IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 21ST OCTOBER 2011 / 29TH ASWINA 1933 OP(C).No. 3399 of 2011(O) -------------------------------------- LAR.NO.122/2007 of III ADDL.SUB COURT, ERNAKULAM .................... PETITIONERS -------------------- 1. MARIAMMA THOMAS, W/O.K.C.THOMAS, AGED 59 YEARS,KURISUMMOOTTIL,KARITHALA FESAM, WARRIAM ROAD, ERNAKULAM. 2. MARIAMMA ABRAHAM,W/O.A.P.GEORGE, AGED 57 YEARS,KALATHARAPARAYIL, PALACHUVAD, KAKKANADU, KAKKANADU WEST. BY ADV. SRI.V.M.KURIAN SRI.MATHEW B. KURIAN SRI.K.T.THOMAS RESPONDENT(S): ---------------------------- 1. STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR,ERNAKULAM KAKKANAD P.O, PIN- 682 030. 2. KALAMASSERY MUNICIPALITY, KALAMASSERY, REPRESENTED BY ITS SECRETARY, KALAMASSERY P.O, PIN- 683 104. R1 BY GOVERNMENT PLEADER SRI.K.C.VINCENT R2 BY ADV.SRI.M.K.ABOOBACKER,SC THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts OP(C)NO.3399/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE JUDGMENT DATED 25/09/2008 IN L.A.R.NO.122/2007 P2 COPY OF THE JUDGMENT DATED 10/08/2010 IN L.A.APPEAL NO.1456/09. P3 COPY OF THE ADDITIONAL LIST OF DOCUMENTS FILED BY THE PETITIONERS. P4 COPY OF THE APPLICATION I.A.NO.5229/2011 IN LAR.122/07 FILED BY THE PETITIONERS. P5 COPY OF THE OBJECTION FILED BY THE 2ND RESPONDENT. P6 COPY OF THE ORDER DATED 07/09/2011 IN I.A.NO.5229/2011 IN LAR NO.122/07 PASSED BY SUB COURT, ERNAKULAM. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts THOMAS P.JOSEPH, J. ==================================== O.P(C) 3399 of 2011 ==================================== Dated this the 21st day of October, 2011 J U D G M E N T First respondent appears through Government Pleader. Second respondent appears through standing counsel. 2. This Original Petition is in challenge of Ext.P6, order dated 07.09.2011 on I.A. No.5229 of 2011 in L.A.R. No.122 of 2007 of the court of learned third Additional Sub Judge, Ernakulam. Property of petitioners was acquired by the first respondent for and behalf of the second respondent. Since compensation awarded by the Land Acquisition Officer was not sufficient there was a reference to the civil court which the learned Sub Judge took on file as L.A.R. No.122 of 2007. Enhanced compensation was awarded as per judgment dated 25.09.2008. But feeling aggrieved, petitioner filed L.A.A. No.1456 of 2009 in this Court. This Court by judgment dated 10.08.2010 set aside the judgment and decree and remitted the reference to the trial court for passing revised judgment with opportunity to the petitioners to adduce all 'documentary evidence'. After remand petitioner produced documents to support his claim regarding value of the land acquired. To prove comparability of the property covered by the O.P(C) No.3399 of 2011 -: 2 :- documents produced and the land acquired petitioner filed Ext.P4, application for the appointment of a Commissioner to inspect and report regarding the lie and nature of the properties covered by sale deed No.3842/1/of 2005 of SRO Edappally and other sale deeds furnished (by the petitioner) and compare the same with the property acquired. That request was objected by the second respondent by Ext.P5 where it was contended that the remand is not an open remand but limited to the extent of permitting petitioners produce documentary evidence and not any other evidence. That objection prevailed with the learned Sub Judge who dismissed Ext.P4, application by Ext.P6 for the same reason. Exhibit P6, order is under challenge. 3. Learned counsel for petitioners contended that what is attempted to be adduced is documentary evidence in that petitioners after remand have produced additional documents showing value of the land referred to therein. Petitioners wanted to show the comparison between properties covered by the said documents and the land acquired to show that petitioners are entitled to get enhanced compensation as claimed by them. Learned Government Pleader and standing counsel asserted the contentions taken in the trial court. O.P(C) No.3399 of 2011 -: 3 :- 4. Having heard counsel on both sides I am inclined to think that learned Sub Jude has not approached the request of petitioners in a pragmatic manner. True, this Court while remitting the case permitted petitioners to adduce documentary evidence. I am not inclined to think that what is attempted to be proved through the Commissioner is not something pertaining to what this Court permitted. What is required to be ascertained through the Advocate Commissioner is the comparability of properties covered by the documents produced as additional evidence and the land acquired as a mere producing such documents may not be of any use. Such attempt was not prohibited by this Court by the judgment in L.A.A. No.1456 of 2009. Having regard to the circumstances stated I am inclined to allow the application. 5. Learned Government Pleader submitted that while the appeal was pending in this Court, this Court directed that petitioners will not get interest during the period from 25.09.2008 till revised judgment is passed. Needless to say that reference court is bound to comply with whatever directions this Court has issued in the judgment in L.A.A. No.1456 of 2009. Original Petition is allowed. Exhibit P6, order is set aside and Ext.P4, application will stand allowed. Trial court is directed to O.P(C) No.3399 of 2011 -: 4 :- appoint an Advocate Commissioner at the instance of petitioner and call for report so that reference can be answered at the earliest. On submission of the report it will be open to the petitioner to prefer objection if any to that report and if examination of the Advocate Commissioner is required it will be open to the reference court to permit that, for the limited purpose of proving the report of Commissioner and concerning the facts mentioned therein. THOMAS P. JOSEPH, JUDGE. vsv