Vazhavalappil Santha v. Special Tahsildar Land Acquisition (National Highways), Kannur; Executive Engineer NH Division, Kannur; State of Kerala represented by District Collector, Kasaragod

## **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 28[TH] DAY OF OCTOBER 2022 / 6TH KARTHIKA, 1944 FAO NO. 127 OF 2019** **[AGAINST THE ORDER dtd.21/02/2007 in IA NO.1035/2006 IN LAR 150/2003 OF SUBORDINATE JUDGE'S COURT, HOSDURG] APPELLANT/PETITIONER/CLAIMANT:** VAZHAVALAPPIL SANTHA AGED 58 YEARS D/O. K. V. KUNHIKANNAN (LATE), CHEETTAKKAL HOUSE, KARIAMKODE, P. O. CHATHAMATH, PEROLE 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 REPRESENTED BY DISTRICT COLLECTOR, KASARAGOD, PIN - 671121. BY ADV GOVERNMENT PLEADER THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 28.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: FAO No.127/2019 ..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 21.02.2007 passed by the Land Acquisition Reference Court, namely, the Court of Subordinate Judge, Hosdurg, dismissing IA No. 1035/2006 in LAR No.150/2003, which is the petition for restoration of the claim petition. 2. The appellant is the claimant in LAR No.150/2003. 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 7.087 cents [2.84 ares in Re.Sy.No.717/5B of Perole 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, FAO No.127/2019 **==> picture [40 x 9] intentionally omitted <==** 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.150/2003 before the Sub Court, Hosdurg. 3. The reference case, LAR No.150/2004 under Section 18 of the LA Act was posted for hearing on 25.09.2006. 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._ _2. Today when the reference is called the claimant was absent and not represented. His advocate was absent and also no representation. No petition was filed either for adjournment or for the removal of the reference from the list. It is included in the special list. No additional evidence also adduced in order to enhance the compensation. In these circumstances, I am convincingly satisfied that there is no necessity to adjourn the matter. In the result, the reference is answered against the claimant.”_ 4. IA No.1035/2006 was filed under Order IX Rule 9 and Section 151 of CPC for restoration of the claim petition. IA FAO No.127/2019 **==> picture [40 x 9] intentionally omitted <==** No.1035/2006 was dismissed on 21.02.2007, stating that the claimant failed to adduce sufficient evidence from appearing before the court below. Aggrieved by the same, the appellant has filed this appeal before this Court. 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 and sufficient reasons have not been put forth by the claimant in filing the application for restoration. 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 of the award being passed detrimental to her interest. 8. In the decisions reported in **Khazan Singh v. Union of** FAO No.127/2019 **==> picture [40 x 9] intentionally omitted <==** **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. In this case, the claimant was absent on the date of posting on 25.09.2006 and there was no representation from the FAO No.127/2019 **==> picture [40 x 9] intentionally omitted <==** side of claimant. The reference was answered against the claimant but without any proper consideration of the case. Though the Judgment speaks about the answering of the reference, there is no discussion about the amount awarded or the satisfaction of the court is not recorded. It is a judgment passed without consideration 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, instead of dismissing the petition, ought to have allowed the same by correcting the mistake done by the court in dismissing the reference case for default. 10. The claimant filed I.A.No.1035/2006 for restoring the Reference Case. As held in **Kunjayyan's case (supra),** the court ought to have allowed the petition, since the reference was closed without recording satisfaction on the award amount passed. Hence, we are of the view that the appellant/claimant is entitled to FAO No.127/2019 **==> picture [40 x 9] intentionally omitted <==** succeed and the order in I.A.No.1035/2006 is liable to be set aside. However, it is brought to our notice that this appeal was filed on 27.06.2019. 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. 11. In the result, the appeal is allowed. The order inasmuch as it relates to IA No.1035/2006 in LAR No.150/2003 is set aside. The judgment in LAR No.150/2003 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.127/2019 **==> picture [40 x 9] intentionally omitted <==** The appellant is directed to appear before the court below on **21.11.2022** . Sd/- ## **A. MUHAMED MUSTAQUE** **JUDGE** Sd **/-** **SHOBA ANNAMMA EAPEN JUDGE** MBS/