IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 26TH OCTOBER 2010 / 4TH KARTHIKA 1932 OP(C).No. 345 of 2010(O) ------------------------ AGAINST THE ORDER IN LAR.40/2006 IN LAC.212/2004 of SUB COURT, NEDUMANGAD .................... PETITIONER ------------------------------ SUBHA, D/O.DRAUPATHY AMMA, BEENA BHAVANAM, PUTHU VEETTU MURI, KOLIYAKODE VILLAGE, TRIVANDRUM. BY ADV. SRI.R.SUNIL KUMAR SMT.A.SALINI LAL RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 2. THE EXECUTIVE ENGINEER, PWD (ROADS), THIRUVANANTHAPURAM. BY GOVT. PLADER SHRI B.JAYASURYA THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 26/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.345 of 2010 -------------------------------------- Dated this the 26th day of October, 2010. JUDGMENT Heard learned counsel for petitioner and the learned Government Pleader for respondents. 2. This petition arises from a decision of learned Sub Judge, Nedumangad in L.A.R.No.40 of 2006 in L.A.C. No.212 of 2004. Property of the petitioner was acquired and the Land Acquisition Officer awarded Rs.87,279/-. Being aggrieved, there was request for reference under Section 18 of the Kerala Land Acquisition Act, 1894 (for short, “the Act”) and on reference, the case was taken on file as L.A.R.No.40 of 2006. Petitioner filed detailed statement and the matter was posted for evidence and as the learned Sub Judge would say, sufficient opportunity was given to the petitioner to adduce evidence but nothing happened. Learned Sub Judge observed that petitioner/claimant has not adduced evidence for enhancement of compensation. Accordingly reference was answered in the negative. That order is under challenge in this petition under Article 227 of the Constitution. 3. Learned counsel contends that though it may appear that the decision of the reference court is on merit, it has not gone through the records and come to the conclusion whether compensation awarded is sufficient or not. Nor has the issue regarding compensation payable under Section 23(1A) and OP(C) No.345/2010 2 solatium payable under Section 23(2) of the Act been considered by the reference court. Learned counsel has placed reliance on the decision of the Division Bench of this Court in Shahida Beevi v. State of Kerala (2008 (1) KLT 206). 4. The Supreme Court in Khazan Singh v. Union of India (AIR 2002 SC 276) has held that once the reference is made the reference court has to answer the same. Question is whether reference has been answered so that it is appealable under Section 54 of the Act or petitioner could challenge the impugned order under Article 227 of the Constitution. The Division Bench in the decision cited supra observed that (whether or not the claimant is present) the court has to consider materials available on record including the application made by the claimant before the Collector and there has to be an investigation with reference to the claims touching upon the matters under Section 23(1) of the Act. The reference court has to consider materials forwarded by the referring officer under Section 19 of the Act. It is also observed that the question whether claimant is entitled to solatium under Section 23(2) of the Act is required to be considered. 5. It is seen from the order under challenge that learned Sub Judge has only observed that petitioner has not adduced evidence for enhancement of compensation and hence petitioner is not entitled to get enhanced compensation. The impugned order does not show that records forwarded by the Land Acquisition Officer were considered by the learned Sub Judge and the learned Sub Judge was satisfied that compensation awarded is just and OP(C) No.345/2010 3 reasonable. There is no reference in the award to the entitlement of petitioner for additional compensation under Section 23(1A) or solatium under Section 23 (2) of the Act. In such a situation one cannot say that the reference was disposed of on merit. 6. In Krishna Pillai v. State of Kerala (2007 (2) KLT 588) it has been held that when a mistake is committed by the court, party shall not be put to the trouble to pay huge court fee to correct such mistakes and in such situation Writ Petition is maintainable. In the light of what I have stated above, I am persuaded to think that this Writ Petition is maintainable. 7. For the reasons I have already stated and since on facts I am inclined to think that petitioner has to be given opportunity to adduce evidence in support of her claim for enhanced compensation. The impugned judgment is liable to be set aside. Resultantly this petition is allowed. Judgment dated 05.10.2007 on L.A.R.No.40 of 2006 in L.A.C.No.212 of 2004 of the court of learned Sub Judge, Nedumangad is set aside and the matter is remitted to the reference court for fresh decision after giving parties opportunity to adduce evidence. Parties shall appear in the court below on 16.11.2010. THOMAS P.JOSEPH, Judge. cks