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