High Court of KeralaSingle Judge2014-10-17Writ petition disposed of. Ext.P2 set aside; re...

Aboobacker Haji v. The Special Thasildar (LA), Kasaragod; The Secretary, Kanhangad Municipality

Case / Petition Number:WP(C).No. 12374 of 2007 (W)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A.M. Shaffique
Judgment Date: 2014-10-17
Court Decision / Holding: Ext.P2 order is set aside on condition that even if the reference is answered, the petitioners/claimants will not be entitled for interest on any amount, if enhanced, from 06/01/2006 till the date of this judgment. There will be a direction to the Subordinate Judges Court to take on file L.A.R. No.55/02 and dispose the same in accordance with law. Petitioners in this writ petition, who are the legal heirs of the original petitioner Sri.A.K.Aboobacker Haji, shall file necessary application for impleading them before the Reference Court within a period of one month from the date of receipt of a copy of this judgment. No further notice shall be issued to the legal heirs while deciding the reference.
Final Disposition: Writ petition disposed of. Ext.P2 set aside; reference to be answered; LA.R.55/02 to be taken on file and disposed in accordance with law; legal heirs to implead within one month; no further notice; no interest on enhanced amount from 06/01/2006 to judgment date.

Parties to the Case

Appellants / Petitioners

Aboobacker Haji
Mariyumma
Abdul Rahiman N.P.
Abdul Jaleel N.P.
Soujath N.P.
Nafeesa N.P.
Subaida N.P.
Abdul Basheer N.P.
Naseema N.P.

Respondents

The Special Thasildar (LA), Kasaragod
The Secretary, Kanhangad Municipality

Legal Representation & Advocates

Counsels for Petitioners

• Sri. P.R. Venkatesh

Counsels for Respondents

• Sri. Shyson P. Manguzha
• Sri. K.K. Chandran Pillai
• Sri. A.S. Sajush Paul

Case Synopsis & Summary

This writ petition challenges Ext.P2, an order by the Reference Court refusing to entertain an application to enlarge time for depositing a cost of Rs.1,000 in LA.R. No.55/02. The original claimant in L.A.R.No.55/2002 was Aboobacker Haji, who was dismissed for non-appearance on 06/01/2006. IA 186/2006 sought restoration; Ext.P1 (22/06/2006) allowed restoration on condition of depositing Rs.1,000 before the District Legal Service Authority, a condition not fulfilled in time. Further extensions were rejected. The petitioner died on 02/02/2010, and the judgment dated 13/06/2012 was recalled. The court reiterates the principle that Land Acquisition references cannot be dismissed for default and must be decided on merits, citing Kunjayan v. State of Kerala (2012(1) KLT 799). It emphasizes that non-participation does not justify dismissal per se, and that the Reference Court has a duty to determine just and adequate compensation, sitting in the open market on prudent purchaser lines (Rajmani v. Collector, Raipur; Vilasini Amma v. State of Kerala). Despite gross negligence by the petitioners in not adducing evidence, the court grants an opportunity to present evidence and directs restoration on the condition that no interest on any enhanced amount will be payable from 06/01/2006 to the date of judgment. The matter is remitted to the Subordinate Judges Court to take on file L.A.R. No.55/02 and dispose according to law; legal heirs are to be impleaded within one month, with no further notice.

Provisions of Law Cited

Section 18 of the Land Acquisition Act, 1894

Legal Doctrines & Maxims

Non-participation of the claimant when the matter is taken up for hearing by the Reference Court does not justify a dismissal of the case for default; the Court has to answer the reference on merits.
Duty and power of the Reference Court to determine just and adequate compensation on relevant facts and the law applicable, sitting in the armchair of a prudent purchaser in open market.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that Ext.P2 should be set aside and that the time for depositing Rs.1,000 towards costs should be enlarged to enable restoration of LA.R.No.55/02. They argued that the Land Acquisition Reference cannot be dismissed for default and that legal heirs should be impleaded to participate in the inquiry; they sought recall of prior judgments and adjudication on merits after due opportunity to adduce evidence.

Contentions of Respondents

The respondents argued that the Reference Court’s order should stand, that the default in depositing costs and non-appearance cannot be condoned, and that the reference may be dismissed for default unless proper restoration is allowed. They urged adherence to the cost condition and maintenance of the earlier orders, pending a proper hearing of the reference.

Cited Precedents (7)

Case Name	Citation	Treatment	Explanation
Kunjayan v. State of Kerala	2012(1) KLT 799	Positive	Court relies on the Kunjayan decision to hold that Land Acquisition References cannot be dismissed for default and must be decided on merits.
Ram Piari v. Union of India	AIR 1978 Del. 129	Overruled	Acknowledged as no longer good law in view of Khazan Sing.
Khazan Sing v. Union of India	2002 (1) KLT 644 (SC) = AIR 2002 SC 726	Positive	Supreme Court ruling relied upon to negate Ram Piari’s view and to support the merit-based approach.
Krishna Pillai v. State of Kerala	1988 (2) KLT 898	Positive	Cited as supportive authority on not dismissing for default and requiring merit consideration.
Joseph v. Government of Kerala	1991 (2) KLT 69 (D.B.)	Positive	Cited as supportive authority in the context of reference proceedings.
Vilasini Amma v. State of Kerala	2007 (3) KLT SN 72 (C.No.92) (D.B.)	Positive	Used to reinforce the duty to determine just and adequate compensation when referred under S.18.
Rajmani v. Collector, Raipur	1997 (1) KLT SN 5 (C.No.6) SC = (1996) 5 SCC 701	Positive	Cited for the principle of market-value-based compensation and prudent purchaser approach.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **FRIDAY, THE 17TH DAY OF OCTOBER 2014/25TH ASWINA, 1936** ## **WP(C).No. 12374 of 2007 (W)** **---------------------------I.A NO. 621/06 IN LAR 55/02 OF SUB COURT, HOSDURG ---------------------** ## **PETITIONER :** **---------------------** **ABOOBACKER HAJI, AGED 74 YEARS, S/O MAMMUNHI HAJI, KOVVALPALLIL, KANHANGAD HOSDURG TALUK, KASARGOD DISTRICT. (*DIED)** ## ***ADDL. P2 TO P9 IMPLEADED** **-------------------------------------------** - ***ADDL.2. MARIYUMMA** **W/O.LATE ABOOBACKER HAJI, KOOVALPALLIL, KANHANGAD HOSDURG TALUK, KASARAGOD DISTRICT.** - ***Addl. 3. ABDUL RAHIMAN N.P. S/O. DO. DO.** - ***Addl. 4. ABDUL JALEEL N.P. S/O. DO. DO.** - ***Addl. 5. SOUJATH N.P. D/O. DO. DO.** - ***Addl. 6. NAFEESA N.P. D/O. DO. DO.** - ***Addl. 7. SUBAIDA. NP D/O. DO. DO.** - ***Addl. 8. ABDUL BASHEER. N.P. S/O. DO. DO.** - ***Addl. 9. NASEEMA. N.P. D/O. DO. DO.** - ***ADDL. PETITIONERS 2 TO 9 ARE IMPLEADED AS PER ORDER DATED 17.10.2014 IN IA.12030/2014)** **BY ADV. SRI.P.R.VENKETESH** **...2/-** **WP(C).No. 12374 of 2007 (W) -2-** ## **RESPONDENTS / RESPONDENTS :** **--------------------------------------------------** **1. THE SPECIAL THASILDAR (LA), KASARAGOD** ## **2. THE SECRETARY,** ## **KANHANGAD MUNICIPALITY.** ## **R1 BY GOVT. PLEADER SHYSON P. MANGUZHA** **R2 BY SENIOR ADVOCATE SRI.K.K.CHANDRAN PILLAI BY ADV. SRI.A.S.SAJUSH PAUL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...3/-** **WP(C).No. 12374 of 2007 (W)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** **EXT.P1 : COPY OF THE ORDER IN IA 186/06 IN LAR 55/2006 OF SUB COURT, HOSDURG. EXT.P2 COPY OF THE AFFIDAVIT, PETITION AND ORDER IN IA NO. 621/02 OF SUB COURT, HOSDURG.** ## **RESPONDENT'S EXHIBITS : NIL** **//TRUE COPY//** **P.S. TO JUDGE** ## **Mn** ## **A.M.SHAFFIQUE, J * * * * * * * * * * * *** W.P.C.No.12374 of 2007 ---------------------------------------Dated this the 17[th] day of October 2014 ## **J U D G M E N T** Petitioner challenges Ext.P2, an order passed by the Reference Court refusing to entertain an application to enlarge time for depositing cost of Rs.1,000/-. 2. The facts involved in the case would disclose that the original petitioner Sri.Aboobacker Haji was the claimant in L.A.R.No.55/2002. The same came to be dismissed for nonappearance as per order dated 06/01/2006. I.A.No.186/2006 was filed in L.A.R.No.55/02 to restore the reference on file by setting aside the order dated 06/01/2006. As per Ext.P1 order dated 22/06/2006, the application was allowed on condition that the petitioner pays Rs.1,000/- before the District Legal Service Authority. But the said amount was not paid in time and therefore the petitioner filed another application for extending the time, which again came to be rejected. Against this, the petitioner has approached this Court. Even the writ petition was dismissed on an earlier occasion when there was no representation. Thereafter, when it was brought to the notice of W.P.C.No.12374/2007 2 this Court that the original writ petitioner died on 02/02/2010, the judgment dated 13/06/2012 is recalled. 3. Heard learned Government Pleader. 4. Having regard to the fact that the Land Acquisition Reference cannot be dismissed for default and has to be answered by the Reference Court as held by this Court in **Kunjayan v. State of Kerala** [2012(1) KLT 799], I am of the view that an opportunity should be granted to the petitioner to adduce evidence regarding the claim made in L.A.R.No.55/02. Paragraph 7 of the said judgment is relevant which is extracted below: _“7. Non-participation of the claimant when the matter is taken up for hearing by the Reference Court does not justify a dismissal of the case for default. The Court has to answer the reference by passing an award. If any of the claimants does not participate in the inquiry before the reference court, he or she stands the risk of an award being passed detrimental to his or her interest. The contrary view taken by a Full Bench of the High Court of Delhi in Ram Piari v. Union of India (AIR 1978 Del. 129) is no more good law in view of Khazan Sing v. Union of India (2002 (1) KLT 644 (SC) = AIR 2002 SC 726). See also Krishna Pillai v._ W.P.C.No.12374/2007 3 _State of Kerala (1988 (2) KLT 898) and Joseph v. Government of Kerala (1991 (2) KLT 69 (D.B.)). Once the matter is referred to the reference Court under S.18 of the Land Acquisition Act, 1894, that Court also cannot close the reference. It has to pass an award on merits. (See Vilasini Amma v. State of Kerala (2007 (3) KLT SN 72 (C.No.92) (D.B.). It is the duty and power of the reference court to determine just and adequate compensation on relevant facts and the law applicable by sitting in the armchair of a prudent purchaser in open market (See Rajmani v. Collector, Raipur (1997 (1) KLT SN 5 (C.No.6) SC = (1996) 5 SCC 701)._ However, it is a clear case where there was gross negligence on the part of the petitioner to adduce evidence. He neither appeared before the Reference Court nor deposited cost of Rs.1,000/- directed by the Reference Court thereafter for restoring the reference on file. 5. Under these circumstances, even if the reference is answered, the petitioners/claimants will not be entitled for interest on any amount, if enhanced, from 06/01/2006 till the date of this judgment. In the result, this writ petition is disposed of as follows: i) Ext.P2 order is set aside on condition that even if the W.P.C.No.12374/2007 4 reference is answered, the petitioners/claimants will not be entitled for interest on any amount, if enhanced, from 06/01/2006 till the date of this judgment. ii) There will be a direction to the Subordinate Judges Court to take on file L.A.R..No.55/02 and dispose the same in accordance with law. Iii) Petitioners in this writ petition, who are the legal heirs of the original petitioner Sri.A.K.Aboobacker Haji, shall file necessary application for impleading them before the Reference Court within a period of one month from the date of receipt of a copy of this judgment. No further notice shall be issued to the legal heirs while deciding the reference. (sd/-) ## **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C.No.12374/2007 5 W.P.C.No.12374/2007 6