P. Santha; S. Sindhu; S. Lalu v. Kerala State represented by the District Collector, Kollam, and I.R.E. Limited

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 2ND AUGUST 2011 / 11TH SRAVANA 1933** **OP(C).No. 2507 of 2011(O)** **--------------------------------------** **LAR.14/1993 OF ADDITIONAL SUB COURT, KOLLAM** **....................** ## **PETITIONERS:** - **--------------------** **1. P. SANTHA, W/O.SARASAN, PULLUMPURATHYTHARA, ALAPPAD VILLAGE, NOW RESIDING AT SNEHALAYAM VEEDU, KULANGARA BHAGOM, CHAVARA. P.O, KOLLAM DISTRICT.** **2. S. SINDHU, DAUGHTER OF SANTHA PULLUMPURATHYTHARA, ALAPPAD VILLAGE, NOW RESIDING AT SNEHALAYAM VEEDU, KULANGARA BHAGOM, CHAVARA. P.O, KOLLAM DISTRICT.** **3. S. LALU, SON OF SARASAN, PULLUMPURATHYTHARA, ALAPPAD VILLAGE, NOW RESIDING AT SNEHALAYAM VEEDU, KULANGARA BHAGOM, CHAVARA. P.O, KOLLAM DISTRICT.** **BY ADV. SRI.JOHNSON GOMEZ, SRI.S.BIJU (KIZHAKKANELA).** ## **RESPONDENT(S):** **--------------------------** **1. KERALA STATE, REPRESENTED BY THE DISTRICT COLLECTOR, KOLLAM, PIN-691 013.** **2. I.R.E. LIMITED, CHAVARA, KOLLAM, REPRESENTED BY THE GENERAL MANAGER, PIN-691 583.** **R1 BY GOVT. PLEADER MR.T.K. SAJEEV. R2 BY ADV. MR.E.K. NANDAKUMAR.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs** ## **OP(C).No. 2507 of 2011(O)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE ORDER DATED 13/12/2001 IN LAR NO.14/1993 PASSED BY THE ADDITIONAL SUB COURT, KOLLAM.** **EXT.P2: COPY OF THE ORDER DATED 07/01/2008 IN I.A. NO.143/2006 PASSED BY THE ADDITIONAL SUB COURT, KOLLAM.** **EXT.P3: COPY OF THE ORDER DATED 07/01/2008 IN I.A. NO.144/2006 PASSED BY THE ADDITIONAL SUB COURT, KOLLAM.** **EXT.P4: COPY OF THE I.A. NO.2846/2010 DATED 13/07/2010 FILED BY THE PETITIONERS BEFORE THE SUB COURT, KOLLAM.** **EXT.P5: COPY OF THE I.A. NO.2845/2010 DATED 13/07/2010 FILED BY THE PETITIONERS BEFORE THE SUB COURT, KOLLAM.** **EXT.P6: COPY OF THE ORDER DATED 16TH SEPTEMBER 2010 IN I.A. NO.2846/2010 PASSED BY THE ADDITIONAL SUB COURT, KOLLAM.** **EXT.P7: COPY OF THE ORDER DATED 16/09/2010 IN I.A. NO.2845/2010 PASSED BY THE ADDITIONAL SUB COURT, KOLLAM.** ## **RESPONDENT'S EXHIBITS: NIL.** ## **//TRUE COPY//** **P.S. TO JUDGE** **rs** ## **THOMAS P.JOSEPH, J.** **==================================== O.P(C) No.2507 of 2011 ==================================== Dated this the 02[nd] day of August, 2011** ## **J U D G M E N T** Leaned Government Pleader appears on behalf of the first respondent. Second respondent appears through Advocate Shri E.K. Nandakumar. 2. Legal representatives of the original claimant in LAR No.14 of 1993 of the court of learned Additional Sub Judge, Kollam are the petitioners before me challenging Ext.P2, P3, P6 and P7 orders. On the request of the original claimant there was a reference to the court of learned Additional Sub Judge, Kollam since the original claimant claimed enhanced compensation. Leaned Sub Judge passed Ext.P1, order dated 13.12.2001 that the original claimant remained absent, no evidence was adduced and there is no material to determine just and fair compensation. The award passed by the Land Acquisition Officer was accepted and reference was answered against the original claimant. After 1454 days petitioners filed I.A. Nos.143 and 144 of 2006 for restoration (as if the reference was dismissed for default) and to condone delay in filing that application. In that application it was stated ## **O.P(C) No.2507 of 2011** -: 2 :- that the original claimant expired on 29.05.2003. Learned Sub Judge disposed of I.A. No.144 of 2006 as per Ext.P3, order observing that there was no representation for petitioners, there was no application to implead them as additional claimants in the reference case and on account of death of the original claimant on 29.05.2003 the reference stood abated. Learned counsel for petitioners submitted that consequent to Ext.P3, order, I.A. No.143 of 2006 also was dismissed. Thereafter petitioners filed Ext.P4, application for their impleadment as additional claimants. They also filed Ext.P5, application for review of Exts.P2 and P3, orders. Learned Sub Judge passed Ext.P7, order on Ext.P5, application observing that there is a delay of 3285 days and that no sufficient reason is stated to condone the delay. Exhibit P4, application was dismissed as per Ext.P6, order stating that no evidence is produced to show that petitioners are the legal representatives of the deceased original claimant. It is thus that petitioners have come to this Court challenging Exts.P2, P3, P6 and P7, orders. Learned counsel for petitioners contended that petitioners were unaware of the pendency of the reference proceedings and it is only by the time they filed I.A. Nos.143 and 144 of 2006 that they learned that reference proceeding was **O.P(C) No.2507 of 2011** ## -: 3 :- closed by Ext.P1, order, dated 13.12.2001. In the circumstances it is prayed that the impugned orders may be set aside, reference proceeding be re-opened and petitioners be given opportunity to adduce evidence in support of the claim for enhanced compensation. 3. Learned Government Pleader appearing for first respondent contended that there is contumacious negligence and delay on the part of petitioners. It is contended that version of petitioners that they were unaware of the proceeding cannot be accepted. At any rate petitioners may not be allowed to claim interest from the date of closure of proceeding till it is resurrected if at all this Court decided to do so. Reliance is placed on the observation made by the Division Bench in **Shahida Beevi v. State of Kerala** (2008 [1] KLT 206 – paragraph 8). Learned counsel for second respondent resisted the request of petitioners and supplemented arguments of learned Government Pleader. 4. It is not disputed that the original claimant expired on 29.05.2003. Exhibit P1, order was passed on 13.12.2001 at a time when the original claimant was alive. It is not a case of dismissal of the reference proceedings for default as petitioners ## **O.P(C) No.2507 of 2011** -: 4 :- would describe it. It is a case where reference was answered against the original claimant for the reason that he was not present and had not produced evidence to show that award passed by the Land Acquisition Officer was not correct. 5. But the mere fact that on I.A. No.143 of 2006 prayer is for restoration (as if reference was dismissed for default) need not deter this Court from granting relief to the petitioners if they are otherwise entitled to that. I am aware that when a statutory remedy of appeal is available this Court must be slow in exercising the supervisory jurisdiction under Article 227 of the Constitution. But it is not as if in appropriate cases that jurisdiction cannot be exercised. 6. So far as Ext.P3, order on I.A. No.144 of 2006 (to condone delay in filing I.A. No.143 of 2006) is concerned learned Sub Judge has committed a mistake in my view since learned Sub Judge appeared to have been under the impression that by the death of the original claimant on 29.05.2003, reference proceeding abated. It was for the said reason, mainly, that I.A. No.144 of 2006 was dismissed. Exhibit P4, application for impleadment and Ext.P5, application for review were also dismissed as if reference proceedings stood abated and there ## **O.P(C) No.2507 of 2011** ## -: 5 :- was no application for impleadment and setting aside abatement on time. But as aforesaid the basic premise on which learned Sub Judge has proceeded is as if reference proceedings have abated consequent to the death of the original claimant on 29.05.2003. That view of the learned Sub Judge cannot stand. On the question whether provisions of Order XXII Rule 3 of the Code of Civil Procedure (for short, “the Code) would apply to a reference under Section 18 of the Land Acquisition Act (for short, “the Act”), there are divergent decisions of various other High Courts. The Calcutta High Court in **State v. Dwijendra Chandra** (AIR 1979 Cal 182) held that Order XXII of the Code is applicable to reference proceeding also in view of Sec.53 of the Act which made the provisions of the Code applicable to reference proceeding so far as it is not inconsistent. The Gujrat High Court in **A.Abasbhai v. Collector, Panch Mahala** (AIR 1967 Guj. 118) has taken the view that the time limit provided under Article 176 of the Limitation Act, 1908 for impleadment of legal representatives is not applicable to reference proceedings as it is not a 'suit'. The Madhya Pradesh High Court in **Abdul Karim v. State of M.P.** (AIR 1964 MP **O.P(C) No.2507 of 2011** -: 6 :- 171) has held that Order XXII of the Code does not apply to the proceedings under Sec.18 of the Act. 7. The above divergent views were considered by a learned Judge of this Court in **Joseph v. Special Tahsildar** (2007 (4) KLT 840) and the leaned Judge was inclined to follow the view of the Madhya Pradesh High Court that provisions of Order XXII of the Code has no application to proceeding under Sec.18 of the Act. Reasoning adopted is that once reference is made, reference court is bound to answer it whether the claimant is present or not. Regarding the death of claimant it is observed that if death occurred before the reference was made, it was the responsibility of the Land Acquisition Officer to make available details of legal representatives of the deceased claimant before the reference court so that, the reference court could issue notice to such legal representatives. But once the original claimant has received the notice and appeared in court, there is no such obligation on the Land Acquisition Officer and then it was the responsibility of the legal representatives to come forward with appropriate application for impleadment. Learned Judge took the view that Order XXII of the Code has no application to proceedings under Sec.18 of the Act. I am inclined to agree with **O.P(C) No.2507 of 2011** ## -: 7 :- that view on the above reasoning. 8. There is yet another aspect which I should bear in mind. Question of abatement arises only when death occur during the pendency of proceeding. Here, reference was closed by the learned Sub Judge as per Ext.P1, order dated 13.12.2001. The original claimant died on 29.05.2003. At the time of death, the reference was not pending. Hence the question of abatement does not arise. In the circumstances, the view taken by the learned Sub Judge that proceeding abated cannot stand. 9. I stated that dismissal of I.A. Nos.143 and 144 of 2006 and Exts.P4 and P5 applications were basically on the premise that reference proceeding abated and that application for impleadment is preferred after the prescribed time. In the forgoing paragraphs I found that question of abatement does not arise. 10. So far as the delay is concerned there cannot be any dispute that huge delay is involved – 3285 days. But so far as that delay is concerned I must bear in mind that in the year 2006 petitioners had filed I.A. No.143 and 144 of 2006 and therefore the delay was in the matter of impleadment and setting aside abatement which I said is not applicable to the reference ## **O.P(C) No.2507 of 2011** ## -: 8 :- proceeding. Otherwise, delay in filing I.A. No.143 and 144 of 2006 is only 1454 days, that too, not a short period. Petitioners say that they were unaware of pendency of the reference proceeding. It is not shown that said statement of petitioners is not correct. At the same time on account of delay in the proceeding, respondents cannot be asked to suffer. In these circumstances I am inclined to think that ends of justice will be served if it is directed that from 13.12.2001 till this day petitioners shall not be entitled to get interest on the amount that may be awarded in case the reference is answered in favour of petitioners. That view is taken by the Division Bench in **Shahida Beevi v. State of Kerala** (supra). Original Petition is allowed in the following lines: (a) Exts.P2, P3, P6 and P7 orders are set aside and reference proceeding will stand reopened. (b) In case the reference is answered in favour of petitioners, they shall not be entitled to get interest on the amount awarded for the period from 13.12.2001 till this day (02.08.2011). ## **O.P(C) No.2507 of 2011** -: 9 :- (c) In case respondents dispute right of petitioners as legal representatives of the deceased original claimant, it is made clear that it is the obligation of the petitioners to prove the same to the satisfaction of the reference court. Parties shall appear in the reference court on 05.09.2011. ## **THOMAS P. JOSEPH, JUDGE.** vsv