IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 11TH NOVEMBER 2008 / 20TH KARTHIKA 1930 WP(C).No. 33205 of 2008(C) -------------------------- LAR.146/2004 of ADL.SUB COURT, THALASSERY .................... PETITIONER(S): --------------- KARAKANDIYIL KOYILOTRA KUNHAMI, AGED 54 YEARS, W/O. IBRAHIM, KARAKANDY HOUSE, P.O. ULIYIL. BY ADV. SRI.M.SASINDRAN SRI.M.NASARUDDEEN RESPONDENT(S): --------------- 1. STATE OF KERALA - REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. SPECIAL TAHSILDAR L.A (NH), THALASSERY, KANNUR. BY GOVT.PLEADER SRI.BASANT BALAJI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE,J. ------------------------ W.P.(C)No.33205 of 2008 ------------------------ Dated this the 11th day of November, 2008 JUDGMENT Under challenge in this writ petition is Ext.P3 order of the Land Acquisition Reference Court refusing to entertain applications for restoration and for condonation of delay caused in the matter of filing the above application. The reference was under Section 18 of the Land Acquisition Act and on 28/9/2006 when the reference case stood posted peremptorily for trial, the petitioner was absent. The learned Subordinate Judge passed Ext.P2 award answering the reference in the negative i.e. closing the reference stating that there is no material before the court for awarding any enhancement of compensation. Under Ext.P3 the applications submitted by the petitioner were found to be not maintainable, since according to the learned Judge, the remedy available in law to the petitioner was to file a regular appeal or a petition for review of Ext.P2. It cannot be said that the view of the learned Subordinate Judge is totally incorrect. At least WPC.No.33205/2008 2 technically that view was correct. But, I find that though Ext.P2 purports to be a judgment answering the reference against the petitioner, the same is virtually and for all practical purposes, an award is passed in the absence of the petitioner. In that view of the matter, Ext.P2 qualifies as an ex parte order. I am not convinced by the explanation offered by the petitioner for her failure to be present on 28/9/2006. At the same time, I feel that on considerations of justice and on the consideration that all cases should be allowed to be adjudicated on their merits rather than disposed of at the threshold by default or on some technical reason, I am inclined to grant relief. But, at the same time, the objections of the Government cannot go unnoticed. 3. Having regard to the totality of the circumstances attending on this case, I feel that a condition, that the petitioner shall pay a cost of Rs.5,000/- to the Government and a further condition that during the period from 28/9/2006 till 14/12/2007 the date of Ext.P3 order the enhanced compensation, if any, which may be awarded by the court in favour of the petitioner will not carry statutory interest under Section 28 can be imposed while granting relief to the petitioner. Accordingly, this writ WPC.No.33205/2008 3 petition will stand disposed of issuing the following directions; 4. Ext.P3 order is set aside and the Subordinate Judge's Court, Thalassery, is directed to restore and post L.A.R.No146/2004 for trial in the next available special list subject to the following conditions; i). The petitioner pays a sum of Rs.5,000/-(Rupees Five Thousand only) by way of cost to the first respondent Government through the office of the Advocate General within one month from today. ii). In the event of the Subordinate Judge becoming inclined after trial to answer L.A.R. No.146/2004 in favour of the petitioner, the enhanced compensation to be awarded will not carry interest at the statutory rates admissible under Section 28 of the Land Acquisition Act during the period from 28/9/2006 till 14/12 / 2007. It is made clear that if condition No.'1' is not complied with by the petitioner within the stipulated time, Ext.P3 will WPC.No.33205/2008 4 stand confirmed and the writ petition will stand dismissed. (PIUS.C.KURIAKOSE,JUDGE) dpk