IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 26026 of 2008(W)
1. N.MADHAVAN
... Petitioner
Vs
1. DISTRICT COLLECTOR, ALAPPUZHA
... Respondent
For Petitioner :SRI.P.GOPALAKRISHNAN NAIR
For Respondent : No Appearance
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :29/08/2008
O R D E R
PIUS.C.KURIAKOSE,J.
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W.P.(C)No.26026 of 2008
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Dated this the 29th day of of August, 2008
JUDGMENT
Under challenge in this writ petition is Ext.P7 order of the
Land Acquisition Officer rejecting an application under Section 28
(A) filed by the petitioner. The petitioner applied under Section
28A on the basis of Ext.P5 judgment in L.A.R. No.55/2001 of
the same court court. Obviously, L.A.R.55/2001 pertains to the
acquisition of another item of property pursuant to the very same
notification under Section 4 (1) on the basis of which the
petitioner’s property was acquired. The Land Acquisition Officer,
however, did not become inclined to entertain Ext.P6 application
on the reason that the property, which was subject matter of
Ext.P5, and the petitioner’s property were included in two
different categories though covered by very same section 4 (1)
notification. It appears to me that the principles laid down by
this court in Raghava Poduval v. Special Tahsildar ( 2004 (3)
KLT 261) have not been noticed by the Tahsildar. The
enquiry on an application under Section 28A will be confined to
WPC.No.26026/2008 2
the question whether the property of the applicant and the
property which is subject matter of the judgment relied on were
acquired under the very same notification and also whether there
was a reference under section 18 at the instance of the applicant.
It has been held that once it is seen that those two conditions are
satisfied, the land acquisition officer can award reasonable
proportionate enhancement or reduction upon the land value
given to the parties in the judgment depending on the category
and the ratio maintained by the land acquisition officer regarding
the category of the petitioner’s property and the category of the
property which was subject matter of the judgment relied on.
2. Under the above circumstances, I quash Ext.P7 and
direct the land acquisition officer to reconsider Ext.P6 in the light
of the principles laid down in Raghava Poduval’s case (supra).
The learned Government pleader submits that Ext.P5 judgment
relied on has not attained finality and that the same is pending in
appeal before this court. Pendency of the appeal against the
judgment relied on could not be a good ground for rejecting the
application straight away. What the land acquisition officer is
expected to do under such situation is to direct the applicant to
WPC.No.26026/2008 3
produce copy of the appellate judgment and take a final decision
on the application under Section 28A on the basis of the appellate
judgment. Therefore, the land acquisition officer is directed to
keep Ext.P6 pending till such time as the petitioner produces
copy of the judgment in the appeal preferred by the Government
against Ext.P5.
The writ petition is disposed of as above.
(PIUS.C.KURIAKOSE,JUDGE)
dpk