IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 4TH AUGUST 2009 / 13TH SRAVANA 1931 WP(C).No. 11726 of 2008(U) ------------------------------------------- LAR.126/1999 of ADDL.SUB COURT,KOLLAM .................... PETITIONER(S): ------------------------ 1. SATHYABALAN, SREE KRISHNA VILASOM KOLLANTTAZHIKOM, KAVANADU PO, KAIRALI NAGAR-303 KOLLAM. 2. ANJALI SATHYAN, D/O.UMAYAMMA OF -DO- 3. ATHIRA SATHYAN, D/O.UMAYAMMA OF -DO- BY ADV. MR.K.SUBASH CHANDRA BOSE RESPONDENT(S): ---------------------------- 1. STATE OF KERALA - DISTRICT COLLECTOR REPRESENTED BY SPECIAL THAHASILDAR (LA, N.H. KOLLAM. 2. VIJAYAKUMARI AMMA POOVANGAL PADINJATTATHIL, KUREEPUZHA CHERRY THRIKKADAYOOR VILLAGE, KOLLAM (1ST CLAIMANT) R1 BY GOVERNMENT PLEADER MR.V.MANU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/07/2009, THE COURT ON 04/08/2009 DELIVERED THE FOLLOWING: tss W.P.(C) NO.11726/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE REFERENCE APPLICATION DT. 5.3.99. P2:- COPY OF THE JOINT AWARD PASSED BY THE LA AUTHORITY AS PER AWARD NO.6/98-99. P3:- COPY OF THE REFERENCE APPLICATION NO.78/98 DT. 17.11.99. P4:- COPY OF THE CARD ISSUED FROM THE REGIONAL CANCER CENTRE TO UMAYAMMA. P5:- COPY OF THE COMMON AWARD PASSED BY THE ADDL. SUB COURT, KOLLAM ON 22.1.07 BEFORE THE ADDL. SUB COURT, KOLLAM. P6:- COPY OF THE REVIEW PETITION IN I.A. NO.3420 OF 2007 IN LAR. NO.126/99 BEFORE THE ADDL. SUB COURT, KOLLAM DT. 23.7.07. P7:- COPY OF THE ORDER IN IA. 3420/07 IN LARD. NO.126/99 ORDER DT. 10.1.08 BEFORE THE ADDL. SUB COURT, KOLLAM. TRUE COPY P.S. TO JUDGE tss THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.11726 of 2008-U = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 4th day of August, 2009. JUDGMENT 1.A composite piece of land measuring 7.50 Ares was among those items acquired under the Land Acquisition Act, 1894, which led to the issuance of Ext.P2 award fixing compensation for the said extent of 7.50 Ares in Sy.No.82/25 of Thrikkadavoor village in Kollam taluk of Kollam district. Going by Ext.P2, that award comprising of land value, value of improvements, including buildings, wells, crops etc. as determined, and statutory components, was jointly made in favour of Vijayakumari Amma and Uma Amma. According to the petitioners, as per Ext.P3, the request of Vijayakumari Amma and Uma Amma for enhancement was referred to the Sub Court, Kollam. WP(C)11726/08 -: 2 :- 2.Reference Court passed Ext.P5 common award disposing of, among other matters, L.A.R.126/1999 in which Vijayakumari Amma and Uma Amma are shown as the claimants represented by Adv.S.Reghunathan Pillai. By that award, enhancement was granted only as regards 4.03 Ares instead of 7.50 Ares. A reading of Ext.P5 does not disclose any specific reason for refusing to award enhancement for the remaining portion of the land covered as per Ext.P2 award. 3.It appears that Umma Amma died on 2.4.2003, of cancer after prolonged treatment in the Regional Cancer Centre, Thiruvananthapuram. On the assertion that she was not served with any notice from the Reference Court, the petitioners, claiming to be her heirs, filed Ext.P6 application before the Reference Court for an order, essentially, to reopen the award and to pass an award in favour of the estate of Uma Amma also. 4.By the impugned Ext.P7, the Reference Court WP(C)11726/08 -: 3 :- dismissed the petitioners' application holding that a perusal of the LA records reveals that 4.03 Ares out of 7.50 Ares belonged to Vijayakumari Amma and the remaining 3.41 belonged to Uma Amma and that after accepting compensation, Vijayakumari Amma alone had filed application for reference and the reference that led to Ext.P5 award was on her application only and that this is evident from Letter No.78/98 dated 17.11.1999 issued by the Land Acquisition Officer. The Reference Court, therefore, criticised the petitioners' contention that Uma Amma was entitled to notice, as illogical. The Reference Court held that the contentions of the petitioners are totally against the records and their claim does not sustain. Accordingly, it was held that there is no error in the order disposing of the reference application without issuing notice to Uma Amma. The Reference Court, going by Ext.P7, desisted from imposing costs on the petitioners only because it was not claimed by the State. WP(C)11726/08 -: 4 :- 5.This matter was once heard by my learned brother Hon'ble Mr.Justice K.P.Balachandran, who issued the following order on 16.12.2008: “This writ petition is filed by Sathyabalan and his children assailing Exhibit P7 order passed by the Sub Judge, Kollam on I.A.No.3420/07 in L.A.R.No.126/99. They filed I.A.No.3420/07 aforesaid claiming that they are entitled to enhanced compensation with respect to 3.41 ares of land acquired for bye-pass from one Uma Amma, who is stated to be the deceased wife of the first petitioner and late mother of petitioners 2 and 3. I.A.No.3420/07 (Exhibit P6) was being filed by the petitioners complaining that though reference was made, the court below has granted enhancement only in relation to the land acquired from Vijayakumari Amma and not from Uma Amma. 2. The court below has, vide Exhibit P7 order impugned in this writ petition, disposed of Exhibit P6 review petition holding that the reference in L.A.C.No.78/98 was only in relation to WP(C)11726/08 -: 5 :- 4.03 ares of land acquired from Vijayakumari Amma and not concerning any land belonging to Uma Amma. Exhibit P3 reference letter from the Special Tahsildar (LA), N.H., Kollam addressed to the Sub Judge, Kollam, shows that the reference is in relation to 7.50 ares of land comprised in Sy.No.82/35 of Thrikkadavoor Village in Kollam Taluk and that reference was made consequent on reference petition dated 161.3.1999 filed by Vijayakumari Amma and Uma Amma. The letter also shows that for 7.50 ares of land acquired a cheque for Rs.1,29,120/- and a cheque for Rs.1,67,166/- were being issued separately and the statement filed by the learned Government Pleader dated 10.12.2008, shows that cheque for Rs.1,29,120/- was being issued to Uma Amma and cheque for Rs.1,67,166/- was being issued to Vijayakumari Amma and that a cheque for an amount of Rs.2,048/- was being deposited before court, as there was dispute with respect to the title of the property having an extent of 0.06 ares. 3. From Exhibit P7 impugned order, it is clear that the court below treated WP(C)11726/08 -: 6 :- the reference only as one made on the application of Vijayakumari Amma and not in relation to 3.41 ares of land acquired from the possession of Uma Amma as well. The learned Government Pleader invited my attention to the common judgment in L.A.R.No.126/99 and connected cases, which is produced as Exhibit P5 in this writ petition, to show that Uma Amma was one of the claimants in L.A.R.No.126/99 and contends that she did not appear in the court below to claim enhancement and that was why no award was passed enhancing the compensation as claimed. On the other hand, counsel for the petitioners contends that no notice had been served on Uma Amma and she was not aware of any reference having been made. On a reading of the common judgment in L.A.R.No.126/99 and connected cases, it does not appear that the court has applied its mind as to whether the reference is also in relation to 3.41 ares of land acquired from the possession of Uma Amma and however, the impugned order shows that the court considered the reference only as one made on the reference application submitted by Vijayakumari Amma. WP(C)11726/08 -: 7 :- In the circumstances, get down the entire case file in L.A.R.No.126/99 to verify if summons had been served on Uma Amma in the said reference. Post immediately on receipt of LCR.” 6.Following the aforesaid order, the LCRs were forwarded to this Court, however without the order sheet and the original judgment. Accordingly, I issued an order on 7.7.2009 requiring that the records shall be completely available when this matter is taken up. Following that, the court below has sent up the order sheet and an unsigned copy of the judgment with initialled appendix and statement. Subject to any available circulars issued by the High Court on the administrative side, I am not prepared to comment that the procedure adopted in the matter of forwarding the LCR and also in retaining the original judgment is proper. This issue will gain the attention of the Registrar (Subordinate Judiciary). WP(C)11726/08 -: 8 :- 7.I have perused the lower court records. 8.Now, I shall advert to the statement filed by the first respondent, following the earlier directions. The Deputy Tahsildar, who was exercising the powers of the Collector, has categorically stated that the land involved in the award made by the Collector included the land that belonged to Vijayakumari Amma and Uma Amma and that Vijayakumari Amma and Uma Amma had filed application for reference under Section 18 of the Land Acquisition Act on 16.3.1999 seeking enhancement of compensation and the matter was referred to the Court vide Letter No.78/98 dated 17.11.1999. The said officer vouchsafed the credibility of Ext.P3. It is also stated by that officer that the total extent of 7.50 Ares of land was covered by a single award passed on 23.1.1999 showing specifically the names of the awardees separately. 9.With the aforesaid statement of the officer WP(C)11726/08 -: 9 :- exercising the powers of the Collector, it needs to be immediately stated that the act of making an order of reference under Section 18 is a statutory act. That statutory function, once exercised, cannot be subjected to any interpolation or other inference, lest which the very process, including the judicial process on which the people have faith, would stand to be questioned. I say this in the context of the fact that the original letter received by the Reference Court on 23.11.1999, as available among the LCRs, shows that the name of Uma Amma is scored off and the extent available to Vijayakumari Amma is engrossed on the said letter. I am not now proceeding to labour much to identify the handwriting as per which the above endorsement is made. All that is required to be noted is that the scoring off of the name of Uma Amma is not even initialled. The extent in relation to which the reference is made remains to be shown in that letter as 7.50 Ares. The cheques received by the claimants are also mentioned. There is nothing in that letter which indicates that the reference WP(C)11726/08 -: 10 :- made by the Collector was not in relation to the entire parcel of 7.50 Ares and that the Collector made that reference only in relation to the land that belonged to Vijayakumari Amma. Even going by the impugned Ext.P7, the admitted or undisputed fact is that Uma Amma was not issued any notice from the reference court. I also hasten to add that in Ext.P5 common award, the Reference Court has not stated even a syllable of reason as to why the extent of the land was trimmed down by the Reference Court while enhancing the compensation. Even if the Reference Court had any doubt on that matter, in my considered view, it could not have closed off the reference, L.A.R.No.126/1999 without putting it, at least, to Vijayakumari Amma as to why this situation has happened. 10.Judiciary and its credibility include the need to ensure that any action taken, reflects that the party before it knows as to what is happening in the case. Reasons form the guarantee for the decision. It is not just there in Ext.P5, in so WP(C)11726/08 -: 11 :- far as it relates to the refusal of enhancement to the extent of land which was treated as belonging to Uma Amma. The Court below has essentially stated whatever it had in relation to that, only when Ext.P7 was issued rejecting Ext.P6. 11.I have perused the Vakalathnama filed by Adv.B.Reghunathan Pillai on 5.1.2000. That vakalathnama is executed only by Vijayakumari Amma. There is no material in the LCRs to show that notice was ever issued to Uma Amma. I may also note that on 3.7.2003, a written statement is shown to have been filed by Vijayakumari Amma and Uma Amma. At page 4 of that material, there is a correction of the date. It is corrected as 30.6.03. The corrections are in relation to the date, month and year. I take note of this in the context of the fact that Uma Amma is stated to have died on 2.4.2003, i.e., before the date which is now shown to appear as the date of the written statement which is at Sl.No.6 in the LCRs and which is filed before the Reference Court only on WP(C)11726/08 -: 12 :- 3.7.2003. With the aforesaid materials, there is no reason to sustain the impugned Ext.P7 or Ext.P5 award as regards L.A.R.No.126/1999 to the extent it refuses enhancement of compensation for the land acquired from Uma Amma. Those decisions, to that extent, are set aside and the Reference Court is directed to reopen LAR.126/1999 to the aforesaid extent and hear the petitioners on their claim to the estate of late Uma Amma, decide on that also and pass award in relation to the land that belonged to Uma Amma. Let this be done within three months from the date of receipt of a copy of this judgment. The writ petition is ordered accordingly. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/300709