Ammed Kutty v. Special Tahsildar (LA), Koyilandy & The Executive Engineer, P.W.D. Roads Division, Kozhikode

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL FRIDAY, THE 18TH NOVEMBER 2011 / 27TH KARTHIKA 1933 LA.App..No. 567 of 2011() ------------------------LAR.106/2007 of SUB COURT, QUILANDY .................... APPELLANT(S): CLAIMANT ---------------------- AMMED KUTTY, PADOLI VEEDU, ORAVIL P.O., ULLIYERY VILLAGE, KOYILANDY TALUK,KOZHIKODE DIST. REP.BY HIS P/A HOLDER RASHID,S/O.AMMED KUTTY, PADOLI VEEDU, ORAVIL P.O.,ULLIYERY VILLAGE, KOYILANDI TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN RESPONDENT(S): RESPONDENTS 1 AND 2 ---------------------------------- 1. THE SPECIAL TAHSILDAR (LA), KOYILANDY, KOZHIKODE DISTRICT. 2. THE EXECUTIVE ENGINEER, P.W.D. ROADS DIVISION, KOZHIKODE. GOVERNMENT PLEADER FOR R SRI.C.R.SHYAM KUMAR THIS LAND ACQUISITION APPEAL HAVING COME UP FOR ADMISSION ON 18/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **PIUS C.KURIAKOSE & K. HARILAL, JJ. -----------------------L.A.A.No.567 OF 2011 ------------------------** Dated this the 18th day of November, 2011 ## **JUDGMENT** Pius C.Kuriakose, J. The claimant is the appellant and the case pertains to acquisition of land in Ulliyeri village pursuant to Section 4(1) notification published on 5/8/2004 for the purpose of construction of bridge and approach road at Kizhakkottkadavu. The LAO awarded land value at the rate of Rs. 3115/- per cent. The Reference Court answered the reference confirming the award of the LAO on the reason that the appellant did not adduce evidence to substantiate his claim. 2. Sri.M.S.Narayanan learned counsel for the appellant would draw our attention to the judgment of this court in L.A.A. No.103/2010. The learned counsel submitted that under that judgment this court has refixed the land value at the rate of Rs.26,000/- per cent. Mr.Narayanan requested that the above judgment be followed and this appeal be allowed. 3. The request of Mr.Narayanan was opposed very stiffly by L.A.A..No.567/2011 2 the learned senior Government Pleader Sri. C.R.Shyamkumar. He submitted that in the absence of any evidence this court will not justified in deciding the issue finally. He submitted that there was lethergy on the part of the appellant in prosecuting the case before the Reference Court. Proper conditions should be imposed so that the public interest involved will be protected so submitted the learned senior Government Pleader. 4. Having considered the rival submissions, we feel that the appellant can be given an opportunity to adduce evidence and substantiate his claim, however, only on conditions. The result of the above discussion is therefore as follows; 5. The judgment and decree under appeal are set aside. LAR No.106/2007 is remanded to the Subordinate Judge's Court, Koyilandy for fresh decision. That court will afford opportunity to both sides to adduce whatever further evidence they want to and pass revised award. This order of remand will be subject to the following conditions; i). The appellants shall pay an amount of Rs.5000/- as costs through the office of the Advocate General within three weeks from today. 3 L.A.A..No.567/2011 ii). In case under the revised award, the appellant becomes eligible for more compensation than what is awarded by the LAO, such enhanced compensation will not carry interest under Section 28 during the period from 27/11/2007 till 18/11/2011. iii). The appellant will forfeit one third of the court fee that he has remitted on the appeal memorandum. The appellant will enter appearance before the Reference Court on 9/12/2011. The Reference Court will expedite the matter and pass the revised award on or before 31/3/2012. ## **PIUS C.KURIAKOSE,JUDGE** **K. HARILAL, JUDGE.** dpk L.A.A..No.567/2011 4 L.A.A..No.567/2011 5 ## **PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. -----------------------C.M.Appln.1267/2011 in L.A.A.No. 567 OF 2011 ------------------------** Dated this the 2nd day of November, 2011 ## **O R D E R** Pius C.Kuriakose, J. This application seeking condonation of the delay of 1276 days caused in the matter of filing the appeal is opposed by the Government. The Government has filed a very serious counter affidavit. The contentions raised in paragraphs 2 and 3 of the counter affidavit are quite impressive. We are persuaded to hold that there has been laxity on the part of the appellant in prosecuting the proceedings before the Reference Court. At the same time we, keeping in mind the principles laid down by the Supreme Court in Collector, Land Acquisition, Anantnag & another v. Katiji and others ( AIR 1987 Supreme Court 1353) and Shankarrao v. Chandrasenkunwar ( AIR 1987 Supreme Court L.A.A..No.567/2011 6 1726), and are inclined to allow this application imposing proper directions. Accordingly, I.A. is allowed and the delay is condoned subject to the following conditions; i). The appellant shall pay a sum of Rs.13,000/- to the Government through the office of the Advocate General within two weeks from today and produce receipt. ii). In case under the Appellate Judgment to be passed by this court or in the revised judgment which may be passed by the Reference Court pursuant to the judgment of this court the appellant becomes eligible for enhanced compensation, such enhanced amount will not carry interest under Section 28 of the Act during the period of 1276 days condoned by this order. Annex a copy of this order to the judgment to be passed in the appeal. The Registry will send up the appeal for admission once receipt against payment of the above amount is noticed. ## **PIUS C.KURIAKOSE,JUDGE** **C.K.ABDUL REHIM,JUDGE.** dpk L.A.A..No.567/2011 7