Kerala High Court
John S/O. Ouseph Kutty vs Respondent on 19 March, 2012
Author: Pius C. Kuriakose
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
MONDAY, THE 19TH DAY OF MARCH 2012/29TH PHALGUNA 1933
LA.App..No. 869 of 2009 ( )
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LAR.200/2007 of PRINCIPAL SUB COURT,PARAVUR
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APPELLANT(S)/CLAIMANTS:
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1. JOHN S/O. OUSEPH KUTTY, PAZHOORAPARAMBIL
VALLUVALLY, KOONAMMAVU.
2. MARY W/O. OUSEPH KUTTY, PAZHOORAPARAMBIL
VALLUVALLY, KOONAMMAVU(EXPIRED ON 27-12-2008)
THE 1ST APPELLANT IS HER LEGAL REPRESENTATIVE
BY ADVS.SRI.A.V.XAVIER
SRI.K.JOLLY JOHN
RESPONDENT(S):RESPONDENT
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THE STATE OF KERALA, REP BY THE SPECIAL
TAHSILDAR(LA) NH NO.III VYTTILA COCHIN 19.
BY GOVT.PLEADER SRI.C.R.SYAMKUMAR
THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON
19-03-2012, ALONG WITH LAA. 971/2009, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
tss
PIUS C. KURIAKOSE &
A. V. RAMAKRISHNA PILLAI, JJ.
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LAA Nos.869 & 971 of 2009.
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Dated this the 19th day of March, 2012.
JUDGMENT
Pius C. Kuriakose, J.
The claimants are the appellants. The awards which are impugned in these appeals are decided by the learned Subordinate Judge by common judgment.
2. The property involved in LAA No.869/09 was included by the Land Acquisition Officer and by the Reference Court in Category 3, that is, properties situated away from Koonammavu junction. A substantial portion of the property included in LAA No.971/09 was included by the Land Acquisition Officer and Reference Court in category 3. But, a small portion portion of the property involved in LAA No.971/09 was included by the Land Acquisition Officer in Category No.9. But, that portion of the property was upgraded by the Reference Court to Category 4.
3. The ground which is commonly raised in both the appeals is that the Reference Court was not justified in including the properties in Category 3. According to the appellants, their property should have been LAA Nos.869 & 971 of 2009 :2: included in Category 1 itself. They claim that these properties were situated practically on Koonammavu junction itself and were enjoying the direct frontage of the existing National Highway-17.
4. In LAA No.869/09, there was a claim in I.A for injurious affection in respect of a small extent of unacquired property, which according to the appellant in that case was reduced to a triangular plot.
5. We have heard the submissions of Shri A.V.Xavier, learned counsel for the appellants and Shri C. R. Syam Kumar, learned senior Government Pleader. According to Mr. Xavier, the properties should have been included in Category 1 itself as they were situated in Koonammavu junction itself and were enjoying the frontage of the National Highway 17. In LAA No.869/09, compensation could have been given for injurious affection for the unacquired property, which is reduced to a triangular plot. This is clear from the sketch prepared by the Land Acquisition Officer himself.
6. Shri Syam Kumar, learned senior Government Pleader submitted that the categorisation of the properties acquired for the present purpose was approved by this Court. It is false to say that those properties which were situated at Koonammavu junction and were enjoying the frontage of LAA Nos.869 & 971 of 2009 :3: existing National Highway 17 were eligible to be included in Category 1.
7. The properties under acquisition in both these cases were situated at a distance of about half kilometre from Koonammavu junction. Mr.Xavier, learned counsel for the appellants submitted that if opportunity is given, to the appellants are ready to take out a Commission so that, the valuable evidence can be brought on record regarding the appellants' claim for inclusion of their property in Category 1 and also in support of the claim of the appellants in LAA No.869/99 for compensation for injurious affection.
8. Having considered the rival submissions addressed at the Bar. We are inclined to afford opportunity to the appellants to take out a Commission and facilitate filing of a report so that, the learned Subordinate Judge can pass a revised award. While passing the revised award, the learned Subordinate Judge will address the issue as to the correct Category in which, the properties should be included, whether Category 1 or Category 3.
9. We may in this context, observe that on Koonammavu Junction may include not only the very junction, but also areas, which are in a very close proximity to Koonammavu junction also.
LAA Nos.869 & 971 of 2009 :4:
10. The result of the above discussion is that the judgment and decrees, which are impugned in these appeals are set aside. LAR Nos.200/2007 and 205/07 are remanded to the Subordinate Judge's Court for fresh decision. The learned Subordinate Judge will pass revised awards addressing the questions as to the correct category in which the properties under acquisition should be included and also the correct compensation to be awarded towards land value and towards injurious affection (applicable to LAA No.869/09 only.)
11. In LAA No.869/09, the appellants have another grievance. The grievance is that the second claimant Smt. Mary was only a life estate holder. The learned Subordinate Judge has passed the award treating her as a co-owner along with the claimants.
12. Shri A. V. Xavier, learned counsel for the appellants submitted that there are documents which will show that Smt. Mary is only a life estate holder and that as per the registered partition deed in which Smt.Mary, Shri John and other family members are parties, it will be seen that what ever interest Smt.Mary is having over the property have become vested upon Shri John. The learned Subordinate Judge is directed to look into this aspect also and do the needful on the basis of the LAA Nos.869 & 971 of 2009 :5: documents to be produced by the appellants, including the partition deed.
The parties will appear before the Reference Court on 31/3/2012. This order of remand will be further subject to the following conditions:
1) The appellants will forfeit the one third court fee presently remitted on the appeal memorandum to the Government.
2) In case the appellants become eligible for enhanced compensation above what is presently awarded, such enhanced compensation will not carry interest under Section 28 of the Land Acquisition Act during the period from 20/12/2008 till 31/3/2012.
3) The learned Subordinate Judge is directed to expedite matters and to pass revised award early and, at any rate, within two months of the Court reopening after mid summer recess.
Sd/-
PIUS C. KURIAKOSE JUDGE Sd/-
A. V. RAMAKRISHNA PILLAI JUDGE //TRUE COPY// P.A TO JUDGE krj