Full Judgment
L.A.A. No. 279/2019 :1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR & THE HONOURABLE MR. JUSTICE JOHNSON JOHN THURSDAY, THE 30TH DAY OF NOVEMBER 2023 / 9TH AGRAHAYANA, 1945 LA.APP. NO. 279 OF 2019 AGAINST THE JUDGMENT DATED 30.03.2019 IN LAR 40/2012 OF SUB COURT, THIRUVALLA APPELLANTS/1ST AND 3RD CLAIMANTS:
1 VIMALA CHERIAN, AGED 66 YEARS, W/O LATE VARGHESE CHERIAN, KURUMTHOTTATHIL HOUSE,VELIYARA MURI, AYROOR VILLAGE, RANNI TALUK, PATHANAMTHITTA DISTRICT. 2 K.C. MARIAMMA AGED 87 YEARS, W/O JOSEPH, MANALAEL HOUSE, AYROOR VILLAGE,RANNI TALUK,PATHANAMTHITTA DISTRICT.REPRESENTED BY HER POWER OF ATTORNEY HOLDER- VIMALA CHERIAN, W/O LATE VARGHESE CHERIAN, KURUMTHOTTATHIL HOUSE, VELIYARA MURI, AYROOR VILLAGE, RANNI TALUK, PATHANAMTHITTA DISTRICT. BY ADVS. JACOB P.ALEX SRI.JOSEPH P.ALEX SHRI.MANU SANKAR P.
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, COLLECTORATE, CIVIL STATION, PATHANAMTHITTA.PIN 689 645. 2 SOUTHERN RAILWAY, ERNAKULAM REP. BY DEPUTY CHEIF ENGINEER (CONSTRUCTION), ERNAKULAM JN. PIN 682 016. R1 BY SRI. T.K. SHAJAHAN, SR. GOVERNMENT PLEADER R2 BY STANDING COUNSEL THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 30.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
L.A.A. No. 279/2019 :2: P.B. SURESH KUMAR & JOHNSON JOHN, JJ. --------------------------------------------------------- L.A.A. No. 279 of 2019 -------------------------------------------------------- Dated this the 30th day of November, 2023.
JUDGMENT
Johnson John, J.
The claimants filed this appeal against the award dated 30.03.2019
in LAR No. 40 of 2012 of Sub Court, Thiruvalla. An extent of 3.30 Ares of property comprised in survey No. 186/19 of Kuttappuzha Village out of a larger extent of 38.45 Ares of land owned by the claimants was acquired for doubling of railway line from Chengannur to Chingavanam pursuant to a notification issued on 18.07.2009 in terms of Section 4(1) of the Land Acquisition Act, 1894.
2. For the purpose of acquisition, the Land Acquisition Officer classified
the acquired lands into six different categories, of which category I are dry lands having access from PWD road and Municipal road in main residential area; category II are dry lands having access from Municipal road and Railway mud road in main residential area; and category III are dry lands having access only through Railway puramboke or pathway, but nearby to town area, and reclaimed land near town. The note to award prepared by the Land Acquisition Officer, in connection with the acquisition, reveals that for the purpose of fixing the land value
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of the lands brought under Categories I, II and III, the Land Acquisition Officer has taken into account the land value shown in Sale Deed No.1492/2008 of SRO, Thiruvalla dated 12.05.2008. The note to award also reveals that the Land Acquisition Officer has made a comparison between the land covered by the basis document and the acquired lands and fixed the land value for the lands brought under category I at Rs.1,17,072/- per Are which is 20% above the land value shown in the
basis document. For the lands brought under Category II, the Land Acquisition Officer fixed the land value at Rs.1,05,364/- per Are, which is 10% above the land value shown in the basis document. As the lands brought under category III were inferior when compared to the lands brought under categories I and II, the Land Acquisition Officer fixed the land value for the same at Rs.78,048/- per Are, which is 20% less than the land value shown in the basis document.
3. The acquired land was brought under category II and the Land Acquisition Officer fixed the land value at Rs.1,05,364/- per Are. As per the impugned award, the Reference Court enhanced the land value to
Rs.2,82,000/- per Are. The claimants contended that the land value ought to have been fixed by the reference court at least at the rate of Rs.7,30,000/- per Are as per Exhibit A7 judgment and that the reference court has not considered the importance of the locality, lie and L.A.A. No. 279/2019 :4:
potentialities of the acquired land, which was clearly brought out in evidence. It is contended that even though the appellants had adduced evidence to show that the remaining property has become landlocked after acquisition, since the only way which provided access to the property has been acquired, no amount has been allowed for the injurious affection of the remaining 35.15 ares of property. It is also contended that Exhibits A12 and A13 documents and the report of the Advocate Commissioner and the evidence of PW1 would clearly show that the remaining property has been landlocked due to land acquisition and the said fact was ignored by the reference court and the appellants claimed 20% of the value of the remaining property as compensation for injurious affection.
4. Heard the learned counsel for the parties on either side.
5. Both sides conceded that this Court, in LAA No. 147 of 2017
and connected cases, where the property was acquired for the same purpose under the same notification, fixed the land value of the property coming under category II at Rs. 5,70,757/- and that the same yardstick can be applied to this case also for fixing the land value, and therefore, the land value is fixed at Rs.5,70,757/-.
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6. The learned counsel for the appellants invited our attention to
paragraph 17 of the of the award of the reference court and pointed out that in spite of the finding that the acquired property was having access through the private way in existence through the property of one Kaduvakulam Mathai Abraham, which was the subject matter in L.A.R No. 38 of 2012 and that in spite of the clear evidence from the commission report and Exhibits A12 and A13 documents that after the acquisition, the way to the remaining property of the claimants was completely lost and the same is landlocked, the reference court declined compensation for injurious affection, merely for the reason that the claimants have not produced any document to show that they were having a right of way through the property of Kaduvakulam Mathai Abraham. In this connection, the learned counsel for the appellants relied on the decision of this court in Sivarama Pillai Purushothaman Nair v. State of Kerala and others [2012 (2) KHC 631], wherein it was held thus:
“Essentially clause fourthly of S.23(1) enables the Reference Court to award compensation to the owner of the acquired property for the damages sustained by him on account of the acquisition injuriously affecting his other property whether it be movable or immovable, in any other manner which means, any manner other than mere severance. The unacquired property if it is immovable need not be a part of the land which was acquired. Loss of road frontage to the unacquired property, loss of access including easement
L.A.A. No. 279/2019 :6: of way, loss of more convenient access, deprivation of other easements, loss of water sources like well, pond etc. on account of the acquisition will be instances covered by clause fourthly.”
7. There is no serious dispute that after the acquisition, the
remaining property having an extent of 35.15 Ares is landlocked and the way to that property was completely lost. The specific case of the appellants is that they were having easement right of way through the property of Kaduvakulam Mathai Abraham, which was also acquired for the same purpose and therefore, the claimants are entitled for the damages sustained on account of the acquisition injuriously affecting the remaining property, as it is in evidence that previously access to the acquired property and the remaining property was through the way in existence through the property of Mathai Abraham. It cannot be disputed that compensation for injurious affection coming under clause fourthly of Section 23(1) of the Act is always compensation which is paid in respect of property not under acquisition.
8. Therefore, considering the facts and circumstances, we find that
20% of the land value of the remaining property can be fixed as compensation for injurious affection. The extent of land acquired is 3.30 Ares out of the total extent of 38.45 Ares and therefore, the remaining L.A.A. No. 279/2019 :7: property is having an extent of 35.15 Ares and therefore, the claimants are entitled for Rs.40,12,422/- as compensation for injurious affection.
9. In the result, the land value for the acquired land is fixed at Rs.5,70,757/- per Are and the claimants are also allowed a compensation of Rs. 40,12,422/- for injurious affection.
The appeal is allowed as above. Interlocutory applications, if any pending, are closed. sd/- P.B. SURESH KUMAR, JUDGE. sd/- JOHNSON JOHN, JUDGE. Rv In accordance with the order dated 29.02.2024 in I.A. No. 1 of 2024 in LAA No. 279/2019, the following clarification is made part of the judgment dated 30/11/2023 in LAA No. 279/2019: “… the appellants will be entitled to all statutory benefits as ordered in the impugned judgment for the enhanced compensation granted to them as well.” sd/- DEPUTY REGISTRAR