IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 24TH FEBRUARY 2009 / 5TH PHALGUNA 1930 LA.App..No. 103 of 2009() ------------------------- LAR.87/2001 of SUB COURT, KASARAGOD .................... APPELLANT(S): REFERRING OFFICER & RESPONDENT A ---------------------------------------------- 1. STATE OF KERALA, REP. BY THE SPECIAL TAHSILDAR (LAND ACQUISITION), KASARAGOD. 2. THE DISTRICT COLLECTOR, KASARAGOD. BY GOVERNMENT PLEADER SRI.P.K.BABU RESPONDENT(S): CLAIMANT AND RESPONDENT B ---------------------------------------- 1. ABOOBACKER, S/O.MOIDEENKUTTY, OREVANGARA HOUSE, KALANAD P.O., KASARAGOD DISTRICT. 2. THE DEPUTY CHIEF ENGINEER (CONSTRUCTION) SOUTHERN RAILWAYS, KANNUR. THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 24/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ L.A.A.No.103 OF 2009 ------------------------ Dated this the 24th day of February, 2009 JUDGMENT Pius C.Kuriakose, J. The lower court records are available and we find that the court below was justified in placing reliance, to a certain extent, on Ext.A5 judgment. Ext.A5 was in respect of acquisition of land in Kalanad village itself. Of course Ext.A5 property was much more superior than the acquired property since Ext.A5 property was having direct frontage of State Highway. At the same time, we notice that Ext.A5 was pursuant to acquisition for the year 1997. The learned Subordinate Judge himself has found that though the acquired property was inferior to Ext.A5 property, the acquired property also had frontage of road. Under Ext.A5, market value refixed as on the date of Section 4(1) notification in that case is Rs.35,000/-. Under the impugned judgment, market value is refixed as on 19/7/1999 at Rs.15,000/- only. We feel that the fixation of the market value for the acquired land by the reference court is more or less correct. L.A.A..No.103/2009 2 2. The learned Government Pleader would assail the award of enhanced compensation towards the value of compound wall which existed on the acquired property. We notice that it is only a nominal amount which has been awarded by the court towards the enhanced compensation for compound wall and the award of the court is based on the commissioner's report. 3. The award of compensation by the reference court towards injurious affection for the remainder property of the respondent claimant also came up for attack at the hands of the Government Pleader. According to the learned Government Pleader, the learned Subordinate Judge himself was found that it will be possible for the claimant to sell the remainder property to the neighbouring owner. We are of the view that under Clause fourthly of Section 23 of the Act, the duty of the reference court is to determine the extent of reduction in the value of the unacquired property of the awardee as on the date of Section 4 (1) notification. As on that date, it is the claimant who retains the ownership over the land. Any possibility of the claimant being able to sell the unacquired property to the neighbour is not a relevant consideration. According to us, the neighbour will be L.A.A..No.103/2009 3 in a position to bargain from a point of strength since he knows that from the claimant's point of view, the property is valuless. We do not find any warrant for interference. This appeal will stand dismissed in limine. PIUS.C.KURIAKOSE,JUDGE C.K.ABDUL REHIM, JUDGE dpk