IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 15TH FEBRUARY 2010 / 26TH MAGHA 1931 LA.App..No. 1096 of 2007(D) --------------------------- LAR.4/2005 of SUB COURT, VADAKARA .................... APPELLANT(S): RESPONDENT ------------------------ STATE OF KERALA REPRESENTED BY THE SPECIAL TAHSILDAR (LA), KOILANDY. BY SR.GOVT. PLEADER MR.BASANT BALAJI RESPONDENT(S): CLAIMANTS & 2ND RESPONDENT ----------------------------------------- 1. MADHAVI AMMA, VALIYAPARAMBATH, MOKERI, VADAKARA TALUK. 2. MEENAKUMARAN, VALIYAPARAMBATH HOUSE, VALAYAM POST, KAKKATTIL, VATAKARA. 3. CHITHRA RAMAKRISHNAN, W/O.RAMAKRISHNAN, VALIYAPARAMBATH HOUSE, POST VALAYAM, VIA KAKKATTIL, VATAKARA. 4. PREETI, W/O.VIJAYAKUMAR, 17/248, SOUPARNIKA, SANTHIMARY, MENNASSERI EAST, OTTAPALAM, PALAKKAD. 5. SECRETARY, GRAMA PANCHAYATH OFFICE, KAVILUMPRA. ADVS. MR. V.N.RAMESAN NAMBISAN FOR R1TO 4 MR. B.KRISHNAN FOR R5 MR. R.PARTHASARATHY FOR R5 THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 15/02/2010, ALONG WITH CO NO. 56 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.2819 OF 2007 IN LAA.1096 OF 2007 DISMISSED. SD/- PIUS C. KURIAKOSE, JUDGE. SD/- C.K. ABDUL REHIM, JUDGE. 15.2.2010 okb /True copy/ P.A. to Judge PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ---------------------------------- L.A.A. No.1096 of 2007 & Cross Objection No.56/2009 ---------------------------------- Dated this the 15th day of February, 2010 J U D G M E N T ---------------------- Pius C.Kuriakose,J. The appeal is preferred by the Government and the memorandum of Cross Objection is instituted by the claimants. The lands under acquisition were situated in Kavilumpara village of Kozhikode Taluk. The acquisition was for the purposes of Kavilumpara Grama Panchayat pursuant to Section 4(1) notification published on 04.6.2002. The purpose of the acquisition was for the construction of a bus stand for the Panchayat. The Land Acquisition Officer fixed land value at Rs.3,684/- per cent. The Reference Court under the impugned judgment, on the basis of the evidence which came on record, re-fixed the land value at Rs.20,000/- per cent. In the appeal preferred by the Government, the above re-fixation is challenged as highly excessive, while in the memorandum of Cross Objection preferred by the claimant it is urged that the land value re-fixed by the court is inadequate. L.A.A.1096/2007 & CO.56/2009 2 2. The memorandum of Cross Objection raised two important claims. The first claim is that the claimants should have been awarded compensation for injurious affection of the unacquired property of the claimant which extends to below 25 cents of land. It is contended that the unacquired portion is L-shaped property having a width of 3 metres and hence cannot be utilised for putting up buildings. The other claim which is urged through the memorandum of Cross Objection is that neither the LA Officer nor the court below awarded any compensation for the compound wall which existed on the property under acquisition. The contention is that for the compound wall the court below should have awarded the amount recommended by the Advocate Commissioner on the basis of an inspection conducted by her. 3. Sri. V.N. Ramesan Nambisan, learned counsel for the cross objector, Sri.C. Jayachandran, learned counsel for the requisitioning authority, and Sri. Basant Balaji, learned senior Government Pleader for the Government addressed us in detail. Mr. Ramesan Nambisan drew our attention to Ext.X1 commission report and X2 plan submitted by the commissioner. According to him, adequate compensation L.A.A.1096/2007 & CO.56/2009 3 should have been awarded for the injurious affection of the remainder property, the extent of which was approximately 25 cents. He referred to the commission report and submitted that no reason has been assigned by the court below for declining compensation for the substantial compound walls which existed on the property under acquisition. Mr. Nambisan would lastly submit that the claimant will have to be satisfied with the land value of the 25 cents re-fixed under the impugned judgment. The submissions of Mr. Nambisan were resisted by Mr. Jayachandran, counsel for the requisitioning authority. Mr. Jayachandran was supported in all his submissions by the learned senior Government Pleader. According to Mr. Jayachandran, certain documents have been produced by the Panchayat in this appeal and those documents will reveal that even after the acquisition, market value of the land in the locality remained far lesser than the rate presently fixed under the impugned judgment. He justified the action of the court below in declining any compensation for injurious affection of the remainder property. According to him, the commission report was not acceptable regarding the value of the compound walls and hence in the absence of evidence no L.A.A.1096/2007 & CO.56/2009 4 compensation could have been awarded for the compound walls. Mr. Jayachandran requested that the matter may go back to the reference court so that documents produced in this court can be produced by the requisitioning authority so that, the LAR court would be able to decide the question of correct market value payable for the property under acquisition. 4. Having anxiously considered the rival submissions we are of the view that there is considerable merit in the submission of the learned counsel for the claimant/cross objector that the claimant/cross objector is entitled for compensation for injurious affection for the unacquired property which extends to 24 to 25 cents of land. Ext.X1 commission report would clearly show that the remainder property has been reduced to two strips long in the form of 'L' with a width of 3 metres only. We are of the view that the remainder property has been injuriously affected at least to the extent of 10%. The same is the position regarding grievance voiced by the cross objector regarding compensation payable for the compound wall. Some compensation should have been awarded for the walls which existed on the property under acquisition. The court below L.A.A.1096/2007 & CO.56/2009 5 was not justified in declining any compensation for the wall. As for the market value of the land we are of the view that the said issue is to be reconsidered by the reference court giving liberty to both sides to produce whatever documents they want to including documents produced before this court by the Panchayat. 5. The result of the above discussions is as follows: The judgment and decree under appeal are set aside. LAR.4/2005 is remanded to Subordinate Judge's Court, Vadakara. That court is directed to permit all parties to adduce whatever further evidence they want to in the context of the various claims raised in the LAR including the claim for compensation for injurious affection and the claim for value of the compound wall and market value of the land. The learned Subordinate Judge is directed to complete the enquiry and pass revised judgment at the earliest and at any rate within four months of parties entering appearance before that court pursuant to this judgment. Since the Panchayat is also desirous of an order of remand we are not inclined to impose any condition which will deprive the claimant of the benefit of receiving interest under Section 28 of the Act. We are also not inclined to refuse refund of L.A.A.1096/2007 & CO.56/2009 6 the court fee remitted on the memorandum of Cross Objection. The entire court fee remitted on the Cross Objection will be refunded to Sri.Ramesan Nambisan, learned counsel for the cross objectors. Appeal and Cross Objection are allowed. Parties will appear before the reference court on 22.3.2010. PIUS C.KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb