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2002 DIGILAW 304 (HP)

THAKUR DASS v. LAND ACQUISITION COLLECTOR

2002-11-08

LOKESHWAR SINGH PANTA

body2002
JUDGMENT Lokeshwar Singh Panta, J. (Oral) :-This Revision petition arises out of the order dated 9.5.2002 passed by District Judge, Kinnaur Civil Division at Rampur Bushehar in case No. 46-R/4 of 2000 whereby the reference made by the Land Acquisition Collector-cum-SDO, Ani respondent No. 1 herein to the civil Court was dismissed in default by the learned District Judge. 2. Briefly stated the facts leading to filing of the petition are these: 3. It appears that the land of the present petitioner Thakur Dass and his brother Anant Ram Proforma respondent herein was acquired by respondent No. 1 for public purpose i.e. for Union of India through the Secretary (Defence) respondent No. 2 herein. The Land Acquisition Collector made an award on 19.3.1998. The petitioner and proforma respondent being not satisfied with the amount of compensation awarded to them by the Land Acquisition Collector, preferred Reference Application under section 18 of the Land Acquisition Act, 1894 which was referred to the learned District Judge by the Land Acquisition Collector. During the proceedings before the learned District Judge, it appears from the record of the Court that the petitioner and proforma respondent could not produce their evidence nor they could examine themselves in support of their claim for enhancement of the amount of compensation. The case was adjourned by the learned District Judge on various occasions as according to the petitioner, he was not well being aged person of about 86 years whereas proforma respondent could not appear due to accident in which he suffered injuries. On 30.7.2001 the petitioner and proforma respondent were allowed adjournment to produce evidence subject to costs of Rs. 250/- and the case was ordered to be listed on 18.8.2001. The petitioner and proforma respondent had not produced any evidence on 18.8.2001 nor process fee and diet money for the service of the witnesses were filed. From the perusal of the order dated 18.8.2001 of the learned District Judge, it reveals that Mr. Kapil Palsra, Advocate appearing for the claimants declined to represent them and in such circumstances the reference petition was dismissed in default by the court. Thereafter on 24.12.2001 the reference application was restored to file subject to payment of costs of Rs. 2000/- which was paid by the claimants to the District Attorney on 17.1.2002. Kapil Palsra, Advocate appearing for the claimants declined to represent them and in such circumstances the reference petition was dismissed in default by the court. Thereafter on 24.12.2001 the reference application was restored to file subject to payment of costs of Rs. 2000/- which was paid by the claimants to the District Attorney on 17.1.2002. When the case was taken up on 20.1.2002, the claimants examined one Mela Ram whereas the other witness, namely, Yog Raj was given-up as unnecessary. One more opportunity to produce their oral and documentary evidence was allowed by the court to the claimants for the next date of hearing i.e. 5.3.2002. On 5.3.2002 Mr. Himesh Thakur, Advocate appearing for the claimants sought adjournment of the case on the ground that petitioner Thakur Dass was unwell having undergone major operation whereas claimant Anant Ram was not present on account of accident of Rampur-Urthu Bus on 4.3.2002. Again on 27.3.2002 the claimants could not appear before the court nor they could produce their evidence and the learned District Judge granted one more opportunity to them to produce their evidence on their own responsibility on 9.4.2002 subject to payment of Rs. 500/- as costs. Again on 9.5.2002 the claimants did not appear nor any witness was examined by them. The court below concluded that since the claimants have been granted various opportunities to produce their evidence, therefore, no further adjournment was allowed to them nor they paid/deposited the costs of Rs. 500/- imposed upon them on 27.3.2002 as well as prior to the said date. In the result, the reference petition was ordered to be rejected/dismissed in default. 4. It is this order dated 9.5.2002 which is impugned by the petitioner Thakur Dass by way of this Civil Revision Petition before this Court. 5. Have heard learned counsel for the petitioner and Mr. J.S. Guleria, learned Law officer for Land Acquisition Collector and Mr. Vinod Sharma, learned Addl. Central Government standing Counsel for respondent Union of India. The record of the learned District Judge was summoned and examined by me. 6. From the narration of the facts and the perusal of the various orders passed by the learned District Judge, it appears that petitioner Thakur Dass and proforma respondent Anant Ram could not make themselves available for recording their evidence on account of illness and/or accident as stated hereinabove. 6. From the narration of the facts and the perusal of the various orders passed by the learned District Judge, it appears that petitioner Thakur Dass and proforma respondent Anant Ram could not make themselves available for recording their evidence on account of illness and/or accident as stated hereinabove. On two occasions learned counsel representing them also declined to appear on their behalf and as a result thereof they had to engage some other Advocate to represent them in the court. It is not in dispute that the petitioner and proforma respondent could not produce their evidence despite opportunities granted to them by the court below nor they had deposited/paid the costs imposed upon them. 7. The order dated 5.9.2002 impugned before this court cannot sustain on legal ground as the District Judge ought not to have dismissed the reference application for default and he was under legal obligation to decide the reference application on merits in the absence of either party. The law on this point is no longer res-integra. The Supreme Court in Khazan Singh (dead) By LRs Vs. Union of India, (2002) 2 SCC 242 dealing with the provisions of sections 18 and 26 of the land Acquisition Act, 1894 held as under: "Its clear from the provisions of sections 18 and 26 of the Land Acquisition Act 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 does not participate in the inquiry it would only be at his risk because an award would be passed perhaps to the detriment of the party concerned. But non-participation of any party would not confer jurisdiction on the civil court to dismiss the reference for default." 8. In the light of the above said well settled position of law, order dated 9.5.2002 deserves and it is hereby set-aside. The learned District Judge shall restore the reference Application to its original number and decide the same in accordance with law. 9. The Revision petition is accordingly allowed subject to payment of costs of Rs.1000/- by the petitioner Thakur Dass. The learned District Judge shall restore the reference Application to its original number and decide the same in accordance with law. 9. The Revision petition is accordingly allowed subject to payment of costs of Rs.1000/- by the petitioner Thakur Dass. 10.The District Judge shall grant one more opportunity to the petitioner Thakur Dass and proforma respondent Anant Ram to produce their entire evidence either on their own responsibility or after taking the assistance of the court by getting the witnesses served through the court Agency. The costs of Rs. 1000/- imposed by this court upon the petitioner Thakur Dass and costs of Rs. 500/- and Rs. 250/- respectively imposed by the District Judge by orders dated 27.3.2002 and 30.7.2001 if not paid or deposited by the petitioner Thakur Dass before the learned District Judge shall be paid by him on the next date of hearing to the District Attomey/Addl. District Attorney who is representing the Land Acquisition Collector and Union of India before the District Judge. If the costs is not paid by the petitioner Thakur Dass on the next date i.e. on November 30, 2002 on which date the parties are directed to appear before the learned District Judge, the learned District Judge shall proceed with the Reference Application in accordance with law on its own merits without offering further opportunity to the petitioner-proforma respondent for adducing their evidence. If the above said amounts of costs are paid on 30.11.2002 the learned District Judge shall give one more opportunity to the petitioner and proforma respondent to produce their oral and/or documentary evidence on the next date of hearing which shall be fixed by the learned District Judge for recording the evidence. The entire amount of costs imposed upon the petitioner Thakur Dass either by the learned District judge or by this court shall be remitted by the District Attorney/Addl. District Attorney who is representing Land Acquisition Collector and Union of India to the Army welfare Fund of the Defence Ministry. 10. The record of the learned District Judge shall be remitted back by the Registry office immediately.