IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 20TH MARCH 2009 / 29TH PHALGUNA 1930 WP(C).No. 5208 of 2009(O) LAR.86/2001 of SUB COURT, MAVELIKKARA PETITIONER: --------------- SHIBU C. SENAN,S/O. CHANDRASENAN, SARALA SADANAM, VALIYAPARAMBU P.O., THIRKKUNNAPUZHA, ALAPPUZHA DISTRICT. BY ADV. SRI.M.V.THAMBAN SRI.B.BIPIN RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY THE GOVT.PLEADER, HIGH COURT OF KERALA, 2. INLAND WATER AUTHORITY, KOCHI. ADDL.R3 TO R7 IMPLEADED: 3. N.SARALA, SARALA SADANAM, VALIYAPARAMPU P.O., THIKKUNNAPUZHA, KARTHIKAPPALLY. 4. SHAJI.C.SENAN, -DO- -DO- 5. SHIBA SENAN @ SHAJU S.ANIYAN, -DO- -DO- 6. SHEELA SARAL, -DO- -DO- 7. SHIJI.C.SENAN, -DO- -DO- ADDL.R3 TO R7 ARE IMPLEADED AS PER ORDER DATED 20/3/2009 IN I.A.NO.3834 OF 2009. R2 BY STANDING COUNSEL SRI.V.SANTHARAM ADDL.R3 TO R7 BY ADV.SMT.A.SALINI LAL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/03/2009, ALONG WITH WPC NO.5231, 5251 AND 5257 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NOs. 5208, 5231, 5251 & 5257 OF 2009 ------------------------------------------------------ Dated this the 20th March, 2009 JUDGMENT All these Writ Petitions have been filed by the claimants in Land Acquisition Reference Cases, some of which were dismissed for non- appearance of the claimants, while some others were dismissed on the ground that the claimant was not ready to give evidence. 2. W.P.(C) No.5208 of 2009 arises out of L.A.R.No.86 of 2001, Sub Court, Mavelikkara. Petitioner is the B claimant. The original claimant was the petitioner's father, who died after the Reference. On 16.7.2005, the Sub Court closed the Reference on the ground that though the claimant was present, he was not ready to give evidence. The predecessor-in-interest of the petitioner filed I.A.No.62 of 2006 to restore the claim petition. That application was dismissed on the ground that application for condonation of delay was not filed. The petitioner filed a Review Petition along with an application for condonation of delay. But the court below dismissed the applications as per the order dated 19.3.2008. W.P.(C) NOS.5208, 5231, 5251 & 5257 OF 2009 :: 2 :: 3. In W.P.(C) No.5231 of 2009, the writ petitioner is the claimant in L.A.R.No.84 of 2001, Sub Court, Mavelikkara. The claim petition was closed on 5.4.2006 on the ground that the claimant was absent. The petitioner filed I.A.No.1201 of 2008 to restore the claim petition, along with an application to condone the delay. Both the applications were dismissed by the court below. 4. In W.P.(C) No.5251 of 2009, the petitioner is the A claimant in L.A.R.No.81 of 2001, Sub Court, Mavelikkara. The Land Acquisition Reference was closed on 2.10.2005 on the ground that the claimant was absent. The petitioner filed I.A.No.61 of 2006 to restore the claim petition. That application was dismissed on the ground that no petition for condonation of delay was filed. Thereafter, the petitioner filed I.A.No.1034 of 2007 to review the order in I.A.No.61 of 2006, along with an application for condonation of delay. The court below dismissed those applications by a common order dated 13.8.2008. 5. W.P.(C) No.5257 of 2009 arises out of L.A.R.No.83 of 2001, Sub Court, Mavelikkara. The petitioner is the B claimant. The Reference was closed by the court below on 20.2.2006 on the ground that though the claimant was present, he was not ready to adduce evidence. The petitioner filed I.A.No.1036 of 2006 to set aside the order dated W.P.(C) NOS.5208, 5231, 5251 & 5257 OF 2009 :: 3 :: 20.2.2006. An application for condonation of delay was also filed. The court below dismissed both the applications by the common order dated 19.3.2008. 6. Learned counsel for the petitioner relied on the Division Bench decisions in Khazan Singh v. Union of India ((2002) 2 SCC 242); Shahida Beevi v. State of Kerala (2008 (1) KHC 383) and Vilasini Amma v. State of Kerala (2007 (3) KLT SN 72 (C.No.92)). He also relied on the decision in Mary Philip v. Kerala State and others (ILR 2006 (4) Kerala 301), wherein it was held that a Writ Petition can be filed if the award is not on the merits and that no appeal need be filed. 7. In Khazan Singh v. Union of India ((2002) 2 SCC 242), it was held as follows: “7. The provisions above subsumed would thus make it clear that the civil court has to pass an award in answer to the reference made by the Collector under Section 18 of the Act. If any party to whom notice has been served by the civil court did not participate in the inquiry it would only be at his risk because an award would be passed perhaps to the detriment of the party concerned. But non-participation of any party would not confer jurisdiction on the civil court to dismiss the reference for default.” The decision in Khazan Singh v. Union of India ((2002) 2 SCC 242) was followed in Shahida Beevi v. State of Kerala (2008 (1) KHC 383) and it W.P.(C) NOS.5208, 5231, 5251 & 5257 OF 2009 :: 4 :: was held that the Reference Court is under an obligation to fix the actual market value and determine the proper compensation even if the claimant is absent. It was also held that the Reference Court cannot dismiss the claim petition for default after setting the claimant exparte. In Vilasini Amma v. State of Kerala (2007 (3) KLT SN 72 (C.No.92)), the Division Bench held that once the matter is referred to the Reference Court, the Court cannot close the application and that it is bound to consider the matter on the merits and render a judgment. 8. In view of the decisions of the Supreme Court and of this Court, the orders under challenge in these Writ Petitions are liable to be set aside. All the Reference Cases mentioned above shall stand restored to file. The Reference Court shall dispose of the cases on the merits in accordance with law. The parties would be entitled to adduce evidence and to produce documents in support of their respective contentions. The Reference Court shall dispose of the cases expeditiously. 9. Advocate Sri.V. Santharam, learned counsel appearing for the Inland Water Authority submitted that there was deliberate laches on the part of the claimants and they wilfully absented themselves before the Reference Court. As such, they are not entitled to claim interest as observed in Shahida Beevi v. State of Kerala (2008 (1) KHC 383). The W.P.(C) NOS.5208, 5231, 5251 & 5257 OF 2009 :: 5 :: counsel referred to paragraph 8 of the judgment, wherein it was held as follows: “.. Of course, if the non-participation is deliberate and intended only to protract the proceedings, it is for the Reference Court to deal with the application appropriately while fixing the terms. It is to be noted that the claimant is gaining an unmerited advantage owing to such delay since in the event of any enhancement, he will be getting handsome interest, presently at the rate of 15%. It will be well within the jurisdiction of the Reference Court to order that the claimant shall not be entitled to interest at the rate of 15% from the date of dismissal of the reference till restoration, apart from the terms as to costs.” It is made clear that the Reference Court will consider and decide the question of granting interest in accordance with law and in the light of the judgment in Shahida Beevi v. State of Kerala (2008 (1) KHC 383). It is submitted by the learned counsel for the petitioners that all these Reference Cases arise out of the same Notification and, therefore, the cases are to be tried together. If the petitioners make an application before the court below in this regard, the same shall be considered by the court below. (K.T.SANKARAN) Judge ahz/