IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 4TH FEBRUARY 2010 / 15TH MAGHA 1931 LA.App..No.464 of 2009 (A) ------------------------------- LAR.160/2007 of III ADDL.SUB COURT, ERNAKULAM .................... APPELLANT(S): CLAIMANT ----------------------------- REV.FR.ANTONY KARIYIL CMI, S/O.LATE T.JOSEPH, AGED 58 YEARS, AS PRESENT PROVINCIAL OF SACRED HEART PROVINCIAL HOUSE, RAJAGIRI, P.O.KALAMASSERY. BY ADV. SRI.PIUS C.MUNDADAN RESPONDENT(S)/RESPONDENTS: ------------------------------------- 1. STATE OF KERALA REPRESENTED BY SPECIAL TAHSILDAR (LA), KOCHI REFINERIES LTD., VYTTILA, VILLAGE KAKKANAD. 2. THE CHIEF EXECUTIVE OFFICER, INFOPARK, KAKKANAD. ADV. SRI.P.A.AHAMED, SC, INFOPARKS FOR R2 SR. GOVERNMENT PLEADER SRI.BASANT BALAJI SRI.P.A.AHAMED, SC, INFOPARK THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 04/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ L. A. A. No.464 of 2009 ------------------------------------------------ Dated this the 4th day of February, 2010 JUDGMENT Pius C. Kuriakose, J The claimant is in appeal. The property under acquisition was in Kakkanad village of Ernakulam district. The acquisition was pursuant to section 4 (1) notification published on 18/07/2005. The purpose of acquisition was the formation of four line road to Infopark. The property was dry land. The Land Acquisition Officer awarded land value at the rate of Rs.35,046/- per cent. The Reference Court under the impugned judgment re-fixed the land value at Rs.76173/- per cent. 2. In this appeal, the claimant contends that L. A. A. No.464 of 2009 -2- the land value re-fixed by the Reference Court is quite inadequate. According to the claimant, land value ought to have been fixed at at least Rs.2 lakhs per cent. Another claim which is urged by the claimant is that the compensation awarded by the court towards injurious affection of the un- acquired property is inadequate. According to the claimant, the value of the un-acquired property has become considerably reduced and the contention is that the reduction in the value of the un-acquired property is to the extent of Rs.30 lakhs. However, in this appeal, claim for compensation for injurious affection is limited to Rs.5 lakhs and after deducting the sum of Rs.94,112.50/- awarded by the Reference Court a L. A. A. No.464 of 2009 -3- sum of Rs.4,05,887.50/- is claimed towards compensation for injurious affection. 3. Various grounds have been raised in this appeal assailing the judgment of the Reference Court and we have heard the submissions of Sri.Pius C. Mundadan, the learned counsel for the appellant and also those of Sri.Basant Balaji, the learned senior Government Pleader for the first respondent/State. We have also heard the submissions of Sri.P.A.Ahmed, Standing Counsel for Infopark, the Requisitioning Authority. Sri.Pius C. Mundadan would assail the judgment of the Reference Court. He would argue that the evidence on record was not properly appreciated or accepted by the Reference Court. According to L. A. A. No.464 of 2009 -4- him, legal evidence on record was ignored by the learned Subordinate Judge without good reason. He referred to Ext.A4 document revealing a land value of Rs.1,00,110/- per cent. He referred also to Ext.A5 to A7 documents. He submitted that though these documents are post notification documents it was clear that the higher value reflected in those documents is not the result of the present acquisition. He referred to Ext.A8 valuation report submitted by a Government approved valuer. He referred to Exts.A10 and A11. He referred also to Ext.C1 Commission Report and Ext.C1(a) sketch. According to him, the oral evidence of AW2 which was in conformity with Ext.C1 report was not effectively challenged in L. A. A. No.464 of 2009 -5- examination. He submitted that the report of the commissioner was to the effect that the property covered by Ext.A4 is three times better than the basis property. Ext.A4 property and for that matter the basis land was only wet land while Ext.A4 property was only wet land and hence, the property under acquisition which was dry land was even better than Ext.A4 property. Learned counsel requested that the appeal be allowed in full. 4. All the submissions of Sri.Pius C. Mundadan were forcefully resisted not only by Sri.Basant Balaji, the learned senior Government Pleader, but also by Sri.P.A.Ahmed, Standing Counsel for the Requisitioning Authority. According to them, there was no warrant at all for L. A. A. No.464 of 2009 -6- enhancing the market value of the land fixed under the impugned judgment. They argued that if at all there is diminution in the value of the un- acquired property, the same is only in respect of the smaller plot even which extended to 10 cents having a width of ten metres. It cannot be alleged that the above plot has become valueless. It is possible to utilise that plot for all purposes to which plots are normally put. The compensation of about Rs.95 thousand awarded by the Reference Court for that plot is more than adequate. 5. We have very anxiously considered the rival submissions addressed at the Bar. We have made a survey of the evidence on record. Ext.A3 is the basis document dt.13/01/05 reflecting a L. A. A. No.464 of 2009 -7- land value of Rs.30,587/- per cent. Ext.A3 document pertains to inferior land and this was why the Reference Court also felt that it was not safe to rely on Ext.A3 for fixing the market value. Ext.A4 document is a pre-notification document revealing land value of Rs.1,00,110/- per cent. The Advocate Commissioner who submitted Ext.C1 report has inspected Ext.A4 property and reported that the property covered by Ext.A4 is at least three times better than the property covered by the basis document. It is clear from Ext.A4 that the said property is marshy and we are convinced that the property under acquisition is superior to Ext.A4 property. Ext.A8 is the valuation report submitted by a Government approved valuer in L. A. A. No.464 of 2009 -8- respect of the very acquired property wherein the value of the land is fixed at Rs.3 lakhs per cent. This rate is arrived at by the valuer adopting some guess work regarding the escalation in land prices and hence, we are of the view that it is not safe to rely on Ext.A8 completely. Ext.C1 commission report gives a graphic account of the importance of the locality where the acquired property was situated. It's nearness to the seaport - airport road, the District Headquarters, the Campus of the Rajagiri Engineering College and other educational institutions, are all reported in Ext.C1 by the Commissioner. The commissioner does not specifically recommend for the awarding any particular rate of land value. But the L. A. A. No.464 of 2009 -9- Commissioner has clearly reported that in comparison to the basis property, the property under acquisition was far superior. 6. Having made a thorough re-appraisal of the evidence on record and having kept in mind the principles governing determination of the market value in land acquisition cases, we are of the view that the value of the land under acquisition at the relevant time can be safely fixed at Rs.1,20,000/- per cent. Accordingly, we re-fix the value of the land under acquisition at Rs.1,20,000/- per cent. 7. The learned Subordinate Judge himself found that a portion of the acquired property was injuriously affected to a certain extent by the L. A. A. No.464 of 2009 -10- acquisition in the present manner which cuts the remainder property into two houses. Ext.C1(a) sketch will show that one portion of the remainder property is reduced to an extent of 10 cents having a width of just 10 metres only. What the learned Subordinate Judge has done under the impugned judgment is to award a sum of Rs.94,112.50/-. We are of the view that the court below ought to have fixed the extent of diminution of the above plot of ten cents for a higher rate. In our assessment, the value of that plot has been reduced by at least 20%. This means that the appellant ought to be awarded an amount equal to Rs.2,40,000/- as total compensation for injurious affection of the un-acquired property extending to L. A. A. No.464 of 2009 -11- ten cents. Thus, after deducting a sum of Rs.94,112.50/- already paid the balance amount to which the appellant becomes eligible as compensation for injurious affection is Rs.1,45,887.50/-. 8. The result of the above discussion is that the appeal will stand allowed. The market value of the land under acquisition is re-fixed at Rs.1,20,000/- per cent. Additional compensation of Rs.1,45,887.50/- towards injurious affection of the remainder property is also awarded. The appellant will be entitled for all statutory benefits admissible under sections 23(2), 23(1A) and under section 28 of the Land Acquisition Act on the total enhanced land value to which he L. A. A. No.464 of 2009 -12- becomes eligible by virtue of the re-fixation done under this judgment. To the additional compensation awarded towards injurious affection, the appellant will be entitled for the statutory benefits under section 28 only. The appeal is allowed, but in the circumstances, without any order as to costs. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-