T.V. Thomas Thaliyanikkal Veedu v. State of Kerala and Southern Railway

L.A.A. No. 306/2017 : 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 30[TH] DAY OF NOVEMBER 2023 / 9TH AGRAHAYANA, 1945 LA.APP. NO. 306 OF 2017 AGAINST THE JUDGMENT DATED 30.01.2017 IN LAR 35/2012 OF SUB COURT, THIRUVALLA ## APPELLANT/CLAIMANT: 1 T.V.THOMAS THALIYANIKKAL VEEDU,EZHUMATTOOR VILLAGE, THIRUVALLA TALUK. (DIED) 2 **APPELLANTS 2 TO 5 IMPLEADED:** T.A. SOSAMMA, AGED 77 YEARS, W/O. T.V.THOMAS, THALIYANICKAL HOUSE, CHALAPPALLY.P.O., VALIYAKUNNAM MURI, PERUMPETTY VILLAGE, EZHUMATTOOR, MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT 689 586. SHEREEN SUSAN THOMAS, AGED 54 YEARS, 3 D/O. T.V.THOMAS, THALIYANICKAL HOUSE, CHALAPPALLY.P.O., VALIYAKUNNAM MURI, PERUMPETTY VILLAGE, EZHUMATTOOR, MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT – 689 586. - 4 MANOJ THOMAS, S/O. T.V.THOMAS, THALIYANICKAL HOUSE, CHALAPPALLY.P.O., VALIYAKUNNAM MURI, PERUMPETTY VILLAGE, EZHUMATTOOR, MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT – 689 586. 5 SHEEBA SUSAN THOMAS, AGED 40 YEARS, D/O. T.V.THOMAS, THALIYANICKAL HOUSE, CHALAPPALLY.P.O., VALIYAKUNNAM MURI, PERUMPETTY VILLAGE, EZHUMATTOOR, MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT – 689 586. (THE LEGAL REPRESENTATIVES OF THE DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 5 AS PER ORDER DATED 27.03.2023 IN I.A.NO. 1 OF 2023 IN LAA NO. 306/2017) L.A.A. No. 306/2017 : 2 : BY ADVS. SRI.RINNY STEPHEN CHAMAPARAMPIL SMT.ASHA ELIZABETH MATHEW ## **RESPONDENTS/RESPONDENTS:** - 1 THE STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR,COLLECTORATE,PATHANAMTHITTA-689 645. - 2 SOUTHERN RAILWAY ERNAKULAM REPRESENTED BY THE DEPUTY CHIEF ENGINEER, (CONSTRUCTIONS),ERNAKULAM SOUTH - 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. 306/2017 : 3 : ## **P.B. SURESH KUMAR & JOHNSON JOHN, JJ.** --------------------------------------------------------L.A.A. No. 306 of 2017 -------------------------------------------------------Dated this the 30[th] day of November, 2023. ## **JUDGMENT** ## Johnson John, J **.** This appeal is filed by the claimant against the judgment dated 30.01.2017 of the Sub Court, Thiruvalla in LAR No. 35 of 2012. An extent of 7 ares of property out of a total extent of 15.20 Ares owned by the claimant 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 of the lands brought under Categories I, II and III, the L.A.A. No. 306/2017 : 4 : 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. In the appeal, it is stated that the acquired property is situated at a very important locality in Thiruvalla and the reference court failed to consider the convincing evidence from the side of the claimants to prove the potentiality and importance of the locality. It is further stated that the court below ought to have granted land value at least at the rate of Rs. 8,00,000/- per Are and that as a result of acquisition, the remaining property of the appellant has become irregular in shape and now it could L.A.A. No. 306/2017 : 5 : not be used for any practical purpose and the court below failed to grant compensation for injurious affection. 4. The Land Acquisition Officer included the acquired land of the claimant in category II and fixed land value at the rate of Rs.1,05,364/per Are and the reference court allowed enhancement by fixing the land value at Rs.5,93,000/- per Are. 5. At the time of hearing, it is brought to our notice that this Court, as per the common judgment dated 29.11.2023 in in LAA No. 147/2017 and connected cases, fixed the land value for lands brought under category II at the rate of Rs. 5,70,757/- per Are and if the same yardstick is applied, this Court has to scale down the land value fixed in the impugned judgment. But, in the absence of any appeal from State against the land value fixed in the impugned judgment and in view of the submission of the learned counsel for the appellant that he is not pressing his claim for enhancement of land value, we are not interfering with the land value fixed by the reference court in the impugned judgment. 6. The learned counsel for the appellant has made available a copy of the commission report for our perusal to point out that as a result of acquisition, the width of the remaining property has been reduced substantially and the remaining property is lying in a L.A.A. No. 306/2017 : 6 : rectangular shape which cannot be utilised for any purpose and as a result the value of the remaining property having an extent of 8.20 Ares out of the total extent of 15.20 has been diminished considerably and without any justification, the court below has declined the compensation claimed for injurious affection. ## 7. In **Sivarama Pillai Purushothaman Nair v. State of** **Kerala and others** [2012 (2) KHC 631], a Division Bench of this Court has 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 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.” 8. A perusal of the commission report and sketch clearly shows that the width of the remaining property of the claimant has been reduced substantially and because of irregular shape of the remaining property, its value and utility has been considerably reduced. In the L.A.A. No. 306/2017 : 7 : case at hand, the total extent of property is 15.20 ares and out of that 7 Ares of property was acquired and the extent of the remaining property is 8.20 Ares. Therefore, considering the facts and circumstances of the case, we find that 20% of the value of the remaining property can be allowed as compensation for injurious affection to the claimant. 9. In the result, the claim of the appellant for the enhancement of the land value is rejected and the appellant/claimant is allowed a compensation of Rs.9,72,520/- (Rupees Nine Lakhs Seventy Two Thousand Five Hundred and Twenty only) for injurious affection. The appeal is allowed in part as above. Interlocutory applications, if any pending, are closed. sd/- **P.B. SURESH KUMAR, JUDGE.** sd/- **JOHNSON JOHN, JUDGE.** Rv L.A.A. No. 306/2017 : 8 : ## APPENDIX OF LA.APP. 306/2017 PETITIONERS' ANNEXURES: Annexure A CERTIFIED COPY OF THE JUDGMENT DATED 31/01/2017 OF THE SUB COURT, THIRUVALLA IN LAR 42/2012 ## RESPONDENTS' ANNEXURES: NIL /True Copy/ P.S to Judge. rv