IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 9TH JULY 2009 / 18TH ASHADHA 1931 LA.App..No. 684 of 2004() ------------------------- (JUDGMENT AND DECREE IN LAR NO.52/2001 OF THE SUB COURT PAYYANNUR) APPELLANT(S): CLAIMANT ---------------------- POTHERA SURESHAN, S/O.NARAYANAN NAMBIAR, RAMANTHALI AMSOM DESOM, P.O.RAMANTHALI-670 308, KANNUR DISTRICT. BY ADV. SRI.V.N.RAMESAN NAMBISAN RESPONDENT(S)/RESPONDENT: --------------- THE SPECIAL TAHSILDAR (L.A), KANNUR. GOVERNMENT PLEADER SRI.BASANT BALAJI THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 09/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE & P.Q.BARKATH ALI, JJ. ------------------------ L.A.A.No.684 OF 2004 ------------------------ Dated this the 9th day of July, 2009 JUDGMENT Pius C.Kuriakose, J. The claimant in a reference under section 28A(3) of the Land Acquisition Act, which was answered by the reference court in the negative on the reason that the property under Acquisition is not similar and similarly situated as the property covered by the court judgment relied on, is the appellant. 2. We have gone through the impugned judgment and we have heard the submissions of Sri. V.N.Ramean Nambisan, learned counsel for the appellant and those of Sri.Basant Balaji, learned senior Government Pleader for the respondent. The view taken by the learned Subordinate Judge is erroneous in view of the principles laid down by this court in Raghava Poduval v. Special Tahsildar (2004 (3) KLT 261). It is asserted that the court judgment relied on was in respect of acquisition of property pursuant to the very same Section 4(1) notification and for the same purpose. If as a matter of fact, the court judgment relied L.A.A..No.684/2004 2 by the party for his application under Section 28A pertains to Acquisition for the same purpose and pursuant to the very same Section 4(1) notification, then the essential statutory condition for applying the provision of Section 28A stands satisfied. It is not necessary that the property covered by the court judgment as well as the property under acquisition should have been awarded the same value by the land Acquisition officer. It is always open to the reference court to grant proportionate increase or decrease on the basis of the ratio fixed by the land acquisition officer in his original award for the value originally given to the claimant based on the court judgment in question. What we find from the impugned judgment is that the court below refused to answer the reference on the reason that the property covered by the Judgment in L.A.R. No.186/1987 ( the judgment relied on by the claimant in his application under Section 28A) and the acquired property are not similar and similarly situated. It is seen that the party before the reference court relied on Ext.A3 judgment also. The court has observed that since the property in L.A.R.186/1987 as well as the acquired property are not similar “ the property covered by L.A.A..No.684/2004 3 Ext.A3 judgment relied on by the claimant will not help him for getting enhanced compensation for the acquired land”. If as a matter of fact, the judgment in L.A.R. No.186/1987 pertains to acquisition pursuant to the very same Section 4(1) notification and for the same purpose, the appellant is entitled to have a redetermination of the value of the property under acquisition on the basis of the judgment in L.A.R. No.186/1987. The court below is not justified in insisting on strict similarity between the property under acquisition and the property covered by the judgment in L.A.R. No.186/1987. The principles laid down by the judgment in Raghava Poduval's case (supra) will clearly apply. 3. The result is that the judgment under appeal is set aside. The L.A.R will go back to the reference court. The reference court will take fresh decision keeping in mind the principles laid down by this court in Raghava Poduval's case. Needful pursuant to the above direction shall be done by the reference court at the earliest and at any rate within four months of receiving a copy of this judgment. L.A.A..No.684/2004 4 Refund full court fee paid on the appeal memorandum to the learned counsel for the appellant. PIUS.C.KURIAKOSE,JUDGE P.Q.BARKATH ALI, JUDGE dpk