IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 16TH DECEMBER 2011 / 25TH AGRAHAYANA 1933 OP(C).NO. 4154 OF 2011(O) -------------------------------------- LAR.35/2002 OF SUB COURT, MANJERI PETITIONER: -------------------- DARUL ULOOM ASSOCIATION, VAZHAKKAD, MALPPURAM DISTRICT, REPRESENTED BY ITS SECRETARY. BY ADV. SRI.THOMAS ANTONY SRI.M.P.PRAKASH RESPONDENT(S): ------------------------ 1. THE DISTRICT COLLECTOR, MALAPPURAM DISTRICT. 2. DIRECTOR, AIRPORT AUTHORITY OF INDIA, CALICUT AIRPORT P.O., MALAPPURAM DISTRICT. BY GOVERNMENT PLEADER SHRI P.I. DAVIS R1 BY ADVOCATE SHRI S.SUJIN R2 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) NO.4154 OF 2011 APPENDIX PETITIONER(S)' EXHIBITS: EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN L.A.A. NO.1460 OF 2007 AND CONNECTED CASES. EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN L.A.A. NO.396 OF 2010. EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN L.A.A. NO.340 OF 2011. EXHIBIT P4 TRUE COPY OF THE AFFIDAVIT AND PETITION IN I.A. NO.2026 OF 2011 IN L.A.R. NO.35 OF 2002. EXHIBIT P5 TRUE COPY OF THE ORDER DATED 23.11.2011 IN I.A. NO.2026 OF 2011 IN L.A.R. NO.35 OF 2002. RESPONDENT(S)' EXHIBITS: NIL TRUE COPY P.S. TO JUDGE THOMAS P.JOSEPH, J. ==================================== O.P(C) No.4154 of 2011 ==================================== Dated this the 16th day of December, 2011 J U D G M E N T Learned Government Pleader appears for the first respondent. Second respondent appears through Standing Counsel. 2. Exhibit P5, order dated 23.11.2011 on I.A. No.2026 of 2011 in L.A.R. 35 of 2002 of the court of learned Sub Judge, Manjeri is under challenge. Petitioner/claimant sought appointment of an Advocate Commissioner to report on certain matters which learned Sub Judge dismissed by Ext.P5, order observing that matters sought to be identified do not come within the parameters of the remand judgment. 3. Property of petitioner was acquired some time in the year, 1993 in respect of which Ext.P2, judgment is passed. The remaining extent - 1.74 acres was acquired in the year, 1999 regarding which a request was made by the claimant to refer the claim to the civil court. Accordingly the claim was referred to the learned Sub Judge, Manjeri who took it on file as L.A.R. No.35 of 2002 and answered the reference by judgment dated 30.10.2007. Petitioner and respondents were aggrieved and preferred L.A.A. O.P(C) No.4154 of 2011 -: 2 :- Nos.925 of 2008 and 380 of 2011. A Division Bench of this Court by Ext.P3, judgment dismissed L.A.A. No.925 of 2008 filed by the respondents and allowed L.A.A. No.380 of 2011 filed by the petitioner by way of remand. It is thereafter that petitioner filed I.A. No.2026 of 2011 for appointment of Advocate Commissioner. 4. It is contended by the learned counsel that dismissal of I.A. No.2026 of 2011 is not justified. Learned counsel submitted that the remand is not a closed remand and going by the directions in the remand judgment petitioner is entitled to adduce evidence in respect of various claims sought to be proved by I.A. No.2026 of 2011 and at any rate, show that Exts.P1 and P2 documents (Annexures 1 and 2 in the L.A. Appeals) are to be relied, it is necessary to appoint an Advocate Commissioner to show the similarity of property covered by Exts.P1 and P2 and the acquired land and also in which tak of Exts.P1 and P2, the 1.74 acres of land acquired in the present case is situate. 5. Learned Government Pleader appearing for first respondent and learned Standing Counsel for second respondent contended that all what is requested for in I.A. No.2026 of 2011 are not within the purview of direction of this Court contained in O.P(C) No.4154 of 2011 -: 3 :- the remand order. 6. It is necessary to refer to Ext.P3, judgment of this Court. In the operative portion of the judgment this Court allowing L.A.A. No.340 of 2011 filed by petitioner and remitting L.A.R. No.35 of 2002 directed learned Sub Judge to permit petitioner prove Exts.P1 and P2 (Annexures 1 and 2 in the appeals) and any other documents in support of the claim of petitioner “for enhanced land value”. After petitioner produced evidence the requisitioning authority and the Government also should be permitted to adduce rebuttal evidence. Learned Sub Judge was directed to pass revised award taking into account the evidence already on record and the evidence which comes to be recorded pursuant to the order of remand. 7. Now reference can be made to Ext.P4 - I.A. No.2026 of 2011. There, the first item required to be ascertained by the Advocate Commissioner is location, belt wise of the 1.74 acres acquired from petitioner (which is the subject matter of present proceeding). Certain other matters are also required to be ascertained by the Commissioner. 8. Though learned counsel for petitioner contended that the direction of this Court in the remand judgment is to pass a O.P(C) No.4154 of 2011 -: 4 :- revised award taking into account the evidence already on record and the evidence which comes to be recorded pursuant to the order of remand, I must bear in mind that the documents which this Court has allowed petitioner to bring in are Exts.P1 and P2 or any other document and that should relate to the claim for enhanced land value. In other words the facility given to the petitioner to produce Exts.P1 and P2 or other documents is limited to the question of enhanced land value and not for any other purpose. May be since the entire award has been set aside learned Sub Judge has to pass a revised award in respect of all claims with respect to the further evidence on record, but pointedly the evidence allowed to be let in, is for enhanced land value. Hence the application for commission has to be confined to the claim for enhanced land value and that alone. But learned Sub Judge has dismissed Ext.P4, application in toto which does not appear to be proper. 9. I stated that additional evidence allowed to be let in through document is pertaining to the claim of petitioner for enhanced land value. It is not sufficient that certain documents are produced to prove the enhanced land value. Along with that, petitioner has an obligation to show that properties referred to in O.P(C) No.4154 of 2011 -: 5 :- the documents brought in are comparable to the acquired land. For that, the assistance of an Advocate Commissioner is necessary. To that extent learned Sub Judge ought to have allowed Ext.P4, application. 10. Having heard counsel on both sides it appears to me that it is necessary to identify whether the 1.74 acres acquired from petitioner (which is the subject matter of the present proceeding) falls in which tak of Ext.P1 and P2. Along with that, the Advocate Commissioner has also to ascertain and report the comparable situation of the acquired land and the properties covered by Exts.P1 and P2 or any other documents as permitted by this Court in the remand judgment. Resultantly, Original Petition is allowed. Exhibit P5, order is set aside and Ext.P4, application is allowed to the following extent. (a) Learned Sub Judge, Manjeri shall appoint an Advocate Commissioner to report on the following: (i) The 1.74 acres acquired from petitioner (which is the subject matter of the present proceeding) falls in which tak O.P(C) No.4154 of 2011 -: 6 :- of Exts.P1 and P2? (ii) To report on the comparable situation of the land acquired and the property covered by Exts.P1 and P2 or any other document as may be produced by petitioner (before the Commissioner is appointed). (b) Batta payable to the Advocate Commissioner by the petitioner shall be fixed by the learned Sub Judge. (c) Since Ext.P3, judgment directs time bound disposal of the reference, learned Sub Judge shall expedite the proceeding and issue necessary direction to the Advocate Commissioner to submit his report as early as possible. THOMAS P. JOSEPH, JUDGE. vsv