STATE Vs. KORA EAPEN

JUDGEMENT

(1.) This appeal is filed by the State and arises out of a Land Acquisition Reference. The acquisition in question was of 26.866 cents in S. No. 961/4 A and B in Thellakam Kara in Ettumanoor Pakuthy belonging to the respondent Kora Eapen, retired District Judge, and for the purpose of the Quilon - Ernakulam railway. The whole survey number covered about 8 acres and the acquisition split up the property into two portions, 7 acres 31 cents on one side and the rest on the other. The Special Deputy Collector fixed the compensation due on basis of the Revenue Supervisors estimate of land value at Rs. 23 per cent and so passed his award on 27.4.1953. The respondent had filed claim on receipt of notice under S.9 for compensation at the rate of Rs. 60 per cent in view to the nature and quality of the plot acquired and also to the impairment of proper enjoyment of the balance area. But this claim was rejected for want of evidence when the award was made as abovesaid. The respondent thereafter applied for and obtained reference to Court under S.18 of the Land Acquisition Act on the question of the adequacy of the compensation. In the statement he filed before the court the respondent reiterated his claim for compensation on the same original basis. During the course of the trial, however, he applied to amend his statement of claim so as to include damages due to severance under two heads, (i) on account of loss of access to the road suffered by the 7 acres 31 cents block at the rate of Rs. 10 per cent totalling Rs. 7310 and (ii) cost of enclosing the two separated blocks on either side of the proposed acquisition Rs. 300. The amendment was opposed by the State on the ground that it was a new claim altogether and could not be entertained.

(2.) The court below by its judgment under appeal allowed enhancement of market value for the acquired portion up to Rs. 35 per cent. But while it disallowed damages for severance on basis of the amendment sought on ground of want of jurisdiction, it granted further enhancement of market value up to Rs. 60 per cent as claimed by the party in consideration of the injury sustained by the balance area. Hence this appeal by the State raising two questions firstly about the compensation granted on the ground of injury to the remaining land at the rate of Rs. 25 per cent of the acquired plot and secondly about the disallowance of advocates fee as regards the excess claim made by way of amendment before court. Memorandum of cross objections has been filed by the plaintiff in connection with the refusal by the court of damages for severance of the balance 7 acres 31 cents but the claim is now limited to Rs. 1.8 annas per cent.

(3.) The questions that arise for determination therefore are (1) Is the respondent entitled in the circumstances to compensation for the severance and the injury accrued to the remaining land (2) If so what should be the basis of compensation and (3) Whether any Advocates fee was wrongly disallowed to the State