Full Judgment Text
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CASE NO.:
Appeal (civil) 667 of 2002
PETITIONER:
KHAZAN SINGH (DEAD) BY LRS.
RESPONDENT:
UNION OF INDIA
DATE OF JUDGMENT: 24/01/2002
BENCH:
K.T. THOMAS & S.N. PHUKAN
JUDGMENT:
JUDGMENT
2002 (1) SCR 431
The Judgment of the Court was delivered by
THOMAS, J. Leave granted.
Can the reference made by a Collector under Section 18 of the Land
Acquisition Act, 1894, (for short ’the Act’) be dismissed for default? A
Civil Court dismissed the reference for default of the claimant as he
failed to be present when the matter was taken up. He made an unsuccessful
bid to have the reference restored to the file. The High Court also did not
help him as per the impugned order.
Appellants are the legal heirs of one Khazan Singh. Certain area of land
belonging to the said Khazan Singh was acquired under the provisions of the
Act and an award was passed by the Collector (Land Acquisition Officer) on
16.7.1984, fixing the compensation payable to the land owners. As Khazan
Singh was not satisfied with the amount fixed by the Land Acquisition
Officer he moved an application under Section 18 of the Act for making a
reference to the Civil Court. The Land Acquisition Officer, acting on the
said application made the reference. It was pending before the Court of a
District Judge. On 29.9.1997 the Additional District Judge dismissed the
reference on the premise that "neither the applicant nor his counsel
appeared in the Court on the said date".
In the meanwhile Khazan Singh died and the present appellants filed an
application quoting Order 9 Rule 9 and Section 151 of the Code of Civil
Procedure, (’Code’ for short) for restoration of the reference. The
Additional District Judge rejected the said petition on the ground that
there was no sufficient cause for the absence of the appellant or his
counsel on 29.9.1997.
Appellants thereafter filed an appeal before the High Court. The learned
Single Judge of the High Court dismissed the appeal, mainly on the ground
that absence of the appellant and his counsel has not been satisfactorily
explained, and also on the ground that there was unexplained delay in
moving the application for restoration. It is said judgment of the High
Court which is now being challenged in this appeal.
Section 18 of the Act empowers a person interested in the land to move by a
written application to the Collector requiring that the matter be referred
for determination of the Court, whether his objection be to the measurement
of the land, the amount of compensation, the person to whom it is payable,
or the apportionment of the compensation among the persons interested. If
the application for reference is in order the Collector is bound to make a
reference of it to the Court. Section 20 of the Act enjoins on the Court to
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"proceed to determine the objection". The Court shall after holding such
inquiry as may be necessary pass an award. Section 26 of the Act reads
thus:
"26. Form of Awards.-(1) Every award under this Part shall be in writing
signed by the Judge, and shall specify the amount awarded under clause
first of sub-section (1) of Section 23, and also the amounts (if any)
respectively awarded under each of the other clauses of the same sub-
section, together with the grounds of awarding each of the said amounts.
(2) Every such award shall be deemed to be a decree and the statement of
the grounds of every such award a judgment within the meaning of Section 2,
clause (2) and Section 2, clause (9), respectively, of the Code of Civil
Procedure, 1908."
The provisions above subsumed would thus make it clear that the Civil Court
has to pass an award in answer to the reference made by the Collector under
Section 18 of the Act. If any party to whom notice has been served by the
Civil Court did not participate in the inquiry it would only be at his risk
because an award would be passed perhaps to the detriment of the concerned
party. But non-participation of any party would not confer jurisdiction on
the Civil Court to dismiss the reference for default.
It appears that various High Courts have taken the aforesaid view in a
number of decisions: Abdul Kareem v. State of M.P., AIR (1964) MP 171;
Munda v. Oraon, AIR (1970) Patna 209; Sanai v. State, AIR (1974) Patna 176;
Joseph v. Government of Kerala, [1991] 2 Kerala Law Times 69 and Jogi Sahu
v. Collector, AIR (1991) Orissa 283.
In Joseph v. Govt. of Kerala, (supra) Paripoornan, J. (as he then was)
speaking for a Division Bench has made reference to two earlier decisions
of single Judges one by the same High Court and the other by the Karnataka
High Court which held the same view.
In Jogi Sahu v. Collector, AIR (1991) Orissa 283 Pasayat, J. (as he then
was) further held that an application for restoration of the reference can
be entertained under Section 151 of the Code albeit the same was filed
quoting order 9 Rule 9 of the Code.
In the result, we allow this appeal and set aside the order passed by the
Additional District Court on 29.9.1997 by which the reference was dismissed
for default. The said District Court will now proceed to answer the
reference in accordance with the law and pass award as envisaged in Section
26 of the Act. Appeal is disposed of accordingly.