High Court Kerala High Court

State Of Kerala vs P.Jk.Abdurahiman on 26 May, 2009

Kerala High Court
State Of Kerala vs P.Jk.Abdurahiman on 26 May, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

LA.App..No. 878 of 2003()


1. STATE OF KERALA
                      ...  Petitioner

                        Vs



1. P.JK.ABDURAHIMAN, KUNIYIHOUSE,
                       ...       Respondent

                For Petitioner  :GOVERNMENT PLEADER

                For Respondent  :SRI.V.V.SURENDRAN

The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice P.Q.BARKATH ALI

 Dated :26/05/2009

 O R D E R
         PIUS.C.KURIAKOSE & P.Q.BARKATH ALI, JJ.
                     ------------------------
                  L.A.A.Nos.878, 969/2003
                     ------------------------

             Dated this the 26th day of May, 2009

                          JUDGMENT

Pius C.Kuriakose, J.

L.A.A. No.969/2003 filed by the Government is directed

against the judgment and decree in L.A.R.231/98 of the Sub

Court, Kozhikode . In the above appeal, Memorandum of Cross

Objection-C.O. No.121/2004 is lodged by the claimant. L.A.A.

No.878/2003 is directed against the judgment and decree in

L.A.R. No.85/1998. Both the above L.A.Rs were disposed of by

the learned Subordinate Judge under a common judgment.

These cases pertain to acquisition of land within the limits of the

Kozhikode city for the formation of road from Huzoor road to

Town Hall road. Relevant Section 4(1) notification was published

on 15/3/1994. The land acquisition officer had awarded land

value at the rate of Rs.35,872/- per cent for the properties

situated near to the Town Hall road. For the properties situated

near to Huzoor Road, the land acquisition officer awarded land

value at the rate of Rs.29,893/- per cent. Evidence before the

reference court consisted mainly of Ext.A1- judgment of the same

L.A.A..Nos.969/03 & 878/03 2

court in L.A.R. No.22/95 and Ext.A2 judgment dated 18/12/1999

in L.A.R. No. 67/1998, apart from the commissioner’s report

Ext.C1 and the testimony of the claimant. There was absolutely

no counter evidence on the side of the Government. The

reference court on evaluating the evidence would refix the land

value for the properties, for which the land acquisition officer

had awarded land value at the rate of Rs.35,872/- per cent, at

Rs.1,80,000/- and for the other properties it refixed the land

value at the rate of Rs.1,50,000/- per cent.

3. We have heard the submissions of Sri.P.K.Babu, learned

senior Government Pleader and Sri.A.V.M.Salahuddeen, learned

counsel for the respondent Cross Objector in L.A.A. No.969/2003.

We have also heard submissions of Sri.P.A.Harish, learned

counsel for the respondent in L.A.A. No.878/2003.

4. Sri.P.K.Babu would address us on the various grounds

raised in the memorandum of appeal and would point out that

this court by judgment in L.A.A.No.582/2000 had set aside

Ext.A1 and remanded the issue involved in that appeal to the

reference court noticing that the enhancement at the rate of

Rs.Two Lakhs granted in that case was not supported by

L.A.A..Nos.969/03 & 878/03 3

documentary evidence. The learned senior Government Pleader

accordingly requested that these cases also be remanded giving

opportunity to both sides to adduce evidence. Sri.P.A.Harish

would support the judgment of the reference court. He

submitted that in the absence of any counter evidence on the

side of the Government, the learned Sub Judge was perfectly

justified in relying on the evidence on record and granting

enhancement presently granted. Sri.Salahuddeen would address

us on the basis of the grounds raised in the Memorandum of

Cross Objection. He submitted that the claim was for Rs.5 Lakhs

per cent and that court below should have granted much more

than what is presently granted. He requested that if this court

is inclined to pass order of remand, a open remand may be

passed so that the cross objector can substantiate the grounds in

the Cross objection.

5. We have considered the rival submissions addressed at

the Bar. We notice that it was relying mostly on Ext.A1

judgment that the reference court granted enhancement to the

claimants respondents. Ext.A1 judgment has been set aside and

the issue has been remanded by this court to the reference court

L.A.A..Nos.969/03 & 878/03 4

by judgment in L.A.A. No.582/2000. Under the above

circumstances, we are not inclined to decide the issue finally. It

is difficult to uphold the claim in the memorandum of cross

objection on the evidence presently available. We are of the

view that if a open remand is passed , both sides can be

permitted to adduce further evidence to substantiate their rival

contentions.

6. Accordingly, we set aside the judgments and decrees

under appeals and remand the LARs back to the Subordinate

Judges court, Kozhikode. That court is directed to afford

opportunities to both sides to adduce whatever further evidence

they want to in substantiation of their rival contentions in the

case.

The parties will appear before the court below on 1st August

2009. The appeals will stand allowed by way of remand, but in

the circumstances of the case, without any order as to costs.

PIUS.C.KURIAKOSE,JUDGE

P.Q.BARKATH ALI, JUDGE
dpk

L.A.A..Nos.969/03 & 878/03 5

PIUS.C.KURIAKOSE &
P.Q.BARKATH ALI, JJ.

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L.A.A.Nos.878, 969/2003

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JUDGMENT

26TH MAY 2009