Narayani and others v. State of Kerala and Southern Railway

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL FRIDAY, THE 23RD DECEMBER 2011 / 2ND POUSHA 1933 LA.App..No. 712 of 2011() ------------------------LAR.75/2008 of SUB COURT, MAVELIKKARA .................... APPELLANT(S)/1st CLAIMANT AND ADDL. CLAIMANTS C TO G.: -------------- 1. NARAYANI, KUNNEL THEKKETHARAYIL, PATHIYOOR WEST. 2. PURUSHAN, KUNNEL THARAYIL VEEDU, FROM KAKKANTAYYATHU, PATHIYOOR WEST, KEERIKKAD P.O. PATHIYOOR. 3. PONNAMMA, KUNNEL THARAYIL VEEDU, FROM KAKKANTAYYATHU, PATHIYOOR WEST, KEERIKKAD P.O. PATHIYOOR. ## 4. SARASWATHY, KUNNEL THARAYIL VEEDU, FROM KAKKANTAYYATHU, PATHIYOOR WEST, KEERIKKAD P.O. PATHIYOOR 5. SATHEESAN, KUNNEL THARAYIL VEEDU, FROM KAKKANTAYYATHU, PATHIYOOR WEST, KEERIKKAD P.O. PATHIYOOR ## 6. SURESH, KUNNEL THARAYIL VEEDU, FROM KAKKANTAYYATHU, PATHIYOOR WEST, KEERIKKAD P.O. PATHIYOOR BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.NAVA VARGHESE SRI.MANU SEBASTIAN RESPONDENT(S)/RESPONDENTS: - --------------- 1. STATE OF KERALA REPRESENTED BY SPECIAL TAHSILDAR (LA) RAILWAYS KAYAMKULAM - 690 502. 2. SOUTHERN RAILWAY, REPRESENTED BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, THIRUVANANTHAPURAM 695 001. ADV. SRI.M.C.CHERIAN,SR.SC.,RAILWAYS FOR R2 SRI M.C.CHERIAN BY GOVT.PLEADER SRI.C.R.SHYAMKUMAR THIS LAND ACQUISITION APPEAL HAVING COME UP FOR ADMISSION ON 23/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **PIUS C.KURIAKOSE & K.HARILAL, JJ. -----------------------L.A.A.NO. 712 OF 2011 ------------------------** Dated this the 23rd day of December, 2011 ## **JUDGMENT** Pius C.Kuriakose, J. The claimants are in appeal. Their property in Pathiyoor village situated very near to NH 47 together with a small building, having a plinth area of 28.03 meters, was acquired for the purpose of the Railway. The appellants had claim for land value, value of the building as well as compensation for injurious affection of the unacquired properties which are in extent of .53 Ares. The acquisition was pursuant to Section 4 (1) notification published on 27/12/2004. The LAO awarded land value at the rate of Rs.19,345/- per Are which was enhanced by the Reference Court to Rs.35,000/- per Are . In respect of the claim for more land value, the appellants are relying on Ext.A1 judgment, which will show that for the property acquired 16 years earlier, the land value had been refixed by the Reference Court from Rs.5596/- per Are to Rs.20995/- per Are. 2. The argument of Sri.George Varghese Perumpallikuttiyil L.A.A. No. 712 /2011 2 learned counsel for the claimants was that applying the principles laid down by the Supreme Court in G.M.Oil & Natural Gas Corporation Ltd. v. Rameshbhai Jivanbhai Patel & Another ( 2008 SAR (Civil) 894) , even if it is assumed that the property is in a rural area, the market value will come to Rs.80,000/- per Are. The learned counsel requested that the value be refixed at Rs.51,000/- per Are, which is the minimum. 3. The learned standing counsel for the railways drew our attention to the judgment of this court in L.A.A. No.349/2011 and submitted that this court, for slightly better property acquired for the same purpose, refixed the land value at Rs.42,000/- per Are only. According to the standing counsel, awarding any compensation more than Rs.42,000/- per Are will cause prejudice to the requisitioning authority. 4. For the building which existed on the property, the LAO awarded value at the rate of Rs.74,174/-. Evidence adduced by the appellants in support of their claim for more value for the building was the report of the engineer. The engineer had recommended for awarding Rs.1,41,852/-. However, the court below did not become inclined to accept the recommendations L.A.A. No. 712 /2011 3 of the engineer in full. What the court below did was to award Rs.25,000/- more and refixed the building value at Rs.99,174/- . According to the learned counsel for the appellants, even if the construction costs is calculated at the rate of Rs.500/- per sq. feet, then also the value will come to Rs.1,50,000/-. According to him, there is every justification for accepting the recommendations of the engineer in full. 5. The learned standing counsel would oppose the above submissions of the learned counsel for the appellants very strongly. The building was very tiny and the materials used were not of good quality. According to him, what was awarded by the Reference Court is excessive. As regards the claim for compensation for injurious affection, may be because there was no specific evidence the learned Sub Judge did not award any additional compensation. The argument of Mr.George Varghese Perumpallikuttiyil was that as the unacquired portion has been reduced by a tiny worthless bit, percentage of diminution has found to be minmum 50% of the market value of the unacquired property. The learned standing counsel however submitted that, in the absence of legal evidence to show as to L.A.A. No. 712 /2011 4 the extent of diminution suffered by the unacquired property, there is no justification for awarding more compensation for injurious affection of the unacquired property of the appellants. 6. All the submissions of the learned standing counsel are supported by the learned senior Government Pleader Sri.C.R.Shyam Kumar. 7. We have given our anxious consideration to the rival submissions addressed at the Bar. We have gone through the impugned judgment. We feel that the appellants have not been awarded adequate compensation on the three heads under which compensation was claimed. Having taken into account the submissions addressed at the Bar and the available materials, we refix the value of land under acquisition at Rs.45,000/- per Are. We are of the view that the appellants are entitled for total compensation of Rs.1,20,826/- for the building. This means that the appellants will get a further compensation of Rs.20,826/more for the building. 8. The submissions of the learned counsel for the claimants for compensation for injurious affection are fairly strong. According to us, the value of the unacquired property 5 L.A.A. No. 712 /2011 has been affected by at least 20%. Hence, we award to the appellants 20% of the market value of the unacquired property as total compensation towards the count of injurious affection. The appellants will be entitled for statutory benefits on land value as well as for the building value admissible under Section 23 (2), 23 (1A) and Section 28 of the Act. On the compensation, which is being awarded towards the injurious affection, he will get only interest under Section 28. While decree is drafted and provision is made for interest under Section 28, the Section will exclude the period of 131 days by which filing of the appeal was delayed. The parties will suffer their respective costs in this appeal. Decree copy will be issued only after ensuring that the cost ordered in the delay petition is paid and the full court fee payable on the appeal memorandum is remitted. ## **PIUS C.KURIAKOSE,JUDGE** **K.HARILAL, JUDGE.** dpk L.A.A. No. 712 /2011 6