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 4TH JANUARY 2010 / 14TH POUSHA 1931 LA.App..No. 1512 of 2009() -------------------------- LAR.59/2007 of III ADDL.SUB COURT, ERNAKULAM .................... APPELLANT(S)/CLAIMANTS: ------------------------ 1. KANCHANA, W/O.SREEDASAN, AGED 53, MANAPPURATH HOUSE, CHERANALLOOR, KOCHI-34 REPRESENTED BY HER POWER OF ATTORNEY HOLDER RAMESH, S/O.SREEDASAN, AGED 31, MANAPPURATH HOUSE, CHERANALLOOR, KOCHI-34. 2. RAMESH, S/O.SREEDASAN, AGED 33, MANAPPURATH HOUSE, CHERANALLOOR, KOCHI-34. 3. RENUKA, D/O.SREEDASAN, AGED 39, REPRESENTED BY HER POWER OF ATTORNEY HOLDER RAMESH, S/O.SREEDASAN, AGED 31, -DO-. 4. RAJESH, S/O.SREEDASAN, AGED 31 REPRESENTED BY HIS POWER OF ATTORNEY HOLDER RAMESH, S/O.SREEDASAN, AGED 31, -DO-. 5. REMADEVI, W/O.P.G.SUBRAHMANIAN, AGED 36 THODALAKKUNNIL HOUSE, VELIYATHUNAD, ALUVA REPRESENTED BY HER POWER OF ATTORNEY HOLDER RAMESH, S/O.SREEDASAN, AGED 31, -DO-. BY ADV. SRI.P.A.ABDUL JABBAR RESPONDENT(S): RESPONDENTS: --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SPECIAL TAHSILDAR (LA) N.H.1, KAKKANADU. 2. THE EXECUTIVE ENGINEER, N.H.(B) DIVISION, VYTTILA. SR. GOVERNMENT PLEADER SRI.BASANT BALAJI THIS LAND ACQUISITION APPEAL HAVING COME UP FOR ADMISSION ON 04/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ. ---------------------------------- L.A.A. No.1512 of 2009 ---------------------------------- Dated this the 4th day of January, 2010 J U D G M E N T ---------------- Pius C.Kuriakose,J. This appeal pertains to acquisition of land in Cheranelloor village for the purpose of widening of N.H.17. The acquisition was pursuant to notification under Section 4(1) published on 14.3.2002. The Land Acquisition Officer awarded the land value at the rate of Rs.1,08,800/- per Are. The Reference Court on evaluating the evidence on records would re-fix the land value at Rs.1,41,440/- thus granting an enhancement by 30% over what was awarded by the Land Acquisition Officer. On hearing Sri. Abdul Jabbar Panadan, learned counsel for the appellant, we admitted the appeal and Sri.Basant Balaji, learned Senior Government Pleader took notice on behalf of the Government. We have already heard counsel for the appellant and the Senior Government Pleader. Our attention is drawn by Sri.Abdul Jabbar Panadan to L.A.A.1512/09 2 the judgment of this court in L.A.A.981/2009. We notice that the cause covered by that judgment was an identical one pertaining to the acquisition for the same purpose pursuant to same notification in respect of property included in same category by the Land Acquisition Officer as in the present case. It is submitted by the learned Senior Government Pleader that judgment in L.A.A.981/09 is in currency. Accordingly, following the decision taken by this court in L.A.A.981/09 we allow the appeal and modify the judgment and decree under the appeal by re-fixing the land value at Rs.1,57,760/- per Are. 2. Sri. Abdul Jabbar Panadan, learned counsel for the appellant submitted that the court below was not justified in not placing reliance on Ext.C1 commission report and the evidence of AW2, the Engineer who assisted the Advocate Commissioner. Learned counsel submitted that what the court below awarded was a paltry enhancement of 20% towards the value of the building which existed in the property. Learned counsel also requested that at L.A.A.1512/09 3 least 15% enhancement more be granted following the principle that construction of building in accordance with PWD schedule of rates is not a pragmatic proposition. Learned counsel further pointed out that this court in the judgment in L.A.A.981/09 has awarded 35% enhancement in the value of the building following the above principle. We find force in the above submission of Mr.Abdul Jabbar Panadan. Accordingly we award a further sum of Rs.23,782/- towards the value of the building which existed on the property so that the appellant ultimately gets a total of 35% more than what was awarded by the Land Acquisition Officer. 3. Another point which was urged before this court by the learned counsel for the appellant was that the court below was not justified in not awarding any amount towards compensation for injurious affection for the unacquired property of the appellant extending to 0.308 Ares. According to the learned counsel the above unacquired property has been reduced to a very narrow strip of land not capable of being used for any profitable L.A.A.1512/09 4 purpose. The learned counsel submitted that the Advocate Commissioner had given a clear report to the effect that the property had become injuriously affected though he had not made any recommendation towards the compensation awarded on the above count. We find some force in the submission of Mr. Abdul Jabbar who requested that at least 50% of the market value be awarded to the compensation for the injurious affection since no amount was allowed towards compensation for injurious affection. We are of the view that percentage of diminution sustained by unacquired property is at least 30%. Calculating in that way, compensation to be awarded towards that count will come to Rs.14,577/-, which we round off to Rs.15,000/-. We award a sum of Rs.15,000/- towards that count. 4. The last point which was argued by Mr. Abdul Jabbar Panadan was that since the original compensation was awarded by the Land Acquisition Officer in two installments, the appellant has not received the full amount of interest payable under Section 34. We will clarify that on the total L.A.A.1512/09 5 enhanced compensation to which the appellant becomes eligible by virtue of this judgment (inclusive of the original compensation awarded to them by the L.A.Officer) they will be entitled for all statutory benefits including interest under Section 28. It is open to the appellants on the basis of this decree to claim the above amounts while filing execution petition. We further clarify that the amount awarded by this court in this judgment for injurious affection will not be reckoned for computing additional amount under Section 23(1A). Appeal is allowed as above, but without any order as to costs. PIUS C. KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb