Full Judgment Text
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PETITIONER:
RAJMANI
Vs.
RESPONDENT:
THE COLLECTOR, RAIPUR
DATE OF JUDGMENT: 25/07/1996
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
G.B. PATTANAIK (J)
CITATION:
1996 SCALE (5)700
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
This appeal by special leave arises from the order
passed by the learned single judge of the Madhya Pradesh
High Court on June 29, 1979 in C.R.No.439 of 1977. The
admitted facts are that the lands of the appellant came to
be acquired for a public purpose. The Land Acquisition
Officer made his award dated November 15, 1973 awarding
compensation @ Rs.1,000/- per acre. Dissatisfied therewith,
the respondent made an application on April 29, 1974 for
reference under Section 18. In furtherance thereof, a
reference came to be filed in the Court of the Additional
District Judge, Raipur. The District Judge found the
statement as required under Section 19 of the Land
Acquisition Act, 1894 [for short, the "Act"]. On July 1,
1975, he directed issuance of notice to the appellant. It
came to be adjourned from time to time for service on the
appellant. Ultimately, on February 2, 1976 in the
proceedings of the Court the notice was stated to have been
served on the appellant but no date thereon was put nor was
it signed by the witnesses. Accordingly, by proceedings
dated February 10, 1976 the reference Court passed order,
after setting him ex-parte dismissing the reference for
default and nil award. As against the order the appellant
filed an application under Order 9, Rule 13, CPC. The civil
Judge allowed the application and set aside the order
against which the State went in revision. The learned single
Judge in the impugned order has held that the application
for restoration does not lie. The only remedy open to the
appellant was to file an appeal under Section 54 of the Act
to the High Court. Thus this appeal by special leave.
The question is: whether the view taken by the High
Court is correct in law? It is contended by Shri Sahu,
learned counsel for the appellant, that the appellant had
not been served with the notice. As a consequence. when he
came to know of the award made by the reference Court
confirming the award of the Land Acquisition Officer within
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three days, he filed an application under Order 9, Rule 13,
CPC to set aside the ex-parte order and restoration of the
case so as to get an opportunity of being heard. The
Additional District Judge rightly set aside the order. The
view of the High Court was not correct in law. Shri
Agnihotri, learned counsel appearing for the State contended
that the order of the reference Court is not correct in law.
It was not an award of the court. In other words, every
award is not a decree and, therefore, the provisions of the
CPC do not apply to the given set of facts. The appellant is
not a defendant, Therefore, Order 9, Rule 13 does not apply
since reference Court is not a civil Court. Section 151 also
does not apply. Therefore, the view taken by the High Court
is correct in law. In support thereof, he places strong
reliance on the judgments of this Court in Deep Chand & ors.
v. Land Acquisition Officer & Ors. [(1994) 4 SCC 90] and
State of Mizoram v. Biakchhawna [(1995) 1 SCC 156].
With a view to appreciate the respective contentions,
it is necessary to read relevant provisions of the Act.
Section 53 of the Act envisages that "[s]ave in so far as
they may be inconsistent with anything contained in this
Act, the provisions of the C.P.C. shall apply to all
proceedings before the Court under this Act". It would thus
be clear that so long as there is no inconsistency between
the provisions of the Act and the C.P.C., all the provisions
contained in C.P.C. shall apply to the proceedings under the
Act. "Court" has been defined in Section 2 [d] of the Act.
to mean "a principal Civil Court of original jurisdiction
unless the appropriate Government has appointed a special
judicial officer within any specified local limits to
perform the functions of the Court under this Act", When
reference was made under Section 18, it should be to the
principal Civil Court of original jurisdiction or special
judicial officer within any specified local limits to
perform the functions of the Court. Section 19 envisages
that upon an application made under Section 18 in the manner
prescribed thereunder, the Collector should make reference
to the Court with all the information in writing, as
indicated in sub-section [1] of Section 19. The said
statement shall be attached with a schedule giving the
particulars of the notices served upon and of the statements
in writing made or delivered by, the parties interested
therein respectively. On receipt thereof, Section 20 enjoins
the court the service of the notice with a mandatory
language. The Court shall thereupon, cause notice served
upon the persons named in the reference including the Land
Acquisition Officer/Collector, as indicated in clauses (a)
to (c) of Section 20 giving and specifying the day on which
the Court will proceed to determine the objection and direct
the parties to appear before the Court on that clay. In
other words, it is the mandatory duty of the Court to have
the notices served on the persons, viz., the applicant or
all persons interested in the objection filed before the
Land Acquisition Collector, except if any of them gives
consent when produced to receive payment of the compensation
awarded and in case of objection relating to the area or the
amount of land acquired or the amount of the compensation
upon the Collector. Land Acquisition Officers upon the
receipt and after service of the notice, Section 22
envisages that every proceedings shall be taken in the open
Court and all persons entitled to practise in any civil
Court in a State shall be entitled to appear, plead and act
in such proceedings. It would thus be clear that upon an
application made under Section 18 of the Act the Land
Acquisition Officer/Collector, when he receives the
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application within the limitation prescribed under the Act,
is enjoined to make a reference as above mentioned in
section 19. Upon receipt of those applications, the Court
should case the notices notice served on the applicants, as
well as all interested persons and Land Acquisition
Officer/Collector. The notice required to be served as 5 of
the CPC and the manner of service has been indicated
thereunder. Therefore, it should be the duty of the Court to
have the notice served. It is seen that the notice was not
properly served on the applicant. It would appear that
notice was serve on the father of the appellant, Brij Mohan
Lal who is now found to have died on December an, It, i.e.,
much before the date of these alleged service. It would,
therefore be clear that the process has not duly effected
the service on the appellant. As a Consequence, he did not
have any occasion to appear before the Court.
The question then is: whether the application would be
under Order 9, Rule 9 or Order 9, Rule 13 or Section 151(2)?
It is settled law that the Statement under Section 19 in
terms of the objection under Section 18 of the Act is not
treated as a plaint. Upon service of the notice on the
claimant or interested person he is treated to be a
plaintiff and Land of conducting the proceedings as
envisaged under Section 22 of the Act. they are entitled to
be represented by counsel. On receipt of the application, it
is the duty of the claimant and burden is always upon him,
who seeks higher compensation to adduce evidence and prove
in the Court that the compensation awarded by the Collector
was inadequate and that the acquired lands possessed of
higher value for award or the compensation to be just and
adequate compensation. The Land Acquisition Officer is to
rebut the evidence adduced by the claimant/interested
person. The burden is always on the claimant. Ultimately, it
is the duty and power of the Court to determine just and
adequate compensation on relevant facts and law sitting in
the arm chair of a prudent purchaser in an open market. If
the notice is not served on the claimant, he is deprived of
his valuable opportunity. If the award in such circumstances
came to be passed after setting aside the claimant ex-parte,
though an appeal would lie under Section 54 of the Act
against such an award, alternative remedy is also available.
The appellate Court may not be in a position to decide the
correctness of the award except again to fall back upon the
question whether notice he properly served on the claimant
and whether his remaining ex-parte is correct in law. That
question could equally be gone into on an application filed
by the claimant either under Order 9, Rule 9 CPC or under
Order 9, Rule 13 or Section 151, CPC. We are of the view
that the appropriate provisions that would be applicable to
the claimant would be Order 9, Rule 9 read with Section 151,
CPC. Therefore, he has rightly filed an application though
under Order 9, Rule 13 But it could be treated as one under
Order Rule 9 read with Section 151, CPC. Section 26[2] of
the Act declares that the award is a decree obviously as
defined in Section 2(3) CPC and the ground in support
thereof is a judgment under Section 2(9) CPC. The appeal
under Section 54 would live dealt with under Order 41 CPC.
The ratio of Deep Chand’s case has no application to
the facts of this Case. In that case the question was:
whether an order passed by the Collector under Section 49
[1] of the Act is an award and whether it is appealable? It
was held to be neither a decree nor an award as no
adjudication was involved. in the order passed under Section
49 [1] and, therefore, no appeal would i.e under Section 96
of the C.P.C. or Section 54 of the Act. Equally, the ratio
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of Biakchhawna’s case [supra] has no application to the
facts of this case. Therein, without seeking reference under
Section 18 and the procedure to be followed under Sections
18 to 20 and 31, civil suit came to be filed for
determination or the compensation for the acquired land. It
was held that civil suit was not maintainable in view of the
inconsistency found in the Act, viz., determination of the
compensation on reference and an appeal thereunder to the
civil Court under Section 54. thus, the above two decisions
are of little assistance to the State. The ratio of v. State
of Maharashtra v. M.S. Hatkar [(1995) 3 SCC 316 ] also has
no application to the facts in this case. Therein, after the
decree and award passed under Section 26 became final an
application under Sections 152 and 151 CPC came to be filed
after the coming into force of the Amendment. Act. 68 of
1984, to amend the decree and to grant additional amounts,
as enjoined under Sections 23 [2] 28 and 23 [1-A] of the
Act. Therein, it was held that after the decree becomes
final, unless the decree is duly amended in accordance with
law, the civil Court has no jurisdiction to amend the decree
and pass additional amount under the Amendment Act.
Accordingly we hold that an application under Order 9,
Rule 9 read with Section 151, CPC is the proper remedy and
procedure. The Additional district Judge has rightly
entertained the application, setting aside the ex-parte
order.
The appeal is accordingly allowed. The order of High
Court stands set aside and that of the civil Court stands
restored. No costs.