IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 23 of 2004()
1. FOUSIYA, D/O. ABOOTTY, GOLDEN ENCLAVE
... Petitioner
Vs
1. THE SPEIAL TAHSILDAR (LA),
... Respondent
For Petitioner :SRI.P.V.KUNHIKRISHNAN
For Respondent : No Appearance
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :25/05/2009
O R D E R
P.R. RAMAN & P. BHAVADASAN, JJ.
= = = = = = = = = = = = = = = = = = = =
F.A.O. NO. 23 OF 2004
= = = = = = = = = = = = = = = =
DATED THIS, THE 25TH DAY OF MAY, 2009.
J U D G M E N T
Raman, J.
Appellant is the petitioner/claimant in a land acquisition reference
case claiming enhancement of compensation awarded for the acquisition of
the property. The land acquisition reference ended in dismissal of the claim
as evidenced by the order Annexure-A produced in the case. Even if the
party is absent the court cannot dismiss the reference rather based on
evidence and materials available on record, the land acquisition court is
ought to have passed an award. A Bench decision of this Court reported in
Joseph v. Government of Kerala (1991(2) KLT 69) supports the
contention of the petitioner that court cannot dismiss a reference made
under Section 18 of the Land Acquisition Act and that it is bound to pass
an award. Whether in such circumstances an application under Order IX
Rule 9 is maintainable or not arises for consideration.
2. In the light of the Apex Court decision reported in Rajmani v.
Collector, Raipur, (1996(5)SCC 701), followed in Shahida Beevi v. State
FAO 23/2004 :2:
of Kerala (2008(1) KLT 206), the position is well settled that a party whose
reference application is dismissed for default is entitled to either file an
application under Order IX Rule 9 or he can file an application under
Section 151 Simplicitor for setting aside the order and to restore the case on
file, since the Court cannot dismiss the reference application for default.
3. In the result, we allow this appeal and L.A.A. 281/1994 will stand
restored to file. The Land Acquisition Court will proceed to pass the award
on merits after a fresh opportunity is given to both sides.
However, we have to notice that the court below dismissed the
reference application on 16.3.1996. But the Order IX Rule 9 application
was filed only on 26.3.2003, after seven years. Thus there is inordinate
delay for the petitioner in approaching the Court. Accordingly, we direct
that in case any enhancement is granted, the period from the date of
dismissal of reference application till the filing of the application under
Order IX Rule 9, ie. from 16.3.1996 to 26.3.2003 will be excluded for the
purpose of calculating the interest.
P.R. RAMAN, JUDGE.
P. BHAVADASAN, JUDGE.
KNC/-