IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THURSDAY, THE 22ND MAY 2008 / 1ST JYAISHTA 1930 LA.App..No. 88 of 2004() ------------------------ LAR.275/1994 of SUB COURT, CHERTHALA .................... APPELLANTS/ ADDITIONAL CLAIMANTS ------------------------------- 1. KANAKAM KRISHNA PILLAI W/O. LATE K.K.KRISHNA PILLAI, ASHA NIVAS, AROOR MURI, AROOR P.O., CHERTHALA TALUK. 2. K.K.RAMESH S/O. LATE K.K.KRISHNA PILLAI, OF DO. DO. 3. K.K.DINESH, S/O. LATE K.K.KRISHNA PILLAI OF DO. DO. DO. 4. K.K.SATHISH S/O. LATE K.K.KRISHNAPILLAI, OF DO. DO. DO. 5. K.K.SURESH, S/O. LATE K.K.KRISHNA PILLAI OF DO. DO. 6. K.K.ASHA D/O. LATE K.K.KRISHNA PILLAI OF DO. DO. BY ADV. SRI.S.SUDHISH KUMAR RESPONDENT/ RESPONDENT ----------------------- STATE OF KERALA REPRESENTED BY THE SPECIAL TAHSILDAR (LA), NATIONAL HIGHWAY, CHERTHALA. BY GOVERNMENT PLEADER MR.BASANT BALAJI THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 22/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE,J. - - - - - - - - - - - - - - - - - - - - - - - - - L.A.A.No.88 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 22nd May, 2008 JUDGMENT This appeal has been preferred by the legal heirs of the claimants being not satisfied by the award of the Land Acquisition Reference Court considerably enhancing the compensation awarded by the Land Acquisition Officer. The acquisition was for the widening of NH 47 into a four line highway from Aroor to Cherthala. The notification under Section 4(1) was on 14.5.1992 and the Land Acquisition Officer awarded land value at the rate of Rs.24,695/- per Are and the reference court on an evaluation of the evidence which was adduced by the claimants consisting of documents Exts.A1 to A3, court exhibits X1 Commission Report and X1(a) plan and the oral testimony of A.W.1 (the 4th appellant) refixed the market value of the land at Rs.74,100/- per Are. The appellants do not have any grievance regarding the refixation of market value of the land by the reference court. Their grievance is two-fold. Firstly, according to them, the actual extent of the property which was acquired from their possession is 1.33 ares while compensation has been awarded only for 1.23 ares which is the extent mentioned in the award. Secondly, the value of their residential property which takes in their residential L.A.A.No.88/04 - 2 - building has been diminished considerably on account of the acquisition and the court below has not even considered their claim for damages for diminution of their remainder property notwithstanding deputation of Commissioner by the court below and the filing of a report which gives support to the claim. 2. I have heard the submissions of Mr.S.Sudhish Kumar, learned counsel for the appellants and Mr.Basant Balaji, learned Government Pleader on behalf of the respondent-State. 3. It has to be noticed immediately that it was being consistently maintained by the appellants before the Land Acquisition Officer and also before the reference court that market value has been awarded only for a lesser extent of land than what was actually acquired from their possession and also that the appellants are entitled for damages on account of the diminution of value of their unacquired property. The Land Acquisition Officer did not consider either of these claims for obvious reasons. But I am unable to see why the reference court failed to consider these claims. In the statement of objections filed before the court by the appellants both these claims had been seriously raised and the State had not filed any reply repudiating these claims. On application submitted by the L.A.A.No.88/04 - 3 - appellants the court did depute an Advocate Commissioner for conducting a measurement of the properties with the assistance of a qualified surveyor so that the controversy regarding the extent actually acquired could be settled. The court had deputed the Commissioner also for submitting a report in the context of the appellants claim for damages on account of the injurious affection of their remainder properties. The Advocate Commissioner had filed a report which is marked in the case as Ext.X1. He had on the basis of the measurement got a plan prepared by the Taluk Surveyor and the Taluk Surveyor's plan is marked in evidence as Ext.X1(a). Strangely rather there is not even a reference in the judgment of the court below to the Commissioner's report, the plan and much less to the appellants claims regarding the extent correctly acquired from them and also regarding damages for injurious affection of the remainder properties. In the proof affidavit which was filed by A.W.1 in lieu of his chief examination he had highlighted both these aspects. But significantly there is absolutely no cross examination on either of these aspects. Though opportunities were given, the State did not file objections to Ext.X1 or Ext.X1(a) which are based on inspection and measurement conducted with notice to the State. Ext.X1(a) plan has L.A.A.No.88/04 - 4 - been prepared on the basis of the original plan of the field and the plan pertaining to that portion which was acquired for the purpose of National Highway. It has been very clearly reported and is seen from Ext.X1(a) that the actual extent of the acquired property is 1.33 ares as against the extent of 1.23 ares shown in the award. It does not require much elaboration to conclude that the appellants are entitled for the entire extent of the properties which were acquired from their possession. It is therefore found that towards land value at the rate redetermined by the court the appellants are entitled for an additional amount of Rs.7410/- on account of the market value of the acquired land. 4. Now coming to the claim for damages on account of the injurious affection of the remainder properties, it is to be noticed that a substantial portion of the front yard of the appellants residential house has been acquired. The appellants version that before acquisition the house was having a very spacious front yard with facility to park cars and that on account of acquisition it has become impossible to park even a single car in the front yard has not been challenged. The residential house of the appellants can certainly be treated as other property of the appellants for the purpose of fourth L.A.A.No.88/04 - 5 - clause of Section 23(1) of the Land Acquisition Act. When it is seen that the parking facility of the appellants house has been materially reduced on account of acquisition, I do not find much difficulty to accept the claim of the appellants that by reason of the acquisition, their residential house which continues to be under their ownership even after the acquisition has been affected injuriously. Before the Land Acquisition Officer, the appellants claim was Rs.Two Lakhs towards this count. But before the court below they prudently limited the same to Rs.50,000/-. Even the above sum of Rs.50,000/- in my opinion is on the high side. It is fairly settled that the evaluation of compensation in land acquisition cases will inevitably involve a little bit of guess work. Making a reasonable guess, I determine the damages payable to the appellants on account of the injurious affection of their residential building due to the acquisition of substantial portion of their front yard as Rs.10,000/-. It follows that the appellants are entitled for the above amount also towards compensation to be awarded to them. Thus the appellants are entitled for a total further amount of Rs.17,410/- and for solatium at the rate of 30% of the above amount. The appellants are also entitled for amount calculated at the rate of 12% per annum on the above L.A.A.No.88/04 - 6 - enhanced amout for the period from 14.5.1992 to 17.7.1992 apart from solatium at the rate of 30% on the enhanced value excluding the amount under Section 23(1-A). The appellants will also be entitled for statutory interest as provided under Section 28 of the Act at the rate of 9% per annum from the date of taking possession for one year and thereafter at the rate of 15% till the entire amount is paid. The appeal is allowed as above. But in the circumstances, the parties suffer their respective costs. srd PIUS C.KURIAKOSE, JUDGE