IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 20TH OCTOBER 2009 / 28TH ASWINA 1931 WP(C).No. 27648 of 2009(A) -------------------------- AGAINST THE ORDER DATED 20.12.2008 IN IA 3884/2008 IN LAR.21/2006 of ADDL.SUB COURT, PALAKKAD .................... PETITIONER: --------------- E.K.SURENDRANATH, S/O.LATE BHASKARAN NAIR, AGED 50 YEARS, RESIDING AT "SRI.MADHAVAM", KOPPAM, PALAKKAD-678001. BY ADV. SRI.K.P.BALAGOPAL RESPONDENTS: --------------- 1. CHEMMADA UNIT NAIR, C/O.RAJASEKHARAN, PAMBHAVADI, PARLI, PALAKKAD. 2. SPECIAL TAHSILDAR, NO.G.II, PALAKKAD. GP SHRI.I.V.PRAMOD THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.27648 OF 2009 ------------------------------------------- Dated this the 20th day of October, 2009 JUDGMENT 1.An item of land was acquired under the provisions of the Land Acquisition Act, 1894, hereinafter referred to as the 'Act'. Since none appeared in the award enquiry, the Collector passed award on 3.2.2005 and made a reference to the court under Section 31 of the Act. Holding that none appeared to raise claim and that the person shown as claimant viz., Chemmad Unni Nair, is not entitled to get the compensation amount, the court answered that reference on 15.7.2008, ordering that the compensation amount lying in court deposit shall lapse in favour of the Government after due observance of statutory formalities. 2.The writ petitioner purchased an item of property in an auction conducted by the Recovery Officer of the Debt Recovery Tribunal (Kerala & Lakshadweep) on 24.8.2005. That sale was confirmed on 26.9.2005 and Ext.P5 sale WPC.27648/09 2 certificate dated 24.10.2005 was issued. The description of the property in Ext.P1 sale certificate, supported by Ext.P3 possession certificate issued by the revenue department and the land involved in the acquisition as reflected by Ext.P4 award of the court issued on 15.7.2008, prima facie, tend to show that there is abundant likelihood of the property claimed by the petitioner in Ext.P1 sale certificate being the whole or part of the land involved in the aforesaid land acquisition proceedings. 3.With the aforesaid, the petitioner filed an application invoking Order 1 Rule 10(2) of the Code of Civil Procedure, seeking impleadment in the proceedings before the reference court. By the time the said application was filed, the reference had been answered. Accordingly, by the impugned order, the petitioner's application was dismissed. He seeks relief against it. Hence, this petition under Article 227 of the Constitution of India. WPC.27648/09 3 4.The petitioner was not a party before the Collector. He had no notice of the acquisition proceedings. Obviously, he could not have had. His claim arises only by reason of the sale held on 24.8.2005 as affirmed on 26.9.2005 and certified on 24.10.2005. That exercise leading to Ext.P1 certificate is under the provisions of the second schedule to the Income Tax Act, 1961 and the Income (Certificate Proceedings) Rules, 1962 read with Sections 25 to 29 of the Recovery of Debts due to Banks ad Financial Institutions Act, 1993. Before he obtained that sale certificate, the reference court had answered the reference. 5.In the aforesaid situation, the question as to whether the petitioner is entitled to any relief would require consideration in the light of his right, if any, to get into the proceedings, had they been pending when he applied. If so, what is the impact of the closure of the proceedings by answering of the reference? What, if any, would be the relief that the petitioner would be entitled to, in such circumstances? WPC.27648/09 4 6.Section 30 of the Act enjoins that the Collector shall refer to the court, any dispute that may arise as to apportionment. That provision does not depend upon any application by any party. Construing the similar provisions in the Kerala Land Acquisition Act, 1961, it has been laid down by this Court in Lekshmikutty Amma v. Velappa Nair [1972 KLT 884] that in the absence of the necessity for any person to make an application for reference under Section 30, it will be open to any party claiming the amount to seek impleadment before the reference court, particularly invoking the provision whereby the C.P.C. is made applicable to land acquisition proceedings. There is nothing inconsistent in the Act to the provisions contained in the C.P.C. which may enable a person invoking Order 1 Rule 10(2) to seek impleadment. But, in the case in hand, though the reference was answered by the court about three years after the petitioner obtained title in favour of Ext.P1 certificate, the fact remains that he did not apply for impleadment during the pendency of proceedings. In that view of the matter, learned Government Pleader is justified in saying that the award of the reference court having become WPC.27648/09 5 final, it would have been open to the petitioner to file an appeal invoking the principles emanating out of Section 146 of the C.P.C. read with Section 54 of the Act. This is one way of looking at it. Equally important is the fact that the proceedings before the court below leading to the award essentially resulting in lapsing of funds in favour of the Government, is more in the nature of escheat, which, by law, is the last among the priorities and shall be resorted to, only on clear exclusion of all private interests. Therefore, justice can be done by ordering re-opening of proceedings in LAR 21/06 though such relief is not specifically sought for in this writ petition and ordering adjudication of the claim of the petitioner to money lying in deposit. To ensure that, it is ordered that by the force of this judgment, the award passed on 5.7.2008 in LAR 21/06 (Ext.P4) will stand re-opened and consequently, Ext.P6 order will stand set aside and I.A.3884/08 will stand allowed. The court below will now proceed to take up the LAR and decide on it in accordance with law, having regard to the plea of the petitioner on the strength of Ext.P1. It is clarified that this Court has not expressed anything on the WPC.27648/09 6 merits finally, touching the petitioner's entitlement referable to the identity of the property involved in Ext.P1. 7.Learned Government Pleader submitted that had the petitioner filed an appeal, he ought to have paid court fee and such revenue loss to the Government may be ordered to be compensated by way of costs. I am not impressed. This is because this Court has granted the relief in exercise of authority under Article 227 of the Constitution, to do complete justice and expedite the matter. The petitioner having paid the court fee due on the petition in hand, it is impermissible that to mulct him with costs equivalent to any court fee he ought to have paid, had he instituted an appeal. This writ petition is ordered as above. No costs. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.21/10.