IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 18TH FEBRUARY 2009 / 29TH MAGHA 1930 OP.No.26780 of 2000(K) --------------------------- PETITIONER: -------------- KURIEN PINDIS, AGED 68, S/O. CHACKO, PANNIPPILLIL ALIAS PINDIYIL, VADAMA VILLAGE, NADAMA DESOM, KANAYANNUR TALUK, NOW RESIDING AT KAILAS BHAVAN, BHAVE NAGAR, CHATKOPER WEST, MUMBAI - 84, REP. BY HIS POWER OF ATTORNEY HOLDER SHRI. K.M. VARGHESE, S/O. MANI, AGED 55, KALARIKKAL HOUSE, KAKKANAD, THRIKKAKKARA VILLAGE. BY MR.VARGHESE C.KURIAKOSE, ADVOCATE. RESPONDENTS: ------------------ 1. STATE OF KERALA, REP. BY ITS CHIEF SECRETARY, SECRETARIATE, THIRUVANANTHAPURAM. 2. SPECIAL TAHSILDAR (L.A), NATIONAL HIGHWAY No.1, KAKKANAD, ERNAKULAM. BY MR.T.K. VIPINDAS, GOVERNMENT PLEADER. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 18/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No.26780/2000 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF JUDGMENT DTD. 23.02.1999 IN L.A.R No.123/90 ON THE FILES OF 1ST ADDITIONAL SUB COURT OF KOCHI. EXT. P2 : COPY OF APPLICATION DTD. 10.11.1999 SUBMITTED BEFORE 2ND RESPONDENT UNDER SECTION 28A ACT 1 OF 1894. EXT. P3 : COPY OF ORDER DTD. 5.7.2000 ISSUED BY THE 2ND RESPONDENT. EXT. P4 : COPY OF the JUDGMENT DTD. 13.8.92 IN LAR 124/90. EXT. P5 : COPY OF THE JUDGMENT DTD. 30.10.92 IN LAR 123/90 PASSED BY THE ADDL. SUB COURT. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp S. SIRI JAGAN, J. ------------------------------------ O.P.No.26780 OF 2000 ---------------------------------------- Dated this the 18th day of February, 2009 JUDGMENT 17.04 Ares of property belonging to the petitioner was acquired under the Land Acquisition Act. The petitioner did not seek reference under Section 18 of the Land Acquisition Act for enhancement of compensation. Subsequently, some other similarly situated land owners whose properties were also acquired under the same notification as that of the petitioner, filed L.A.R. No.123/90, in which by judgment dated 23.2.1999, the Sub court, Kochi awarded enhanced compensation. Based on that award, the petitioner filed an application under Section 28A of the Land Acquisition Act through his power of attorney claiming compensation in tune with the said judgment. Ext.P2 is that application. That was dismissed by Ext.P3 for the reason that 'the claimant had failed to produce power of attorney in original at the time of hearing and certified copy of decree and judgment in L.A.R.No.124/90'. According to the petitioner, the original of the power of attorney was produced before the Court O.P.No.26780/2000 2 hearing L.A.R. No.124/90, for prosecuting that LAR which was a reference under Section 31 of the Land Acquisition Act. For disposal of Ext.P2 application, certified copy of the decree in L.A.R.No.124/90 is not relevant. The petitioner, therefore, seeks the following reliefs: (a) call for the entire records pertaining to Ext.P3 order and quash Ext.P3 order by writ of certiorari or other appropriate writ, order or direction. (b) issue a writ, order or direction in the nature of Mandamus directing the respondents to a pass an award under section 28A(2) of the Land Acquisition Act 1894 on the basis of Ext.P1 in favour of the petitioner”. 2. I have heard the learned Government Pleader also. 3. I am of opinion that the 2nd respondent has taken a hyper-technical view in the matter. As rightly pointed out by the petitioner, failure to produce the decree and judgment in L.A.R. No.124/90 cannot be a ground for rejection of application under Section 28A based on the judgment and decree in L.A.R No.123/90. The 2nd respondent has no case that the certified copy of judgment in L.A.R.No.123/90 had not been produced by the petitioner. Further, production of power of attorney is only a curable defect. In fact the 2nd respondent O.P.No.26780/2000 3 ought to have directed the petitioner to produce the power of attorney, which the 2nd respondent has not done before rejecting the application for non-production of the same. In the above circumstances, Ext.P3 is quashed and the 2nd respondent is directed to re-consider Ext.P2 application filed by the petitioner in accordance with law. Orders in this regard shall be passed as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment. If any document is to be produced by the petitioner, the 2nd respondent shall issue a notice to the petitioner directing him to produce the same and only if even after such notice, he has not produced any document, further proceedings shall taken on the ground of non-production. The original petition is disposed of as above. S. SIRI JAGAN, JUDGE Acd O.P.No.26780/2000 4