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. 65 of 2011(A) ----------------------------- LAR.429/2008 of III ADDL.SUB COURT, ERNAKULAM .................... APPELLANT(S)/RESPONDENT & ADDL. RESPONDENT IN LAR: ------------------------------------------------------------------- 1. STATE OF KERALA REP. BY SPECIAL TAHSILDAR (LA), N.H.NO.I, KAKKANAD. 2. THE EXECUTIVE ENGINEER, NH(B) DIVISION, KODUNGALLOOR. BY GOVERNMENT PLEADER SMT.T.T.JOSEPHINA RESPONDENT(S)/CLAIMANTS IN LAR: ----------------------------------------- 1. SMT.SAINABHA, W/O.LATE MAJEED, CERIN BUNGLAW, CHUTTUPADUKARA, EDAPPALLY -682024. 2. SMT.VAHIDA, W/O.LATE JALEEL MAJEED, CERIN BUNGLAW, CHUTTUADUKARA, EDAPPALLY - 682024. 3. SRI.MUHAMMED VASIM, S/O.LATE JALEEL MAJEED, CERIN BUNGLAW, CHUTTUPADUKARA, EDAPPALLY - 682024. 4. SRI.MUHAMMED NIYAS, S/O.DR.ALI KOYA, CERIN BUNGLAW, CHUTTUPADUKARA, EDAPPALLY, REPRESENTED BY HIS P/AT HOLDER FATHIMA BEEVI - 682024. 5. SMT.AMEENA SHAHANAS, W/O.ABDUL GAFOOR, CERIN BUNGLAW, CHUTTUPADUKARA, EDAPPALLY-682024 LA.App..No. 65 of 2011(A) -2- 6. SAINABA RUKKIYAS, W/O.SHENOOB, CERIN BUNGLAW, CHUTTUPADUKARA, EDAPPALLY, REPRESENTED BY HIS P/A HOLDER FATHIMA BEEVI-682024 7. JABEEN ANSEER, W/O.ANSEER, PAAM COLLEGE, PONEVAZHI ROAD, EDAPPILLY-682024 8. MUHAMMED SALI, S/O.P.A.A.MAJEED, ANUGRAH, CHERANELLOOR ROAD, EDAPPILLY, REPRESENTED BY P/A HOLDER JABEEN ANSEER. 9. FATHIMUTHUL JUBERIA, W/O.FAIZAL JAMAL, REPRESENTED BY P/A HOLDER JABEEN ANZAR. THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 15/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & N. K. BALAKRISHNAN, JJ. ------------------------------------------------ L. A. A. No.65 of 2011 ------------------------------------------------ Dated this the 15th day of June, 2011 JUDGMENT Pius C. Kuriakose, J Service is completed. There is no appearance for the respondents. 2. This appeal pertains to the land value as well as the award of compensation for injurious affection. As far as the land value issue is concerned the same is covered against the Government by judgment of this Court in LAA.1294/10. We confirm the land value awarded by the Reference Court. But, we find some merit in the submission of the learned Government Pleader regarding the grounds based on the award of compensation for injurious affection. The total extent of the property which remains under the ownership and possession of the claimant after acquisition is 10.79 Ares. According to the claimants, the above extent has been injuriously affected due to the acquisition. The claimants L. A. A. No.65 of 2011 -2- took out a commission. Significantly, the claimants did not want the Advocate Commissioner to report regarding the percentage of diminution in the value of the unacquired property. They only wanted the Commissioner to measure out the extent of the unacquired property. The Commissioner measured out the extent of the unacquired property and submitted a plan. The learned Subordinate Judge has under the impugned judgment found that the unacquired property has not been reduced to an irregular plot though it was noticed that a portion of the unacquired property is tapering. Notwithstanding the above finding the learned Subordinate Judge has obviously by guess work fixed the percentage of diminution at 10% and awarded a total amount of ` 6,57,920/- as total compensation for injurious affection. According to us, the court below was not justified in fixing percentage of injurious affection uniformly for the entire unacquired property. Perhaps so much of percentage of injurious affection could have been found in respect of 50% of the unacquired property i.e that portion of L. A. A. No.65 of 2011 -3- the unacquired property which is found in a tapering shape. As far as the balance portion of the unacquired property is concerned only nominal compensation could have been granted. Taking the above aspects into account, we re-fix the total compensation payable towards injurious affection at ` 3,50,000/-. The appeal will stand allowed to the above extent. Though the claimants are entitled for statutory benefits on the re-fixed compensation, it is made clear that for the amount the claimants are getting towards compensation for injurious affection, they will get only the benefit under Section 28. PIUS C. KURIAKOSE JUDGE N. K. BALAKRISHNAN JUDGE kns/- L. A. A. No.65 of 2011 -4-