IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 LA.App..No. 878 of 2003() ------------------------- LAR.85/1998 of PRL.SUB COURT, KOZHIKODE .................... APPELLANT(S): RESPONDENT ------------------------ STATE OF KERALA BY GOVERNMENT PLEADER SRI.P.K.BABU RESPONDENT(S): CLAIMANT ----------------------- P.K.ABDURAHIMAN, KUNIYIHOUSE, ATHAOLI-673 315. ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 26/05/2009, ALONG WITH LAA NO. 969 OF 2003 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 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. ------------------------ L.A.A.Nos.878, 969/2003 ------------------------ JUDGMENT 26TH MAY 2009