IN THE HIGH COURT OF KERALA AT ERNAKULAM
LA.App..No. 945 of 2005()
1. THE PROCURATOR, THE ACRCHIDIOCESE OF
... Petitioner
Vs
1. STATE OF KERALA.
... Respondent
2. THE MANAGING DIRECTOR, ROADS AND BRIDGES
For Petitioner :SRI.T.P.SAJAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :23/03/2009
O R D E R
PIUS.C.KURIAKOSE & C.K.ABDUL REHIM, JJ.
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L.A.A.No. 945 of 2005
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Dated this the 23rd day of March, 2009
JUDGMENT
Pius C.Kuriakose, J.
Under challenge in this appeal filed by the claimant is the
judgment and decree of the land acquisition reference court,
Ernakulam in L.A.R.No.125/2003. The acquisition was for the
purpose of construction of railway over bridge at Ponnurunni in
Poonithura Village on the Palarivattom – Vyttila road. Relevant
Section 4(1) notification was published on 2/4/2002. As against
the claim for a much higher amount, the land acquisition officer
awarded land value at the rate of Rs.1,85,850/- per Are, for the
acquired property in this case which was included in category 1
viz. properties having direct frontage of the Palarivattom –
Vyttila road. The reference court on evaluating the evidence,
which consisted of Exts.A1 and A2, oral testimony of AWs1 to 3,
Ext.B1 to B3 and Ext.C1 Commission report and C1(a) sketch
submitted by the Commissioner, would refix the land value of the
acquired properties at Rs.3,61,260/- . Apart from the claim for
land value, the appellant had claimed compensation towards
L.A.A..No.945/2005 2
diminution in the land value of the appellant’s property which
remained unacquired. The claim was that on account of the
acquisition, the remainder property of the appellant has been
rendered unfit for the purpose for which it was intended.
According to the appellant, the acquired property was the play
ground of St.Ritha’s High school, and since a portion of the
same has been acquired, remaining area could no longer be used
as a play ground in accordance with the requirements of the
Kerala Education Rules and thus from the point of the view of
the appellant for managing the school the property has become
worthless. The learned Subordinate Judge did not accept the
appellant’s claim that the remainder properties had become
completely useless. According to that court, it may be true that
the remainder properties cannot any longer be used as a football
groundL it can yet be used as a volleyball ground. The
compensation for injurious affection was claimed by the appellant
also for the reason that on account of coming up of the proposed
over bridge the remainder properties which were otherwise
enjoying direct frontage of the main road, will be deprived of
such frontage. The learned Subordinate Judge did not adopt any
L.A.A..No.945/2005 3
clear formula for determining the compensation payable to the
appellant towards injurious affection of the unacquired
properties. However, noticing that there will be some injurious
affection, what the learned Judge did was to award a lump sum
amount of Rs.2 Lakhs to the appellant towards injurious
affection.
2. We have heard the submissions of Sri.L.Aloysius Thomas
learned counsel for the appellant and those of Sri.P.K.Babu,
learned senior Government Pleader. It was brought to our notice
that another Division Bench of this court in L.A.A. Nos. 644 and
793/2005, considering the appeals by the reference court in
identical cases pertaining to the very same acquisition, refixed
the value of land at Rs.1,85,000/- per cent. Even though Sri.
Aloysius Thomas argued that there is justification for awarding
higher value for the acquired properties belonging to the
claimant, we are not much impressed and in our view uniform
rate of land value has to be given for the properties treated by
the land acquisition officer as having same value on the basis of
categorization adopted by him. We therefore, follow the
judgment of this court in L.A.A.No.644 and 793/2005 and refix
L.A.A..No.945/2005 4
the market value of the acquired land in this case at
Rs.185,000/- per cent. It is needles to mention that the
appellant will be entitled for all the statutory benefits admissible
under Sections 23(2), 23(1A) and 28 of the Land acquisition Act
on the enhancement to which he becomes eligible on account of
such refixation.
3. It is necessary to consider the appellant’s claim for
compensation towards diminution of land value of the unacquired
properties. It has to be found on the basis of the advocate
Commissioner’s report that the correct extent of the remainder
properties belonging to the appellant is 34.643 cents. We are
unable to approve the action of the court below in awarding a
lump sum amount towards compensation for injurious affection.
It is by now trite that whenever the reference court under
Section 18 of the Land acquisition Act proceeds to award
substantial amounts towards compensation for injurious
affection of the unacquired property of the claimant, the court
shall determine the percentage of the diminution first and then
compute the compensation amount on the basis of the extent
of the unacquired property.
L.A.A..No.945/2005 5
4. According to Sri.Aloysius Thomas, there has been
atleast 40% diminution in the value of the unacquired property
of the claimant. We are not prepared to agree with Sri.Aloysius
Thomas straight away. However, on re appreciation of the
evidence in this case including the advocate commissioner’s
report and on considering the submissions addressed before us,
we are of the view that the percentage of diminution in the land
value of the unacquired property of the claimant will be atleast
20%. But, we do not propose to decide that question finally. We
would rather leave this question to be determined by the
reference court. Accordingly, we are inclined to dispose of this
appeal issuing the following orders and directions;-
i). Judgment and decree under appeal
are set aside. The value of the acquired
lands is redetermined at Rs.1,85,000/- per
cent.
ii). The award of lump sum of Rs.
2,00,000/- towards compensation for
injurious affection is set aside and the
question of determining the correct
L.A.A..No.945/2005 6
compensation payable towards the
appellant’s claim towards injurious affection of
the unacquired properties is relegated to the
reference court. The land acquisition
reference case is therefore remanded to the
Subordinate Judge’s Court, Ernakulam for
determining the correct percentage of the
diminution suffered by the unacquired
properties of the claimant on account of the
acquisition.
Iiii). The reference court will give both
sides to adduce fresh evidence regarding the
correct percentage of diminution. Once the
correct percentage is arrived at, total
compensation payable towards the
diminution of the land value will be
determined by the court. The reference court
will complete further trial and pass revised
judgment within four months of the court re-
opening after mid summer holidays.
L.A.A..No.945/2005 7
Refund full court fee paid on the appeal memorandum to
the counsel for the appellant.
PIUS.C.KURIAKOSE,JUDGE
C.K.ABDUL REHIM, JUDGE
dpk