IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 6TH APRIL 2010 / 16TH CHAITHRA 1932 CRP.No. 238 of 2004() --------------------- AGAINST THE ORDER DATED 04/09/2003 IN IA.3066/2001 IN LAR.130/1987 of II ADDL.SUB COURT,TRIVANDRUM .................... REVN. PETITIONER(S)/PETITIONER/CLAIMANT: ----------------------------------------- RAMACHANDRAN ACHARI, THIRUVATHIRA HOUSE, KAILAS NAGAR, SREEKANTESWARAM, THIRUVANANTHAPURAM. BY ADV. SRI.P.GOPALAKRISHNAN NAIR SRI.P.A.AHAMMED RESPONDENT(S)/COUNTER PETITIONER/RESPONDENT: --------------------------------------------- STATE OF KERALA REP. BY DISTRICT COLLECTOR. GOVERNMENT PLEADER SRI.SHYSON P. MANGUZHA THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06/04/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- C.R.P.NO.238 OF 2004 () ----------------------------------- Dated this the 6th day of April, 2010 O R D E R Revision is directed against the order dated 4.9.2003 in I.A.Nos.3065 and 3066 of 2001 in L.A.R.No.130 of 1987 passed by the IInd Additional Sub Judge, Thiruvananthapuram. Revision petitioner is the claimant in the above case. The reference made on his claim for enhanced compensation over the land acquired from his ownership for a public purpose numbered as L.A.R.No.130 of 1987 happened to be closed on account of the default of the claimant to appear and prosecute his claim after written statement was filed by the State resisting the claim for enhanced compensation. The claimant thereafter moved an application to review the order passed by the court closing the reference with a petition to condone delay of nine years and 309 days in moving the review petition. The learned Sub Judge dismissed the delay condonation petition not being satisfied with the cause shown for condoning the delay, with the result, the CRP.238/04 2 review petition was also turned down. Propriety and correctness of the orders so passed by the court below is challenged in this revision. 2. I heard the learned counsel for the petitioner and also the learned Govt. Pleader. The court below has taken note that the closing of the reference application in the absence of the party was not proper and correct. However, it proceeded to consider the delay condonation petition on merit since there was inordinate delay of nine years and 310 days in moving an application for review by the claimant after an order was passed by the court to close the reference. In Shahida Beevi v. State of Kerala (2008 (1) KLT 206), this Court has held that when a reference is made by the Collector under Section 18 of the Land Acquisition Act, hereinafter referred to as the 'Act', it cannot be dismissed for default nor closed for the reason of the absence of the claimant to prosecute the claim. It has been made clear that the civil court to which a reference has been made under the provisions of the Act has to pass an award in answer to the CRP.238/04 3 reference. When such jurisdictional infirmity has been brought to the notice of the court as to the closing of the reference, the inordinate delay in moving the review petition should not have been given unmerited consideration. In such circumstances, the principles to be followed are also given expression to in the decision referred to above stating that the court is having jurisdiction in such cases to deny the claimant interest, which is otherwise his entitlement, when his claim is adjudicated upon and enhanced compensation is found payable on the land acquired. The apex court in Khazan Singh (Dead) by LRS. v. Union of India ((2002) 2 SCC 242) has also pointed out when a reference is made on the request of a party against the compensation fixed under the award and expressing his non-acceptance of the award, a civil court cannot dismiss that reference for default of the party in prosecuting the claim. The apex court has held that the civil court is duty bound to pass an award in answer to the reference. The non-participation of the party in such a reference, it is stated, would not confer jurisdiction on the civil court to dismiss the reference for default. CRP.238/04 4 So, in the present case, though there is delay, in fact, inordinate delay, as it is evident that there is jurisdictional infirmity in the orders passed by the court in closing the reference without passing an award, a reconsideration of the claim requires to be made to advance the ends of justice. However, the delay in seeking for reconsideration of his claim by the claimant cannot be overlooked. The claimant can be given a second opportunity to agitate his claim only on terms, that is, payment of cost of Rs.5,000/- (Rupees Five thousand only) to the respondent State. Claimant shall pay/deposit the sum ordered as cost within one month from the date of receipt/production of a copy of the judgment before the court below. If only cost is paid, then alone the claimant will be entitled to lead evidence in respect of his claim for enhanced compensation. Otherwise, the court below has to consider the reference on the available records and pass appropriate award. Whatever be the position, it is made clear that if an enquiry on reference is made on merit, as the claimant is given an unmerited advantage despite long lapse of time after the reference has been made to the court on his request made CRP.238/04 5 before the Collector as to non-acceptance of the award passed, the reference court shall not grant him any interest for the period from the date of Section 4 (1) notification till the restoration of the application for reference and also the cost, if any, on any enhanced compensation being allowed after adjudication of the case. Setting aside the impugned orders, the court below is directed to restore the reference application and dispose the same taking note of the observations made above and in accordance with law. Revision is accordingly disposed. S.S.SATHEESACHANDRAN JUDGE prp CRP.238/04 6