K VJANAKI AMMA Vs. SPECIAL TAHSILDAR

JUDGEMENT

(1.) THE claimants in a reference under Section 28A(3) which has been answered in the negative are the appellants in this appeal. The claimants who had not sought for a reference under Section 18 filed application under Section 28A seeking re-determination of the compensation on the basis of the court award in LAR.186/87 of the Sub Court, Payyannur. The Land Acquisition Officer rejected the application taking the view that the property of the claimants was not similar or similarly situated as the property covered by LAR.186/87. At the instance of the appellant a reference under Section 28A(3) was sent to the court. Before the court the appellant produced Exts.A1 to A4 judgments pertaining to as many as four reference cases. Ext.A1 is in fact an appellate judgment. They also facilitated filing of a report by an Advocate Commissioner as Ext.C1. The learned Subordinate Judge on evaluating the evidence adduced by the appellants would give conclusion that the property of the appellant is not similar or similarly situated as the property covered by the award relied on by the appellants in LAR.186/87. On the basis of that conclusion the reference was answered in the negative. This appeal is preferred being aggrieved by the award of the Reference Court.

(2.) IT appears to us that the judgment of this Court in Raghava Pothuval v. Special Tahsildar (2004(3) KLT 261) was not noticed by the learned Subordinate Judge. The ratio of the above decision is that if the land of the applicant in Section 28A application and the land of the claimant in LAR.186/87 which is relied on by the applicant (in the present case) were acquired pursuant to the same Section 4 (1) notification the application under Section 28A should be entertained. Even if the Land Acquisition Officer or the Reference Court finds that the applicant's land is not perfectly comparable with the land of the party to the award relied on by the applicant in his application then also the officer or the court as the case may be should award increased or reduced value while re-determining the compensation. From the impugned award, we find that the appellant relied on awards other than the award in LAR.186/87. This cannot be permitted. Re-determination has to be made on the basis of the award in LAR.186/87 itself. If the Land Acquisition Officer had awarded the same rate to the party in LAR.186/87 and to the appellants the Reference Court should award to the appellants also the same rate as is awarded by the court to the party in LAR.186/87. If the Land Acquisition Officer had awarded a lesser rate or the higher rate to the appellants than the party to LAR.186/87 the court shall re-determine the value payable to the appellants relying on the award in LAR.186/87 i.e awarding a higher or lesser amount as the case may be.