IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 FAO.No. 23 of 2004 -------------------- AGAINST THE ORDER DATED 20/11/2003 IN IA.2067/03 & IA.2068/03 IN LAR.281/1994 of PRL.SUB COURT, KOZHIKODE APPELLANT/PETITIONER/CLAIMANT: FOUSIYA, D/O. ABOOTTY, GOLDEN ENCLAVE APARTMENTS, RUBY 13, AIRPORT ROAD, BANGALORE-17, BANGALORE TALUK, KARNATAKA STATE. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT: RESPONDENT: -------------------------- THE SPEIAL TAHSILDAR (LA), CIVIL STATION, KOZHIKODE. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 25/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. = = = = = = = = = = = = = = = = = = = = F.A.O. NO. 23 OF 2004 = = = = = = = = = = = = = = = = DATED THIS, THE 25TH DAY OF MAY, 2009. J U D G M E N T Raman, J. Appellant is the petitioner/claimant in a land acquisition reference case claiming enhancement of compensation awarded for the acquisition of the property. The land acquisition reference ended in dismissal of the claim as evidenced by the order Annexure-A produced in the case. Even if the party is absent the court cannot dismiss the reference rather based on evidence and materials available on record, the land acquisition court is ought to have passed an award. A Bench decision of this Court reported in Joseph v. Government of Kerala (1991(2) KLT 69) supports the contention of the petitioner that court cannot dismiss a reference made under Section 18 of the Land Acquisition Act and that it is bound to pass an award. Whether in such circumstances an application under Order IX Rule 9 is maintainable or not arises for consideration. 2. In the light of the Apex Court decision reported in Rajmani v. Collector, Raipur, (1996(5)SCC 701), followed in Shahida Beevi v. State FAO 23/2004 :2: of Kerala (2008(1) KLT 206), the position is well settled that a party whose reference application is dismissed for default is entitled to either file an application under Order IX Rule 9 or he can file an application under Section 151 Simplicitor for setting aside the order and to restore the case on file, since the Court cannot dismiss the reference application for default. 3. In the result, we allow this appeal and L.A.R. 281/1994 will stand restored to file. The Land Acquisition Court will proceed to pass the award on merits after a fresh opportunity is given to both sides. However, we have to notice that the court below dismissed the reference application on 16.3.1996. But the Order IX Rule 9 application was filed only on 26.3.2003, after seven years. Thus there is inordinate delay for the petitioner in approaching the Court. Accordingly, we direct that in case any enhancement is granted, the period from the date of dismissal of reference application till the filing of the application under Order IX Rule 9, ie. from 16.3.1996 to 26.3.2003 will be excluded for the purpose of calculating the interest. P.R. RAMAN, JUDGE. P. BHAVADASAN, JUDGE. KNC/-