IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 23RD JULY 2010 / 1ST SRAVANA 1932 LA.App..No.439 of 2008(D) ------------------------------- AGAINST THE ORDER IN LAR.14/2005 of ADDL.SUB COURT, IRINJALAKUDA .................... APPELLANT(S): CLAIMANT ----------------------------- K.C.ANTONY, S/O.CHACKO, KALIYADAN HOUSE T.K.S.PURAM, KODUNGALLUR. BY ADV. SRI.BABU CHERUKARA RESPONDENT(S)/RESPONDENTS: ------------------------------------- 1. THE DISTRICT COLLECTOR, THRISSUR 2. THE EXECUTIVE ENGINEER P.W.D. ROADS DIVISION, THRISSUR. SR. GOVERNMENT PLEADER SMT.LATHA T. THANKAPPAN THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 23/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ L. A. A. No.439 of 2008 ------------------------------------------------ Dated this the 23rd day of July, 2010 JUDGMENT Pius C. Kuriakose, J The claimant is in appeal. His properties in Pallippuram village were acquired for the purpose of construction of Anapuzha–Krishnankotta bridge pursuant to Section 4(1) notification published on 14/03/03. The land was a coconut garden. The Land Acquisition Officer awarded land value at the rate of Rs.24,700/- per Are. Before the Reference Court the appellant claimed enhancement in land value, compensation for injurious affection in respect of 92 cents of land which remained unacquired, compensation for a rubble retaining L. A. A. No.439 of 2008 -2- wall which was constructed by the appellant for securing the land situated by the side of the river against erosion and sliding and also compensation towards timber value for 32 yielding coconut trees which existed on the land under acquisition. The evidence before the Reference Court consisted of Exts.A1 to A3, R1 to R3, C1, C1(a) and oral testimony of claimant as AW1. There was no counter oral evidence from the side of the Government. It was on Ext.A1 document that the claimant relied mostly on to support their claim for enhanced land value. The learned Subordinate Judge discarded Ext.A1 for the reason that the purchaser under Ext.A1 was not examined. Ultimately, the court below would apply rule of L. A. A. No.439 of 2008 -3- thumb and re-fix the land value by giving enhancement by 20% over the rate awarded by the Land Acquisition Officer. This was done by noticing the passage of time between the date of section 4(1) notification and the date of the basis document which was about three years. Even though Exts.C1 and C1(a) report and sketch submitted by the Commissioner supported the award of Rs.70,000/- towards value of the retaining wall, the court below discarded the commission report saying that the commissioner did not have the assistance of an expert. The claim for compensation for coconut trees was also discarded by the learned Subordinate Judge without assigning any particular reason. Towards L. A. A. No.439 of 2008 -4- injurious affection the learned Subordinate Judge did notice that there was some injurious affection for the unacquired property, however, awarded only Rs.20,000/- as lumpsum compensation. 2. Sri.Babu Cherukara, the learned counsel for the appellant addressed us on the basis of the various grounds raised in the appeal. He argued that the award of the court below is grossly inadequate. He drew our attention to the evidence adduced by the parties. All the submissions of Sri.Babu were opposed by Smt.Latha T. Thankappan, the learned senior Government Pleader. According to her, what is awarded by the court below is quite reasonable and there is no warrant for interference. L. A. A. No.439 of 2008 -5- 3. We have anxiously considered the rival submissions addressed at the Bar. We shall first deal with the question of determining the market value of the land. We are in agreement with the learned Subordinate Judge in his view that Ext.A1 was not a dependable document. This is not only on the reason that the purchaser under Ext.A1 was not examined but it is also on the reason that Ext.A1 is executed just prior to the acquisition and the recitals in Ext.A1 in our view has an artificiality about them. We discard Ext.A1 from consideration. At the same time, we notice that the addition of 20% granted by the court below for the passage of more than three years time between the date of basis document and the L. A. A. No.439 of 2008 -6- relevant Section 4(1) notification date is inadequate. We are of the view that the basis document and the unrebutted oral evidence of AW1 can be relied on and the market value of the land under acquisition can be re-fixed reasonably at Rs.33,500/- per Are. This means that over and above the enhancement, granted by the Reference Court, the appellant will be entitled for further enhancement of Rs.3860/- per Are towards land value. 4. We find some genuineness in the grievance voiced by the appellant that he was not paid adequate compensation for injurious affection of the unacquired portion of his property. We are of the view that the appellant should be awarded L. A. A. No.439 of 2008 -7- a further amount of Rs.30,000/- (over and above what is awarded by the Reference Court) as compensation for injurious affection. We award that amount to the appellant. So also we are of the view that the learned Subordinate Judge was not at all justified in not awarding any compensation to the appellant towards value of the retaining walls which did exist on the property. Reason assigned by the learned Subordinate Judge for rejecting the recommendation by the commissioner is not unsound. But at the same time, the learned Subordinate Judge should have been mindful of the ground reality that without spending money nobody can construct retaining walls for properties L. A. A. No.439 of 2008 -8- with river frontage with rubble masonry . We feel that the appellant should be awarded an amount of Rs.30,000/- on that count. Similarly, we feel that the total amount awarded by the L.A. Officer towards timber value for 32 yielding coconut trees which existed on the properties was grossly inadequate. We are inclined to award a further amount of Rs.7000/- to the appellant on that count. We award that amount to the appellant. 5. The result is that the appeal is allowed as above. The appellants will be entitled for all statutory benefit on the enhanced compensation to which he becomes eligible by virtue of this judgment under Section 23(1A), 23(2) and Section 28 of the Land Acquisition Act. However, L. A. A. No.439 of 2008 -9- we clarify that on the compensation which appellant was awarded by the Reference Court and is being awarded under this judgment towards injurious affection, he will be entitled only for the benefit under Section 28. Appeal is allowed as above, but in the circumstances, without any order as to costs. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/- & ksv/-