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Madhya Pradesh High Court · body

2006 DIGILAW 1138 (MP)

Municipal Corporation, Bhopal v. Mitthulal

2006-09-26

K.K.LAHOTI

body2006
ORDER 1. As a common question of law is involved in both cases (WP No.800/2004 Municipal Corporation, Bhopal v. Mitthulal and others and WP No.2076/2005 Municipal Corporation, Bhopal v. Sunderlal and others), both cases are being decided by this common order and facts are taken from WP No.800/2004 for the convenience. . 2. A short question involved in these petitions for consideration by this Court is whether the award passed by the reference Court under section 18 is sustainable under the law, in which petitioner who was a necessary and interested party was not impleaded and without impleading it, the reference Court has decided the matter. A preliminary objection has been raised by the learned counsel for respondents that the petitioner in place of filing this writ petition ought to have preferred an appeal under section 54 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) and this writ petition is not maintainable. Reliance is placed to a judgment of the Full Bench of this Court in State of M.P. v. Seth Gowardhandas Maheshwari [ 1993 JLJ 280 = 1993 MPLJ 536 ], and it is submitted that this petition may be dismissed or petitioner be directed to file an appeal under section 54 of the Act. 3. Shri Ajay Mishra, learned counsel appearing for the petitioner submits that in this case in view of the specific provisions in section 18 of the Act, petitioner was a necessary party and without impleading or issuing a notice to the petitioner, the reference Court ought not to have decided the matter. Reliance is placed to a judgment of the apex Court in Neelagangabai and another v. State of Karnataka and others [ AIR 1990 SC 1321 ], and submitted that the matter has been decided without impleading the petitioner and this matter may be remitted back to the reference Court for deciding it afresh after affording an opportunity of hearing to the petitioner. In reply to it, Shri Lalwani submits that the award passed by the reference Court falls within the purview of section 2(2) of the Code of Civil Procedure, 1908 and is a decree against which an appeal is provided under section 54 of the Act and without availing remedy of filing an appeal, these petitions cannot be entertained. 4. To appreciate the rival contentions of the parties, some facts may be stated. 4. To appreciate the rival contentions of the parties, some facts may be stated. The petitioner made a proposal for the acquisition of certain lands belonging to the respondents to the Land Acquisition Officer. The proposal of the petitioner was approved and a notification under section 4 (1) read with section 17 (1) of the Act was published in the Gazette of M.P. dated 8.10.1976. Thereafter, another notification under section 6 of the Act was published in the Gazette dated 11.10.1976 and the aforesaid lands were acquired. Thereafter, the Land Acquisition Officer determined the compensation under section 23 of the Act and an award was passed. Aggrieved by the award passed by the Land Acquisition Officer, the respondents made a prayer under section 18 of the Act for referring the case to the civil Court for enhancement and adjudication of the proper compensation. This application was allowed and a statement of the case was made to the civil Court under section 19 of the Act. Before the reference Court, no notice was issued to the petitioner and the reference Court after extending the opportunity of hearing to the respondents and to the State decided the matter by the impugned awards dated 28.11.2003 (Annexure P-1 in WP No.800/2004) and dated 31.7.2004 (Annexure P-1 in WP No.2076/2005) and the compensation has been enhanced. These awards are under challenged in these petitions. 5. To appreciate the contentions of the parties, the procedure for the reference may be seen. After making a statement of the case under section 19 of the Act, matter is to be proceeded under section 20 of the Act. For ready reference, section 20 of the Act reads thus: "Section 20. These awards are under challenged in these petitions. 5. To appreciate the contentions of the parties, the procedure for the reference may be seen. After making a statement of the case under section 19 of the Act, matter is to be proceeded under section 20 of the Act. For ready reference, section 20 of the Act reads thus: "Section 20. Service of notice -- The Court shall thereupon cause a notice specifying' the day on which the Court will proceed to determining the objection, and directing their appearance before the Court on that day, to be served on the following persons, namely: (a) the applicant; (b) all persons interested in the objection, except such (if any) of them as have consented without protest to receive payment of the compensation awarded; and (c) if the objection is in regard to the area of the land or to the amount of compensation, the Collector." The aforesaid provision specifically provides that the Court, after receiving a statement of the case from the Collector concerned, shall cause a notice to all the persons interested in the objection, except such of them as have consented without protest to receive payment of the compensation awarded. Sub-clause (b) of section 20 provides a specific notice to the applicant. Petitioner, who was an interested person in the award, ought to have been noticed by the reference Court after receiving the statement from the Collector. The petitioner Corporation has to satisfy the award and the order of reference by payment of the compensation and ultimately petitioner is an aggrieved and interested person in the proceedings. The - apex Court in Neelagangabai (supra), considering the question held thus: "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. 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 Coutinho (dead) by LRs [ (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 re-open the proceedings in the LA 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." 6. The apex Court has held that the person against whom an award is passed is an interested party and the reference Court ought to have issued a notice to such person. The petitioner herein is also an interested or aggrieved party to whom a notice ought to have been issued by the reference Court. As no notice was issued by the reference Court to the petitioner, petitioner has rightly assailed the aforesaid awards before this Court. The petitioner herein is also an interested or aggrieved party to whom a notice ought to have been issued by the reference Court. As no notice was issued by the reference Court to the petitioner, petitioner has rightly assailed the aforesaid awards before this Court. In view of the law laid down by the apex Court in Neelagangabai (supra), it is held that the petitioner ought to have been served a notice by the reference Court which was mandatory on the part of the reference Court and in absence of this, interest of petitioner has been prejudiced. 7. Now another question whether this petition may be entertained or the petitioner be relegated to file an appeal under section 54 of the Act, may be seen. It is contended that these are the reference cases of 1977 and 1978 and the civil Court has passed the awards in the year 2003 and 2004 and after such a long period these matters should not be remanded and these petitions may be dismissed on the ground of non-filing of the appeal under section 54 of the Act. Reliance is placed to a judgment of the Full Bench of this Court in Seth Gowardhandas (supra), and it is submitted that these petitions are not maintainable. In Seth Gowardhandas (supra), the Full Bench considered the question of payment of court fee on the appeal and cross-objection relating to award of compensation under the Land Acquisition Act and considering this question held that the appellant is liable to pay the court fee on the amount of difference between the amount awarded and the amount claimed by the appellant under section 8 of the Court Fees Act, 1870 and an ad valorem court fee is payable and not fixed court fee. The question was not before the Full Bench whether a writ petition filed by a person who was interested and aggrieved person is maintainable without availing the remedy under section 54 of the Act. A complete answer is found in Neelagangabai (supra), a judgment of the apex Court, in which the apex Court considering the question has decided the law in para 3 of its judgment. 8. In view of the judgment of the apex Court in Neelagangabai (supra), these petitions are found to be maintainable and accordingly these are allowed. A complete answer is found in Neelagangabai (supra), a judgment of the apex Court, in which the apex Court considering the question has decided the law in para 3 of its judgment. 8. In view of the judgment of the apex Court in Neelagangabai (supra), these petitions are found to be maintainable and accordingly these are allowed. Awards passed by the reference Court are hereby set aside and both the matters are remitted back to the reference Court to extend an opportunity of hearing to the petitioner by filing an objection and thereafter matter may be decided afresh in accordance with law. As the matters are old one, it is expected from the reference Court that it shall expedite the hearing of the case and make all endeavour to decide the case expeditiously as far as possible within a period of one year from the date of receipt of the record. The parties present herein are directed to remain present before the reference Court on 20.11.2006 for which date, no fresh notice will be necessary. No order as to costs. ......................