IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 LA.App..No. 880 of 2007(D) -------------------------- LAR.24/2000 of ADDL.SUB COURT, NORTH PARAVUR .................... APPELLANT(S): CLAIMANT: ----------------------- KUKRUVILA MATHACHAN, AGED 46 YEARS, S/O. KURUVILA POONOLLY, POONOLLY HOUSE, KALADY, ERNAKULAM. BY ADV. SMT.JEENA JOSEPH SRI.G.D.PANICKER RESPONDENT(S): RESPONDENTS: --------------------------- 1. STATE OF KERALA. 2. THE REGISTRAR, SREE SANKARACHARYA SANSKRIT UNIVERSITY, KALADY. SR. GOVERNMENT PLEADER SRI.BASANT BALAJI FOR R1 R2I.B.S.KRISHNAN, SENIOR ADVOCATE FOR R2 SRI.K.ANAND, SC, SANSKRIT UTY. FOR R2 SMT.LATHA KRISHNAN,SC,SANSKRIT UTY. FOR R2 SRI.ALAN PAPALI FOR R2 SRI.P.S.NISHIL,SC,SREE SANKARACHARYA UT FOR R2 THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 29/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & P.Q.BARKATH ALI, JJ. ----------------------------------------------- LAA. No. 880 OF 2007 ----------------------------------------------- Dated this the 26th day of June, 2009 J U D G M E N T Pius C.Kuriakose, J. The claimant is in appeal and it appears to us that he is voicing a genuine grievance. The land acquisition proceedings were initiated for acquisition of 51.70 Ares against the appellant and award was passed by the L.A. officer in favour of the appellant. The entire award amount was paid to the appellant. An application submitted by the appellant under section 18 for reference was favourably considered by the L.A. officer and that was how the land acquisition reference court came to have seizin of the matter. Before the reference court the appellant adduced evidence and in support of his claim for enhanced compensation he produced Exts.A1, A3, A4 and A5. Ext. C- 1 commission report was also obtained in the case. He got himself examined as AW-1. On the side of the Government LAA. N0. 880/07 -2- and the requisitioning authority there was no counter oral evidence and the evidence consisted of only R1 to R4 which were papers in the land acquisition file. Ext.A2 certificate of purchase issued by the Deputy Collector, L.T. Kottayam on 19-11-1994 in suo motu proceedings was relied on by the appellant before the reference court to show that he was having absolute title over the property under acquisition. It was strongly argued on the side of the Government that Ext.A2 was issued after the promulgation of the notification under section 4(1) and hence “void” . That argument found favour with the learned Subordinate Judge who has rejected the L.A.R. 2. Smt.Jeena Joseph, learned counsel for the appellant would address us on the various grounds raised in the appeal memorandum. She submitted that Ext.A2 is a certificate of purchase issued by the concerned Land Tribunal in suo motu proceedings initiated under section 72 of the Land Reforms Act. Even without Ext.A2 the appellant LAA. N0. 880/07 -3- being a cultivating tenant was having substantial interest over the property and the 'Jenmi' Kaladi Thekkemadom Swamiyar was having only nominal 'Jenmom' rights over the property. It cannot be said that it is by virtue of Ext.A2 alone that the appellant came to have title. Even without Ext.A2 the appellant was having subsisting interest and this was why the Government thought in terms of initiating land acquisition proceedings. Thus even according to the Government and the L.A. officer the property belonged to the appellant himself and that was why the entire compensation awarded by the L.A. officer was paid to the appellant. 3. The submissions of Smt.Jeena Joseph were resisted by the learned Government Pleader who would endeavour to support the impugned judgment on the reasons stated therein. Having considered the rival submissions we find force in the submission of Smt.Jeena Joseph that the court below was not justified in rejecting the LAR on the reason LAA. N0. 880/07 -4- that A2 has been obtained subsequent to the notification under section 4(1). The relevance of the date of section 4(1) notification is only, in that the market value of the property is to be determined with reference to that date. In the instant case, sans 'Jenmom' the appellant was having entirety of rights. For 'Jenmom' he was liable to pay only a nominal purchase price which could be fixed by the Land Tribunal in proceedings under section 72 of the Land Reforms Act. In the instant case it will be seen that the appellant does not have the liability to pay even that nominal purchase price. We do not know how Ext.A2 could be deemed to be a sham document. The proceedings culminating in Ext.A2 were initiated suo motu, obviously prior to the section 4(1) notification. We therefore are of the view that the learned Subordinate Judge should reconsider the reference case treating the appellant to be the full owner of the acquired property. Accordingly we set aside the judgment and decree in LAR. No. 24/2000 and LAA. N0. 880/07 -5- remand the LAR to the reference court. That court is directed to permit both sides to adduce evidence if they so choose. Fresh decision will be taken on the basis of the entire evidence which comes on record including evidence which is already on record and the reference should be answered on its merits. 4. The appeal is allowed by way of remand. Refund the court fee already paid by the appellant (which is not the full court fee) to the counsel for the appellant. Needless to mention that all the contentions raised by the appellant and the respondents regarding market value will be enquired into and decided by the learned Sub Judge; but the court below will proceed on the basis that the appellant is the full owner of the property under acquisition. (PIUS C.KURIAKOSE, JUDGE) (P.Q.BARKATH ALI, JUDGE) ksv/-