IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 1ST JULY 2011 / 10TH ASHADHA 1933 OP(C).No. 1062 of 2011(O) ------------------------- LAR.215/1996 of ADDL.SUB COURT,KOLLAM .................... PETITIONER: -------------------- THULASEEDHARAN, NOW RESIDING AT DEEPAM, 125/SNEHA NAGAR, ERAVIPURAM P.O., KOLLAM-691 011, FROM NEZHUSSERY VEEDU, THEKKEVILA CHERRY, MUNDACKAL, KOLLAM-691 001. BY ADV. SRI.B.SURESH KUMAR RESPONDENT(S): --------------- THE STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, KOLLAM, KOLLAM-691 013. BY G.P.SRI.T.K.SAJEEV THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 01/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 1062 of 2011(O) PETITIONER'S EXTS: EXT.P1: COPY OF JUDGMENT DTD.29.11.2003 IN LAR NO.215/96 OF ADDL.SUBORDINATE JUDGE'S COURT, KOLLAM EXT.P2: COPY OF IA NOS.5241/2010 IN LAR NO.215/96 DTD.20.12.2010 PASSED BY THE ADDL.SUB COURT, KOLLAM.. EXT.P3: COPY OF IA NOS.5242/2010 IN LAR NO.215/1996 DTD.20.12.2010 PASSED BY THE ADDL.SUB COURT, KOLLAM. EXT.P4: COPY OF ORDER DTD.18.1.2011 IN IA NO.5241/2010 IN LAR NO.215/1996 PASSED BY THE ADDL.SUB COURT, KOLLAM. EXT.P5: COPY OF ORDER DTD.18.1.2011 IN IA NO.5242/2010 IN LAR NO.215/1996 PASSED BY THE ADDL.SUB COURT, KOLLAM. EXT.P6: COPY OF JUDGMENT DTD.2.1.2007 IN WP(C) NO.30331/2006 PASSED BY THIS COURT. EXT.P7: COPY OF REFRENCE ORDER DTD.28.10.1996 ISSUED BY THE SPECIAL TAHSILDAR. EXT.P8: COPY OF JUDGMENT DTD.23.5.2007 IN LAR NO.72/1997 & LAR NO.74/1997 PASSED BY THE SUB COURT, KOLLAM. RESPONDENT'S EXTS: NIL /TRUE COPY/ P.A.TO JUDGE K.T.SANKARAN, J. --------------------------------- O.P(C)No.1062 OF 2011 --------------------------------- Dated this the 1st day of July, 2011 JUDGMENT An extent of 0.75 Ares of land belonging to the petitioner was acquired for the purpose of Railways. Dissatisfied with the award of compensation, the petitioner moved an application for reference. Accordingly, reference was made and it was numbered as LAR No.215 of 1996 on the file of the Court of the Additional Subordinate Judge of Kollam. The Land Acquisition Reference was disposed of by the judgment dated 29th November, 2003. The judgment reads as follows: “Claimant has not adduced any evidence to substantiate their claim for enhanced compensation. In the result, the award passed by the Land Acquisition Officer is confirmed.” 2. The petitioner filed Ext.P2 application under Section 151 of the Code of Civil Procedure and Order 47 Rule 1 and Order IX Rule 9 to restore the case and to reconsider the O.P(C)No.1062 OF 2011 2 judgment passed by the court below, after condoning the delay. There was a delay of more than 7 years. The court below dismissed the applications on the ground that the petitioner failed to establish sufficient reason for condoning the delay. The orders passed by the court below are under challenge in this Original Petition. 3. The learned counsel for the petitioner submitted that in respect of similar acquisition for the same purpose under the same Notification, the Land Acquisition References were allowed and enhanced compensation was awarded to other claimants. 4. In Joseph v. Government of Kerala (1991(2) KLT 69), a Division Bench of this Court held that where a reference is made to the court under Section 18 of the Land Acquisition Act, it is the duty of the court to determine the amount of compensation payable for the land acquired. The court cannot refuse to determine the amount of compensation even where O.P(C)No.1062 OF 2011 3 the claimant remains absent or fails to adduce evidence. In Khazan Singh v. Union of India (2002(1) KLT 644 (SC)) the Supreme Court affirmed the view taken by the High Court in Joseph v. Government of Kerala and it was held that the Civil Court has to pass an order in answer to the reference made by the Collector under Section 18 of the Land Acqusition Act. In Shahida Beevi v. State of Kerala (2008(1) KLT 206) a Division Bench held that it is the duty of the reference court to determine the market value of the land and the compensation payable to the land owner. It was also held that if the land acquisition court dismisses the case for default or where the reference is not answered on the merits, the claimant would be entitled to file a petition under Section 151 of the Code of Civil Procedure or under Section 151 read with Order IX Rule 9 of the Code of Civil Procedure before the reference Court itself. The Division Bench also held thus: “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 O.P(C)No.1062 OF 2011 4 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.” 5. It is true that there is inordinate delay in filing the application by the petitioner. But it cannot be forgotten that the reference court did not answer the reference on the merits. It only “confirmed” the award passed by the Land Acquisition Officer. There is no question of any confirmation by the reference Court of the award passed by the Land Acquisition Officer, in a Land Acquisition Reference. The judgment passed by the court below is against the principles of law laid down by the Supreme Court and the Division Bench of this court. When it was pointed out that the judgment was not proper, irrespective of delay, the court should have set things right by disposing of the case on the merits. O.P(C)No.1062 OF 2011 5 For the aforesaid reasons, the Original Petition is allowed. The orders passed by the court below are set aside and I.A.Nos.5241 of 2010 and 5242 of 2010 are allowed. The Land Acquisition Court shall dispose of the Land Acquisition Reference on the merits. However, as held in 2008(1) KLT 206, the Land Acquisition Court will also consider the question as to payment of interest, taking into account the relevant facts. K.T.SANKARAN, JUDGE. cms