INJURIOUS AFFECTION IN LAND ACQUISITION : ALL YOU NEED TO KNOW

INJURIOUS AFFECTION IN LAND ACQUISITION : ALL YOU NEED TO KNOW

Saturday Brain Storming Thought (108)-10/04/2021

INJURIOUS AFFECTION IN LAND ACQUISITION : ALL YOU NEED TO KNOW

Injurious Affection occurs where land and property is adversely affected by statutory schemes causing a decrease in the freehold market value

An injury to the value of land caused by the interference with the owners use or the enjoyment of the land

An expropriation of a portion of the land negatively affects the value of the remaining property

The lawful activities of a statutory authority on one piece of land interfere with the use or enjoyment of another property

There is no common law right to compensation for injurious affection

Injurious Affection Three Part Test

1) the damage resulted from an act rendered lawful by statutory powers of the person performing the act

2) the damage was such as would have been actionable under the common law, but for the statutory power

3) the damage must be occasioned by the construction of the public work, not its use

Injurious affection includes a reduction n market value of the land and personal and business damages resulting from

a) acquisition of part of land

b) the construction of works

Measurement of injurious affection

Injurious affection is measured as the difference between the market value of the part of a land/property left out of acquisition before and it’s value after acquisition

Examples of injurious affection

1) existing well or borewell in acquired potion of land, hence remaining portion of land which is not acquired becomes non-irrigated which reduces it’s market value

2) due to cutting of road, land is divided in two parts such a way that well is in one part only, so remaining portion of land which becomes non-irrigated, hence reduces market value of land

3) widening of road results in reducing the front marginal open space, hence nuisance of the traffic on the road will therefore will be nearer to premises, which consequently result in the reduction of the rent fetching capacity causing reduction of the market value of the property

4) in land acquisition cutting the building slantwise, after cutting portion of the building will have smaller areas with irregular shapes which results in reduction in rent thereby reducing capitalized value

The capitalized value of such reduction in the earnings for the remaining period of active life will be injurious affection

Injurious affection should include

1) acquision causes diminution of value of adjacent property

2) acquisition reduces the chances of continued profitable utilization of other land

3) acquisition include all conceivable damages that could arise – not allowed to claim at later date

4) acquisition causes loss of privacy, construction of road sewerage, depreciating the value of land due to noise

5) making several routes more circuitous, or no entry from highway, the values of land/properties had decreased as a result of more circuitous

No claim of compensation for injurious affection

1) reduction in market value due to part of acquired being put to users like garbage dumping ground, cremation/burial ground, construction of public conveniences etc

The adjacent owner who is not the person interested in acquisition cannot claim compensation for injurious affection even though the value of his land/property gets reduced

2) sometime suffered owner may claim excessive compensation for injurious affection

The collector / SLAO, in such case has all powers to acquire the entire remaining land, left out of acquisition, on payment of its market value without issuing notice under section 11 or section 19

Injurious affection conflict

It is the right of general public to the advantages and benefits of improvements leading to the creation of better environment v/s the right of an individual not to be harmed or injured by some work done for the general benefit of public

Rules influenced the law of injurious affection

1) the actionable rule
The owners interest in a property is reflected in its value, ie loss of profits devalued the property, damaging the owners profits effectively damaged owners interest in the property

2) the nature of the damage rule
Property will reduce value without access, consequently due to destruction of the access, land has depreciated ie depreciation in value as a result of the works without physical damage could form the basis of a claim for compensation

3) the construction rule
Railway constructed near house, hence value of the house had depreciated as a result of vibrations caused by engines using tracks ie damage due to construction

Claims for injurious affection when no land is taken

1) the damage must result from an act rendered lawful by statutory powers of the company

2) the damage must be such as would have been actionable under the common law, but for the statutory powers

3) the damage must be an injury to the land itself and not a personal injury or an injury to business or trade

4) the damage must be occasioned by the construction of the public work, not by its user

Heads of damages for Injurious affection

1) interference with access

2) obnoxious uses – Nuisance

3) fear or apprehension

4) loss of enjoyment

5) designation of lands

6) business loss

7) noise

Anatomy of a negligence in injurious affection

1) the law of negligence must cover the situation

2) there must have been a reasonably foreseeable risk that harm would result from the action

3) there must have been a failure to act with due care to avoid the harm

4) the negligence must have caused the loss

5) the damages must not be too remote

Compiled by:-

Er. Avinash Kulkarni

Chartered Engineer
Govt Regd Valuer
IBBI Regd Valuer