IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 24TH OCTOBER 2011 / 2ND KARTHIKA 1933 LA.App..No. 255 of 2008 ---------------------------------- [FROM THE JUDGMENT AND DECREE DATED 13/03/2007 IN LAR.NO.25/1995 OF SUB COURT, MANJERI] .................... APPELLANT/CLAIMANT: ----------------------------------- P.K.MOHAMMED, S/O.POOLAKKAL KHADER HAJI, KARUMPANAKKAD, KARUMPANAKKAD P.O., VAZHAKKAD VIA. *(DIED). *ADDL. APPELLANTS 2 TO 5 IMPLEADED: 2. C. UMMU BARKATH, AGED 60 YEARS, W/O. LATE P.K. MUHAMMED, KARIMPANAKKAL HOUSE, AKKODE.P.O., VAZHAKKAD VIA., MALAPPURAM, KERALA. 3. P.K. AHAMMED KABEER, S/O. LATE P.K. MUHAMMED, KARIMPANAKKAL HOUSE, AKKODE.P.O., VAZHAKKAD VIA., MALAPPURAM, KERALA. 4. P.K. SAREENA, D/O. LATE P.K. MUHAMMED, KARIMPANAKKAL HOUSE, AKKODE.P.O., VAZHAKKAD VIA., MALAPPURAM, KERALA. 5. P.K. SAJITHA, D/O. LATE P.K. MUHAMMED, KARIMPANAKKAL HOUSE, AKKODE.P.O., VAZHAKKAD VIA., MALAPPURAM, KERALA. *LRS OF THE DECEASED APPELLANT ARE IMPLEADED AS ADDL. APPELLANTS 2 TO 5 VIDE ORDER DT. 13.03/2008 IN I.A. 810/08. BY ADVS. SRI.M.SASINDRAN, SRI.K.T.POULOSE (KORATTY). L.A.A. NO. 255/2008: RESPONDENTS/RESPONDENTS/SUPPL.RESPONDENTS: --------------------------------------------------------------------------------- 1. THE DISTRICT COLLECTOR, MALAPPURAM. 2. THE EXECUTIVE ENGINEER, MINOR IRRIGATION DIVISION, MALAPPURAM. **ADDL. RESPONDENTS 3 AND 4 IMPLEADED: 3. P.K. ABDUL KHADER, S/O. LATE P.K. MOHAMMED, KARUMPANAKKAD, KARUMPANAKKADU.P.O., VAZHAKKAD VIA. 4. P.K. MUHAMMED AYUB, S/O. LATE P.K. MOHAMMED, KARUMPANAKKAD, KARUMPANAKKADU.P.O., VAZHAKKAD VIA. **LEGAL HEIRS OF DECEASED APPELLANT IMPLEADED AS ADDL. RESPONDENTS 3 AND 4 VIDE ORDER DT. 17/09/2008 IN I.A. NO. 3312/2008. ***ADDL. RESPONDENT 5 IMPLEADED: 5. SADIYA BAKER, PARAVAKKAL HOUSE, EDALIKODE.P.O., CHANKUVETTY, MALAPPURAM DISTRICT, PIN - 676 501. ***LRS OF ADDL. R4 IMPLEADED AS ADDITIONAL 5TH RESPONDENT VIDE ORDER DT. 14/07/11 IN I.A. 1882/11. R1 & R2 BY SR. GOVT. PLEADER SRI. C.R. SHYAM KUMAR, ADDL. R3 & R4 BY ADV. SRI.V.N.RAMESAN NAMBISAN. THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 24/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Prv. PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------------------------- L.A.A. No.255 of 2008 ------------------------------------------- Dated this the 24th day of October, 2011 J U D G M E N T ---------------------- Pius C. Kuriakose, J. The claimant is in appeal. The property was in Vazhakkad village in Ernad Taluk and the acquisition was for the purposes of Minor Irrigation Department pursuant to Section 4(1) notification published on 14.9.1992. The land was garden land. Land Acquisition Officer fixed market value by adopting the method of capitalization of income from the yielding trees. When worked out, the rate per cent awarded by the Land Acquisition Officer came to Rs.18,333/-. The learned Subordinate Judge at the first instance enhanced the compensation considerably and the State brought up the same in appeal and challenged such enhancement in LAA.No.13/2001 and connected cases. Memorandum of Cross Objections were lodged by the claimants in LAA.13/2001. This court disposed of the above appeal memorandum and other connected appeals and memoranda of cross objections by a common judgment delivered on 17.3.2004. By that judgment this court set aside the award of the reference court and remanded the LAR case to the reference court. This court noticed that the reference court which was expected to fix the market value of the land as on the date of the relevant Section 4(1) notification, has LAA.255/08 -2- not discharged the above statutory duty. This court would blame the State for having contributed to the mistake committed by the reference court by not producing evidence before the reference court. It was also observed by this court that the reference court had not proceeded to consider how the yield from the trees was calculated for the purpose of fixing compensation by the adoption of capitalization method. It was observed particularly that in spite of commission report there was absolutely no discussion as to the manner in which compensation awarded by the court was fixed. Under the award which is impugned in this appeal reference court did not award any enhancement to the claimant. Though various grounds are raised in the appeal, one ground which is seen raised prominently is that the learned Subordinate Judge did not follow the mandates of the remand order passed by this court. The above ground has appeal to us. As a subordinate court the learned Sub Judge was bound to abide by the dictates of this court contained in the remand order. In other words, the remand order was binding on the learned Sub Judge. We therefore become obliged to interfere with the impugned award. We set aside the Judgment and Decree under appeal and remand LAR No.25/1995 to the Sub Court, Manjeri. Learned Sub Judge is directed to pass a revised award keeping in mind the directions contained in the remand order passed by this court in LAA.13/2001 and connected matters on 17.3.2004. Needless to LAA.255/08 -3- mention that after complying with those directives learned Sub Judge will have to fix the total compensation payable to the appellant. As this remand is becoming necessary to a considerable extent for the fault of the court below we keeping in mind the principle of Actus Curiae Neminem Gravabit could have ordered refund of the full court fee. However in view of the totality of circumstances attending on this case we do not do so. 2. Result of the above discussions is as follows: LAR.25/1995 is remanded to Sub Court, Manjeri. Learned Sub Judge is directed to pass a revised award in the light of what we have stated above, within six weeks of the parties entering appearance pursuant to this order. This order will become operative subject to following conditions: The section will refund to the appellant only 80% of the court fee remitted on the appeal memorandum. Balance 20% will be forfeited to the Government. Parties are directed to enter appearance before the Sub Court, Manjeri on 9.11.2011. Transmit the lower court records to the Sub Court, Manjeri forthwith. PIUS C. KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb