IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 9TH OCTOBER 2009 / 17TH ASWINA 1931 LA.App..No. 1099 of 2009(D) --------------------------- LAR.191/2005 of SUB COURT, MUVATTUPUZHA .................... APPELLANT(S): CLAIMANT ---------------------- MYTHEEN, S/O.KUNJAHAMMED, MOOKADA HOUSE, PAIMATTOM KARA, KUTTAMANGALAM. BY ADV. SRI.M.V.JOY RESPONDENT(S): APPELLANT ------------------------ THE STATE OF KERALA REP. BY THE DISTRICT COLLECTOR, ERNAKULAM. BY GOVT.PLEADER SMT.LATHA T.THANKAPPAN THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 09/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ L.A.A.No.1099 OF 2009 ------------------------ Dated this the 9th day of October, 2009 JUDGMENT Pius C.Kuriakose, J. The claimant is in appeal, being aggrieved by what is described as inadequacy of compensation redetermined by the Land Acquisition Reference Court. The acquisition was of property in Kuttamangalam village in Kothamangalam Taluk. Relevant Section 4(1) notification was published on 15/10/2004. The purpose of the acquisition was construction of approach road of Vellaramattom bridge. The Land Acquisition Officer awarded land value at the rate of 24,700/- per Are, which under the impugned judgment was refixed to Rs.39,500/- per Are. In the present appeal, the appellant impugns refixation of land value by the Reference Court and also the action of the Reference Court in turning down the appellant's claim for compensation for injurious affection for the remainder property completely. 2. We have heard the submissions of Sri.M.V.Joy, learned counsel for the appellant and those of Smt.Latha T.Thankappan, learned senior Government Pleader for the respondent LAA.No.1099/2009 2 Government. Even though Sri.Joy argued before us that the market value of the land refixed by the Reference Court is inadequate, having gone through the impugned judgment, we are of the view that no evidence has been adduced by the appellant or for that matter the party in L.A.R. No.191/2005, which was decided along with the appellant's case, in support of their claim for enhanced land value. It is by applying the rule of thumb that the learned Sub Judge enhanced land value by 60%. According to us, the learned Sub Judge was extremely liberal in the matter of refixing the market value. We do not find any warrant for interfering with the refixation of the market value of the acquired property by the learned Sub Judge. 3. Sri.Joy would request for an order of remand for the purpose of substantiating the appellant's claim for compensation for injurious affection for the remainder property by taking out a commission and getting a report. This request is opposed by Smt.Latha T.Thankappan, learned senior Government Pleader. However, on considerations of justice, we are inclined to grant this request, however only by imposing conditions. Accordingly, we set aside the judgment and decree to the extent the same LAA.No.1099/2009 3 pertains to the appellant's claim for compensation for injurious affection of the remainder property. If the appellant files application for issuance of commission within 30 days of his entering appearance before the court below pursuant to this order of remand, the learned Sub Judge will allow that application and appoint a commissioner. The appellant is directed to adduce further evidence also in support of his claim for compensation for injurious affection for the remainder property. The Government will be permitted to adduce counter evidence and the learned Sub Judge will pass revised judgment on the basis of the entire evidence which comes on record. It is made clear that the above order of remand will become operative only subject to the following conditions; i). The appellant pays a sum of Rs.1,500/- to the Kerala Mediation Centre within 10 days and produce receipt before this court. ii). In the event of the appellant becoming eligible for enhanced compensation towards injurious affection LAA.No.1099/2009 4 by virtue of the revised judgment to be passed by the Reference Court, such enhanced compensation will not carry interest otherwise admissible under Section 28 of the Act during the period from 23/7/2008 till the date of the revised judgment. It is also clarified that, following the principles laid down by this court in State of Kerala v. Esodayamma (2002 (1) KLT 273), the amount of additional compensation to be awarded being compensation towards injurious affection will not be eligible for benefits under Section 23 (2) or Section 23 (1)A of the Act. PIUS C.KURIAKOSE,JUDGE K.SURENDRA MOHAN, JUDGE dpk