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2010 DIGILAW 992 (KER)

Bainds Towers Pvt. Ltd. v. State of Kerala

2010-12-20

THOMAS P.JOSEPH

body2010
JUDGMENT Joseph P. Thomas, J. 1. Learned Government Pleader takes notice for respondent No.1. Notice to respondent Nos.2 and 3 is dispensed with in view of the order I propose to pass and in the light of the submission made by learned counsel for the petitioner about finding entered by the court below on the reference under Section 31(2) of the Land Acquisition Act 1894 (for short 'the Act'). 2. There were two references, under Sections 18(1) and 31(2) of the Act. Learned counsel for the petitioner tells me that the reference under Section 31(2) has been answered in favour of petitioner/ additional claimant and he has received compensation awarded. When the matter was pending in the reference court (L.A.R. No.256/07 of the Sub Court, Thiruvananthapuram). Petitioner wanted an additional claim statement to be filed in the said case and did so, along with I.A.No.7904/2009 to receive the additional claim statement. Learned Sub Judge, vide Ext.P3, order rejected I.A.No.7904/2009, holding that there is no provision to receive any such additional claim statement. Ext.P3 order is under challenge. 3. Learned counsel for petitioner contended that Ext.P3, order is not sustainable and that the additional claim statement filed along with I.A.No.7904/2009 must be treated as a subsequent pleading which could be entertained by the court invoking Rule 9 of Order VIII of the Code of Civil Procedure (for short 'The Code'). I have heard learned Government Pleader also in this regard. 4. Learned Sub Judge was in error in holding that there is no provision to receive an additional claim statement. Section 25 of the Act states that the amount of compensation awarded by the court shall not be less than the amount awarded by the court under Section 11. Though it is not as if the court therefore has unfettered power to pass award for any amount by way of compensation, it is clear from Section 25 that it is open to the court to award compensation more than what has been awarded by the Collector under Section 11 of the Act. The procedure before reference court is governed by the provisions of the Code so far as it is not inconsistent with any other provisions of the Act, as Section 53 of the Act states. The procedure before reference court is governed by the provisions of the Code so far as it is not inconsistent with any other provisions of the Act, as Section 53 of the Act states. In the matter of reception of additional claim statement, there is no provision in the Act which is inconsistent with the provisions of order VIII of the Code. 5. Rule 378 of the Civil Rules of practice (for short 'the Rules of practice') deals with service of notice and trial of references. Sub Rule 3 says that the application before the Collector for references shall be treated as a plaint and that investigation shall be with reference to the claim made therein. Sub Rules 4 says that claimants may, and, if so required by the court, shall, at or before the first hearing or within such time as the court may permit, present written statement settling out their claim in full. Under Sub Rule 5, the Collector, the Company and the local authorities may and if so required by the court shall, file a reply statement. Sub Rule 6 says that the statements filed under Sub Rules 4 and 5 shall together with the application for reference constitute pleadings in the case and that Rules in Order VII and VIII of the Code shall apply mutatis mutandis to such statements. 6. The above Sub Rules of Rule 378 of the Rules of practice read along with Section 53 of the Act referred to above leaves me in no doubt that it is within the power of reference court to receive a subsequent pleadings as referred to in Rule 9 of Order VIII of the Code. In that view of the matter, learned Sub Judge was not correct in holding that there is no provision to receive additional claim statement. 7. On the question whether petitioner should be allowed to file claim statement, learned counsel submitted that petitioner had submitted a preliminary written statement along with document (in answer to the reference under Section 31(2) of the Act) and that petitioner wanted to submit a detailed written statement regarding enhancement of compensation. 8. Ext.P2 is the copy of I.A.No.7904/2009. 7. On the question whether petitioner should be allowed to file claim statement, learned counsel submitted that petitioner had submitted a preliminary written statement along with document (in answer to the reference under Section 31(2) of the Act) and that petitioner wanted to submit a detailed written statement regarding enhancement of compensation. 8. Ext.P2 is the copy of I.A.No.7904/2009. Having gone through the affidavit in support of Ext.P2, I am inclined to think that petitioner could be given opportunity to file additional claim statement, of course without prejudice to the right of the respondent No.1 to file reply statement, if any to such additional statement. Resultantly, this petition is allowed in the following lines. (i)Ext.P3, order rejecting I.A No.7904/2009 in L.A.R. No.256/2007 of the Court of learned Sub Judge, Thiruvananthapuram is set aside. (ii) I.A. No.7904/2009 is allowed and the learned Sub Judge shall receive the additional claim statement filed by petitioner. (iii)Learned Sub Judge shall give sufficient opportunity to respondent No.1 or any other contesting respondent if any to file reply statement in answer to the additional statement of petitioner.