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 25TH JUNE 2009 / 4TH ASHADHA 1931 LA.App..No. 22 of 2005() ------------------------ LAR.7/2003 of ADDL.SUB COURT, IRINJALAKUDA .................... APPELLANT(S): -------------- K.SANKARA MENON @ K.S.MENON, ADVOCATE, S/O.KANATTU KOCHAMMU AMMU, ANANDAPURAM VILLAGE, TRICHUR DISTRICT, NOW RESIDING AT "PRAYAG", S.R.M. ROAD, KOCHI-18. BY ADV. SRI.GEORGE VARGHESE (MANACHIRACKEL) SRI.C.K.RAMAKRISHNAN SRI.V.J.ANAND RESPONDENT(S): --------------- 1. GOVERNMENT OF KERALA, REP. BY DISTRICT COLLECTOR, AYYANTHOLE, TRICHUR. 2. SPECIAL DY. COLLECTOR, LA.(K.S.E.B), TRIVANDRUM. ADDL.ADVOCATE GENERAL FOR R1 GOVERNMENT PLEADER SRI.BIJOY CHANDRAN SRI.C.K.KARUNAKARAN, SC FOR KSEB FOR R2 THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 25/06/200ALONG WITH LAA NO. 485 OF 2005 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - L.A.A.Nos.22 & 485 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of June, 2009 JUDGMENT Pius.C.Kuriakose, J. L.A.A.No.485/2005 is preferred by the government and L.A.A.No.22/2005 is preferred by the claimant. The property was in Anandapuram village in Mukundapuram Taluk and the acquisition for was the purpose of establishing a 33 KV sub station for the Kerala State Electricity Board. The relevant Section 4(1) notification was published on 1-7-2000. As against a claim for land value at the rate of Rs. 28,000/- per cent ( corresponding to Rs. 69,160/- per Are) and a further claim of Rs. 5,000/- per cent towards injurious affection for the unacquired portion, the land acquisition officer awarded land value at the rate of Rs. 21,989/- per Are corresponding to Rs. 8902.42 per cent. At the instance of the claimant, the issue was referred to the reference court and before the reference court the claimant produced Exts.A1 to A20 and examined witnesses AWs 1 to 5. On the side of the respondents, the evidence consisted of only Exts.R1 and R2 and there was no counter oral evidence on the side of the respondents. Ext.C1 L.A.A.Nos.22 & 485 OF 2005 2 Commissioner's report was submitted by the Advocate Commissioner who conducted local inspection and Ext.C1(a) was the mahazer prepared by him showing the description of the building which existed on Ext.A18. The claimant mainly relied on Exts.A18 and A19 in support of his claim for enhanced land value. The reference court did not become inclined to rely on Exts.A18 and A19 mainly due to the reason that these documents were only uncertified copies. Ultimately, what the court below did was to give a nominal increase of 10% over the land value which was awarded by the land acquisition officer. 2. We shall first deal with L.A.A.No.485/2005. According to us, the government is not justified in impugning the nominal increase of 10% awarded under the impugned judgment since such increase cannot be by any standards described as excessive. We therefore straight away dismiss L.A.A.No.485/2005. 3. L.A.A.No.22/2005 is preferred by the claimant contending that the enhancement granted is grossly inadequate and that opportunity should be given to produce the certified copy of Ext.A18. It is also contended that better compensation should be given towards injurious affection for the unacquired property. L.A.A.Nos.22 & 485 OF 2005 3 4. On hearing Sri.George Varghese, learned counsel for the appellant and Sri.Basant Balaji, learned senior Government Pleader for the Government, a question arose as to whether the requisitioning authority- the KSEB was actually a party before the reference court. It was submitted by Sri.George Varghese with reference to the records which were brought down that the standing counsel for the Electricity Board before the Irinjalakkuda Sub court had also filed Vakkalath nama as well as a statement. Learned counsel submitted that the standing counsel participated in the trial and cross examined the witnesses on the side of the claimant. According to Sri.Geroge Varghese, it cannot be stated even for a moment that the Electricity Board did not have any notice. The learned Government Pleader would submit that it is not the Electricity Board which was a party, but only the Special Tahsildar( LA) who was a government official of the Revenue Department who was made a party. In view of the above controversy, we directed notice of the appeal to be given to Sri.C.K.Karunakaran, standing counsel for the KSEB in this court. As directed by us, Sri.C.K.Karunakaran filed a statement on 10-06-2009. In fact, we had drawn Sri.C.K.Karunakaran's attention to the Vakalath L.A.A.Nos.22 & 485 OF 2005 4 nama filed by the standing counsel for the Electricity Board before the Irinjalakkuda Sub court. Sri.C.K.Karunakaran on getting instructions told us that the Vakkalath nama is actually executed by the then Secretary of the Electricity Board. In fact, it was in the wake of the above concession that we directed Sri.C.K.Karunakaran to file a statement. Paragraph 3 of the above statement is extracted hereunder : It is respectfully submitted that in LAR No.7/2003,while the Deputy Collector, L.A. (KSEB), Trivandrum was a party. However, there was no notice of appearance to the Kerala State Electricity Board before the reference court. But on perusal of court records it seems that the then standing counsel had filed a vakalath and objections before the Sub Court, Irinjalakkuda without any instruction from the Board. ON verification of records in the Board, it is seen that no instruction was given to the then standing counsel appearing before the lower court, Irinjalakkuda to file vakalath and objection in LAR.No.7 of 2003. Perhaps the then standing counsel had used a vakalath given in some other case for the purpose of LAR.No.7 of 2003. No professional fees or expense had been claimed or L.A.A.Nos.22 & 485 OF 2005 5 sanctioned to the then standing counsel towards fees in the above matter. 5. We have heard the parties including the standing counsel for the Electricity board once again on the question as to whether the Kerala State Electricity Board was a party to the proceedings. We are of the view that despite the Secretary of the KSEB having filed a Vakalath and the Electricity Board's standing counsel for the Irinjalakkuda Sub Court having participated in the trial, it cannot be stated that the Electricity Board was a party to the proceedings before the lower court. There is no doubt in our mind that at any rate the Electricity Board did not get effective opportunity to participate in the enquiry before the reference court in its own name. Because of this and because of our feeling that the claimant/appellant did not get adequate opportunity for substantiating his claim for better compensation, we are inclined to interfere with the impugned judgment and decree and pass an order of remand. Accordingly, we set aside the judgment and decree and remand the L.A.R back to the Irinjalakkuda Sub Court. That court will permit the claimant to produce certified copies of the sale documents relied on by him in support of his claim for enhanced L.A.A.Nos.22 & 485 OF 2005 6 compensation. If he so desires, he can produce fresh documents also for his claim for enhanced land value. The Electricity Board can come on record by filing an application for impleadment. If any application is filed by the Electricity Board within a month of the first posting of the LAR pursuant to this remand order, that application will be allowed by the reference court. The reference court will invite pleadings from the Electricity Board also and permit the Electricity Board to adduce counter evidence. Further enquiry pursuant to this order of remand will be completed and revised judgment will be passed by the reference court at the earliest and at any rate within four months of the parties entering appearance before the Irinjalakkuda Sub Court on 18/07/2009. Transmit the records forthwith to the Irinjalakkuda Sub Court. Refund the entire court fee paid on the memorandum of appeal in L.A.A.No.22/2005 to Sri.George Varghese, learned counsel for the appellant. PIUS.C.KURIAKOSE, JUDGE P.Q.BARKATH ALI, JUDGE sv. L.A.A.Nos.22 & 485 OF 2005 7