IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 9TH JUNE 2009 / 19TH JYAISHTA 1931 LA.App..No. 113 of 2004() ------------------------- LAR.35/1997 of SUB COURT, PATHANAMTHITTA .................... APPELLANT(S): CFLAIMANTS ------------------------ 1. SRI.T.K.ABRAHAM, PANARAKIZHAKKETHIL, PUTHENPEEDIKA, OMALLOOR, (THARAYIL, PACHALAM, KOCHI-12) 2. SRI.T.K.MATHEW, THARAYIL, PNAKKANAM, CHENNEERKARA. BY ADV. SRI.T.I.ABDUL SALAM RESPONDENT(S): RESPONDENTS -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, PATHANAMTHITTA. 2. PATHANAMTHITTA MUNICIPALITY, REPRESENTED BY ITS SECRETARY, PATHANAMTHITTA. R1 BY SR. GOVERNMENT PLEADER SRI BASANT BALAJI SRI.A.N.RAJAN BABU FOR R2 THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 09/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & P.Q. BARKATH ALI, JJ. --------------------------------------------- L.A.A. 113 OF 2004 --------------------------------------------- Dated: JUNE 9, 2009 JUDGMENT Pius C. Kuriakose, J. This is an appeal by the claimants who are not satisfied with the enhancement granted by the reference court. The acquisition was for the purpose of forming a ring road in Pathanamthitta town which is the headquarters of the Pathanamthitta District. The relevant sec.4(1) notification was published on 24.1.1992. The land acquisition officer awarded land value at the rate of Rs.6787/- per cent, which was enhanced by the reference court relying mainly on Ext.A1 judgment of the same court in a batch of cases to Rs.8191/- per cent. 2. In this appeal the appellants have raised several grounds assailing the refixation of market value by the reference court and claiming that the market value should have been refixed at a rate far above the rates presently fixed. It is also L.A.A. 113 OF 2004 2 urged that the reference court went wrong in turning down the appellants' claim for injurious affection to the remainder extent of the property remained under the ownership of the appellants. 3. We have heard the submissions of Sri T.I.Abdul Salam, learned counsel for the appellants, and those of Sri Basant Balaji, learned senior Government Pleader. 4. The first point urged by Sri.Abdul Salam was that the court below has not granted statutory benefit admissible under Section 23(2), 23(1A) and Section 28 of the Act. He submitted that interest has not been specifically granted on the total compensation which will give him the statutory benefit like solatium and the component under Section 23(1A). The issue is covered by the Judgment of the Constitution Bench of the Supreme Court in Sunder v. Union of India (2001 (3)KLT 489). We clarify that for the entire enhanced compensation, the appellant will be entitled for statutory benefits including interest on solatium and Section 23(1A) component of the total compensation. 5. Even though Sri Abdul Salam has strained very much for submitting that unlike the other properties covered by Ext.A1 L.A.A. 113 OF 2004 3 common judgment, the acquired property in this case is situated nearer to the central junction of Pathanamthitta, we are unable to accede to his request that a higher land value be fixed than what is fixed under the impugned judgment. Ext.A1 was the only item of tangible evidence produced by the claimants. Under Ext.A1, two different rates of land value are awarded by the reference court to the claimants in cases covered by the same notification. Higher land value was given to the claimants in LAR 1/1997 and LAR 67/1996. It is that rate which is given by the court below under the impugned judgment to the appellants. May be there is some truth when the appellants say that their property is lying nearer to the central junction of the town than the properties in LAR 1/1997 and LAR 67/1996. But then, the land acquisition officer has treated the appellants' property and the properties of the parties in LAR 1/1997 and LAR 67/1996 to be of the same value for the purpose of passing the original award. One of the legislative objects underlying sec.28A of the Land Acquisition Act is that a parity should be maintained in the mater of the final land value paid to the parties who were treated alike by the land acquisition officer in the matter of the original L.A.A. 113 OF 2004 4 award. Due to fortuitous circumstances the parties in LAR 1/1997 and LAR 67/1996 gained more than what was due to them. But, as far as the appellants are concerned, other than Ext.A1 there is no other tangible evidence and we are not inclined to interfere with the determination of the land value by the reference court. 6. Mr. Abdul Salam would address still more appealing submissions regarding the appellants' claim for compensation for injurious affection for the remainder extent remaining under the ownership of the appellants after the acquisition. According to Sri Salam, the extent is only one cent and it has now been reduced to a tiny irregular bit. The remainder extent, according to the learned counsel, has been rendered practically valueless and useless. According to him, the percentage of injurious affection will be atleast 90%. Though this submission of the learned counsel for the appellants has some appeal, we do not find any cogent material in the case on the basis of which the submission could be accepted. According to us, this is an aspect which is capable of being proved by best quality evidence. It is open to the appellants to take out a commission for measuring L.A.A. 113 OF 2004 5 the remainder property so that the court is given data as to the shape and extent of the remainder property. We are inclined, therefore, to set aside the judgment and decree to the extent the same pertains to the appellants' claim for injurious affection in respect of the remainder property, giving opportunity to the appellants to take out a commission from the reference court. 7. Accordingly, the judgment and decree of the reference court are set aside and the LAR is remanded to the Subordinate Judge's Court, Pathanamthitta. That court is directed to allow the application, if any filed by the appellants, for issuance of a commission and depute an advocate-commissioner to measure the remainder extent of the property with the assistance of village authorities so that a report is obtained by the court below as to the extent and the shape of the remainder property. If the sketch to be submitted by the advocate-commissioner on the basis of the measurement reveals that the remainder property is an irregular small plot extending to one cent or less, we feel that there will be justification for granting compensation towards injurious affection by taking the percentage of diminution to be above 50%. Needful in this regard will be done by the learned L.A.A. 113 OF 2004 6 Sub Judge and revised judgment will be passed on the basis of the commission report at the earliest, at any rate, within six months of receiving a copy of this judgment. The parties are directed to enter appearance before the reference court on 4.7.2009. Full court fee paid on the appeal memorandum will be refunded to the counsel for the appellants. PIUS C. KURIAKOSE, JUDGE P.Q. BARKATH ALI, JUDGE mt/-