IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 24TH JULY 2009 / 2ND SRAVANA 1931 LA.App..No. 2139 of 2008() -------------------------- LAR.214/2004 of ADDL.SUB COURT,KOTTAYAM .................... APPELLANTS/CLAIMANTS. ----------------------------------- 1. LEGAL HEIRS OF CHACKO THOMAS, MARIAMMA THOAMS, W/O.THOAMS, KARIMPUMALIYA CHIRATHADATHIL HOUSE, MANJOOR VILLAGE, VAIKOM TALUK. 2. ANSAMMA,KARIMPUMALIYA CHIRATHADATHIL HOUSE, MANJOOR VILLAGE,VAIKOM TALUK. 3. SHEELAMMA, KARIMPUMALIYA CHIRATHADATHIL HOUSE, MANJOOR VILLAGE,VAIKOM TALUK REPRESENTED BY POWER OF ATTORNEY HOLDER,MARIAMMA THOAMS, KARIMPUMALIYA CHIRATHADATHIL HOUSE, MANJOOR VILLAGE, VAIKOM TALUK. 4. JAYA @ VIJAYAMMA,KARIMPUMALIYA CHIRATHADATHIL HOUSE,MANJOOR VILLAGE,VAIKOM TALUK REPRESENTED BY POWER OF ATTORNEY HOLDER, MARIAMMA THOAMS,KARIMPUMALIYA CHIRATHADATHIL HOUSE, MANJOOR VILLAGE, VAIKOM TALUK. 5. KURIACHEN, KARIMPUMALIYA CHIRATHADATHIL HOUSE, MANJOOR VILLAGE, VAIKOM TALUK. 6. JAISON, KARIMPUMALIYA CHIRATHADATHIL HOUSE, MANJOOR VILLAGE,VAIKOM TALUK. 7. XAVIER,KARIMPUMALIYA CHIRATHADATHIL HOUSE, MANJOOR VILLAGE,VAIKOM TALUK. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENTS/RESPONDENT. -------------------------------------- STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, KOTTAYAM. BY GOVT. PLEADER SMT.LATHA.T.THANKAPPAN THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 24/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - L.A.A.No.2139 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of July, 2009 JUDGMENT Pius.C.Kuriakose, J. This is an appeal preferred by the claimants and their grievance is that the compensation awarded by the reference court for their properties which were acquired for the purpose of Muvattupuzha Valley Irrigation Project is grossly inadequate. The land acquisition officer included their property under category 3 and awarded land value of Rs. 13,890/- per Are. Their contention before the reference court was that their property was eligible to be included in category 1. For properties in category 1, the land acquisition officer had awarded land value at the rate of Rs. 15625/- per Are. The reference court accepted their contention and found that the property under acquisition is eligible to be included in category 1 and on that basis, refixed the land value at Rs. 25,000/- per Are. 2. Our attention is drawn by Sri.Saju John, learned counsel for LAA.No.2139/08 2 the appellants to the judgment of this court in L.A.A.No.276/2008. It is seen from the said judgment that for properties in category 1 for which the land acquisition officer had awarded land value of Rs. 15,625/- per Are, this court has approved another judgment of the reference court wherein the land value was refixed at Rs. 31,250/- per Are. The argument of Sri.Saju John before us is that the properties under acquisition should also be awarded land value at the rate of Rs. 31,250/- per Are. We are of the view that this request should be accepted despite the opposition raised by Smt.Latha.T.Thankappan. We therefore follow the judgment in L.A.A.No.276/2008 and refix the value of lands acquired in this case at Rs. 31,250/- per Are. 3. The other claim of the appellants before the court below was the claim for compensation for injurious affection of 97.194 cents of land not acquired. The case is that on account of the construction of canal through the middle of the holding of the appellants, their holding was divided into two pieces and the northern piece extending to 97.194 cents has been completely deprived of road accessibility. This LAA.No.2139/08 3 contention is actually supported by the Commissioner's report to which no objection was filed. Under the impugned judgment, we found that there is some merit in the claim of the appellants for compensation for injurious affection for the above unacquired portion of their property extending to 97.194 cents. The claim of the appellant was that they should have been awarded compensation for injurious affection at the rate of Rs. 10,000/- per cent. i.e. 25% should have been fixed as the percentage of diminution in the value of the unacquired property. The learned Subordinate Judge found that the claim was exorbitant and what was done was to award a lump sum amount of Rs. 20,000/- as compensation for injurious affection. We are unable to approve the action of the learned Subordinate Judge in awarding a lump sum amount towards compensation for injurious affection. Compensation for injurious affection is always a compensation to be awarded in respect of the unacquired property depending on the percentage of diminution resulting from the acquisition. The report of the Commissioner will show that the acquired property extending to LAA.No.2139/08 4 97.194 cents has been completed deprived of road accessibility. The Commissioner's report is not seen objected to by the government. We think that the percentage of diminution will be atleast 7.5 % per cent. The appellants have to be paid compensation at that rate for the entire extent of 97.194 cents. The land value of the properties under acquisition has been fixed under this judgment at Rs. 12,646/- per cent. By calculating at 7.5% , the total compensation payable to the appellant toward injurious affection will be Rs. 92,185/-. We award that amount also to the appellants as compensation. The result therefore is that the appeal will stand allowed. The land value is fixed at Rs. 12,646/- per cent corresponding to Rs. 31,250/- per Are. The additional amount awarded towards compensation for injurious affection is Rs. 72,185/-. It is needless to mention that for the total enhanced compensation for which the appellants become eligible by virtue of our refixation of land value and compensation towards injurious affection, the appellants will be entitled for all statutory benefits admissible under Section 23(1A), 23 LAA.No.2139/08 5 (2) and Section 28 of the Land Acquisition Act. The appeal is allowed. But in the circumstances, no order as to costs. PIUS.C.KURIAKOSE JUDGE P.Q.BARKATH ALI JUDGE sv. The benefits under Sections 23(1A) and 23(2) on Rs.72,185/- awarded on compensation for injurious affection of land is deleted from the judgment dated 24/07/2009 in L.A.A.No.2139/2008 as per order dated 30/01/2017 in R.P.No.191/2013 in L.A.A.No.2139/2008. Sd/- Registrar (Judicial) LAA.No.2139/08 6