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1993 DIGILAW 51 (KAR)

AGRICULTURAL PRODUCE MARKET COMMITTEE, HIRIYUR v. STATE OF KARNATAKA

1993-02-26

A.J.SADASHIVA, K.A.SWAMI

body1993
K. A. SWAMI, J. ( 1 ) THIS writ appeal is preferred against the order dated 19th January, 1993 passed by the learned single Judge, in Writ Petition No. 26242 of 1992, The learned single judge has rejected the writ petition. Therefore the petitioner has come up in this appeal. ( 2 ) IN the writ petition, the petitioner-appellant sought for a declaration that thejudgment and award passed in L. A. C. No, 90 of 1980, dated 21-9-1992 and 27-9-1982 respectively, by the Civil Judge, Chitradurga, was null and void. The petitioner has also sought for a further declaration that the Judgment and award passed by a division Bench of this court in MFA No. 1732 of 1982 connected with 314 of 1982, dated 19th November, 1990 and 18th February, 1991 respectively, modifying the award passed by the Civil Judge and enhancing the compensation amount are null and void. The petitioner has also sought for further direction to the Civil Judge, chitradurga, to take up L. A. C. No. 90 of 1980 and to decide the same afresh after affording an opportunity to the petitioner-appellant. ( 3 ) THE learned single Judge has rejected the writ petition on the ground that theawards passed by the Civil Court are merged with the orders of this court and as such, the same can be challenged either by filing a review petition or carrying the matter in appeal to the superior court, but not by way of writ petition under Article 226 of the Constitution. Therefore, it has been held by the learned single Judge that this court cannot issue a writ quashing the aforesaid awards passed by the Civil judge as modified by this court. Apart from this, the learned single Judge has also taken into consideration the circumstance that the appellant-petitioner, after the awards were passed by the Civil Judge in the year 1982, had paid the amount. ( 4 ) HOWEVER, before us, it is contended by Sri Devadas, learned counsel for theappellant, that the acquisition in question was made for the benefit of the appellant; as such, as per the provisions contained in Section 20 of the LAND ACQUISITION ACT, 1894, it was incumbent upon the Givil Court to issue a notice to the appellant and to afford an opportunity to adduce evidence and to participate in the proceedings. No such opportunity was given to the appellant, as such, according to the learned counsel for the appellant, as held by the Supreme Court in Neelagangabai v State of Karnataka, air 1990 SC 1321 , the awards are notbinding upon the appellant; as such the same are null and void, therefore the LAC No. 90 of 1980 has to be re-heard and decided by the Civil Court. ( 5 ) IT appears to us that it is not possible to accept the contentions of the learnedcounsel for the appellant, in the facts and circumstances of the present case. In neelagangabai's case, there was an award passed by the Civil Court by way of compromise. That award was challenged in an appeal before this court and the appeal was also found to be not maintainable; therefore this court did not either confirm or modify the award passed by the Civil Court. It only rejected the appeal on the ground that it was not maintainable as no consent decree or award can be appealed having regard to the provisions contained in sub-section (3) of Section 96, C. P. C. It was under these circumstances, the Supreme Court held that the award passed by the civil Court was a nullity; therefore the Supreme Court directed the matter to be retried afresh with notice to the party for whose benefit the acquisition was made. The relevant portion of the Judgment in Neelagangabai's case, may be noticed:"2. It is common ground that after the case was received by the Civil Court on reference, no notice was issued to the respondent-Corporation. The court did not, however, proceed to take evidence and record its own finding on the valuation, as it was conceded on behalf of the State Government that the market value of the land could be calculated at the rate of Rs, 3,800/- per gunta. The court answered the reference on the basis of the consent of the land owners and the Slate. The State, however, was not satisfied with the award and filed an appeal which was dismissed on the ground of being not maintainable as the impugned Judgment was held to be a compromise decree. An attempt by the respondent-Corporation to intervene also failed. The State, however, was not satisfied with the award and filed an appeal which was dismissed on the ground of being not maintainable as the impugned Judgment was held to be a compromise decree. An attempt by the respondent-Corporation to intervene also failed. The Corporation thereafter moved the High Court with a writ petition under Article 226 of the Constitution, inter alia, challenging the validity of the Civil Court's Judgment directing higher compensation to be paid. 3. Admittedly the land was acquired for the purpose of the respondent Corporation and the burden of payment of the compensation is on the Corporation. In this background the High Court has held that it was mandatory for the court of reference to have caused a notice served on the respondent Corporation before proceeding to determine the compensation claim. Since no notice was given to the respondent-Corporation and it was thus deprived of an opportunity to place its case before the court, the Judgment rendered in the reference case was illegal and not binding on the Corporation. We are in agreement with this view. Section 20 of the Land Acquisition act as applicable to the State of Karnataka reads as follows: "20. Service of notice. The court shall thereupon cause a notice, specifying the day on which the court will proceed to determine the reference, and directing their appearance before the court on that day, to be served on the following persons, namely: (a) the Deputy Commissioner; (b) all persons interested in the reference; and (c) if the acquisition is not made for Government, the person or authority for whom it is made. " in view of the clear language used in clause (c) of Section 20, mentioned above, there cannot be any doubt that the respondent-Corporation was entitled to be heard before the reference could be determined. The High court has also relied upon the decision in Himalayan Tiles and Marbles (P) Ltd v Francis Victor Count in/to (dead) by L. Rs. , (1980)3 SCR 235 : air 1980 SC 1118 , wherein the expression "person interested" was interpreted liberally so as to include an authority like the Corporation in the present case, but in view of the further provision specifically mentioning in clause (c) the authority for whom the acquisition is made it is not necessary to interpret clause (b) of Section 20 in the present appeal. We accordingly confirm the direction of the High Court as contained in the impugned Judgment that the Principal Civil Judge, Hubli, should reopen the proceedings in the L. A. Case No. 64 of 1979 and decide the matter afresh after giving the Corporation a chance to lead its evidence on the question of valuation. Since the matter is an old one, the respondent Corporation is hereby directed to appear in the said case within 3 weeks from today without waiting for any further notice. The appeal is dismissed with costs. "therefore, it is clear that the aforesaid decision cannot be applied to the present case; wherein, the award was passed on merits by the Civil Court and the same was challenged before this court and this court, modified the award and enhanced the compensation. Therefore, the question of law that arises for consideration in this appeal is as to whether a writ would lie under Article 226 of the Constitution against the award passed by this court in exercise of its jurisdiction under Section 96, C. P. C. read with Section 54 of the LAND ACQUISITION ACT, 1894. A writ of certiorari does not lie against the order, decision or judgment of the High Court passed in exercise of its jurisdiction under different enactments. In Ratilal Balabhai Nazar v Ranchhobhai shankerbhai Patel and Another, reported in (1969)11 S. C. W. R. 773, the question came up for consideration as to whether the jurisdiction under Article 227 of the constitution can be exercised by the High Court against its own order. In that case, the order passed by the subordinate court was challenged in a revision application before the High Court and the High Court dismissed the revision application. Thereafter, a writ petition was filed under Article 227 of the Constitution, for setting aside the order of the City Civil Court. The High Court dismissed the writ petition. Against that order, an appeal was preferred before the Supreme Court with special leave. The supreme Court held thus:"2. Thereafter, a writ petition was filed under Article 227 of the Constitution, for setting aside the order of the City Civil Court. The High Court dismissed the writ petition. Against that order, an appeal was preferred before the Supreme Court with special leave. The supreme Court held thus:"2. Once the order of the City Civil Court was challenged in a revision application, before the High Court and the High Court dismissed the application, the order of the City Civil Court got merged into the order of the High court, and when appeal was filed against the order of the High Court to this Court to this court, the order of the High Court merged into the judgment of this court. The High Court of Gujarat thereafter could not be moved by a petition under Article 227 of the Constitution challenging the order of the City Civil Court. It is clear that the appellant by his petition sought to ignore the orders passed by the High Court and the orders of this court, and claimed relief on the footing that the order of the City Civil court was erroneous. Such a petition was in our judgment, plainly incompetent. The appeal is dismissed with costs. "in Shankar Ramachandra Abhyankar v Krishnaji Dattatraya Bapat reported in Alr 1970 SC 1, it was held by the Supreme Court that an order passed by the High Court under Section 115, C. P. C. cannot be set aside in a petition under Articles 226 and 227 of the Constitution. In para 8 of the Judgment the Supreme Court observed thus:"even on the assumption that the order of the appellate court had not merged in the order of the single Judge who had disposed of the revision petition we are of the view that a writ petition ought not to have been entertained by the High Court when the respondent had already chosen the remedy under Section 115 of the code of Civil Procedure. If there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate court. If there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate court. The refusal to grant relief in such circumstances would be in consonance with the anxiety of the court to prevent abuse of process as also to respect and accord finality to its own decisions. "therefore, we are of the view that the learned single Judge is justified in holding that the award passed by this court can either be challenged by way of review, or by way of an appeal to the superior court and it cannot at all be interfered with, by issuance of a writ under Articles 226 and 227 of the Constitution. Hence, we sec no ground to admit this appeal. It is accordingly dismissed. --- *** --- .