IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 15TH JUNE 2011 / 25TH JYAISHTA 1933 LA.App..No. 1279 of 2010(D) ---------------------------------------- LAR.61/2007 of SUB COURT, MUVATTUPUZHA .................... APPELLANT/CLAIMANT ---------------------------------- GOPALAKRISHNAN, S/O. SRI. NARAYANAN, AGED 75 YEARS, NEERUMTHANATH, RAMANGALAM KARA, MUVATTUPUZHA, ERNAKULAM DISTRICT. BY ADV. SRI.PHILIP MATHEW RESPONDENTS/RESPONDENTS ----------------------------------------------- 1. STATE OF KERALA, REP. BY THE DISTRICT COLLECTOR, ERNAKULAM. 2. THE EXECUTIVE ENGINEER, K.S.T.P., MUVATTUPUZHA, ERNAKULAM DISTRICT. BY GOVT. PLEADER SMT.T.T. JOSEPHINA. THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 15/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs PIUS C. KURIAKOSE & N.K. BALAKRISHNAN, JJ. = = = = = = = = = = = = = = = = L.A.A. NO. 1279 OF 2010 = = = = = = = = = = = = = = = = Dated this the 15th st day of June, 2011. J U D G M E N T Pius C. Kuriakose, J. Under challenge in this appeal preferred by the claimant is the judgment of the Land Acquisition Reference Court, Muvattupuzha. The property was in Marady village and was situated very near to the K.S.R.T.C. bus-stand within the area of Muvattupuzha Municipal town. The acquisition was pursuant to S.4(1) notification dated 15.1.2005. The Land Acquisition Officer awarded land value at the rate of Rs.50,000/- per cent. Before the Reference Court the claimant claimed enhancement in land value, towards compensation for injurious affection of the remainder property and also enhancement L.A.A. NO. 1279 OF 2010 -:2:- towards value of the building which existed on the property under acquisition. For the building the Land Acquisition officer awarded a total value of around Rs.5 lakhs. Before the Reference Court in support of his claim for enhancement in land value the appellant relied mostly on Ext.A1. Ext.A1 was the judgment of the Reference Court in a case pertaining to acquisition in same village pursuant to S.4(1) notification dated more than 2 years, previously. Under Ext.A1 the value of the land was refixed by the Court at Rs.1,50,000/-, i.e. 60%. The Court below did not place any reliance on Ext.A1 stating the reason that Ext.A1 pertains to a different section of 4(1) notification. It appears that the appellant did not pursue his claim for enhanced compensation for the building before the learned Subordinate L.A.A. NO. 1279 OF 2010 -:3:- Judge. Hence no enhancement was given by the learned Subordinate Judge towards value of the building. 2. Coming to the appellant's claim for compensation of injurious affection the learned Subordinate Judge noticed that the remainder property was reduced to a triangular bit of land extending to 2.70 cents. Learned judge has found that on account of the reduction of the property to a triangular bit, it will be very difficult for the appellant to enjoy the property conveniently and effectively. Hence by doing guess work a lump sum amount of Rs.25,000/- was awarded. 3. In this appeal grounds are raised urging that the market value determined by the Court below towards the land is inadequate and that compensation awarded by the Court below L.A.A. NO. 1279 OF 2010 -:4:- towards injurious affection is quite insufficient. Significantly no ground is raised challenging the non award of enhanced compensation towards the value of the building. The prayer portion and valuation portion does not contain any indication regarding the appellant's claim for enhancement in building value. 4. Sri.Philip Mathew, learned counsel for the appellant address us in detail on the grounds raised in the appeal. He submitted that if Ext.A1 is relied upon there is every justification for refixing the market value at Rs.72,000/- per cent, since more than two years have passed after the notification u/s 4(1) was promulgated. Learned counsel submitted that in view of the finding of the learned Subordinate Judge that the remaining property is a L.A.A. NO. 1279 OF 2010 -:5:- triangular plot not capable of being enjoyed conveniently the Court below should have awarded at least 75% of the value as compensation for injurious affection. Learned counsel also argued that the Court below was not justified in not awarding any enhanced compensation towards building value. 5. All the submissions of Sri.Philip Mathew were opposed by Smt.T.T. Josephina, learned Government Pleader. She submitted that there is no comparison between the property covered by Ext.A1 and the property under acquisition. Ext.A1 was much more superior and even two years prior to the notification in this case. The Land Acquisition Officer had awarded a value of Rs.1 lakh per Are for Ext.A1 property. She submitted that going by the prayer portion in the appeal the claim is only L.A.A. NO. 1279 OF 2010 -:6:- for enhancement in land value and not for enhancement in compensation for injurious affection or building value. We have very anxiously considered the rival contentions addressed at the Bar. We have gone through the impugned judgment. According to us the submission of the learned Government Pleader that no enhancement can be granted towards value of building which exist on the property is on firm grounds. Though in the evidence as PW1 the appellant sought for enhanced value for the building, it is seen on a reading of the judgment that he did not pursue that claim further. Significantly no ground is raised in the appeal memorandum regarding the claim for further value for the building. 6. We shall now consider the claim for compensation for injurious affection. The L.A.A. NO. 1279 OF 2010 -:7:- learned Subordinate Judge has found that the remaining property is a small plot reduced to a triangular shape extending to 2.70 cents. The learned Judge has further found that it will not be possible for the appellant to enjoy that property conveniently in view of this peculiar shape. We feel that the amount of Rs.25,000/- as a lump sum compensation for injurious affection is inadequate. Percentage of injurious affection was certainly at least 30%. We refix the total compensation payable to the appellant towards injurious affection for the remaining property at Rs.50,000/-. This means that over and above what is awarded by the Rent Control Court. The appellant is awarded Rs.25,000/- more towards injurious affection of the remaining property. L.A.A. NO. 1279 OF 2010 -:8:- 7. We will now deal with the claim for enhanced land value. We are not able to endorse the reasoning of the learned Subordinate Judge for discarding Ext.A1. If Ext.A1 was pursuant to an earlier notification what the learned Subordinate Judge should have done was to give additions on the value reflected in Ext.A1 for passage of time but in this particular case we are not inclined to make additions. We find some merit in the submissions of Smt.T.T.Josephina, the learned Government Pleader that Ext.A1 property was superior to the property under acquisition. Having regard to the nature of the property and its proximity to the K.S.R.T.C. bus-stand at Muvattupuzha one of the most important towns in the State we feel that based on Ext.A1 market value of the land can be refixed at Rs.60,000/- per cent L.A.A. NO. 1279 OF 2010 -:9:- corresponding to Rs.1,50,000/- per Are. Accordingly we refix land value at Rs.60,000/- per cent corresponding to Rs.1,50,000/- per Are. The appeal is allowed as above. The appellant will be entitled to all statutory benefits which are provided under Sections 23(2), 23(1A) and S.28 of Land Acquisition Act. But we clarify that in respect of the compensation for injurious affection the appellant will get only the benefit provided u/s 28. The parties shall suffer their respective costs. PIUS C. KURIAKOSE, JUDGE. N.K. BALAKRISHNAN, JUDGE. ul/-