IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL FRIDAY, THE 3RD DECEMBER 2011 / 12TH AGRAHAYANA 1933 LA.App..No. 606 of 2011() ------------------------- LAR.278/2004 of PRL.SUB COURT,KOTTAYAM .................... APPELLANT(S): CLAIMANTS 2 TO 7 ------------------------------ 1. MARYKUTTY, W/O.JOSEPH, ITTANKULANGARA HOUSE, KANAKKARY VILLAGE, KURUMULLOOR KARA, KOTTAYAM DISTRICT. (DIED) 2. GEORGE, S/O.JOSEPH, ITTANKULANGARA HOUSE, KANAKKARY VILLAGE, KURUMULLOOR KARA, KOTTAYAM DISTRICT.. 3. SHERLY THOMAS, ITTANKULANGARA HOUSE, KANAKKARY VILLAGE, KURUMULLOOR KARA, KOTTAYAM DISTRICT, NOW RESIDING AT POST BOX NO.4338, ABU DHABI, U.A.E. 4. LOVELY, W/O.RAJAN, ITTANKULANGARA HOUSE, KANAKKARY VILLAGE, KURUMULLOOR KARA, KOTTAYAM DISTRICT, NOW RESIDING AT THEVALAPPURATHU HOUSE, EZHAMKULAM, BHAGAVATHY PURAM, KOLLAM DISTRICT. 5. POULIN PIOUS, ITTANKULANGARA HOUSE, KANAKKARY VILLAGE, KURUMULLOOR KARA, KOTTAYAM DISTRICT, NOW RESIDING AT I MURENE COURT, MELBOURNE, BRONIA, VICTORIA 3155, AUSTRALIA. 6. ANTONY JOSEPH, ITTANKULANGARA HOUSE, KANAKKARY VILLAGE, KURUMULLOOR KARA, KOTTAYAM DISTRICT, NOW RESIDING AT N.T.P.CONSUMER DIVISION, S.N.P. P.O., BOX NO.3139, DUBAI. BY ADV. SRI.A.K.HARIDAS RESPONDENT(S): RESPONDENT ------------------------- STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, KOTTAYAM. PIN-686 001. GOVT.PLEADER SRI.C.R.SHYAMKUMAR THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 03/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE & K.HARILAL, JJ. ------------------------ L.A.A. NO. 606 OF 2011 ------------------------ Dated this the 3rd day of December, 2011 JUDGMENT Pius C.Kuriakose, J. The claimants are the appellants. 8.42 Ares of their land in Kanakkary village was acquired for the formation of Ettumanoor Distributory under Moovattupuzha Valley Irrigation Project. This acquisition was pursuant to Section 4 (1) notification published on 25/2/1999. The Land Acquisition Officer awarded land value at the rate of Rs.19506/- per Are. The Reference Court under the impugned award would refix the land value at Rs.29259/- per Are. 2. The appellants had a claim for compensation for injurious affection in respect of their property which remained with them after the acquisition. According to them, because of the acquisition and construction of canal through the middle of L.AA. No. 606 /2011 2 their property, the remaining property has been completely deprived of road accesses. The total extent of the unacquired property on the southern and western side of the acquired property is presently lying without any road access, according to the appellants. Even though the advocate commissioner submitted a report to the effect that the value of the unacquired property has been injuriously affected, the learned Subordinate Judge awarded only a paltry amount of Rs. 20,000/- as compensation for injurious affection as against the appellants' claim for Rs.10 Lakhs. 3. In this appeal grounds are raised urging that the market value of the land should be enhanced considerably and further urging that the recommendations of the commissioner in the matter of compensation for injurious affection should be accepted. However, the total claim in the appeal is limited to Rs.3 Lakhs. 4. Sri.A.K.Haridas, learned counsel for the appellants addressed us in detail. According to him, the learned Subordinate Judge was not at all justified in discarding the commissioner's report. Compensation for injurious affection L.AA. No. 606 /2011 3 should have been granted. Even if percentage of injurious affection is taken as 30%, then also the appellants will become entitled for Lakhs of Rupees as compensation for injurious affection. 5. Sri.C.R.Shyamkumar learned senior Government Pleader submitted that though it is true that the advocate commissioner had reported that the unacquired property of the appellants have injuriously affected due to the acquisition., the commissioner has not fixed the percentage of diminution suffered by the unacquired property. The learned Government Pleader requested that if so inclined, this court may remand the matter to the Reference Court. 6. We have given our anxious consideration to the rival submissions addressed at the Bar. We may at the very outset state that we are not at all impressed by the arguments seeking enhancement of the land value. According to us, the market value determined by the Reference Court is reasonable and on the basis of the evidence on record there is no warrant for granting more than what is granted. At the same time, we find genuineness in the grievance voiced by Mr.Haridas that the L.AA. No. 606 /2011 4 learned Subordinate Judge has not awarded adequate compensation for injurious affection of the unacquired property of the appellants which extents to 2 Acres. It is clear from the commissioner's report that road access to the unacquired property has been completely lost and the appellants will not be able to take their vehicles to the unacquired property. Even the learned Subordinate Judge has found as follows; "So definitely the utility and nature of the remaining land has been affected diminishing its value. So, the claimants are entitled for a compensation for damages and injurious affection due to severance of land. From the evidence of AW1s and 2 and the commission report, it is evident that the value of the property has been extensively diminished". Nevertheless, the learned Subordinate Judge does not award any substantial amount as compensation for injurious affection for the following reason; "However, the commissioner has not assessed the percentage of diminishing value so as to consider the injurious affection. In the circumstances, a nominal amount of Rs.20,000/- is assessed taking into consideration of the damage due to severance of land and as compensation for injurious affection." 7. It is true that the commissioner had not determined the L.AA. No. 606 /2011 5 percentage of diminution suffered by the unacquired property of the appellants. But, at the same time, the nature of the diminution is that a property which was enjoying road access was completely deprived of the road access. According to us, the percentage of diminution will be above 30%. If compensation is calculated on that basis, the total compensation for the unacquired property will come to more than Rs.7 Lakhs. According to us, the appellants should be awarded at least Rs.2,50,000/- as compensation for injurious affection. Hence, we allow this appeal awarding to the appellants total amount of Rs.2,50,000/- as compensation for injurious affection including a sum of Rs.20,000/- already awarded. 8. The appellants claim for enhanced land value is declined. The compensation awarded for injurious affection will carry statutory benefits under Section 28 only. The parties are directed to suffer their respective costs. Decree copy will be issued to the appellants only after ensuring that the full court fee payable on the appeal memorandum is remitted. Section 28 interest will be provided in the decree on the basis of the order condoning the delay. It should also be ensured that the cost L.AA. No. 606 /2011 6 ordered in the delay petition is paid. PIUS C.KURIAKOSE,JUDGE K.HARILAL, JUDGE. dpk