K.P. Hafsath v. Special Tahsildar Land Acquisition (National Highways), Kannur; Executive Engineer, NH Division, Kannur; State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN** **FRIDAY, THE 4[TH] DAY OF NOVEMBER 2022 / 13TH KARTHIKA, 1944** **FAO NO. 159 OF 2019** **[AGAINST THE ORDER DTD.26.6.2006 IN I.A.NO.454/2006 IN LAR 124/2003 OF SUB COURT, HOSDURG]** ## **APPELLANT/PETITIONER/CLAIMANT:** K.P.HAFSATH AGED 66 YEARS W/O LATE O.K.HAMEED,RESIDING AT FAZILA MANZIL,NEAR PALERE KEEZHIL TEMPLE, PALLIKKARA.P.O,NILESHWAR VILLAGE, HOSDURG TALUK,KASARAGOD DISTRICT. BY ADVS. HEMALATHA SRI.BINU GEORGE ## **RESPONDENTS/RESPONDENTS/REFERRING OFFICER:** 1 THE SPECIAL TAHSILDAR LAND ACQUISITION,(NATIONAL HIGHWAYS), KANNUR,PIN-670001. 2 THE EXECUTIVE ENGINEER, N.H.DIVISION,KANNUR,PIN-670001. 3 STATE OF KERALA, REPRESNTED BY DISTRICT COLLECTOR, KASARAGOD,PIN-671121. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 04.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: FAO No.159/2019 ..2.. ## **JUDGMENT** ## SHOBA ANNAMMA EAPEN,J: This appeal is filed under Section 104 r/w Order XLIII Rule 1(c) of the Civil Procedure Code by the appellant/claimant challenging order dated 26.06.2006 passed by the Land Acquisition Reference Court, namely, the Court of Subordinate Judge, Hosdurg, dismissing IA No. 454/2006 in LAR No.124/2003, which is the petition for restoration of the claim petition. 2. The appellant is the claimant in LAR No.124/2003. The reference was made under Section 18 of the Land Acquisition Act (for short, “the LA Act”) by the first respondent, the referring officer. In the LAR case, property admeasuring 1.13 ares in Re.Sy.No.359/18 of Nileshwar Village, Kasaragod District] owned by the appellant/claimant was compulsorily acquired for construction of a railway over bridge in the National Highway-17 (now, 'NH-66') at the Pallikkare railway level crossing. Dissatisfied with the compensation awarded by the Land Acquisition Officer, the claimant preferred an application before the Special Tahsildar, Land Acquisition (National Highways), under Section 18 of the Land Acquisition Act, seeking a reference of her claim for enhanced compensation, for determination of the court. The said application was numbered as LAR No.124/2003 before the Sub Court, Hosdurg. FAO No.159/2019 ..3.. 3. The reference case, LAR No.124/2003 under Section 18 of the LA Act was posted for trial on 06.03.2006. On that day, since the claimant as well as her counsel was absent, the Sub Court, Hosdurg delivered the following judgment: _“This reference is made under Section 18 of the Land Acquisition Act._ _Today when the case is called not only the claimant present but also not represented. Counsel for claimant also absent, and no representation. No petition filed either for adjournment or for removal. Admittedly it is included in the Special List. It do not find any ground to adjourn the matter._ _In fine, no evidence adduced to enhance the rate of compensation already awarded. Hence reference stands rejected.”_ 4. IA No.454/2006 was filed under Order IX Rule 9 and Section 151 of CPC for restoration of the claim petition. IA No.454/2006 was allowed on 26.06.2006 on payment of costs of Rs.2000/- to the court, and further direction to pay Rs.1000/- each, from the said amount deposited to the respondent and DLSA respectively and to produce receipt on or before 29.06.2006. The appellant/petitioner failed to make the payment and hence the LAR stood dismissed. Subsequently, IA.Ns.321/2018 and 322/2018 were filed for setting aside the order dated 06.03.2006 for dismissal for default and also for condoning the delay in filing the petition. The court below dismissed the two petitions FAO No.159/2019 **==> picture [40 x 9] intentionally omitted <==** on 19.07.2018. Now the appellant has expressed her willingness to pay the costs ordered by the court below. The appellant has approached this court by challenging the order in I.A.No.454/2006 in LAR No.124/2003 on the file of the Sub Court, Hosdurg. 5. We have heard the learned counsel for the appellant and the learned Government Pleader. 6. The learned Government Pleader opposed the appeal stating that there were laches on the part of the appellant/claimant in prosecuting the case. The appellant had filed another petition for setting aside the _ex parte_ decree with delay condonation petition and that was also dismissed. Without challenging the said order, the appellant has filed this appeal to permit the appellant to pay costs ordered in the earlier petition for setting aside the _ex parte_ order. No sufficient reasons have been put forth by the claimant in filing the application for restoration and it is only to be dismissed with costs. 7. It is settled law that non-participation of the claimant, when the matter was taken up for hearing by the reference court, does not justify disposal of the case without proper consideration. The court below has to answer the reference by passing an award stating that the amount awarded is satisfactory or not. If the claimant does not participate in the inquiry before the reference court, she stands the risk FAO No.159/2019 **==> picture [40 x 9] intentionally omitted <==** of the award being passed detrimental to her interest. 8. In the decisions reported in **Khazan Singh v. Union of India** [2002(1) KLT 644 (SC)], **Krishna Pillai v. State of Kerala** [1988 (2) KLT 898], **Joseph v. Government of Kerala** [1991 (2) KLT 69 (DB)] and **Vilasini Amma v. State of Kerala** [2007 (3) KLT SN 72 (C.No.92) (DB)], it was held that once the matter is referred to the reference court under Section 18 of the LA Act, that court cannot close the reference, but, has to pass an award on merits. In **Kunjayyan v. State of Kerala** [2012 (1) KLT 799], it was held that the reference application for reference under Section 18 of the LA Act cannot be dismissed for default, whereas the court has to pass an award on merits. Further, in **Rajmani v. Collector, Raipur** [1997 (1) KLT SN 5 (C.No.6) SC], it was held that 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 the open market. The reference court cannot abdicate its statutory function of answering the reference by dismissing the same for default for the reason that the claimant, on whom the burden lies, has remained absent. 9. The claimant was absent on the date of posting on 06.03.2006 and there was no representation from the side of claimant. The reference was rejected, without any proper consideration of the case. It FAO No.159/2019 **==> picture [40 x 9] intentionally omitted <==** is a judgment passed without consideration on merits. The restoration petition, I.A.No.454/2006 filed by the petitioner was allowed on payment of costs, which was not complied with. Later, in the year 2018, petitions were filed for setting aside the exparte decree along with a petition to condone the delay in filing the same. Those petitions were also dismissed. The appellant has now filed this appeal, challenging the order in I.A.No.454/2006. I am not considering the legality of these petitions filed by the appellant for the reason that the Judgment in LAR No.124/2003 is passed without answering the reference on merits. In **Kunjayyan's case (supra),** it was held that when the court does not possess the jurisdiction to dismiss the reference for default, it ought to have rectified the mistake and remedied the injustice by allowing the restoration petition filed by the claimant. It was further held that the court's concern is to undo the wrong done to the party and not to allow technicalities to triumph. The court below, instead of allowing the petition on costs, ought to have allowed the same unconditionally, by correcting the mistake done by the court in dismissing the reference case without answering on merits. 10. Hence, we are of the view that the appellant/claimant is entitled to succeed and the order in I.A.No.454 of 2006 is liable to be set aside. However, it is brought to our notice that this appeal was filed FAO No.159/2019 **==> picture [40 x 9] intentionally omitted <==** on 27.08.2019. The delay of 4717 days in filing the above appeal was condoned by this court on 27.10.2022 for the reason that a serious error was committed by the Land Acquisition Court by dismissing the reference rather answering the reference with available materials and also observing that the appellant will not entitled for any benefit of interest for the period covered by delay. However, it is noticed that for the past three years, there were laches on the part of the appellant/claimant in bringing up the case before this court for disposal. Hence, we are of the view that if the court below orders enhanced compensation, the claimant will not be entitled for interest on the enhanced amount, for the period of delay in filing this appeal and till the date of this Judgment. In the result, the appeal is allowed. The order inasmuch as it relates to IA No.454/2006 in LAR No.124/2003 is set aside. The judgment in LAR No.124/2003 is also set aside. The court below shall answer the reference after giving a reasonable opportunity to the claimant to adduce evidence. However, it is made clear that in the event of any enhancement being granted to the appellant, she shall not be entitled for interest on the enhanced amount, for the period of delay in filing this appeal and till the date of this Judgment. FAO No.159/2019 ..8.. The appellant is directed to appear before the court below on ## **01.12.2022.** **Sd/-** **A. MUHAMED MUSTAQUE** **JUDGE** **Sd/-** **SHOBA ANNAMMA EAPEN** **JUDGE** MBS/