compensation for the building which existed on the property belonging to the appellant in LAA No.1498/2009. On the same reason, we award a further amount of Rs.35,607/- to the appellant in LAA No.1479/2009 towards additional value for the building. 4. We shall now deal with the claim of the appellant in LAA No.1498/2009 towards compensation for injurious affection for the unacquied property. It is in evidence that the unacquired LAA.1479/09 & connected cases : 6 : properties have been reduced to two strips, one having length 63.9 feet and width 9 feet and the other having length 47.5 feet and width 6.2 feet. Thus, the total extent of the above mentioned two strips will come to 0.840 Ares. The learned Sub Judge did notice that the above portion has been injuriously affected to a certain extent and awarded a lumpsum amount of Rs.10,000/- as compensation for injurious affection. We feel that the percentage of diminution, which has been sustained by the above extent of 0.840 Ares, is 40%. Accordingly, we determine that the appellant in that case should be awarded Rs.63,104/- towards total compensation for injurious affection. This means that the above appellant will be entitled for a further amount of Rs.53,104/- towards compensation for injurious affection. We award that amount also to the appellant in that case over and above what is awarded by the Land Acquisition Officer. 5. The counsel for the appellant voiced one last grievance. The grievance was that the original compensation was paid in two instalments and there was considerable delay in paying the second instalment. We notice some merit in the above LAA.1479/09 & connected cases : 7 : submission. We clarify that on the total enhanced compensation to which the appellant becomes eligible by virtue of this judgment (inclusive of the original compensation awarded to them by the Land Acquisition Officer) they will be entitled for all statutory benefits including under section 28 of the Land Acquisition Act. It is open to the appellant to claim statutory interest under section 28 on the basis of our decree while filing execution petition. 6. It is further clarified that on the amount which is awarded to the appellant in LAA No.1498/2009 towards compensation for injurious affection, he will not be eligible for solatium at the rate of 30% as well as the additional amount otherwise due under section 23(1A). All these appeals are allowed as above but in the circumstances without any order as to cost. Sd/- (PIUS C. KURIAKOSE, JUDGE) Sd/- (K.SURENDRA MOHAN, JUDGE) aks The figure “Rs.60,320/-” occurring in 2nd , 7th and 8th lines of LAA.1479/09 & connected cases : 8 : page 4 in the common judgment dated 21/12/2009 in L.A.A.Nos.1479, 1497 and 1498/2009 is corrected as “Rs.16,320/-” vide order dated 05/03/2010 in I.A.449/2010 in L.A.A.1479/2009, I.A.447/2010 in L.A.A.1497/2009 and I.A.448/2010 in L.A.A.1498/2009 respectively. Sd/- Registrar(Judicial)