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Himachal Pradesh High Court · body

2002 DIGILAW 67 (HP)

BHIMU DEVI v. LAND ACQUISITION COLLECTOR

2002-03-21

A.K.GOEL

body2002
JUDGMENT Arun Kumar Goel, J. - Petitioners are aggrieved by the order passed by the learned District Judge, Kinnaur Civil Division at Rampur Bushahr in case No. 21-R/6 of 2001 dated 4.9.2001, whereby reference was rejected for non-payment of costs of Rs. 1000/-. 2. Admitted facts of this case are that Land Reference Case No. 47- R/4 of 2000 was pending before the District Judge, Kinnaur at Rampur Bushahr It was dismissed for default of appearance on 23.7.2001 when no one appeared on behalf of the petitioners. Record of the trial Court that was requisitioned further shows that application was filed for setting aside this dismissal and for restoration of the land reference. This was allowed on 29.8.2001 subject to payment of Rs. 1000/- as costs when reference petition was ordered to be restored. By means of impugned order it is evident that costs were not paid on 4.9.2001, therefore, reference was rejected. Hence the present petition. 3. An argument has been addressed on behalf of respondent No. 2 that this revision is not competent as Order 9 Rule 9 CPC is appealable therefore petitioners ought to have filed an appeal in accordance with the provisions of Order 13 CPC. This argument cannot be accepted for the simple reason that the petitioners are not aggrieved by the order whereby their application for setting aside the dismissal for default was allowed on 29.8.2001. They are aggrieved by the subsequent order of 4.9.2001 when reference was rejected on account of non-payment of costs. 4. Against another contention has been raised on behalf of respondent No. 2 that since reference stands rejected ought to have been filed. This position has been controverted by the learned Senior counsel, as according to him trial Court lacked in inherent jurisdiction to either have dismissed the reference for non-appearance or to have rejected the same on account of non- payment of the costs. Per him in either situation it was bound in law to have answered the reference made to it under Sections 18 of the Land Acquisition Act. There seems to be substance in this submission on behalf of the petitioners. 5. Reference is also made by the learned Senior Advocate to the decisions of this Court in CR No. 4.15 of 2001 Ridkoo Ram v. L.A.C. and another decided on 7.1.2002 CR. There seems to be substance in this submission on behalf of the petitioners. 5. Reference is also made by the learned Senior Advocate to the decisions of this Court in CR No. 4.15 of 2001 Ridkoo Ram v. L.A.C. and another decided on 7.1.2002 CR. No. 405 of 2001 Chattar Singh and others v. LAC and another, decided on 3.1.2002 and C.R. No. 414 of 2001 Satya Devi v. L.A.C. and another, decided on 7.1.2002. In all these three cases facts were almost identical as in the present case. This Court had set aside the orders passed by Reference Court at Rampur Bushahr Besides, this the learned Reference Court below being oblivious of the provisions of Land Acquisition Act appears to have dismissed the land reference in default of appearance as referred to herein above; and then after restoration, it further rejected the same on account of non payment of costs. (Emphasis supplied). 6. While allowing the application on 29.8.2001 trial Court ought to have given sufficient and adequate time to the petitioners to enable them to pay the costs. There were hardly six clear days allowed by it for this purpose. It appears that without realising the ground realities time was given. No doubt expeditious disposal of all matters is to be ensured by all courts, but at the same time it should not be done in the manner as has been done in the present case. 7. So far power of a reference Court is concerned, in law it is duty bound to pass an award in (like the present petitioners), to whom notice regarding reference has been served should be at the risk of such a party. 8. In Khazan Singh (dead) by LRs. v. Union of India, 2002(2) SCC 242 the Supreme Court while dealing with almost identical situation held as under :- "Leave granted. 2. 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. 3. The appellants are the legal heirs of one Khazan Singh. 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. 3. The appellants are the legal heirs of one Khazan Singh. Certain area of land belong 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 landowners. 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 the 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. 4. 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 (the "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. , 5. The 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 the said judgment of the High Court which is now being challenged in this appeal. 6. 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 rejoins on the court to "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 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." 7. 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 party concerned. But non-participation of any party would not confer jurisdiction on the civil Court to dismiss the reference for default. 8. It appears that various High Court have taken the aforesaid view in a number of decisions : Abndul Karim v. State of M.P., Bhadar Munda v. Dhuchua Oraon, Shyam Shankar Sahai v. State of Bihar, Joseph v. Govt. of Kerala and Jogi Sahu v. Collector. 9. In Joseph v. Govt. of Kerala Paripoonam, 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. 10. In Jogi Sahu v. Collector Pasayat, J. (as he then was) further (?) further held that an application for restoration of the reference 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. 11. 11. 10. In Jogi Sahu v. Collector Pasayat, J. (as he then was) further (?) further held that an application for restoration of the reference 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. 11. 11. 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 will now proposed 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." 9. Again faced with this decision learned Additional Central Govt. Standing Counsel submitted that on the doctrine of merger earlier order dated 29.8.2001 merged with the subsequent order of 4.9.2001. According to him the order of 29.8.2001 has not been assailed. As already observed the petitioners are only aggrieved by subsequent order dated 4.9.2001. Therefore, this argument is hereby rejected. In the face of the decision of the Supreme Court in Khazan Singh (dead) by LRs v. Union of India (supra), District Judge had, no option but for answering the reference by making the award whatever way it went. He failed to go by law in passing the impugned order. 10. Even if it be assumed for the sake of argument that against the order dated 4.9.2001 appeal ought to have been filed once it has come to the notice of this Court as noticed hereinabove, then with a view to keep the court below within the bounds of its limits the powers under Article 227 of the Constitution of India need to be invoked. So that the law is followed and the Court below further follows the law of the land under Article 14 of the Constitution of India. 11. No other points is urged. 12. In view of aforesaid discussion, this petition deserves to be allowed and it is ordered accordingly. As a consequence of it order passed by the learned District Judge on 4.9.2001 is hereby set aside. It is directed that the parties through their learned counsel shall appear in the court of learned District Judge at Rampur on 27.4.2002 on or before which date the costs shall also be deposited in the Court and on such deposit being made the reference Court shall disburse the costs to the respondents. It is directed that the parties through their learned counsel shall appear in the court of learned District Judge at Rampur on 27.4.2002 on or before which date the costs shall also be deposited in the Court and on such deposit being made the reference Court shall disburse the costs to the respondents. After restoration of the reference petition to its original number and date, learned District Judged is also directed to dispose of the same in accordance with law as well as per the mandate of the Supreme Court supra. Registry will ensure that the record is transmitted to the trial Court so as to reach well before the date fixed. Costs on the parties. 13. Interim order passed on 4.3.2002 is hereby vacated. 14. Copy of this order will be made available to the learned counsel for the parties on or before 2.4.2002 on payment of usual charges.