High Court Kerala High Court

Kunju Moideen vs Muhammed Vadakkadathu on 3 January, 2011

Kerala High Court
Kunju Moideen vs Muhammed Vadakkadathu on 3 January, 2011
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

LA.App..No. 997 of 2007(D)


1. KUNJU MOIDEEN, S/O.KHADEEJA LABBA,
                      ...  Petitioner

                        Vs



1. MUHAMMED VADAKKADATHU, KAVUMKARA,
                       ...       Respondent

2. ALIYARU PATHU, KATTAKATHU,

3. SMT.KHADEEJA LABBA, W/O.BAVA LABBA,

4. JABBAR, S/O.KHADEEJA LABBA,

5. SUHARA, D/O.KHADEEJA LABBA,

6. NASEERA , D/O.KHADEEJA LABBA,

7. MAHABOOB, S/O.KHADEEJA LABBA,

8. BEEVI, D/O. KHADEEJA LABBA,

9. SHYLA, D/O. KHADEEJA LABBA,

10. STATE OF KERALA REPRESENTED BY

                For Petitioner  :SRI.N.ANILKUMAR

                For Respondent  :GOVERNMENT PLEADER

The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice N.K.BALAKRISHNAN

 Dated :03/01/2011

 O R D E R
                     PIUS C. KURIAKOSE &
                   N. K. BALAKRISHNAN, JJ.
          ------------------------------------------------
                   L. A. A. No.997 of 2007
          ------------------------------------------------
           Dated this the 3rd day of January, 2011

                          JUDGMENT

Pius C. Kuriakose, J

The claimant is in appeal. The acquisition was for the

construction of Muvattupuzha-Chalikkadavu bridge over the

Muvattupuzha river. The relevant Section 4(1) notification

was published on 17/01/2000. The extent involved is just

one cent. The Land Acquisition Officer awarded land value at

the rate of Rs.79,000/- per Are. Before the Reference Court,

the parties were concerned with the correct value payable

for the land only. The claimant relied on Ext.A4, a post

notification document. Ext.A4 was not relied on by the

learned Sub Court inter alia on the reason that the same

was not properly proved. The learned Subordinate Judge

ultimately would apply the rule of thumb and enhance the

L. A. A. No.997 of 2007 -2-

land value by Rs.24,000/- per Are and would thus, re-fix the

land value at Rs.1,30,000/- per Are.

2. In this appeal, the claimant has raised various

grounds assailing the judgment of the learned Subordinate

Judge. We have heard the submissions of Sr.N.Anil Kumar,

the learned counsel for the appellant and Smt.Latha T.

Thankappan, the learned senior Government Pleader for the

Government. Sri.Anil Kumar, drew our attention to Ext.A4

and submitted that the court below was not justified in

rejecting Ext.A4. Learned counsel requested that the case

be remanded to the Reference Court so as to afford

opportunity to the appellant for properly proving Ext.A4.

Smt.Latha T. Thankappan, the learned Senior Government

Pleader would take strong exception to an opportunity being

given to the claimant for proving Ext.A4. She submitted that

Ext.A4 pertains to a tiny bit of land with a building. No

L. A. A. No.997 of 2007 -3-

separate value is shown in Ext.A4 for the land and building.

Ext.A4 is of no value in determining the correct market

value of the land in question. She also argued that resort to

post notification documents can be had only when pre-

notification documents are not available. That is not the

situation in this case. We find considerable merit in the

submissions of the learned Senior Government Pleader. The

learned Senior Government Pleader would fairly bring to our

notice the judgment of this Court in L.A.A.498/06 to which

one among us [PCK(J)] is party. Under that judgment, the

value of similar lands acquired for the same purpose

pursuant to same notification has been re-fixed at

Rs.1,30,000/- per Are. Senior Government Pleader

submitted that the appeal can be allowed to the extent of

re-fixing the land value at Rs.1,30,000/- per Are.

Sri.Anilkumar would however, make a very fervent appeal

L. A. A. No.997 of 2007 -4-

for a remand order. According to him, the claimant may be

able to produce other prenotification documents reflecting

higher value for identical lands. Considering the submissions

of the learned counsel for the appellant, we are inclined to

pass an order of remand.

3. In the result, the judgment under appeal is set

aside. L.A.R.115/05 is remanded to the Sub Court,

Muvattupuzha. That court is directed to take a fresh decision

in the LAR and re-fix the market value of the land involved

in the case. While making such re-fixation due regard shall

be had to the judgment of this Court in LAA.498/06. The

claimant is at liberty to adduce further evidence including

pre-notification documents pertaining to comparable lands

and if such further evidence is adduced, the court can rely

on such further evidence also for fixing the correct market

value of the land. The parties will enter appearance before

L. A. A. No.997 of 2007 -5-

the court below on 07/02/11. Refund the full court fee

remitted on the appeal memo to Sri.N.Anil Kumar, the

learned counsel for the appellant. Before copy of the

judgment is issued, Registry will ensure that the full court

fee is remitted by the appellant.

PIUS C. KURIAKOSE
JUDGE

N. K. BALAKRISHNAN
JUDGE
kns/-

L. A. A. No.997 of 2007 -6-

PIUS C. KURIAKOSE &
C. K. ABDUL REHIM, JJ.

————————————————

L. A. A. No.997 of 2007

————————————————

Dated this the 9th day of June, 2010

ORDER

Pius C. Kuriakose, J

The appeal is remaining in the defect list on the reason

that service of notice is not completed on R9. But we find

that R3 is the mother of R9 and R4 to R8 are the siblings of

R9. In fact, all these respondents were toeing the same line

engaging the same counsel before the Sub Court. Under the

above circumstances, we exonerate the appellant from the

obligation of taking out notice afresh to R9. The appeal need

not be treated as defective. Post the appeal after two weeks

in the hearing list.

PIUS C. KURIAKOSE
JUDGE

L. A. A. No.997 of 2007 -7-

C. K. ABDUL REHIM
JUDGE
kns/-