Kerala High Court
Dr.Victor Joseph Tharakan vs State Of Kerala on 21 August, 2012
Author: A.V.Ramakrishna Pillai
Bench: Pius C.Kuriakose, A.V.Ramakrishna Pillai
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE
&
THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
FRIDAY, THE 2ND DAY OF MARCH 2012/12TH PHALGUNA 1933
LA.App..No. 103 of 2003 ( )
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LAR.18/2001 of II ADDL.SUB COURT,THRISSUR
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APPELLANT(S)/CLAIMANTS::
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1. DR.VICTOR JOSEPH THARAKAN,
TARAKAN HOUSE, WADAKKANCHERY P.O.
THRISSUR DISTRICT.
2. DAVIS JOSEPH TARAKAN,
TARAKAN HOUSE, WADAKKANCHERY P.O.
THRISSUR DISTRICT.
BY ADVS.SRI.K.B.MOHANDAS
SRI.LELLULAL T.G.THUNDATHIL
RESPONDENT(S)/RESPONDENT::
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STATE OF KERALA,
REPRESENTED BY THE DISTRICT COLLECTOR, THRISSUR.
BY SR.GOVERNMENT PLEADER SRI. C.R. SHYAMKUMAR
THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON
02-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Kss ..2/-
..2.....
LAA NO.103/2003
J U D G M E N T
No representation for the appellants. Dismissed for default.
2/03/2012 Sd/- Pius. C.Kuriakose, Judge
Sd/- A.V.Ramakrishna Pillai, Judge
/True Copy/
P.S.to Judge
Kss
PIUS C.KURIAKOSE &
A.V.RAMAKRISHNA PILLAI JJ.
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LAA . NO. 103 OF 2003
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Dated this the 21st day of August, 2012
JUDGMENT
Pius C.Kuriakose,J The claimants are the appellants. Their property situated in Wadakkanchery village together with structures was acquired for the purpose of construction of railway over bridge at Wadakkanchery. The above acquisition was pursuant to Section 4(1) notification published on 16/12/1995. The Land Acquisition Officer, relying on the basis document, fixed the land value at Rs.25,000/- per cent. Before the Reference Court, the appellants relied on Exts.A3 and A5 pre notification documents reflecting around Rs.1,50,000/- per cent as land value. The learned Subordinate Judge did not become inclined to place any reliance on Ext.A3 or A5 for the reason that a saw mill was functioning on the property under acquisition and that very near to the property under acquisition a tile factory was also functioning. LAA No. 103 /2003 2 The value of property under acquisition was not much as considerable pollution was generated by the saw mill as well as the tiles factory. Ultimately on guess estimate, the learned Subordinate Judge would refix the land value at Rs.35,000/- per cent. The learned Subordinate Judge became some what convinced that the remainder portion of the appellants' property extending to 37 cents was injuriously affected by the acquisition in the present manner. Towards compensation for injurious affection, the learned Subordinate Judge awarded Rs. 1 Lakh. Towards value of the building the Land Acquisition Officer awarded Rs.2,92,308/-. The Reference Court would refix the building value at Rs. 5 Lakhs. Rs.22,500/- was claimed towards shifting charges (charges incurred towards shifting the saw mill to the remainder property). The learned Subordinate Judge did not award any compensation towards shifting charges. No compensation was awarded towards claim for construction of new compound wall.
2. In this appeal, the appellants claim land value at the refixed rate of Rs.50,000/- per cent, additional compensation for injurious affection at Rs.5,76,980/-, enhanced structure value to LAA No. 103 /2003 3 the tune of Rs.76,980/-, shifting charges to the tune of Rs.22,500/-, and Rs.45,000/- towards construction of compound wall.
3. We have heard the submissions of Sri. T.G.Lellu Lal learned counsel for the appellants and those of Smt.Rose Michael learned senior Government Pleader.
4. Drawing our attention to Exts.A3 and A5, the learned counsel for the appellants submitted that the reasons stated by the learned Subordinate Judge for discarding Ext.A3 are not at all sound. Exts. A3 and A5 documents were genuine documents and relying on those documents, there is every justification for refixing the value of the property under acquisition at least at the rates claimed in the appeal. The learned counsel would draw our attention to the findings of the learned Subordinate Judge regarding the injurious affection suffered by the unacquired property. The learned counsel argued that in the light of such findings there is every justification for allowing the appellants claim towards injurious affection in full. Similar submissions were made in the context of the claim for structure value and shifting charges and compound wall construction charges. LAA No. 103 /2003 4
5. Per contra, the learned senior Government Pleader submitted that reasonable compensation has been awarded by the reference court and there is no justification for enhancing the compensation. She also submitted that as regards land value, the court below had in other cases fixed the land value at Rs.35,000/- per cent and it is that rate which is now awarded to the present claimants.
6. We have given our anxious consideration to the rival submissions addressed at the Bar. Having made quick reappraisal of the entire evidence available on record, we are of the view that the appellants are entitled for more compensation.
7. We shall first deal with the issue of land value . Even though the learned Subordinate Judge was justified in not awarding to the appellants the full value reflected in Ext.A5, which is the only document among the two pertaining to the land alone, we are of the view that the rate of Rs.35,000/- presently fixed is inadequate. Placing reliance on Ext.A5 to a certain extent, we refix the land value at Rs.40,000/- per cent.
8. We are of the view that compensation awarded by the court below in respect of structure is quite sufficient. Hence, LAA No. 103 /2003 5 we are not inclined to enhance that compensation.
9. At the same time, we find force in the argument of the learned counsel for the appellants that shifting charges should have been allowed to the appellants as the existing saw mill had to be shifted from one portion of the appellants' acquired property to unacquired portion of the property. We are inclined to award Rs.10,000/- towards shifting charges. We award that amount to the appellants.
10. We are in agreement with the learned counsel for the appellants that the compensation presently awarded by the learned Subordinate Judge towards injurious affection is inadequate. We in this context rely on the finding entered by the learned Subordinate Judge himself. It has been found that 37 cents from out of 38 cents of the unacquired property has been deprived of direct road accesses. It has also been found that on account of the acquisition in the present fashion and the emergence of the approach road of the railway over bridge, the level difference between the appellants remainder property and the road has become considerable. We are of the view that compensation of Rs. 1 Lakh presently awarded is grossly LAA No. 103 /2003 6 inadequate. Hence, we award Rs. 2 Lakhs more as further compensation towards injurious affection.
11. We make it clear that on the enhanced land value the appellants will be entitled for all statutory benefits admissible under Section 23(2), 23 (1A) and Section 28 of the Act. On the additional compensation awarded towards shifting charges and towards injurious affection, the appellants will be entitled for statutory benefits under Section 28 only. Parties will suffer their respective costs.
Decree copy will be issued to the appellants only after ensuring that the appellants have remitted full court fee payable on the appeal memorandum. While drafting the decree, the conditions imposed by this court in allowing the MJC will also be taken into account.
Sd/-
PIUS C.KURIAKOSE, JUDGE Sd/-
A.V.RAMAKRISHNA PILLAI, JUDGE.
dpk /True copy/ P.A to Judge. LAA No. 103 /2003 7 LAA No. 103 /2003 8 PIUS C.KURIAKOSE & A.V.RAMAKRISHNA PILLAI JJ. ------------------------ LAA No. 103 /2003 9 LAA . NO. 103 OF 2003 ------------------------ Dated this the 17th day of August, 2012 JUDGMENT Pius C.Kuriakose,J
This is an appeal of the year 2003. The learned counsel for the appellant seeks further time to study the brief. We are not inclined to grant the time. The appeal is closed without examining the merits of the grounds raised.
Sd/-
PIUS C.KURIAKOSE, JUDGE Sd/-
A.V.RAMAKRISHNA PILLAI, JUDGE.
dpk /True copy/ P.A to Judge.
LAA No. 103 /2003 10 PIUS C.KURIAKOSE & A.V.RAMAKRISHNA PILLAI JJ.
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LAA . NO. 103 OF 2003
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JUDGMENT 21 August 2012 LAA No. 103 /2003 11