VARKEY Vs. STATE OF KERALA

JUDGEMENT

(1.) THE claimant is in appeal. His land situated in Kuravilangad Village was acquired by the Government pursuant to Section 4(1) Notification published on 20-9- 2003 (29-9-2003 ?) for the purpose of the Muvattupuzha Valley Irrigation Project. The land was included in category IB, dry land having frontage of PWD Panchayat tarred road frontage. The appellant's land was enjoyed frontage of a PWD Road by name Vayala Road situated at a distance of 300 metres from main central road. The appellant was awarded value at the rate of Rs.17,432/- per Are as against the appellant's claim for land value at Rs.1,23,500/- per Are. Before the reference court the appellant relied on Exts.A1 to A3 in support of his claim for enhanced value. Exts. A2 and A3 were discarded by the learned Subordinate Judge in our opinion correctly for the reason that they were post notification documents. Ext.A1 which was in respect of 'nilomnikathu purayidom' situated by the side of Kozha - Njeezhoor PWD Road near to Kozha Junction on M.C. Road reflecting a value of roughly Rs.94,000/- per Are. A1 was discarded by the learned Subordinate Judge taking the view that Kozha Junction was a more important place in comparison to SNDP Junction (Kalikavu) on M.C. Road which was the nearest junction so far as the property under acquisition was concerned. Apart from the documents, there was Advocate Commissioner's report Ext. C-1. In C-1 the commissioner made a comparison of the property under acquisition and A1 property and reported that the property under acquisition was more valuable than the property covered by A1. The learned Sub Judge did not place reliance on Commissioner's report either. Ultimately on a guess estimate the learned Subordinate judge would re-fix the land value relying on the basis document giving additions for passage of time at Rs.22000/- per Are. The appellant had a claim for compensation for injurious affection in respect of his unacquired property extending to 6.07 Ares which remained under the ownership of the appellant after acquisition. Compensation was claimed at the rate of 50% of the market value. The learned Subordinate Judge to a certain extent placing reliance on Ext.C-1 commissioner's report found that the value of unacquired property had been injuriously affected to a certain extent. However, he awarded only a lump sum amount of Rs.5000/-. According to the appellant the same is quite inadequate. The appellant has a further claim for enhanced value of trees and other improvements for which the L.A. Officer had awarded only Rs.6300/-.

(2.) WE have heard the submissions of Mr. Abraham Mathew Vettoor, learned counsel for the appellant and those of Mr. S.Jamal, learned Senior Govt. Pleader. Drawing our attention to Ext.A1 and the mahazar prepared by the L.A. Officer at the time of acquisition Mr.Vettoor submitted that the property under acquisition was far more superior. Kozha Junction was not more important than Vayala Junction which was situated very near to the property under acquisition. According to him, the court below erred in discarding Ext.A1. The learned counsel would assail the award passed by the learned Subordinate Judge for compensation for injurious affection of the unacquired property. According to the learned counsel, the value of the unacquired property had been reduced by at least 50% and requested that at least 50% of the value of that property be granted towards injurious affection. The counsel also submitted that there were 34 yielding rubber trees on the property under acquisition and according to him, the sum of Rs.6300/- presently awarded by the L.A. Officer which is not varied by the court is ridiculously low. Reliance was placed by Mr. Abraham Mathew on the judgment of this Court in LAA. No. 318 of 2008. He submitted that under that judgment the value of property included in category III had been re-fixed by this Court at Rs.35,000/- per Are. The learned counsel for the appellant requested that adequate amount should be allowed for the construction of a retaining wall which is absolutely necessary for preventing erosion of soil on account of the emergence of the canal which has got a depth of 15 ft. Per contra the learned senior Govt. Pleader Mr. S. Jamal submitted that it is a reasonable compensation which is awarded by the learned Subordinate Judge. He brought to our notice the common judgment of this Court in LAA. Nos. 925, 926, 1065 and 1385 of 2005 and submitted that under that judgment this court had re-fixed the value of properties in Mulakulam Village, a nearby Village at the rate of Rs.10,000/- per cent and Rs.8,500/- per cent in acquisitions pursuant to notification published on 27-2-1999. The value to be awarded to the property under acquisition in this appeal cannot be more than that as this acquisition is much earlier.

(3.) THE submission of the learned counsel for the appellant that the 34 twelve year old rubber trees which stood on the property should be valued by adopting the method of capitalisation of income has no appeal before us. We are convinced that adopting the land value method will be more advantages and before the court below also it was the land value method that was followed, obviously with the agreement of the appellant. At the same time, we feel that the sum of Rs.6300/- awarded by the L.A. Officer towards the value of improvements (value of the trees) is inadequate. We award to the appellant Rs.1500/- more towards the value of the trees.