IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 17TH FEBRUARY 2010 / 28TH MAGHA 1931 LA.App..No. 1931 of 2008() -------------------------- LAR.387/2004 of PRL.SUB COURT,KOTTAYAM .................... APPELLANT(S): CLAIMANTS ----------------------- 1. ALEY JOSEPH, VADAKKEPOOVAMNILKUNNETHIL, ATHIRAMPUZHA. 2. THOMAS JOSEPH, VADAKKEPOOVAMNILKUNNATHIL, ATHIRAMPUZHA. 3. GEORGE JOSEPH, VADAKKEPOOVAMANILKUNNATHIL, ATHIRAMPUZHA. 4. ROY JOSEPH, VADAKKEPOOVAMANILKUNNATHIL, ATHIRAMPUZHA. 5. LEELAMMA JOSEPH, W/O.LATE JOSE, MANJOOVALLIL HOUSE, VALACHIRA KARA KADUTHURUTHY VILLAGE, VAIKOM TALUK. BY ADV. SMT.ELIZABETH MATHAI IDICULLA SRI.MOHAN IDICULLA ABRAHAM SRI.RACHEL P.MATHEW SRI.MARTIN D.ALUMKARA SMT.PUSHPY B.MURICKEN RESPONDENT(S): RESPONDENT ------------------------- THE STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, KOTTAYAM. SENIOR GOVT.PLEADER MS.LATHA T.THANKAPPAN THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 17/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ---------------------------------- L.A.A. No.1931 of 2008 ---------------------------------- Dated this the 17th day of February, 2010 J U D G M E N T ---------------------- Pius C.Kuriakose,J. Claimants are in appeal. Their properties in Athirampuzha village were acquired for the purpose of construction of M.V.I.P. branch canal. Relevant Section 4(1) notification was published on 26.7.2003. Land Acquisition Officer included the property in category No.4, that is properties which do not have direct frontage of PWD road but have access to PWD road only through a Nattuvazhi and awarded land value at the rate of Rs.10,726/- per Are. Before the reference court the appellants produced various documents. Learned Subordinate Judge under the impugned judgment found that the only document which can have relevance is Ext.A3 judgment which was in respect of acquisition for the same purpose pursuant to the same notification but relating to acquisition of a superior category of property. The appellant had a claim that their property was also enjoying frontage of PWD road and hence liable to L.A.A.1931/2008-U 2 be included in category No.2. In fact the claim was that their property was even superior to category No.2. Court below noticed that the appellant's property under acquisition was part of an extensive holding having 3 acres. But the property actually under acquisition did not have direct frontage of PWD road. On that basis the court below did not uphold the claim that property should be included in category No.2. However, noticing that it is a 60% enhancement granted under Ext.A3, what the court below did was to enhance compensation by 60% and re-fixed market value at Rs.18,234/- per Are. Aggrieved by this, the appellants are in appeal. 2. Smt. Rachel Joseph learned counsel for the appellants made extensive arguments based on the grounds in the appeal. She highlighted two points. According to her for the properties in category.2 under Ext.A3 the court below had re-fixed land value at Rs.50,000/- per Are. However, the appellants are limiting their claim to Rs.31,234/- per Are. She relied on the commissioner's report and submitted that it has been clearly reported by the commissioner that the property under acquisition was enjoying frontage of PWD road. Then she also referred to the report by the L.A.A.1931/2008-U 3 commissioner that the property under acquisition had been divided into 3 plots because of the acquisition. According to her, the value of the remainder properties have been injuriously affected considerably and compensation of Rs.30,000/- awarded by the reference court is meagre. All the submissions of Smt.Rachel Joseph were resisted by Smt. Latha T. Thankappan, learned senior Government Pleader. She would justify the impugned judgment on the various reasons stated therein. According to her reasonable compensation has been awarded by the reference court and there is no warrant for interference with the impugned judgment. 3. We have anxiously considered the submissions at bar. We have also scanned the impugned judgment. As directed by us a copy of Ext.A3 was placed before us by Smt.Rachel Jose. It has been found by learned Subordinate Judge himself that the property under acquisition was part of an extensive holding belonging to the claimant having an extent of more than 3 acres. It has come out in evidence of the commissioner's report that the larger holding including the property under acquisition was enjoying direct frontage of PWD road. Thus from the owners' point of view it can be L.A.A.1931/2008-U 4 stated to a considerable extent that the property under acquisition was also enjoying frontage of PWD road. At the same time we are not inclined to include the property of the appellant in category No.2 straight away because the appellants' claim is that the property was far superior to the property included in category No.2 by the LA Officer. So also, we find from Ext.A3 that the ground raised by the appellants that for property in category No.2 the court had re-fixed Rs.50,000/- per Are is not correct. The amount was only Rs.31,234/-. For these reasons there is no convincing evidence before the court below as to the importance and value of the property under acquisition vis-a-vis by the property under Ext.A3. However we find that the appellants are entitled for enhancement over what was awarded by the court below. Taking all relevant inputs into account we allow the appeal and re-fix the market value of the land at Rs.25,000/- per Are. 4. We find some genuineness in the grievance of the appellants that the impugned award towards compensation for injurious affection is not adequate. Learned Subordinate Judge himself has found that the remainder property has been injuriously affected and a substantial compensation is L.A.A.1931/2008-U 5 given. But what is granted is only Rs.30,000/- per Are. We feel that on a better assessment a further amount of Rs.15,000/- can be granted to the appellants. We award Rs.15,000/- more towards compensation for injurious affection. 5. Appeal is allowed. It is made clear that for the total enhanced compensation the appellants/claimants will be entitled for all statutory benefits admissible under Section 23 (1A), 23(2) and 28 of the Land Acquisition Act. However, for the compensation which is awarded towards injurious affection the appellants will be entitled only for benefit under Section 28 of the Land Acquisition Act only. The appeal is allowed but without any order as to costs. PIUS C.KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb