Hamsa M.A vs The Managing Director, Bekal ...
2022 Latest Caselaw 7022 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
           THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
 FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944
                       RP NO. 146 OF 2022
 AGAINST THE ORDER/JUDGMENT     DATED 23.07.2019 IN LA.App.
                241/2016 OF HIGH COURT OF KERALA
REVIEW PETITIONER/APPELLANT/CLAIMANT:

             HAMSA M.A.
             S/O. MAYIPADY AHAMMED, KEEZHUR CHANDRAGIRI,
             REPRESENTED BY THE POWER OF ATTORNEY HOLDER
             C.A.MOIDEEN KUNHI, S/O.ABDULKHADER MUSSALIYAR,
             POST CHANDRAGIRI, KALANAD, KASARGOD DISTRICT.
             BY ADV SURESH KUMAR KODOTH
RESPONDENTS/RESPONDENTS/REFERRING OFFICER & RESPONDENTS
1&2:

       1     THE MANAGING DIRECTOR,
             BEKAL RESORTS DVELOPMENT CORPORATION
             PALAKKUNNU - 671 123.
       2     THE SPECIAL TAHSILDAR (LA)
             KASARAGOD - 671 121.
       3     THE DISTRICT COLLECTOR
             KASARGOD - 671 121.
       4     THE EXECUTIVE ENGINEER
             PWD, ROADS DIVISION, PWD ROADS DIVISION,
             KASARGOD - 671 121.
             SRI.JOBY JOSEPH SR GP

     THIS  REVIEW   PETITION HAVING  COME  UP  FOR
ADMISSION ON 17.06.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 R.P.No.146 of 2022
in
LAA No.241 of 2016                    2




                       P.B.SURESH KUMAR, J.
              -----------------------------------------------
                         R.P.No.146 of 2022
                                   in
          Land Acquisition Appeal No.241 of 2016
              -----------------------------------------------
            Dated this the 17th day of June, 2022.


                               ORDER

The appellant in Land Acquisition Appeal No.241 of

2016 is the petitioner in the review petition. Parties are referred

to in this order, as they appear in the Land Acquisition Appeal.

2. Land Acquisition Appeal No.241 of 2016 was

one preferred against the decision in L.A.R No.5 of 2013 on the

file of the Court of the Subordinate Judge, Kasaragod. The

appellant was the claimant in the proceedings. The said appeal

was disposed of along with a batch of other land acquisition R.P.No.146 of 2022 in

appeals preferred by the claimants against the decisions in the

references involving lands acquired for the very same purpose,

pursuant to the same notification. In the appeal, the challenge

was mainly against the insufficiency of compensation granted

towards the land value as also the compensation granted

towards injurious affection. Having regard to the materials on

record, this Court enhanced the land value granted to the

appellant to Rs.2,09,209/- per Are. As regards the

compensation granted for injurious affection, the case set out

by the appellant before the reference court was that there is a

substantial height difference between the acquired land and the

remaining property after the acquisition. This Court proceeded

on the assumption that after the acquisition, the height

difference was increased by 1 to 2 meters, and on that basis,

this Court granted an additional sum of Rs.30,000/- to the

appellant over and above Rs.30,000/- granted under that head

by the reference court. The only grievance of the appellant in R.P.No.146 of 2022 in

this review petition concerns the decision of this Court as

regards the compensation granted for injurious affection.

3. Heard the learned counsel for the appellant as

also the learned Government Pleader.

4. It is seen that an Advocate Commissioner was

appointed at the stage of reference at the instance of the

claimant, and the Advocate Commissioner reported that after

the acquisition, the remaining land of the appellant is lying at a

height of 4.5 meters from the acquired land. Paragraph 8 of the

report of the Advocate Commissioner reads thus:

The Commissioner has identified the property subject matter of LAR 5/2013. The said property is comprised in R.S.No.134/2C1(134/12, 14 and 18) of Kalnad village. It measuring 18 sqmts and the said plot is marked as serial No.'6' in the eye sketch. There is no road access to the remaining property of the claimant due to the cutting of the soil. The remaining portion of the said property is higher in level from the road which is about 4.5 mts. And the remaining property of the claimant is marked as 'E' in the eye sketch.

It is without taking note of the report of the Advocate R.P.No.146 of 2022 in

Commissioner that the appeal was disposed of on an incorrect

premise that the height difference after the acquisition is only 1

to 2 meters. Needless to say that an error of this nature is one

that needs to be corrected in exercise of the review jurisdiction

of this Court.

In the circumstances, the review petition is allowed

and the impugned judgment, insofar as it relates to Land

Acquisition Appeal No.241 of 2016, is recalled. List the Land

Acquisition Appeal for hearing as per roster.

Sd/-

P.B.SURESH KUMAR, JUDGE.

YKB