IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL FRIDAY, THE 18TH NOVEMBER 2011 / 27TH KARTHIKA 1933 LA.App..No. 632 of 2011() ------------------------- LAR.92/2002 of II ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT(S): -------------- USHA ASHOK KUMAR, 'KARMA'PUSHAPAVANAM ROAD, POOJAPURA, THIRUVANANTHAPURAM BY ADV. SRI.LAL GEORGE SMT.M.J.INDUJA RESPONDENT(S): --------------- 1. STATE OF KERALA, REP.BY DISTRICT -COLLECTOR, THIRUVANANTHAPURAM PIN-695001 2. THE PRINCIPAL, GOVERNMENT HOMEOPATHIC MEDICAL COLLEGE, THIRUVANANTHAPURAM -695001 GOVERNMENT PLEADER C.R.SHYAM KUMAR THIS LAND ACQUISITION APPEAL HAVING COME UP FOR ADMISSION ON 18/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE & K. HARILAL, JJ. ------------------------ L.A.A..No. 632 OF 2011 ------------------------ Dated this the 18th day of November, 2011 JUDGMENT Pius C.Kuriakose, J. The claimant is the appellant. The case pertains to acquisition of land in Manacaud village for the purpose of formation of Herbarium for Government Homeopathic Medical College, Thiruvananthapuram, pursuant to Section 4 (1) notification published on 15/10/1998. The property was included in category B and the LAO awarded land value at the rate of Rs.17,907/- per Are. The Reference Court refixed the value under the impugned judgment at Rs.61,750/- per Are. 2. In this appeal, it is urged that the rate refixed by the Reference Court is grossly inadequate. There is further ground that the court below went wrong in not awarding any compensation towards injurious affection of the property having an extent of 18.85 Ares of land which was not acquired. Sri.Lal George learned counsel for the appellant drew our attention to LAA.No.632/2011 2 the judgment in L.A.A. No. 2365/2008 and submitted that for the properties included in another category acquired for the same purpose, this court has allowed the appeal preferred by the claimants and refixed the market value of land under acquisition at much higher rate than what was awarded by the Reference Court. The learned counsel referred to other judgments also and submits that we should follow those judgments and allow this appeal and refix the land value. Mr.Lal George further submitted that there was a claim for compensation for injurious affection of the unacquired property and this claim was not even considered by the Reference Court. 3. The learned senior Government Pleader Sri. C.R.Shyam Kumar submitted that prejudice will be occasioned to the State if this court is going to decide the land value issue finally relying on any other judgments of this court. There has to be evidence regarding the comparability of the properties covered by the judgments and the property under acquisition. The Government Pleader further submitted that the appellant had not raised any claim before the court below for compensation for injurious affection. The claimant, who has not raised such claim, should LAA.No.632/2011 3 not be allowed to raise such a claim in this appeal so submitted Mr.Shyam Kumar. 4. Having considered the submissions addressed at the Bar, we are of the view that it is not proper on our part to decide the issue of land value finally. The question of land value will have to be decided by the learned Subordinate Judge. 5. Coming to the claim raised in this appeal for compensation for injurious affection, we are of the view that the question to be considered first is whether the appellant had raised such claim before the court below. A copy of the claim statement filed by the appellant before the Reference Court is placed before us by Mr.Lal George. It is clear from a reading of the paragraph 10 of the claim statement that, though in a feeble manner, the claim is raised by the appellant. Perhaps no evidence was adduced by the appellant and this should be why the learned Subordinate Judge in his judgment does not refer to this claim at all. Whatever that be, we are of the view that as the L.A.R. is going back to the Reference Court, there will be a direction to the Reference Court to consider the above claim also. LAA.No.632/2011 4 6. The result is as follows; i). The impugned judgment and decree are set aside and L.A.R. No.92/2002 is remanded to the IInd Additional Sub Court, Thiruvananthapuram. The learned Subordinate Judge is directed to take a fresh decision on the question of correct market value to be granted for the property under acquisition after giving opportunity to both sides to adduce whatever further evidence they want to. The learned Sub Judge will also permit both sides to adduce evidence on the appellant's claim for compensation for injurious affection in respect of the unacquired property. ii). The learned Sub Judge will pass the revised award on the basis of the evidence already on record and the evidence which comes to be adduced by the parties at the earliest and at any rate within three months of the parties entering appearance pursuant to this order of remand. iii). The parties will enter appearance before the Reference Court on 9/12/2011. As there is considerable laches on the part of the appellant in adducing proper evidence before the Reference Court, there LAA.No.632/2011 5 will be a direction that if under the revised award the appellant becomes eligible for enhanced compensation, such enhanced compensation will not carry interest otherwise admissible under Section 28 of the Act during the period from 18/11/2006 till 9/11/2011 . PIUS C.KURIAKOSE,JUDGE K. HARILAL, JUDGE. dpk