L.A.A.No. 753/2008 (Land Acquisition Appeal) — K.V. Janaki Amma and others v. Special Tahsildar (LA), Kannur

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE MONDAY, THE 30TH JUNE 2008 / 9TH ASHADHA 1930 LA.App..No. 753 of 2008() ------------------------LAR.254/1998 of SUB COURT, PAYYANNUR .................... APPELLANT: - ----------- 1. K.V.JANAKI AMMA, AGED 64 YEARS, W/O.LATE VELEMPAT GOPALAN NAIR, `PARVATHI SADANAM', ARAVANCHAL P.O., PAYYANNUR, KANNUR DISTRICT. 2. MURALI GOPALAN, S/O.LATE VELEMPAT GOPALAN NAIR, `PARVATHI SADANAM', ARAVANCHAL P.O., PAYYANNUR, KANNUR DISTRICT. 3. SREEJA.K., D/O.LATE VELEMPAT GOPALAN NAIR, `PARVATHI SADANAM', ARAVANCHAL P.O., PAYYANNUR, KANNUR DISTRICT. 4. HAREESH.K., S/O.LATE VELEMPAT GOPALAN NAIR, `PARVATHI SADANAM', ARAVANCHAL P.O., PAYYANNUR, KANNUR DISTRICT. BY ADV. SRI.M.SASINDRAN SRI.K.T.POULOSE (KORATTY) RESPONDENTS: ------------- THE SPECIAL TAHSILDAR (LA), KANNUR. BY GOVERNMENT PLEADER SRI.BASANT BALAJI THIS LAND ACQUISITION APPEAL HAVING COME UP FOR ADMISSION ON 30/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **PIUS.C.KURIAKOSE, J.** - - - - - - - - - - - - - - - - - - - - - ## **L.A.A.No. 753 OF 2008** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30[th] day of June, 2008 ## **JUDGMENT** Claimants are the appellants. Their properties were acquired for the purpose of establishment of Ezhimala Naval Academy pursuant to a notification under Section 4(1) dated 22-02-1983. The land acquisition officer classified the land as UD land since as per the revenue records, the land was mentioned as UD land and awarded land value at the rate of Rs. 466/- per cent. Other lands in the same village which had been described as OD land i.e. garden lands has also been acquired for the very same purpose. The appellants who had omitted to seek a reference under Section 18 to the competent court regarding the correct compensation payable to them, relied on the court judgment in L.A.R. No. 186/1987, a case relating to acquisition for the very same purpose and covered by the very same section 4(1) notification and applied under Section 28A. The land acquisition officer was not prepared to rely on the court judgment in L.A.R. No. 186/1987 giving the reason that the property covered by LAA.No.753/08 2 L.A.A.No.186/1987 was OD garden lands while the appellants' properties were UD lands. On the request of the appellants, land acquisition officer made a reference under Section 28A (3) of the Land Acquisition Act to the court and the court dismissed that reference case under the impugned judgment. Before the court, the appellants did not adduce any oral evidence, but relied on the documentary evidence which consisted mainly of judgments in cases relating to acquisition for the very same purpose. The appellants relied on a Commissioner's report. On the side of the respondents also, no counter oral evidence was adduced, but, the DVS as well as the valuation statement prepared for the fruit bearing trees land were relied on. 2. On this appeal coming up for admission, the learned Government Pleader Sri.Basant Balaji, took on behalf of the respondents and I have heard the submissions of Sri.M.Sasindran, learned counsel for the appellant and also those of the learned Government Pleader. I was taken by the learned counsel for the appellants to the full text of the impugned judgment. It is seen that under the impugned judgment, the learned Subordinate Judge has LAA.No.753/08 3 virtually endorsed the view of the land acquisition officer that the court judgment relied on i.e. the judgment in L.A.A. No. 186/1987 cannot be relied on for the purpose of re-determination of the value of the acquired properties since the properties in that case belong to a different category i.e. those properties were OD land i.e. garden land unlike the acquired properties in this case which belonged to the UD category. Report submitted by the Advocate Commissioner was an additional item of evidence relied on very much by the appellants. The Advocate Commissioner in his report- Ext.C1 had found that the acquired properties in these cases though described in the revenue records as UD land were actually garden land. The learned Subordinate Judge was not impressed very much by the findings in Ext.C1, more so, because nobody has taken steps for examining the Advocate Commissioner who prepared Ext.C1 and to facilitate the Advocate Commissioner's cross-examination. Apparently the learned Subordinate Judge was carrying an impression that for making re-determination on the basis of the court judgment, it is necessary that the property which is subject matter of the court judgment and the LAA.No.753/08 4 property which is subject matter of the Section 28A application should be similar. 3. This court has in **Raghava Poduval v. Special Tahsildar** (2004(3)KLT 261) held that land acquisition officers considering applications for redetermination under Section 28A have the power to award reasonable proportionate enhancement or reduction upon the land value given to the parties on the basis of the judgment relied on and that it is not necessary that the same land value should have been awarded by the land acquisition officer to the parties in the judgment relied on and also to the parties in the application under Section 28A. 4. Counsel for the appellant would submit that in these cases, the awarding officer has given the same value to the parties in the judgment relied on as well as to the present appellants. I do not find any material produced by the appellants for accepting the above submission of the learned counsel. However, in view of the obvious position that these properties and the properties which were the subject matter of L.A.R. No. 186/1987 were acquired for the very same purpose pursuant to the very same section 4(1) notification, it is LAA.No.753/08 5 obligatory that the land acquisition officer redetermines the land value invoking the powers under Section 28A. 5. One of the omissions noticed by the court below in the evidence of the appellants is that the appellants did not adduce any oral evidence including the examination of the Advocate Commissioner who had prepared Ext.C1. I also feel that if the appellants had adduced oral evidence or facilitated production of the land acquisition officer's award pertaining to the property which is the subject matter of L.A.A. No. 186/1987, appellants would have been able to convince the court as to what was the ratio fixed by the land acquisition officer between the values of the properties which are the subject matter of this appeal and the properties which were the subject matter of L.A.R. No. 186/1987. I am inclined to grant an opportunity to the appellants for adducing such evidence before the reference court. 6. Accordingly, the judgment and decree under appeal are set aside and L.A.R.. No.255/1998 is sent back to the reference court. That court will post the case for adducing further evidence by the appellants who are free to examine any one among themselves and also LAA.No.753/08 6 the Advocate Commissioner who prepared Ext.C1. They are also permitted to produce or facilitate production of documentary evidence which will enable the court to understand as to what was the land value which had been given by the awarding officer to the party in L.A.R. No. 186/1987. On the basis of such further evidence adduced by the appellants, learned Subordinate Judge will re-appreciate the entire evidence and pass a revised judgment taking into account the principles laid down by this court in Raghava Poduval's case. The parties will enter appearance before the reference court on 04/08/2008. Appeal allowed by way of remand. Refund the full court fee paid on the appeal memorandum to the learned counsel for the appellant. **PIUS.C.KURIAKOSE JUDGE** sv. LAA.No.753/08 7