Kambantavida Abdul Sathar vs The Special Tahsildar and The Managing Director

Antony Dominic, J.—As early as on 04/09/1997 Section 4(1) notification was issued under the Land Acquisition Act for acquisition of the property belonging to the petitioner. The land was taken possession as early as on 06/07/2000. It is stated that by the aforesaid process of acquisition, 31.20 ares of garden land and 335.85 ares of kaipad land were acquired and total amount of Rs. 21,38,156/- was awarded as compensation.

Reference was made u/s 18 of the Land Acquisition Act, where the petitioner claimed an amount of Rs. 7,51,80,000/-, and judgment was rendered giving enhancement. An appeal was filed against the same as LAA No. 462/2007. That appeal was disposed of by Ext.P1 judgment following an earlier judgment in LAA No. 1089/2007, and the matter was remanded for denovo consideration.

When the matter was thus pending, the petitioner filed Ext.P3 application for appointing an Advocate Commissioner with the assistance of experts suggested therein, and seven matters were required to be ascertained, which are the following:

To report about the present lie and condition of acquired land.

To report about the prawn farm/cultivation/nature of Prawn Farm situated in the acquired land, the method of construction and other requirements for running a farm;

To report about the facilities required for prawn farm and the facilities available in the acquired land;

To report about the periodical as well as annual yield which can be produced from the Prawn Farm situated in the acquired land;

To report about other shrimp farms situated at the entire acquired land and adjacent shrimp Farms situated in the same locality;

The annual income which could be produced by prawn farming in the acquired land;

To file a comparative statement with respect to the acquired land and basic land relied by the respondent for assessing the market value of the property and such other things which are necessary for adjudication of above case and other things pointed out by the petitioner at the time of inspection.

Ext.P4 is the objection filed by the respondent, where it was contended that since the issuance of Section 4(1) notification, 12 years have elapsed and the whole locality would have changed a lot. It was stated that a Commissioner taken out at this distance of time will not give a correct picture of the nature of the land acquired. It was also pointed out that a Commissioner was already taken out by the petitioner and that the petitioner had not filed any objection to the report submitted by the said Commissioner, and therefore, no purpose will be served by the issuance of another Commission report. It was further stated that AW2 and AW3, both are Deputy Director, Fisheries, were already examined. On these grounds, the respondents had contended that there was no need for appointing another Advocate Commission.

The matter was considered by the Reference Court and by Ext.P5 order, the application was rejected. The reasoning adopted by the Reference Court as contained in paragraph 6 of Ext.P5 order reads as under:

Admittedly the claimant has not filed any objection to Ext.X1 report filed by the Commissioner. Paragraph 3 of the report deals with relevant aspects sought to be proved by the claimant by way of the present commission application. Further AW2 and 3 have given the details of all the aspects. According to me, there is no necessity for appointing a second commissioner to note the same aspects which are available before the Court. Moreover there is a legal interdict for the claimant for having filed this petition, since there is already a commission report as Ext.X1. It is settled by the decision in Swami Premanada Bharathi v. Swami Yogananda Bharathi reported in 1935 KLT 144 to the effect that without setting aside the first commission report, the second commission for the same aspects cannot be issued. Moreover, it is not pointed out by the claimant that the first report suffered from some deficiency which can be filed up by the subsequent commission. The present IA does not reveal that the relevant details have been omitted by the earlier commissioner. Further even if the material aspects are seen omitted by the earlier commissioner, I am of the view that the relevant aspects were brought before the court by the examination of AW2 and 3 who are admittedly the experts in the Shrimp Farming. So I am of the view that since all the materials are available before the Court to arrive at a correct decision, the present application is not maintainable. Hence the petition stands dismissed.

The main contention raised by the learned Counsel for the petitioner is that the issues that are to be ascertained by the fresh Commission are different from what were already ascertained in the earlier commission report. Ext.P6 is the commission report already filed, which does not support the case canvassed by the learned counsel for the petitioner. Further, most of the matters, which are sought to be ascertained in Ext.P3 application are not issues which an Advocate Commissioner can report, but are matters for the experts to ascertain, which according to the Court are matters already on record. Further, the notification having been issued as early as in 1997 and the possession of the land having been taken over as early as in July, 2000, I do not think that at this distance of time any useful purpose will be served by appointing another Commissioner. Added to all these, is the fact that as rightly pointed out, in the absence of setting aside the earlier Commission Report, there cannot be any second report.

For these reasons, I am not inclined to take a view different from the view taken by the Land Acquisition Court.

The writ petition fails and is accordingly dismissed.