IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 3RD DECEMBER 2010 / 12TH AGRAHAYANA 1932 OP(C).No. 987 of 2010(O) ------------------------ LAR.120/2009 of SUB COURT, CHENGANNUR .................... PETITIONERS: --------------------- 1. RETNAMMA,AGED 55 YEARS, D/O.ACHUTHAN,MUDIYIL VEETTIL, PULIYOOR MURI, CHENGANNUR TALUK. 2. VIJAYAN,S/O.ACHUTHAN,DO. DO. BY ADV. SRI.N.ASHOK KUMAR RESPONDENTS: --------------- 1. THE STATE OF KERALA,REP.BY THE SECRETARY,REVENUE DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM 695 001. 2. SPECIAL TAHASILDAR(RAILWAYS) SOUTHERN RAILWAY,KAYAMKULAM 690 502. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.987 of 2010 --------------------------------------- Dated this 03rd day of December, 2010 JUDGMENT Government Pleader takes notice for respondent. 2. This revision petition is filed challenging Exts.P3 and P4, orders dated September 29, 2010 on I.A.Nos.393 and 394 of 2010 in L.A.R.No.120 of 2009 of the court of learned Sub Judge, Chengannur. Property belonging to the petitioners was acquired by the respondent and feeling aggrieved by the award of the Land Acquisition Officer, petitioner filed application for reference to the civil court for enhanced compensation and accordingly there was a reference. The reference was taken on file as L.A.R.No.120 of 2009 on February 16, 2010. When the reference came up for evidence petitioners requested further time. Request was rejected by the reference court and reference was answered in the following lines: “The claimants did not adduce any evidence. Hence, I held that the claimants could not substantiate their case for getting enhanced compensation. The reference is answered accordingly”. O.P(C).No.987 of 2010 : 2 : Petitioners filed I.A.No.394 of 2010 to reopen the reference. Petitioners also filed I.A.No.393 of 2010 to condone the delay of 171 days in filing that application. Learned Sub Judge dismissed I.A.No.393 of 2010 and consequently I.A.No.394 of 2010. Exts.P3 and P4, orders are under challenge in this proceeding. Learned counsel submitted that it was because petitioners were not able to get the relevant documents to be produced in support of their claim for enhanced compensation that they could not produce the documents on time. The delay in filing I.A.No.393 of 2010 was also on account of that. I have heard learned Government Pleader also. 3. The Supreme Court in Rajmani Vs. Collector, Raipur (1996) 5 SCC 701) held that even when a reference is dismissed for default the party can file an application under Rule 9 of Order IX of the Code of Civil Procedure (for short, “the Code”). 4. A Division Bench of this court in Shahida Beevi Vs. State of Kerala (2008(1) KLT 206) has highlighted the responsibility of reference court even when a claimant is absent. The Division Bench held that when a reference is made, there is an obligation cast on the reference court to fix the actual market O.P(C).No.987 of 2010 : 3 : value and determine proper compensation and that even if the claimant is absent reference cannot be dismissed for default. The Collector, under Sec.19 of the Land Acquisition Act (for short, “the Act”) has to furnish necessary particulars regarding fixation made by him to the reference court. The reference court has to answer entitlement of claims under Sec.23(1A) of the Act in the matter of additional compensation, claim for solatium under Sec.23(2) of the Act and interest on excess compensation under Sec.28 of the Act. Thus, it is the duty of the court to investigate on the claims made by the claimant before the Collector for reference and fix the market value and determine the compensation. Even if claimant does not co-operate, the court has to look into the materials furnished by the Collector under Sec.19 of the Act and pass an award on merits with regard to the claim regarding market value of the compensation. Only such award can be treated as a decree and determination of reference as contemplated under the Act. In the present case it is seen that for the reason that petitioners did not adduce evidence reference court observed that petitioners did not substantiate their claim for enhanced compensation and accordingly reference was answered. The said order does not show that the reference court O.P(C).No.987 of 2010 : 4 : considered the documents relied on by the awarding officer and was satisfied that market value fixed by the awarding officer was reasonable. The order also does not make any reference to other claims regarding solatium, interest etc. In such a situation, decision of the reference cannot be taken as a decision as contemplated under the Act. If that be so, an application for reopening of the reference was certainly maintainable as held by the Supreme Court in the decision quoted above. 5. True that the affidavit in support of I.A.No.393 of 2010 does not in so many words say about the cause for delay but I find from the affidavit that the delay was attributed to the failure of petitioners to get the relevant records in support of their claim on time. I do not find reason to think that having claimed enhanced compensation and obtained reference, petitioners did not wanted to proceed with their claim. I do not also find any contumacious delay or negligence on the part of petitioners. I am inclined to allow the application. Resultantly this petition is allowed. Exts.P3 and P4, orders are set aside. I.A.No.393 of 2010 in L.A.R.No.120 of 2009 will stand allowed and reference re-opened and restored to file. Reference court shall give sufficient opportunity to the parties to O.P(C).No.987 of 2010 : 5 : adduce evidence in support of their respective contentions and pass appropriate orders as provided under law in the light of decision of the Division Bench referred to above. Parties shall appear in the trial court on 05-01-2011. (THOMAS P JOSEPH, JUDGE) Sbna/-