IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 28TH JUNE 2011 / 7TH ASHADHA 1933 LA.App..No. 260 of 2011(D) -------------------------- LAR.1/2008 of ADDL.SUB COURT,KOLLAM .................... APPELLANT(S)/CLAIMANT: -------------- PONNAMMA, D/O. SUMANGALA, MANKOMBIL VEEDU, CHERIAZHEEKAL THURA, ALAPPAD VILLAGE, KARUNAGAPALLY. BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL RESPONDENT(S)/RESPONDENT: --------------- STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, KOLLAM. GOVERNMENT PLEADER SRI.V.R.JAYAKRISHNAN THIS LAND ACQUISITION APPEAL HAVING COME UP FOR ADMISSION ON 28/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ------------------------ L.A.A.No.260 OF 2011 ------------------------ Dated this the 28th day of June, 2011 JUDGMENT Pius C.Kuriakose, J. As directed by us, the learned Government Pleader Sri.V.R.Jayakrishnan has taken notice . 2. We have heard the submissions of Sri.Venoy Varghese Kallummootil learned counsel for the appellant and the learned Government Pleader. 3. The property under acquisition was in Allapad village and the same was acquired for the construction of an approach road. There was a building on the property and for the building, the Land Acquisition Officer awarded Rs.4,21,600/- for the land he awarded Rs.25,409/- per Are. The Reference Court on evaluating the evidence refixed the land value at Rs.41,925/- per Are. That court did not award any additional compensation for the building on the reason that no acceptable evidence such as a commission report was not available. The appellant had another L.A.A.No.260/2011 2 claim for compensation for injurious affection of the remainder property. It was found that the extent of the remainder property was 7 cents while the extent of acquired property was 6 cents. The Reference Court fixed the percentage of diminution at 20%. Finally the Reference Court would award compensation for injurious affection for the acquired property and not for the unacquired property. 4. In this appeal various grounds are raised challenging the land value, the building value and the compensation for injurious affection fixed under the impugned judgment. Having regard to the submissions addressed at the Bar, we feel that there is no warrant for enhancing the land value. We notice that by our judgment in L.A.A. No.1320/2010 we have approved the land value refixed under the impugned judgment. We also do not find any warrant for interfering with the decision of the court below that the percentage of diminution sustained by the property on account of acquisition is 20% . But, we find merit in the submission of the learned counsel for the appellant that the compensation for injurious affection should have been awarded with respect to the unacquired property extending to 7 cents L.A.A.No.260/2011 3 and not to the acquired property. We, therefore, award to the appellant Rs.3393/- more as compensation for injurious affection over and above what was awarded under the impugned judgment. 5. Now we will examine the grievance of the appellant that no additional compensation was awarded for the building. It is true that there was no acceptable legal evidence on the basis of which the court below could have award the additional compensation towards the building. But, we find that the building was valued by the Land Acquisition Authority adopting the PWD published schedule of rates. It is a matter of common knowledge that construction of buildings adopting the PWD schedule of rates is not pragmatic or realistic. We award to the appellant 30% of what is awarded as building value by the Land Acquisition Officer as enhanced building value. In that way, we award to the appellant a sum of Rs.1,29,000/- more as additional compensation for the building. The enhancement awarded to the appellant towards the building value will carry statutory benefits admissible under Section 23 (2), 23 (1A) and Section 28 of the Act. The enhancement of Rs.3393/- awarded to L.A.A.No.260/2011 4 the appellant towards the compensation for injurious affection will carry only interest under Section 28. The Section will have due regard to the conditions imposed by this court in its order dated 23/5/2011 in C.M.Appln. No.593/2011 while preparing the decree. It should be ensured that cost ordered is paid and interest is not allowed under Section 28 during the delay period. It should also be ensured that the full court fee payable on the appeal memorandum is remitted. The appeal will stand allowed, however, without any order as to costs. PIUS C.KURIAKOSE,JUDGE N.K.BALAKRISHNAN, JUDGE dpk L.A.A.No.260/2011 5 PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ------------------------ C.M.Appln. 593 of 2011 in L.A.A.No.260/2011 6 L.A.A.No.260 OF 2011 ------------------------ Dated this the 23rd day of May, 2011 O R D E R Pius C.Kuriakose, J. This application seeking condonation of delay in the matter of filing the appeal is opposed by the learned Government Pleader. However, we feel that on considerations of justice, the delay can be condoned imposing proper terms. Hence, it is ordered that this application will stand allowed and the delay will stand condoned subject to the following conditions; i). The appellant will pay to the Government through the office of the Advocate General within one month from today a sum of Rs.6,000/- and produce receipt. ii). The appellant will pay to the High Court Legal Services Committee a sum of Rs.3,000/- within the same time limit. Iii). In case the appeal is allowed and the appellant becoming eligible for enhanced compensation by virtue of the appellate judgment, such enhanced compensation will not carry interest otherwise admissible under Section 28 of the Act during L.A.A.No.260/2011 7 the period of 172 days condoned by this order. Annex a copy of this order to the judgment to be passed in the appeal. The Registry will send up the appeal for admission once the receipts against the payment of the amount mentioned above are produced. PIUS C.KURIAKOSE,JUDGE N.K.BALAKRISHNAN, JUDGE dpk