K.V. GEORGE, S/O. VARGHESE, KALLARACKAL HOUSE, NELSON MANDELA ROAD MULANTHURUTHY Vs. STATE OF KERALA, REPRESENTED BY THE SPECIAL TAHSILDAR (LA), RAILWAYS, ERNAKULAM. DEPUTY CHIEF ENGINEER (CONSTRUCTIONS), SOUTHERN RAILWAYS, ERNAKULAM

JUDGEMENT

(1.) THE claimant is the appellant. His property in Mulamthuruthy village was acquired for the construction of railway over bridge at Vattukunnu on the Chottanikkara - Mulamthuruthy main road. The acquisition was pursuant to Section 4(1)notification published on 27/11/2002. The Land Acquisition Officer awarded land value at the rate of Rs.46,705/ - per Are. Before the Reference Court, the appellant produced Exts.A1 & A2. The court below did not become inclined to place reliance on those documents. Finally additions were given to the value reflected on the basis document for passage of time till the date of promulgation of the date of notification under Section 4(1). Accordingly, the land value was refixed at Rs.27,000/ - per Are. The appellant had a further claim that on account of the acquisition and the construction of railway over bridge in the present manner, his unacquired property extending to 41 Ares was deprived on easily road access. The claim was for compensation for injurious affection at the rate of 10,000/ -per each cent of the unacquired land. The learned Subordinate Judge on appreciating the evidence came to the conclusion that the diminution/injury suffered by the unacquired property can be avoided by construction of a slopping road. As the data for assessing the expenditure is necessary for construction of such a road was not brought on record, the learned Subordinate Judge on a guess estimate awarded Rs. 25,000/ - as compensation for injurious affection. In this appeal it is urged that the market value refixed by the Reference Court is inadequate and that the compensation awarded towards injurious affection under clause fourthly of Section 23 is also inadequate.

(2.) WE have heard the submissions of Mr.Mathews K.Philip and the learned standing counsel for the Railway. Learned Standing Counsel was supported in the submissions of Mr.Rajesh, learned Government Pleader. Sri Mathews K.Philip argued that the learned sub Judge was not at all justified in discarding Ext.A1 completely. Ext.A1 property by itself did not have road frontage. Ext.A1 property was at Kureekkad at a distance of 1.88 kilo metres away from the property under acquisition. The property under acquisition was enjoying direct frontage to a main road Vattukunnu -Kandanad road and was in fact on the Vattukunnu Junction which is Chottanikkara - Mulamthuruthy Road. In terms of importance, the property under acquisition was superior. Mr. Mathews K.Philip also submitted that the sum of Rs.25,000/ - awarded towards injurious affection is quite inadequate. The learned Standing counsel for the Railway per contra submitted that the learned Subordinate Judge has awarded reasonable compensation. According to him, Ext.A1 property was purchased by the Arch Bishop Dr.Daniel Acharuparambil for accomplishing the urgent need of the Arch Diocese to put up a chappel in place of another chappel which had been acquired for the purpose of the railway. The Arch Bishop paid a fancy price, so submitted by the learned standing counsel. Coming to compensation for injurious affection, submission of the learned standing counsel was that there is no warrant for giving any increase. We have given our anxious consideration to the rival submissions addressed at the bar. We have made a quick reappraisal of the evidence particularly Ext.A1 and Ext.C1. We are unable to approve the action of the learned Subordinate Judge in having discarded Ext.A1 completely from consideration. True there is reason to hold that the purchaser under Ext.A1 the Arch Bishop paid a higher value than the market value for purchase of Ext.A1 property. Ext.A1 property though not enjoying the direct frontage was lying contiguous to the other properties of the archdiocese which were enjoying direct frontage. But we find force in the submission of Mr.Mathews K.Philip that in terms of commercial and other importance, the property under acquisition was superior to the property covered by Ext.A1. According to us, it will suffice if 30% of the value reflected in Ext.A1 is deducted for arriving at the correct market value of the land under acquisition and when 30% is deducted, the value comes to Rs67,452/ - per Are which we round it off to Rs.67,500/ -. We find that the correct value under acquisition is Rs.67,500/ -. Now we shall deal with the proper compensation to be awarded to the appellant towards injurious affection. The learned Subordinate Judge was justified in taking the view that enough data was not there to arrive at the expenditure to be incurred by the appellant for accessing his unacquired property. It is on a guess estimate that the learned Subordinate Judge awarded Rs.25,000/ -. We feel that the learned Judge could have awarded some more amount. We award to the appellant Rs.10,000/ - more as compensation for injurious affection over and above what was awarded by the Reference court. This appeal stands allowed. The market value of the land is fixed at Rs. 67,500/ - per Are. Additional Rs.10,000/ - is awarded to the appellant towards further compensation for injurious affection. The appellant will be entitled for all statutory benefits on the enhanced land value. But on the injurious affection compensation awarded to the appellant, he will be entitled only for the benefit of under Section 28 of the Land Acquisition Act. The appeal is allowed. The parties are directed to suffer their respective costs.